THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 
 ^ Gift Of 
 Benoer-Moss Co.
 
 A TREATISE 
 
 ON 
 
 The Federal Employers 
 
 Liability and Safety 
 
 Appliance Acts 
 
 And on the Federal Statutes on Hours of Labor ^ 
 
 including Interstate Commission's Rules 
 
 and Diagrams for Equipment of Cars 
 
 THIRD EDITION 
 
 BY 
 
 W. W. THORNTON 
 
 Of the Indianapolis Bar, Author of Sherman Anti-Trust 
 Law, Pure Food and Drugs, etc. 
 
 CINCINNATI, OHIO 
 
 THE W. H. ANDERSON CO. 
 
 1916
 
 T 
 
 COPYRIGHT, 1009, 
 BY 
 
 THE W. H. ANDERSON CO. 
 
 COPYRIGHT, 1912, 
 BY 
 
 THE W. H. ANDERSON CO. 
 
 COPYRIGHT, 1915, 
 BY 
 
 THE W. H. ANDERSON CO.
 
 ^^ 
 
 ^ 
 
 PREFACE TO THIRD EDITION. 
 
 It is now more than three years since the last edition of 
 this work was issued. Meantime the courts have been very 
 busy with the statutes lierein treated, especially with the 
 Employers' Liability Act. Over 500 decisions have been 
 decided wherein were construed many of its provisions, of 
 which more than thirty are by the Supreme Court of the 
 United States. A number of very imi3ortant cases have 
 reached the United States Supreme Court, and many im- 
 portant questions in dispute have been settled by that tri- 
 bunal. When the first edition of this work was issued it 
 was a pioneer, and the author often had only his own 
 views to rely upon ; and this was also true in many in- 
 stances when the second edition was given the public. 
 Many of his views have been accepted by the courts — 
 some of them have not. Many questions he never devel- 
 oped in these former editions, because there was nothing 
 suggesting them to him ; but since then the courts have 
 decided many questions not contained in the former edi- 
 tions. It cannot be said, therefore, that even the last 
 edition can be implicitly relied upon ; and for the prac- 
 titioner having a new question that edition is inadequate 
 to meet his needs. It is therefore eminently fit that a new 
 edition be issued to meet the growing demands of the pro- 
 fession. 
 
 Congress has taken over all litigation wherein an em- 
 ployee of an interstate railroad is injured while both he 
 and his employer are engaged in interstate commerce, 
 covering at least eighty percent of railroad employees, and 
 every railroad in the United States; and, strange as it may 
 seem to be, this fact has not found a lodging place in the 
 minds of many attorneys, if the writer may judge from 
 
 iii 
 
 67074G
 
 JV PREFACE TO THIRD EDITION. 
 
 his personal contact with many of them. Many others 
 ■who appreciate the force of the act, are yet unfamiliar 
 ■with its provisions in detail, and the practice under it. 
 The rule of comparative negligence is unfamiliar to a 
 great number of members of the profession. 
 
 There is a small percentage of members of the profes- 
 sion -u'ho think the Federal Supreme Court has broken do"wn 
 to a very considerable extent the force of the statute's pro- 
 visions in its decisions on the doctrine of the assumption of 
 risk wherein it holds that that doctrine, except in two or 
 three instances, is still applicable to interstate employees. 
 That view of these decisions is unwarranted. It is true the 
 doctrine of assumption of risk still applies to such em- 
 ployee, but with no greater force, nor to any greater extent, 
 than it did before the statute was enacted. By the enact- 
 ment of the statute the interstate employee has lost nothing ; 
 but on the contrary he has very materially gained. All 
 that he has to show is that his injury is materially and ap- 
 proximately due the negligence of his employer in order to 
 recover; and he is not charged with the burden to show 
 that his own negligence did not materially contribute 
 thereto. 
 
 The Safety Appliance Acts and even the Hours of Service 
 Act are the handmaids, not to say anything of the Ash Pan 
 Act, of the Employers' Liability Act. These statutes have 
 been included in the present work, and it is believed with 
 decided assistance to the profession. 
 
 There is no volume that brings all these several statutes 
 together, grouping them and the many decisions construing 
 them in a single work. So far as the author knows, no work 
 covers, or pretends to cover, the Safety Appliance and 
 Hours of Service Acts, except a small volume in the way 
 of a digest issued by the Interstate Commerce Commission, 
 a work little known outside the circle of railroad attorneys. 
 
 All decisions concerning the subject-matter of this work 
 j)u]»lislH'd prior to November 1, 1915, the date of going 
 to press, luiv(! been carefully examined, considered and 
 'it'd. W. W. THORNTON. 
 
 hMli;iii;i|tolis. hid., Ndveitiber 1, lillf).
 
 PREFACE TO SECOND EDITION. 
 
 It is now three years since the first edition of this work 
 was issued. The Federal Employes' Liability statute was 
 then less than a year old ; and while there were several 
 decisions construing several provisions of the unconstitu- 
 tional Act of 1906, there was none construing this Act of 
 1908. The ground, therefore, to be ploughed was virgin soil. 
 Since then this Act of 1908 has been before quite a number 
 of courts, whose opinions construing it, in many of its parts, 
 have been published. 
 
 The constitutionality of the Statute has been firmly 
 settled. The only dissenting voice is that of the Supreme 
 Court of Connecticut, whose decision has been very severely 
 criticised by the courts, and in an able report of the Judi- 
 ciary Committee of the Senate of the United States in 1910. 
 The Statute was amended in 1910 in two important in- 
 stances. There is no longer any serious doubt that, under 
 this Statute as amended, state courts now have jurisdiction 
 over actions brought under this statute to recover damages. 
 
 The courts also have fully settled the question that 
 an interstate employee, in suing an interstate railroad com- 
 pany, to recover damages for injuries he has sustained 
 while in the employment of such company, is entitled to 
 bring his action under this Statute, and that such railroad 
 company can not insist its lia^bility shall be measured by 
 a statute of the state wherein the accident occurred. And 
 possibly the courts will hold that such an employee must 
 bring his action under this Statute, and not under a state 
 statute. This question, however, remains to be settled. 
 
 As nearly all of the employees engaged in moving traffic 
 of a railroad company are interstate employees, the im- 
 portance of this Statute is quite manifest to all who are con- 
 cerned in litigation to recover damages for injuries sustained 
 by a railroad employee.
 
 PREFACE TO SECOND EDITION, 
 
 Since this work was first published, there have been many 
 decisions construing the Safety Appliance Act. Its construc- 
 tion has been settled by three decisions of the United States 
 Supreme Court, and its constitutionality determined. Ac- 
 cording to two decisions of that court, this Statute applies 
 to intrastate ears moved in a sepai'ate train over a railroad, 
 which is "a highway of interstate commerce;" and that the 
 Statute, as thus construed, is constitutional. Any one can 
 readily see that this is a far-reaching result in constitutional 
 law. 
 
 A numher of opinions of eourts were inserted in the first 
 edition of this work as unreported decisions or opinions. 
 Since this work was first published most of the opinions 
 have been published in the Federal Reporter, but it has been 
 deemed advisable by the Author to retain these opinions, 
 giving the volume and page of that publication, Avhere they 
 can be found. However, a number of opinions are inserted 
 in this second edition, which have not yet been published, 
 and which probably never will be. The Interstate Com- 
 merce Commission have kindly furnished these to the 
 Author. 
 
 The Federal Statute on hours of labor for interstate em- 
 ployees has been discussed in the last chapter of this work. 
 The decisions construing it are of rather recent date. 
 
 A number of states have adopted statutes A^dping out the 
 defense of contributory negligence, — following the Federal 
 Statute — and the author has collected these in the last ap- 
 pendix to this work. 
 
 The Statute of the United States concerning hours of labor, 
 interstate employees or interstate railroads, is discussed at 
 length. 
 
 W. W. THORNTON. 
 
 Indianapolis, February 1, 1912.
 
 TABLE OF CONTENTS. 
 
 PART I. 
 FEDERAL EMPLOYERS' ACT. 
 
 CHAPTER I. 
 
 Abolition of Fellow Servant Rule. 
 section page 
 
 1. Object and purpose of Act of 1908 1 
 
 2. Rule of fellow servant in European countries 4 
 
 3. Quebec and Mexico 6 
 
 CHAPTER II. 
 
 Constitutionality Statute — Effect on State Legislation. 
 
 4. Power of Congress to increase liabilities of master 7 
 
 5. Authorizing a recovery for negligent act of fellow servant 8 
 
 6. Basis of rule of master's nonliability for negligence of fellow servant . 8 
 
 7. Validity of statute allowing a recovery for an injury occasioned by a 
 
 fellow servant's negligence 11 
 
 8. Validity of statute as to past contracts of employment 14 
 
 9. Limiting statute to employees of railroad companies, Fourteenth 
 
 Amendment 15 
 
 10. VaUdity of statute classifying instrumentalities 18 
 
 11. Power of Congress to enact Statute of 1908 19 
 
 12. Constitutionality of Wisconsin and Nebraska statute 23 
 
 13. Invalidity of Act of 1906 24 
 
 14. The parts of Act of 1906 rendering it void 25 
 
 15. Congress can only legislate concerning interstate business 27 
 
 16. Interrelation of interstate and intrastate commerce as effecting con- 
 
 stitutionality of act 29 
 
 17. Effect of Act of 1908 on state legislation 29 
 
 18. Effect of Act of 1908 on state legislation, continued 31 
 
 19. Result of decisions 34 
 
 20. Effect of repeal of federal statute 36 
 
 21. Must interstate employee bring his action on the statute? 36 
 
 22. Act of 1906, vahdity in District of Columbia and territories 40 
 
 23. Construction of statute 40 
 
 vii
 
 Vlll TABLE OF CONTENTS. " 
 
 SECTION PAGE 
 
 24. State courts must follow federal dcisions — Appeal 42 
 
 25. In paria materia with Safetj' Appliance Acts 42 
 
 CHAPTER III. 
 
 To What Railroads Statute Applies. 
 
 26. Carrier within territories 43 
 
 27. Carriers engaged in interstate commerce 43 
 
 28. Branch railroad 47 
 
 29. Logging railroad 47 
 
 30. Common carriers 49 
 
 31. Cut-off not yet devoted to interstate traffic — Working on bridge. . 50 
 
 32. Interstate train of empty cars broken up and afterwards individual 
 
 cars sent to state points 52 
 
 33. Interurban and street railway com,mon carriers 53 
 
 34. While engaging in interstate commerce between the states 54 
 
 35. Illustrations on interstate commerce transactions 57 
 
 36. Two companies operating over same railroad 59 
 
 37. Lessor and lessee 60 
 
 CHAPTER I\'. 
 To What Employees Statute Applies. 
 
 38. Only liable to its own employees 61 
 
 39. What employee may bring his action upon the statute 62 
 
 40. Test of employee's right to recover 69 
 
 41. Effect on the course and current of interstate commerce— Instru- 
 
 mentalities of interstate commerce 70 
 
 42. Work must be so closely connected with interstate commerce as to 
 
 be part of it 71 
 
 43. Intent to engage in interstate commerce in the future 71 
 
 44. Incidental absence from scene of work 72 
 
 45. Repairing instrumentalities of interstate commerce 72 
 
 46. Original construction of interstate commerce instrumentalities 74 
 
 47. Impeding the progress of interstate commerce 75 
 
 48. Track repairer 76 
 
 49. Statute includes everybody Congress could include; same person 
 
 in different capacities; track repairer; telegraph operator 78 
 
 50. Car repairer in switching yard 80 
 
 51. Laying additional track on bridge; injury by interstate train 82 
 
 52. Loading niilroad iron rail.s — Burden 82 
 
 53. "While" railroad was "engaging in" interstate commerce 83 
 
 54. When an employee enters on his work, or is entitled to the protection 
 
 of the Btatute 85
 
 TABLE OF CONTENTS. IX 
 
 SECTION PAGE 
 
 55. When employee enters on interstate work 88 
 
 56. Injured servant employed in both interstate and intrastate com- 
 
 merce 91 
 
 57. Employees covered by statute 93 
 
 58. Other employments incidentally connected with interstate trans- 
 
 portation 94 
 
 59. Working on bridge — Repairing telegraph lines— Installing block 
 
 system 98 
 
 60. Employees repairing interstate instrumentalities are covered by 
 
 statute : 100 
 
 61. Going to and from work 101 
 
 62. Pullman car employees — Express agent — Railroad surgeon's n)al- 
 
 practice 102 
 
 63. Cases holding employee not engaged in interstate commerce when 
 
 injured 105 
 
 64. Switching crew moving interstate commerce— Intention to im- 
 
 mediately move interstate commerce 108 
 
 65. Relation between the employment and the accident 109 
 
 66. Who must inflict injury to render railway company liable Ill 
 
 67. Interstate employee injured by negligence of interstate employee. . Ill 
 
 68. Nebraska statute 116 
 
 69. Validity of statute allowing a recovery for an injury occasioned by 
 
 an interstate employee 117 
 
 70. Interstate engineer of interstate railroad hauling intrastate train — 
 
 Going to work 125 
 
 CHAPTER V. 
 
 Contributory and Comparative Negligence. 
 
 71. Contributory negligence — Statute 129 
 
 72. Contributory negligence as a defense 130 
 
 73. Contributory neghgence defined 131 
 
 74. Common-law rule of contributory negligence preventing a recovery. 131 
 
 75. Definitions of degrees of negligence 132 
 
 76. Comparative negligence 133 
 
 77. Origin of rule of comparative negligence 133 
 
 78. Georgia statutes 134 
 
 79. Differs from federal statute 135 
 
 80. Georgia statutes construed 136 
 
 81. Contributory negligence of plaintiff before defendant's negligence 
 
 began 138 
 
 82. Burden on plaintiff to show freedom from his own fault 140 
 
 83. Charge to jury under Georgia Code 141 
 
 84. Recovery by a railway employee 142
 
 X TABLE OF CONTENTS. 
 
 SECTION PAGE 
 
 85. Widow recovering for death of her husband — Georgia statute — 
 
 Contributory negligence of deceased 142 
 
 86. Apportionment of damages 143 
 
 87. Epitome of Georgia cases 144 
 
 88. Comparative negligence in Illinois 148 
 
 89. Negligence a relative term 150 
 
 90. Illinois rule extended 151 
 
 91. Ordinary care wanting — Plaintiff's negligence slight 151 
 
 92. Want of ordinary care defeats a recovery 153 
 
 93. Failure to exercise ordinary care more than slight negligence 155 
 
 94. Ordinary and slight negligence in their popular sense 155 
 
 95. Mere preponderence of defendant's negligence not sufGcient — 
 
 Defendant's clearly exceeding plaintiff's negligence 156 
 
 96. Gross and shght neghgence distinguished 157 
 
 97. Plaintiff's negligence compared with defendant's 159 
 
 98. Plaintiff's neghgence compared with defendant's 162 
 
 99. Willful injury by defendant — Slight negligence of plaintiff 164 
 
 100. Mere preponderence of negligence against defendant not suflBcient. . 164 
 
 101. Jury must compare the negligence of the defendant with that of the 
 
 plaintiff 165 
 
 102. Instructions must require comparison 165 
 
 103. Illustration — Engine striking hand car — Unlawful speed 166 
 
 104. Illustration — Mail crane striking fireman 166 
 
 105. Admiralty suits — Apportionment of damages 167 
 
 106. Origin of admiralty rule 169 
 
 107. Rule in admiralty commended 171 
 
 108. Difficulty of apportioning damages 172 
 
 109. Assumption of risk 173 
 
 110. Contributory negligence does not prevent a recovery— How damages 
 
 are apportioned 173 
 
 111. Negligence of plaintiff necessarj' to concur with defendant's to pro- 
 
 duce the injury 175 
 
 112. Court cannot lay down exact rules for apportionment of damages. . . 175 
 
 113. Statute does not adopt a theory of slight, ordinary and gross negli- 
 
 gence 177 
 
 114. Directing the verdict — Due care 177 
 
 115. Court telling jury particular acts constitute contributory negligence. 179 
 
 116. Rules of contributory negligence must be considered 180 
 
 117. Injury occasioned by defendant having violated a safety device 
 
 statute 180 
 
 118. Presenting the defense of contributory negligence — Burden ISO 
 
 119. When contributory negligence docs not diminish damages 182 
 
 120. Examples under Wisconsin statute 182 
 
 121. Practice under Wisconsin statute 197
 
 TABLE OF CONTENTS. XI 
 
 CHAPTER VI. 
 
 Assumption of Risk, 
 section page 
 
 122. Federal statute — Assumption of risk 198 
 
 123. Exceptions— Statute 198 
 
 124. Distinction between assumption of risk and contributory negligence — 
 
 Unknown risk 199 
 
 125. To what "statute" reference is made 200 
 
 126. Assumption of risk only abolished in part 202 
 
 127. The Horton case as an example of assumption of risk — Instructions. 205 
 
 128. Violation of federal statute enacted for safety of employees 207 
 
 129. Negligence of carrier as a fellow servant 208 
 
 130. Defective cars, engines, tracks and appliances 210 
 
 131. Question of risk assumed 211 
 
 CHAPTER VII. 
 Death by Wrongful Act. 
 
 132. Statute 213 
 
 133. Beneficiary or widow cannot maintain action 214 
 
 134. How question raised that administrator must sue 214 
 
 135. Judgment under state statute or at common law as a bar to action 
 
 under federal statute 215 
 
 136. Substituting administrator for beneficiary in action brought by 
 
 latter — Statute of limitations 215 
 
 137. Action by foreign personal administrator 217 
 
 138. No action at common law 217 
 
 139. Constitutionality of statute allowing recovery for beneficiary 218 
 
 140. Deceased without right to recover 218 
 
 141. Failure of deceased to bring action 219 
 
 142. Instantaneous death 219 
 
 143. Survival of injured employee's cause of action 219 
 
 CHAPTER VIII. 
 
 Beneficiaries. 
 
 144. Statute 221 
 
 145. Order in which beneficiaries entitled to recover benefits 221 
 
 146. No beneficiary in existence or designated by the statute 222 
 
 147. Separation of deceased employee and his wife — Steps towards secur- 
 
 ing a divorce 223 
 
 148. No husband or widow surviving 223 
 
 149. Next of kin dependent on employee 223
 
 Xll TABLE OF CONTENTS. 
 
 SECTION PAGE 
 
 150. Next of kin determined by state statute 225 
 
 151. Who are dependent on deceased 226 
 
 152. Bastard 227 
 
 153. Emancipated child 228 
 
 154. Adopted child 228 
 
 155. Posthumous child 228 
 
 156. Beneficiaries must survive deceased — Complaint 228 
 
 157. E.xistence of a beneficiary a jurisdictional fact 229 
 
 158. Statute of limitations 230 
 
 159. Who brings action in case of death 233 
 
 160. Judgment recovered by deceased 233 
 
 161. Costs 234 
 
 162. Suit by poor person 234 
 
 163. Death of beneficiary 234 
 
 164. Declarations of deceased 235 
 
 164a. Ahen beneficiarj' 235 
 
 CHAPTER IX. 
 
 Damages. 
 
 165. Caution to be observed in construing statute before and after 
 
 amendment of 1910 236 
 
 165a. Federal statute controls measure of damages 236 
 
 166. Emploj'ee recovers actual but not punitive damages 237 
 
 167. Fatal injury before the amendment of 1910 237 
 
 168. Pecuniarj- damages only given to beneficiary 239 
 
 169. Pecuniary loss defined 240 
 
 170. Rule for measurement of damage differs according to relation of 
 
 beneficiary 242 
 
 171. Damages by way of solatium 243 
 
 172. Minor child's damages 244 
 
 173. Measure of damages 245 
 
 174. Use of annuity tables 250 
 
 175. Interest 250 
 
 176. Damages not part of estate 250 
 
 177. Amount of damages — Illustrations 251 
 
 178. Contributory negligence reducing the amount of recovery 253 
 
 178a. Instructions on contributory negligence, reducing damages other- 
 wise recoverable 256 
 
 179. Apportionment of damages among the beneficiaries 258 
 
 180. Distribution of proceeds of judgment 259 
 
 181 . Survival of action 259 
 
 182. Damages recovcr.ihlf! wlien there is a survival of deceased's right 
 
 of action ... 262
 
 TABLE OF CONTENTS. XIU 
 
 CHAPTER X. 
 
 Release of Claim of Damages, 
 section page 
 
 183. Statute 265 
 
 184. What contracts of release are forbidden 265 
 
 185. Constitutionality of section five 267 
 
 186. Receipt of relief money 272 
 
 187. Contract for future release not binding on beneficiaries 273 
 
 188. Release by beneficiary 273 
 
 CHAPTER XI. 
 In What Courts Suit JNIay Be Brought. 
 
 189. Plaintiff may bring suit in federal court 275 
 
 190. Jurisdiction of state courts 276 
 
 191. Congress conferring jurisdiction on a state court 280 
 
 192. Removal of case to federal court 287 
 
 193. Joinder of action under federal statute and a common law action. . . 288 
 
 194. Where actions must be brought 289 
 
 CHAPTER XII. 
 Pleading and Practice. 
 
 195. Neghgence of interstate carrier basis of action — Two branches of 
 
 statute 290 
 
 196. Wilful injury 292 
 
 197. No new right given employee 292 
 
 198. New cause of action created for beneficiaries 293 
 
 199. Local practice controls 293 
 
 200. Complaint or petition by employee 294 
 
 201. Allegations plaintiff and defendant engaged in interstate commerce. 297 
 
 202. Complaint for beneficiaries 301 
 
 203. Joinder of causes of action 304 
 
 204. Requiring plaintiff to elect 305 
 
 205. Amendment of complaint to fit evidence — Statute of limitations. . . . 306 
 
 206. Substituting the personal representative of deceased for beneficiary — 
 
 Statute of limitations 309 
 
 207. By what law sufficiency of complaint tested 310 
 
 208. Defense is governed by federal statute 310 
 
 209. Pleading a defense — Contributory negligence 311 
 
 210. Answer of statute of limitations 312 
 
 211. Venue 312 
 
 212. Variance 313
 
 XIV TABLE OF CONTENTS. 
 
 SECTION PAGE 
 
 213. Notice of injury received 314 
 
 214. Dismissed — Nonsuit — Directing verdict 314 
 
 215. Evidence — Burden 315 
 
 216. Competency of witness 317 
 
 217. Instructions 317 
 
 218. Question for jury — Damages 319 
 
 CHAPTER XIII. 
 Appeal and Writ of Error. 
 
 219. On appeal from federal court 320 
 
 220. Appeal from state court to Federal Supreme Court 320 
 
 221. How question raised to secure right of appeal 322 
 
 222. What questions can and cannot be faised on appeal 324 
 
 223. Amount in controversy 325 
 
 224. Penalty assessed against appellant 325 
 
 224a. Remittitur of excessive damages 325 
 
 PART II. 
 
 SAFETY APPLIANCE ACTS. 
 
 CHAPTER XIV. 
 
 Origin, Object, Constitutionality and Interpretation of Statute. 
 
 225. Origin of safety appliance act 329 
 
 226. Resolution of American Railway Association 332 
 
 227. Object of statute — Construction 332 
 
 228. Constitutionality of statute 334 
 
 229. Federal control of interstate commerce 337 
 
 230. Interpretation of statute 339 
 
 231. State legislation concerning safety appliances 340 
 
 232. Common carrier and railroad defined 344 
 
 CHAPTER XV. 
 Use In Interstate Traffic. 
 
 233. \\'hat is interstate commerce — Test 346 
 
 234. What is interstate commerce 347 
 
 235. Illusf rations of interstate commerce 349 
 
 2.'»6. Inlfrfcrritorial commerce — .\ct of 1903 351 
 
 237. L'.sc of car forbidden 351
 
 TABLE OF CONTENTS. XV 
 
 SECTION PAGE 
 
 238. "Haul", "used" and "train" defined 353 
 
 239. Inhibition of statute — Car employed in interstate traflSe 354 
 
 240. Car in use, what is 356 
 
 241. Empty car in interstate train 356 
 
 242. Hauling or using car not loaded with interstate traffic in interstate 
 
 train 357 
 
 243. Interstate car on interstate railroad 358 
 
 244. Transportation of articles of interstate commerce for an independent 
 
 express company 362 
 
 245. Distance defective car hauled 364 
 
 246. Switching car 365 
 
 247. Belt railroad— Terminal road 367 
 
 248. Car on spur track 368 
 
 249. "Used in moving interstate traffic" — Sending car to repair shop — 
 
 IMaking up train 369 
 
 250. Hauling car not essential to commission of offense — Use of car 370 
 
 251. Car not used in interstate commerce 371 
 
 252. Interstate car in "connection" with intrastate car 371 
 
 253. Use of car in interstate commerce 373 
 
 254. Temporary suspension of transportation 374 
 
 255. Permitting cars to be hauled over its lines 374 
 
 256. Defendant hauling car over another company's line of railway 375 
 
 257. Freight designed for another state — Not yet left the first state 376 
 
 258. Intrastate traffic — Narrow gauge railroad wholly within state 376 
 
 259. Intrastate railroad engaged in carrying interstate commerce articles. 378 
 
 260. United States against Geddes denied 380 
 
 261. Effect of the case of Southern Railway Co. against United States on 
 
 Geddes and Colorado cases 390 
 
 262. Burden — Reasonable doubt 392 
 
 CHAPTER XVI. 
 
 Cars and Their Eyuipment. 
 
 263. What is a "car" Vv'ithin the meaning of the statute 395 
 
 264. Electric cars 398 
 
 265. Empty car — Car used in moving interstate commerce 398 
 
 266. Empty car used in interstate commerce 399 
 
 267. Proviso to Section 6 — Four-wheeled and logging cars 400 
 
 268. Kind of couplers to be used 400 
 
 269. "Without the necessity of men going between the ends of cars". . . . 405 
 
 270. Both ends of every car must be equipped with automatic couplers. . 407 
 
 271. Uncoupling 408 
 
 272. Erroneous instructions concerning height of draw bars 408 
 
 273. Construction of Section 5 409
 
 XVI TABLE OF CONTENTS. 
 
 SECTION PAGE 
 
 274. InsufBcient operation of coupler 410 
 
 275. Improper operation of sufficient coupler 410 
 
 276. Preparation of coupler for coupling 411 
 
 277. "M. C. B. defect card" 411 
 
 278. Receiving an improperly equipped foreign car 411 
 
 279. Question for jury 412 
 
 280. When a federal question is presented 412 
 
 281. State statute on same subject applicable to intrastate commerce. . . . 414 
 
 282. Handholds— Through trains 414 
 
 283. Handholds on roof of car — Sill steps — Handbrakes — Ladders — Run- 
 
 ning boards 415 
 
 284. Air hose, coupling chain and apphances obviating necessity for hand- 
 
 holds 416 
 
 285. What is and is not a handhold a question for the jury — Expert testi- 
 
 mony — Personal examination by jury 416 
 
 CHAPTER XVII. 
 Repairs. 
 
 286. Degree of diligence to make repairs 418 
 
 287. Use of diligence to discover defects— Want of knowledge of defect . . 420 
 
 288. Duty to maintain car in repair is an absolute one 422 
 
 289. Presumption — Diligence to discover defects and make repairs in 
 
 transit 426 
 
 290. Distinction between an action to recover a penalty and to recover 
 
 damages 435 
 
 291. Cars in transit — Construction of statute 435 
 
 292. Hauling car to nearest repairing point 441 
 
 293. Destination of car nearer than repair shop 444 
 
 294. Removal from a repair point without statutorj- repairs Vjeing made . . 445 
 
 295. Repairing cars in transit 446 
 
 296. Repairs during journey 449 
 
 297. Establishing repair shops and material 449 
 
 298. Knowledge of defect not an element of offense 449 
 
 299. Failure to provide or repair defective handhold 451 
 
 300. Burden to show right to remove car 453 
 
 301. Use of "shims" — Common-law duty of master not applicable — 
 
 Fellow servant's neglect — Construction of statute — Handgrips. . 455 
 
 302. Pvepairirig couplers — Other act of negligence aiding negligence with 
 
 reference to couplers 457 
 
 303. Failure to equip train with brakes 458 
 
 303a. Air brakes on tran.sfer trains from one yard to* another — "Train" 
 
 defined 462 
 
 30.')b. Trains tocj long to operate with air brakes 466
 
 TABLE OF CONTENTS. XVll 
 
 CHAPTER XVIII. 
 
 Negligent Injury, 
 section page 
 
 304. Use of car without automatic coupler is negligence per se 467 
 
 305. Failure to equip car a continuing negligence 467 
 
 306. Who may bring action to recover damage — What employees are 
 
 engaged in interstate commerce 468 
 
 307. Proximate cause of injury 469 
 
 308. Assumption of risk 471 
 
 309. Contributory negligence of plaintiff 477 
 
 310. Contributory negUgence does not defeat the action 485 
 
 311. Two acts of negligence combining to produce injury 486 
 
 312. State courts may enforce liability for negligence incurred under 
 
 statute 487 
 
 313. Removal of case to federal court 488 
 
 314. Judicial notice 489 
 
 315. Pleading 489 
 
 316. Validity of section concerning release from liability 491 
 
 317. Statute of limitations 491 
 
 CHAPTER XIX. 
 
 Action to FiEcover Penalty. 
 
 318. "Suits"— Criminal offense — Presumption of innocence — Burden — 
 
 Reasonable doubt 492 
 
 319. Action to recover penalty not a criminal action 492 
 
 320. Joint action 494 
 
 321. Government's petition 494 
 
 322. Sufficiency of proof — Burden 495 
 
 323. E.xpert testimony 498 
 
 324. Defendant relying on exceptions in proviso of acts 498 
 
 325. Jury trial 498 
 
 326. Directing the verdict 499 
 
 327. Amount of penalty 500 
 
 328. Penalty for failure to equip with grabirons 501 
 
 329. Writ of error 503 
 
 330. Twice in jeopardy 504 
 
 CHAPTER XX. 
 Hours of Labor. 
 
 331. Statutory provisions 505 
 
 332. Constitutionalitv of statute 506
 
 XVUl TABLE OF CONTENTS. 
 
 SECTION PAGE 
 
 333. Validity of state statute covering the subject of federal statute .... 508 
 
 334. Power of interstate commerce commission to require reports — 
 
 Validity of statute 510 
 
 335. Remedial — Purpose of act 512 
 
 336. Liability absolute — Permit — Voluntary action on part of employee. . 513 
 
 337. Statute liberally construed 513 
 
 338. Analogous to other remedial statutes 514 
 
 339. Inability of carriers to compel employees to act 514 
 
 340. Scope of act 514 
 
 341. Employees subject to act 515 
 
 342. "Other employee" as used in proviso of Section 2 515 
 
 343. "On duty" and "off duty" as defined by the act 516 
 
 344. Casualty or unavoidable accident— Act of God 517 
 
 345. Period of consecutive hours 519 
 
 346. Hours of employment — Inspection of engine by engineer 521 
 
 347. Deducting time lost by failure of locomotive to get up steam — Bad 
 
 coal 522 
 
 348. Deducting time lost by hot boxes 522 
 
 349. Time lost by side tracking — Deducting 523 
 
 350. Time train delayed cannot be deducted from period of time of service. 523 
 
 351. Delay in starting caused by another train 524 
 
 352. Comminghng of intrastate and interstate duties 524 
 
 353. Fireman or other employee engaged. in watching engine 525 
 
 354. "Consecutive" — "Continuous" — Unbroken intervals of time 527 
 
 355. Proviso to Section 2 — Towers — Places — Stations 530 
 
 356. Orders 531 
 
 357. Office "continuously operated," or "operated only during the day- 
 
 time" 531 
 
 358. Period as used in statute 533 
 
 359. Towerman and switchtender using telephone 533 
 
 360. Operator at local stations 533 
 
 361. Emergency — Week 533 
 
 362. Provisos of Section 3 — Casualty — Unavoidable accident 534 
 
 363. Terminal as used in act defined 535 
 
 364. Suspension of operation of statute for a given trip 536 
 
 365. Occurrence of conditions ordinarily expected 537 
 
 366. Sudden illness of operator 538 
 
 367. Economical reasons 539 
 
 368. Action to recover penalty — Civil action — Pleadings 539 
 
 369. Defense 539 
 
 369a. Injury to employee — Right of action 539 
 
 370. Liability to pa.ssenger for delay 540 
 
 .371. Penalty, measure -Fixing 540 
 
 372. Question for jury 541 
 
 373. Reports to interstate commerce commission 541
 
 TABLE OF CONTENTS. XIX 
 
 APPENDIX A. 
 
 PAGE 
 
 Employers' Liability Acts 545 
 
 Poor person 549 
 
 Employees of United States 549 
 
 Granting to certain employees of the United States the right to receive from 
 it compensation for injuries sustained in the course of their employ- 
 ment 552 
 
 Accident Reports Act 555 
 
 .Medals of Honor Act 556 
 
 APPENDIX B. 
 
 Report of House Judicial Committee on Federal Employers' Liability 
 
 Act 557 
 
 House Report on Amendments of 1910 570 
 
 Senate Report on Amendments of 1910 576 
 
 APPENDIX C. 
 English Employers' Liability Act 599 
 
 APPENDIX D. 
 
 Safety Appliance Acts 602 
 
 Ladders, Handbrakes, Handholds 606 
 
 Order of the Interstate Commerce Commission Increasing the Minimum 
 
 Percentage of Brakes 610 
 
 Order of Interstate Commerce Commission on the Standard Height of 
 
 Drawbars 611 
 
 Order of Interstate Commerce Commission Designating the Number, 
 Dimensions, Location and Manner of Appliances of Certain 
 
 Safety Appliances 612 
 
 Order of Interstate Commerce Commission Extending the Period Within 
 Which Common Carrier Shall Comply Vv^ith Safety Appliance 
 
 Acts 660 
 
 Boiler Inspection Law 683 
 
 Boiler Inspection — Amendatory Act 689 
 
 APPENDIX E. 
 
 Ash Pans 690
 
 XX TABLE OF CONTENTS. 
 
 APPENDIX F. 
 
 PAGE 
 
 Hours of Labor for Railroad Men 692 
 
 Reports of Railroads to Interstate Commerce Commission 695 
 
 Orders of the Interstate Commerce Commission Concerning Hours of 
 
 Service 696 
 
 Administrative Rulings of the Interstate Commerce Commission 698 
 
 APPENDIX G. 
 
 Decisions Unreported Under the Safety Appliance Acts 703 
 
 APPENDIX H. 
 Decisions Under the Hours of Service Act 918 
 
 APPENDIX I. 
 Boiler Inspection — Amendatory Act 963
 
 TABLE OF CASES. 
 
 [References are to pages.] 
 
 Abel V. Northampton, etc., Co. (212 
 
 Pa. St. 329; 61 Atl. 915), 223. 
 Ableman v. Booth (21 How. 506; 
 
 62 U. S. 169), 590. 
 Ackerson v. Dennison (117 Mass. 
 
 407), 11. 
 Adair v. United States (208 U. S. 161; 
 
 28 Sup. Ct. 277; 52 L. Ed. 436, 
 
 reversing 152 Fed. 737), 22, 334, 
 
 335. 
 Adams v. Northern Pac. R. Co. (95 
 
 Fed. 938), 273. 
 Agnew V. United States (165 U. S. 50; 
 
 17 Sup. Ct. 235; 41 L. Ed. 624), 
 
 431. 
 Akeson v. R. Co. (106 Iowa, 54; 75 
 
 N. W. 676), 19. 
 Alabama, The (92 U. S. 695; 23 L. 
 
 Ed. 763, reversing 11 Blatchf. 482; 
 
 Fed. Cas. No. 123), 172. 
 Alabama, etc., R. Co. v. Coggins 
 
 (88 Fed. 455; 32 C. C. A. 1), 144. 
 Alexandria, The City of (17 Fed. 
 
 390), 167. 
 Alfson V. Bush Co. (182 N. Y. 393; 
 
 75 N. E. 230), 223. 
 Allen V. Tuscarora Valley R. Co. 
 
 (229 Pa. St. 97; 78 Atl. 34; 30 
 
 L. R. A. (N. S.) 1096; 140 Am. 
 
 St. 714), 295, 297. 
 Aluminum Co. v. Ramsey (32 Sup. 
 
 Ct. 76), 17. 
 America, The (92 IT. S. 432), 168. 
 American Bridge Co. v. Peden (129 
 
 Fed. 1004; 64 C. C. A. 581), 490. 
 
 American Ins. Co. v. Canter (1 Pet. 
 
 511, 544; 7 L. Ed. 242), 284. 
 American R. Co. v. Birch (224 U. S. 
 
 547; 32 Sup. Ct. 603; 56 L. Ed. 
 
 879), 43, 201, 214, 233, 243, 246, 
 
 249, 319. 
 American R. Co. v. Didricksen (227 
 
 U. S. 145; 33 Sup. Ct. 224; 57 
 
 L. Ed. 456, reversing 5 Porto Rico, 
 
 401, 427), 43, 217, 222, 224, 230, 
 
 239, 240, 242, 248, 250, 260, 338. 
 Americus v. Johnson (2 Ga. App. 
 
 378; 58 S. E. 518), 145. 
 Americus, etc., Ry. Co. v. Luckie 
 
 (87 Ga. 6; 13 S. E. 105), 139, 141, 
 
 144. 
 Anderson v. Louisville & N. R. Co. 
 
 (210 Fed. 689), 312. 
 Anderson v. The Ashebrooke (44 Fed. 
 
 124), 167. 
 Andrews v. Hartford, etc., R. Co. 
 
 (34 Conn. 57), 232. 
 Anthony, etc., Co. v. Ashby (198 
 
 111. 562; 64 N. E. 1109), 248. 
 Ariadne, The (13 Wall. 475; 20 
 
 L. Ed. 542, reversing 7 Blatchf. 
 
 211; Fed. Cas. No. 525), 167. 
 Armbruster v. Chicago R. I. & P. 
 
 Ry. Co. (Iowa) (147 N. W. 337), 
 
 35, 41, 42, 96, 305. 
 Armitage v. Lancashire & G. N. 
 
 Co. (4 Minton-Senhose Workmen's 
 
 Compensation Cases, 5), 110. 
 Asbell V. Kansas (209 U. S. 251; 28 
 
 Sup. Ct. 485; 52 L. Ed. 778), 342. 
 Asbestos, etc., Co. v. Durand (30 
 
 Can. S. C. 285). 6. 
 
 XX i
 
 XXll 
 
 TABLE OF CASES. 
 
 [References are to pages. 
 
 Atchison, etc., R. Co. v. Fajardo 
 
 (74 Kan. 314; 86 Pac. 301), 223. 
 Atchison, etc., Ry. Co. v. Feehan 
 
 (149 111. 202; 36 N. E. 1036), 134. 
 Atchison, etc., R. Co. v. Henry 
 
 (57 Kan. 154; 45 Pac. 576), 133, 
 
 134. 
 Atchison, etc., Ry. Co. v. Mills 
 
 (49 Tex. Civ. App. 349; 108 S. W. 
 
 480; 53 Tex. Civ. App. 359; 116 
 
 S. W. 852), 27, 40, 317. 
 Atchison Ry. Co. v. Calhoun (213 
 
 U. S. 1), 853. 
 Atchison, T. & S. F. Ry. Co. v. 
 
 Pitts (Okla.) (145 Pac. 1148), 106. 
 Atchison, T. & S. F. R. Co. v. United 
 
 States (172 Fed. 1021; 96 C. C. A. 
 
 664), 421, 426. 
 Atchison, T. & S. F. Ry. Co. v. United 
 
 States (172 Fed. 194; 96 C. C. A. 
 
 646), 468, 471, 493, 500, 501. 
 Atchison, T. & S. F. Ry. Co. v. United 
 
 States (177 Fed. 114; affirmed 220 
 
 U. S. 37; 30 Sup. Ct. 362; 55 
 
 L. Ed. 361), 521. 
 Atchison, T. & S. F. R. Co. v. United 
 
 States (178 Fed. 12; 101 C. C. A. 
 
 140), 540. 
 Atchison, T. & S. F. Ry. Co. v. United 
 
 States (198 Fed. 637; 117 C. C. A. 
 
 341), 365, 410, 465. 
 Atchison, T. & S. F. R. Co. v. Wilson 
 
 (48 Fed. 57; 1 C. C. A. 25; 4 
 
 U. S. App. 25), 241. 
 Atkins v. BuUard (Ga. App.) (80 
 
 S. E. 220), 295, 304. 
 Atlanta v. Harper (129 Ga. 415; 
 
 59 S. E. 230), 146. 
 Atlanta, etc., R. Co. v. Ayers (53 
 
 Ga. 12), 143, 146. 
 Atlanta, etc., R. Co. v. Loftin (86 
 
 Ga. 43; 12 S. E. 186), 144. 
 Atlanta, etc., R. Co. v. O'Neil (127 
 
 Ga. 685; 56 S. E. 986), 145. 
 
 Atlanta, etc., R,y. Co. v. Weaver (121 
 
 Ga. 466; 9 S. E. 291), 147. 
 Atlanta, etc., R. Co. v. Wyly (65 
 
 Ga. 120), 143. 
 Atlanta, K. & N. Ry. Co. v. Gardner 
 
 (122 Ga. 82; 49 S. E. 818), 140. 
 Atlantic Coast Line R. Co., Ex parte 
 
 (Ala.) (67 So. 250), 36, 304, 305. 
 Atlantic Coast Line R. Co. (Ala.) 
 
 (60 So. 693), 68. 
 Atlantic Coast Line R. Co. v. Finn 
 
 (195 Fed. 685), 266. 
 Atlantic Coast Line R. Co. v. Jones 
 
 (9 Ala. App. 499; 63 So. 693), 
 
 41, 68, 76, 92, 103, 304. 
 Atlantic Coast Line R. Co. v. Jones 
 
 (Ala. App.) (67 So. 632), 36. 
 Atlantic Coast Line R. Co. v. Reaves 
 
 (208 Fed. 141; 125 C. C. A. 599), 
 
 69, 301. 
 Atlantic Coast Line v. Riverside 
 
 Mills (219 U. S. 186; 31 S. C. 164; 
 
 55 L. Ed. 167; 31 L. R. A. (N. S.) 
 
 7, affirming 168 Fed. 990), 267, 
 
 491. 
 Atlantic Coast Line R. Co. v. United 
 
 States (168 Fed. 175, 184; 94 C. 
 
 C. A. 35, affirming 153 Fed. 918), 
 
 333, 335, 340, 421, 425, 470, 472, 
 
 493, 494, 495, 500, 503, 886. 
 Atlantic Coast Line R. Co. v. 
 
 Wharton (207 U. S. 328; 28 Sup. 
 
 Ct. 121; 52 L. Ed. 230), 21, 340. 
 Atlantic Coast Line R. Co. v. Whit- 
 ney (63 Fla. 124; 56 So. 937), 
 
 105, 107, 276, 426. 
 Atlee V. Packet Co. (21 Wall. 389; 
 
 22 L. Ed. 619, reversing 2 Dill, 479; 
 
 Fed. Cas. No. 10341), 167, 172. 
 Attorney-General v. Railroad Cos. 
 
 (35 Wis. 425), 12. 
 Augusta, etc., R. Co. v. Killian (79 
 
 Ga. 236; 4 S. E. 164), 143, 144.
 
 TABLE OF CASES. 
 
 XXIU 
 
 [References are to pages.^ 
 
 Augusta, etc., R. Co. v. McElmurry 
 
 (24 Ga. 75), 146. 
 Augusta, etc., R. Co. v. Snider (118 
 
 Ga. 146; 44 S. E. 1005), 147. 
 Augusta S. R. Co. v. Wrightsville & 
 
 T. R. Co. (74 Fed. 522), 58. 
 
 B 
 
 B. & C, The (18 Fed. 543), 168. 
 Bacon v. Illinois (227 U. S. 504; 33 
 
 Sup. Ct. 299; 57 L. Ed. 615), 49. 
 Baird v. Northern Pac. R. Co. (78 
 
 Wash. 67; 138 Pac. 325), 104. 
 Baker v. Bolton (1 Campb. 493), 217. 
 Baltimore & O. Ry. Co. v. Collins 
 
 (30 Ohio Cir. Ct. App. 110), 519, 
 
 540. 
 Baltimore & O. R. Co. v. Interstate 
 
 Commerce Commission (221 U. S. 
 
 612; 31 Sup. Ct. 621; 55 L. Ed. 
 
 878), 267, 506, 507, 508, 512, 514, 
 
 515, 525, 907, 921, 939. 
 Baltimore & O. R. Co. v. Joy (173 
 
 U. S. 226, 230), 575, 597. 
 Baltimore & O. R. Co. v. Miller (Ind.) 
 
 (107 N. E. 545), 267. 
 Baltimore & O. R. Co. v. Whitacre 
 
 (124 Md. — ; 92 Atl. 1060), 41, 
 
 69, 72, 101, 203, 204, 292, 315. 
 Baltimore, etc., R. Co. v. Baldwin 
 
 (144 Fed. 53), 223. 
 Baltimore, etc., R. Co. v. Colvin 
 
 (118 Pa. St. 230; 12 Atl. 337; 
 
 20 W. N. C. 531), 11. 
 Baltimore, etc., R. Co. v. Holtman 
 
 (25 Ohio C. C. 140), 274. 
 Baltimore, etc., R. Co. v. Voight 
 
 (176 U. S. 498; 44 L. Ed. 560; 
 
 20 Sup. Ct. 385), 12. 
 Bank v. Bank (108 Tenn. 374), 854. 
 Bank v. Dalton (9 How. 522, 528; 
 
 13 L. Ed. 242), 388. 
 Bank of the United States v. Deveaux 
 
 (5 Cranch, 61; 3 L. Ed. 38), 284. 
 
 Banks v. J. S. Schofield's Sons Co- 
 
 (126 Ga. 667; 55 S. E. 39), 145- 
 Bankson v. Illinois Cent. R. Co. 
 
 (196 Fed. 171), 294, 304, 305. 
 Barker v. Kansas City, M. & 0. Ry. 
 
 Co. (88 Kan. 767; 129 Pac. 1151; 
 
 43 L. R. A. (N. S.) 1121), 59, 96, 
 
 203, 205, 208, 311, 351. 
 Barker v. Kansa.s City, M.& O. Ry. 
 
 Co. (Kans.) (146 Pac. 358), 59, 
 
 108, 109, 116. 
 Barlow v. Lehigh Valley R. Co. (N. 
 
 Y.) (107 N. E. 814), 59. 
 Barlow v. Lehigh Valley R. Co. 
 
 (158 App. Div. 768: 143 N. Y. 
 
 Supp. 1053), 95, 98. 
 Barnes v. Columbia Load Co. (107 
 
 Mo. App. 608; 82 S. W. 203), 246. 
 Barnes v. Ward (9 C. B. 392), 302. 
 Barnum v. Chicago, etc., R. Co. 
 
 (30 Minn. 461; 16 N. W. 864), 
 
 229, 302. 
 Barton's Hill Coal Co. v. Reid, 3 
 
 Macq. H. L. Cases, 266), 11. 
 Bay V. Merrill & Ring Lumber Co. 
 
 (211 Fed. 717), 297. 
 Beaumont, etc., R. Co. v. Dilworth 
 
 (16 Tex. Civ. App. 257; 94 S. W. 
 
 352), 245, 247, 248. 
 Bechtel v. United States (101 U. S. 
 
 597), 927. 
 Behrens v. Illinois Central R. Co. 
 
 (192 Fed. 581), 41, 126. 
 Belanger v. Riopel (3 Montreal S. C. 
 
 198), 6. 
 Belden v. Chase (150 U. S. 691; 14 
 
 Sup. Ct. 269; 37 L. Ed. 1218, 
 
 reversing 117 N. Y. 637; 22 N. E. 
 
 963), 169. 
 Belding v. Black Hills R. Co. (3 S. 
 
 D. 369; 53 N. W. 750), 261. 
 Belt Ry. Co. v. United States (168 
 
 Fed. 542; 93 C. C. A. 666; Ap- 
 pendix G), 57, 58, 59, 349, 350, 
 367, 378, 399, 735. 
 Bennett v. Lehigh Valley R. Co. 
 
 (197 Fed. 578), 103.
 
 XXIV 
 
 TABLE OF CASES. 
 
 [References are to pages.] 
 
 Bennett v. Southern Ry. (98 S. C. 
 
 319; 79 S. E. 710), 237, 239, 240, 
 
 242, 244, 292, 294, 316, 317. 
 Bennett v. Worthington (24 Ark. 487, 
 
 494), 389. 
 Benson v. Railway Co. (75 Winn. 
 
 163; 77 N. W. 798), 396. 
 Best V. Town of Kingston (106 
 
 N. C. 205; 10 S. E. 997), 231. 
 Betondo v. New York Central & H. 
 
 R. R. Co. (149 N. Y. Supp. 339), 
 
 297, 310, 311. 
 Betterly v. Boyne City, G. & A. R. 
 
 Co. (158 Mich. 385; 122 N. W. 
 
 635; 16 Det. Leg. N. 628), 404. 
 Binion v. Georgia, etc., R. Co. (118 
 
 Ga. 282; 45 S. E. 276), 147. 
 Birmingham, etc., Ry. Co. v. Gunn 
 
 (141 Ala. 372; 37 So. 329), 302. 
 Bixler v. Pennsylvania R. Co. (201 
 
 Fed. 553), 232, 233, 309. 
 Bjornsea v. Northern Pacific Ry. Co. 
 
 (Wash.) (146 Pac. 575), 110, 540. 
 Black V. Charlestown & W. C. Ry. 
 
 Co. (87 S. E. 241; 69 S. E. 230), 
 
 507, 519, 540. 
 Blackburn v. Cherokee Lumber Co. 
 
 (152 N. C. 361; 67 S. E. 915), 
 
 405, 471. 
 Blackstone v. Central Ry. Co. (102 
 
 Ga. 489; 31 S. E. 90), 142. 
 Blake v. Midland Ry. Co. (18 Q. B. 
 
 93; 21 L. J. Q. B. 233; 16 Jur. 
 
 562), 244, 293. 
 Blanchard v. Detroit, etc., R. Co. 
 
 (139 Mich. 694; 103 N. W. 170; 
 
 12 Det. Leg. N. 30), 397, 414. 
 Bledsoe v. Stokes (1 Baxt. 312), 232. 
 Bletz V. Columbia Nat. Bank (87 
 
 Pa. 92; 30 Am. Rep. 345), 280. 
 Blount V. Gulf, etc., R. Co. (Tex. 
 
 Civ. App.) (S2 S. W. 305), 274. 
 Blumenthal v. Craig (81 Fed. 320; 
 
 26 C. C. A. 427), 480. 
 
 Board v. Toronto Ry. Co. (22 Ont. 
 
 App. 78, affirming 24 Can. Sup. 
 
 Ct. 715), 404. 
 Boldt V. New York Central R. Co. 
 
 (18 N. Y. 432), 90. 
 Boldt V. Pennsylvania R. Co. (218 
 
 Fed. 367), 208. 
 Bolton v. Frink (51 Conn. 342; 50 
 
 Am. Rep. 24), 176. 
 
 Bombolis v. Minneapolis & St. L. 
 
 R. Co. (Minn.) (150 N. W. 385), 
 
 235, 294. 
 Bond v. Seerace (2 Duv. 576), 218. 
 Bonnell v. Jowett (24 Hun, 524), 
 
 231. 
 Bordeau v. Grand Trunk Ry. Co. 
 
 (2 Low. Can. L. J. 186), 6. 
 Bordentown, The (16 Fed. 270), 168. 
 Boston & M. R. Co. v. Benson (205 
 
 Fed. 878; 124 C. C. A. 68), 291. 
 Boston, etc., R. Co. v. McDuffev 
 
 (25 C. C. A. 247; 51 U. S. App\ 
 
 111; 73 Fed. 934), 6. 
 
 Boston, etc., R. Co. v. State (32 
 
 N. H. 215), 218. 
 Bottoms V. St. Louis & S. F. R. Co. 
 
 (179 Fed. 318)), 37, .39, 289. 
 Bouchard v. Central Vt. Ry. Co. 
 
 (87 Vt. 399; 89 Atl. 475), 36, 304. 
 Boucher v. Wisconsin Cent. Ry. Co. 
 
 (141 Wis. 160; 123 N. W. 913), 
 
 177, 179, 196. 
 Bowen v. Illinois Central R. Co. 
 
 (136 Fed. 306), 110. 
 Bower v. Chicago & N. W. R. Co. 
 
 (96 Neb. 419; 148 N. W. 145), 
 
 207, 211. 
 
 Bowerman v. Lackawanna, etc., Co. 
 
 (98 Mo. App. 308; 71 S. W. 1062), 
 
 226, 248. 
 Bowers v. Southern Ry. Co. (10 Ga. 
 
 App. 367; 73 S. E. 677), 4, 203, 
 
 208, 245, 253. 
 
 Bowler v. Lane (9 Met. (Ky.) 311). 
 303.
 
 TABLE OF CASES. 
 
 XXV 
 
 [References are to pages.] 
 
 Bowman v. Chicago, etc., Ry. Co. 
 
 (125 U. S. 465, 479, 480, 481, 484, 
 
 485, 488, 489, 491, 507, 508; 8 
 
 Sup. Ct. 689, 1062; 31 L. Ed. 
 
 700), 387. 
 Boyd V. Clerk (8 Fed. 849), 231. 
 Boyle V. Columbia, etc., Co. (182 
 
 Mass. 93; 64 N. E. 726), 226. 
 Boyle V. Pennsylvania R. Co. (221 
 
 Fed. 453), 108. 315. 
 Brabham v. Baltimore & O. R. Co. 
 
 (220 Fed. 35), 242, 273. 
 Bradbury v. Chicago, R. I. & P. 
 
 Rv. Co. (149 Iowa, 51; 128 N. W. 
 
 1;'40 L. R. A. (N. S.) 684), 35, 39, 
 
 222, 251, 276, 279, 295, 296, 297, 
 
 310. 
 Bradford, City of, v. Downs (126 
 
 Pa. St. 622; 17 Atl. 884), 232, 
 
 235, 259. 
 Bramlett v. Southern Ry. Co. 93 
 
 S. C. 319; 82 S. E. 501), 35, 39, 
 
 95, 210. 
 Branan V. May (17 Ga. 136), 144, 146. 
 Bravis v. Chicago, M. & St. P. Ry. 
 
 Co. (217 Fed. 234), 51, 75, 306, 308. 
 Brazil, etc., Co. v. Hoodlet (129 Ind. 
 
 327; 27 N. E. 741), 176. 
 Bresky v. Minneapolis & St. L. Ry. 
 
 Co. (115 Minn. 386; 132 N. W. 
 
 337), 350. 
 Brickman v. Southern R. Co. (74 
 
 S. C. 306; 54 S. E. 553), 249. 
 Brig James Gray v. Ship John 
 
 Fraser (21 How. 184; 16 L. Ed. 
 
 106), 30. 
 Briggs V. Chicago & N. W. Ry. Co. 
 
 (125 Fed. 745), 397, 469. 
 Briggs V. Taylor (28 Vt. 183), 176. 
 Brinkerhoff v. Bostwick (88 N. Y. 
 
 60), 280. 
 Brinkmeier v. Missouri Pacific Ry. 
 
 Co. (81 Kan. 101; 105 Pac. 221; 
 
 affirmed 224 U. S. 268; 32 Sup. 
 
 Ct. 412; 56 L. Ed. 758), 294, 295, 
 
 297, 321, 362, 426, 490, 491. 
 
 Briscoe v. Southern Ry. Co. (103 
 
 Ga. 224; 28 S. E. 638), 144. 
 Britfield v. Stanahan (192 V. S. 470), 
 
 334. 
 Brooks V. Southern Pac. Co. (148 
 
 Fed. 9SG), 24, 217. 
 Brown v. Buffalo, etc., R. Co. (22 
 
 N. Y. 191), 219. 
 Brown v. Chattanooga Elec. R. Co. 
 
 (101 Tenn. 252; 47 S. W. 415), 
 
 274. 
 Brown v. Chicago & N. W. Ry. 
 
 Co. (102 Wis. 137; 77 N. W. 748; 
 
 78 N. W. 771; 44 L. R. A. 579), 
 
 261. 
 Brown v. Maryland (12 Wheat. 419, 
 
 448; 6 L. Ed. 678), 386. 
 Brown v. Southern Ry. Co. (65 S. 
 
 C. 260; 43 S. E. 794), 249. 
 Brown Store Co. v. Chattahoochee 
 
 (1 Ga. App. 609; 57 S. E. 1043), 
 
 146. 
 Brown Store Co. v. Chattachoochee 
 
 Lumber Co. (121 Ga. 809; 49 
 
 S. E. 839), 146. 
 Brownell v. Pacific R. Co. (47 Mo. 
 
 240), 235. 
 Brunswick, etc., R. Co. v. Gibson 
 
 (97 Ga. 489, 497; 25 S. E. 484), 
 
 139, 141, 144. 
 Brunswick, etc., R. Co. v. Hoover 
 
 (74 Ga. 426), 143. 
 Bucklew V. Central, etc., R. Co. (64 
 
 Iowa, 611), 12. 
 Bullock V. White Star Steamship Co. 
 
 (30 Wash. 448; 70 Pac. 1106), 518. 
 Burdett, The (9 Pet. 690), 431. 
 Burho V. Minneapolis & St. L. Ry. 
 
 Co. (121 Minn. 326; 141 N. W. 
 
 300), 362, 406, 410. 
 Burlington, etc., R. Co. v. Crockett 
 
 (17 Neb. 570; 14 N. W. 219), 
 
 229, 303.
 
 XXVI 
 
 TABLE OF CASES. 
 
 [References are to pages. 
 
 Burnett v. Atlantic Coast Line R. 
 
 Co. (163 N. C. 186; 79 S. E. 414), 
 
 5, 35, 233, 266, 273, 292, 312. 
 Burnett v. Southern P. & S. Ry. Co. 
 
 (210 Fed. 94), 287. 
 Burnett v. Spokane, P. & S. Ry. Co. 
 
 (210 Fed. 94), 287. 
 Burtnett v. Erie R. Co. (159 App. 
 
 Div. 712; 144 N. Y. Supp. 969), 
 
 35. 
 Butler Bros. Shoe Co. v. United 
 
 States Rubber Co. (156 Fed. 1), 
 
 57. 
 
 Cain V. Macon, etc., R. Co. (97 Ga. 
 
 298; 22 S. E. 918), 142. 
 Cain V. Southern Ry. Co. (199 Fed. 
 
 211), 22, 217, 219, 220, 240, 244, 
 
 245, 246, 250, 251, 261, 319. 
 Caldwell v. North Carolina (187 U. 
 
 S. 622, 623; 23 Sup. Ct. 229; 47 
 
 L. Ed. 336, reversing 127 N. C. 
 
 521; 37 S. E. 138), 347, 363, 387. 
 California Bank v. Kennedy (167 
 
 U. S. 362; 17 Sup. Ct. 831; 42 
 
 L. Ed. 198, reversing 101 Cal. 495 
 
 40 Am. St. 69; 35 Pac. 1039), 413 
 Callahan v. St. Louis Mer. B. Co 
 
 (170 Mo. 473; 71 S. W. 208; 60 
 
 L. R. A. 249; 94 Am. St. 746 
 
 affirmed 194 U. S. 628), 14, 67 
 Calumet, etc., Co. v. Nolan (69 111 
 
 App. 104), 134. 
 Cameron, etc., Co. v. Anderson (98 
 
 Tex. 156; 81 S. W. 282), 246. 
 Camp v. Atlanta & C. A. L. Ry. Co. 
 
 (S. C.) (84 S. E. 825), 72, 98. 
 Campbell v. Canadian Northern Ry. 
 
 Co. (124 Minn. 245; 144 N. W. 
 
 772), 60. 
 Campbell v. Chicago, M. & St. P. 
 
 Ry. Co. (86 Iowa, 563, 641; 53 
 
 N. W. 323), 58, 355. 
 
 Campbell v. Chicago, R. I. & P. Ry. 
 
 Co. (149 111. App. 120; affirmed 
 
 243 111. 620; 90 N. E. 1106), 392. 
 Campbell v. Haverhill (155 U. S. 
 
 610; 15 Sup. Ct. 217; 39 L. Ed. 
 
 280), 491. 
 Campbell v. Spokane & I. E. R. Co. 
 
 (188 Fed. 516), 357, 374, 398, 467, 
 
 468, 469, 470. 
 Canadian Pacific Ry. Co. v. Clark 
 
 (73 Fed. 76; 74 Fed. 362; 20 
 
 C. C. A. 447), 294. 
 Canadian Pac. Ry. Co. v. Robinson 
 
 (14 Can. Sup. Ct. 105), 6. 
 Capital Trust Co. v. Great Northern 
 
 Ry. Co. (Minn.) (149 N. W. 14), 
 
 220. 
 Cardwell v. American Bridge Co. 
 
 (113 U. S. 205, 210; 5 Sup. Ct. 
 
 423; 28 L. Ed. 959, affirming 19 
 
 Fed. 562; 9 Sawy. 662), 125. 
 Carey v. Berkshire R. Co. (1 Cush. 
 
 475), 217. 
 Carl, The (18 Fed. 655), 173. 
 Carlisle v. United States (16 Wall. 
 
 153; 21 L. Ed. 426, reversing 6 
 
 Ct. CI. 398), 431. 
 Carlisle, The City of (39 Fed. 807), 
 
 167. 
 Carolina, C. & O. Ry. v. Shewalter 
 
 (128 Tenn. 363; 161 S. W. 1136), 
 
 219, 236, 261. 264. 
 Carpenter v. Kansas City Southern 
 
 Ry. Co. (Mo. App.) (175 S. W. 
 
 234), 181, 253, 255, 256, 296, 312, 
 
 314. 
 Carr v. New York Cent. & H. Ry. 
 
 Co. (77 N. Y. Misc. 346; 136 
 
 N. Y. Supp. 501), 62, 72, 96, 126. 
 Carrigan v. Stillwell (97 Me. 247; 
 
 54 Atl. 389; 61 L. R. A. 163), 302. 
 Carroll v. Missouri Pac. Ry. Co. 
 
 (88 Mo. 239), 218. 
 Carson v. Boston & A. R. Co. (164 
 
 Mass. 523; 42 N. E. 112), 353.
 
 TABLE OF CASES. 
 
 XXVll 
 
 [References are to pages.] 
 
 Carson v. Dunham (121 U. S. 421; 
 
 7 Sup. Ct. 1030; 30 L. Ed. 992), 
 
 489. 
 Carson v. Southern Ry. Co. (68 S. C. 
 
 55; 46 S. E. 525), 426. 
 Carter v. North Carolina R. Co. 
 
 (139 N. C. 499; 52 S. E. 642), 245. 
 Catharine, The (17 How. 170; 15 
 
 L. Ed. 233), 167, 169, 172. 
 Caulkins v. Mathews (5 Kan. 191), 
 
 134. 
 Cavanagh v. Ocean, etc., Co. (13 
 
 N. Y. Supp. 540; 9 N. Y. Supp. 
 
 198; 11 N. Y. Supp. 547; 12 N. Y. 
 
 Supp. 609), 231. 
 Caverhill v. Boston & M. (N. H.) 
 
 (91 Atl. 917), 208, 210, 250. 
 Cawood V. Chattahoochee (126 Ga. 
 
 159; 54 S. E. 944), 145. 
 Celt, The (3 Hagg. 328n), 167. 
 Central, etc., R. Co. v. Denis (19 
 
 Ga. 437), 134. 
 Central, etc., R. Co. v. Attaway 
 
 (90 Ga. 65, 661; 16 S. E. 956, 958), 
 
 138, 144. 
 Central, etc., R. Co. v. Smith (78 Ga. 
 
 694; 3 S. E. 397), 146. 
 Central Georgia Ry. Co. v. Clay 
 
 (3 Ga. App. 286; 59 S. E. 843), 145. 
 Central Military Tract Co. v. Rock- 
 
 afellow (17 III. 541), 158. 
 Central of Georgia Ry. Co. v. Moore 
 
 (5 Ga. App. 562; 63 S. E. 642), 
 
 140. 
 Central of Georgia R. Co. v. Sims 
 
 (163 Ala. 669; 53 So. 826), 276. 
 Central of Georgia Ry. Co. v. Waldo 
 
 (6 Ga. App. 840; 65 S. E. 1098), 
 
 125. 
 Central R. Co. v. Brinson (70 Ga. 
 
 207; 64 Ga. 475, 479), 134, 136, 
 
 138, 143. 
 
 Central R. Co. v. Colasurdo (192 
 
 Fed. 901; 113 C. C. A. 379, affirm- 
 ing 180 Fed. 832), 72, 116. 
 Central R. Co. v. Dixon (42 Ga. 
 
 327), 146. 
 Central R. Co. v. Sears (66 Ga. 
 
 499), 250. 
 Central Ry. Co. v. Dorsey (106 Ga. 
 
 826; 32 S. E. 873), 145. 
 Central Ry. Co. v. Harper (124 Ga. 
 
 836; 53 S. E. 391), 145. 
 Central Ry. Co. v. McCUfford (120 
 
 Ga. 90; 47 S. E. 590), 145. 
 Central Ry. Co. v. McKinney (118 
 
 Ga. 535; 45 S. E. 430; 116 Ga. 
 
 13; 42 S. E. 229), 145, 147. 
 Central Ry. Co. v. Price (121 Ga. 
 
 651; 49 S. E. 683), 147. 
 Central Vt. Ry. Co. v. Bethune (206 
 
 Fed. 868; 124 C. C. A. 528), 203 
 
 204, 208, 211. 
 Central Vt. Ry. Co. v. United States 
 
 (205 Fed. 40; 123 C. C. A. 308), 
 
 397, 406. 
 Central Vt. Ry. Co. v. White (35 
 
 Sup. Ct. 865, affirming 87 Vt. 330; 
 
 89 Atl. 618), 259, 293, 294, 296, 
 
 307, 311, 325. 
 CentraUa v. Krouse (64 III. 19), 154. 
 Chadwick v. Oregon W. R. & N. 
 
 (Ore.) 144 Pac. 1165, 292. 
 Chaffee v. United States (18 Wall. 
 
 518, 538, 545; 21 L. Ed. 908, 
 
 reversing Fed. Gas. No. 14774), 
 
 431, 494. 
 Chamberlain v. Ward (21 How, 548; 
 
 16L. Ed. 211, affirming Fed. Gas. 
 
 No. 17151), 167. 
 Chandler v. Southern R. Co. (113 
 
 Ga. 130; 38 S. E. 305), 14. 
 Ghappel v. Waterworth (155 U. S. 
 
 102; 15 Sup. Gt. 34; 39 L. Ed. 
 
 85), 488. 
 Charleston & W. G. Ry. Co. v. 
 
 Anchors (10 Ga. App. 322; 73 S. 
 
 E. 551), 36, 69, 100, 107, 315. 
 Charleston & W. G. Ry. Go. v. 
 
 Sylvester (Ga. App.) (86 S. E. 
 
 275), 131.
 
 XXVlll 
 
 TABLE OF CASES. 
 
 [References 
 Charpeski v. Great Northern Ry. 
 
 Co. (Minn.) (150 N. W. 1091), 78, 
 
 82, 319. 
 Chateaugay v. Blake (144 U. S. 
 
 476), 854. 
 Chattanooga S. R. Co. v. Myers 
 
 (112 Ga. 237; 37 Ga. 439), 142. 
 Chenoll v. Palmer Brick Co. (117 
 
 Ga. 106; 43 S. E. 443), 147. 
 Chesapeake & O. Ry. Co. v. De Atley 
 
 (159 Ky. 687; 167 S. W. 933), 203. 
 Chesapeake & O. Ry. Co. v. Dwj'er 
 
 (157 Ky. 590; 162 Ky. 427; 163 
 
 S. W. 752; 172 S. W. 918), 222, 
 
 237, 239, 240, 242, 243, 245, 246, 
 
 247, 301, 319. 
 Chesapeake & 0. Ry. Co. v. Hoffman 
 
 63 S. E. 432), 67. 
 Chesapeake & O. Ry. Co. v. Kelley 
 
 (160 Ky. 296; 169 S. W. 736), 
 
 247, 258, 259. 
 Chesapeake & O. Ry. Co. v. Kelly 
 
 (161 Ky. 655; 171 S. W. 185), 293. 
 Chesapeake & O. Ry. Co. v. Walker 
 
 (159 Ky. 237; 167 S. W. 128), 
 
 204. 
 Chesney v. Illinois Central R. Co. 
 
 (197 Fed. 85), 287. 
 Chew Heong v. United States (112 
 
 U. S. 536), 817. 
 Chicago V. Barker (131 Fed. 161), 
 
 110. 
 Chicago V. Major, (18 111. 349), 223. 
 Chicago V. Stearns (105 111. 554), 
 
 160, 161, 165. 
 Chicago & A. R. Co. v. Wiggins 
 
 Ferry Co. (108 U. S. 18; 27 L. 
 
 Ed. 636; 1 Sup. Ct. 614), 591. 
 ChicaRo & E. R. Co. v. Steel (Ind.) 
 
 (108 N. E. 4), 75. 
 Chicago & N. W. Ry. Co. v. Gray 
 
 (35 Slip. Ct. 620, affirmin^r 153 
 
 Wis. 637; 142 N. W. 505), 325. 
 Chicago tt N. W. Ry. Co. v. Gray 
 
 (2.37 IJ. S. 399), 324. 
 Cliicago ct N. W. Ry. Co. v. Osborn 
 
 (52 Fcrl. 912), 58! 
 
 are to pages.] 
 
 Chicago & N. W. R. Co. v. United 
 
 States (168 Fed. 236; 93 C. C. A. 
 
 450; 21 L. R. A. (N. S.) 690), 
 
 334, 350, 356, 357, 361, 371, 372, 
 
 400, 419, 443, 444, 850. 
 Chicago, B. & Q. R. Co. v. McGuire 
 
 (219 U. S. 549; 31 Sup. Ct. 259; 
 
 55 L. Ed. 328, affirming 138 Iowa, 
 
 664; 116 N. W. 801), 22, 267, 
 
 491, 507, 936. 
 Chicago, B. & Q. Ry. Co. v. United 
 
 States (170 Fed. 556; 95 C. C. A. 
 
 41, 642), 419, 421, 422, 426, 451, 
 
 493, 495. 
 Chicago, B. & Q. R. Co. v. United 
 
 States (195 Fed. 241; 115 C. C. A. 
 
 193), 419, 494, 498. 
 Chicago, B. & Q. R. Co. v. United 
 
 States (211 Fed. 12; 127 C. C. A. 
 
 438), 353, 365, 367, 406, 453, 496. 
 Chicago, B. & Q. Ry. Co. v. United 
 
 States, (220 U. S. 559; 31 Sup. Ct. 
 
 612; 55 L. Ed. 521, 582, 1204, 
 
 affirming 170 Fed. 556; 95 C. C. 
 
 A. 556, 642), 332, 333, 421, 422, 
 
 424, 426, 435, 465, 467, 493, 499, 
 
 503, 887. 
 Chicago, etc., R. Co. v. Beaver (199 
 
 111. 34; 65 N. E. 144), 248. 
 Chicago, etc., Ry. Co. v. Bentz (38 
 
 111. App. 485), 154. 
 Chicago, etc., R. Co. v. Cass (73 111. 
 
 394), 154, 162, 164. 
 Chicago, etc., R. Co. v. Clark (70 
 
 111. 276), 157. 
 Chicago, etc., R. Co. v. Cummins 
 
 (24 Ind. App. 192; 53 N. E. 1026), 
 
 303. 
 Chicago, etc., R. Co. v. Curtis (51 
 
 Neb. 442; 71 N. W. 42), 266. 
 Chicago, etc., R. Co. v. Dewey (26 
 
 111. 255), 150, 154, 161. 
 Chicago, etc., R. Co. v. Dignam (56 
 
 111. 487), 163.
 
 TABLE OF CASES. 
 
 XXIX 
 
 [References are to pages. 
 
 Chicago, etc., R. Co. v. Dillon (17 
 
 111. App. 355), 160, 166. 
 Chicago, etc., Ry. Co. v. Dimick (96 
 
 lU. 42), 157, 165, 166. 
 Chicago, etc., R. Co. v. Donahue 
 
 (75 111. 106), 164. 
 Chicago, etc., R. Co. v. Dougherty 
 
 (12 111. App. 181), 154. 
 Chicago, etc., R. Co. v. DriscoU 
 
 (207 111. 9; 69 N. E. 620), 246. 
 Chicago, etc., Ry. Co. v. Dunleavy 
 
 (129 111. 132; 22 N. E. 15), 159, 
 
 161. 
 Chicago, etc., R. Co. v. Dunn (61 
 
 111. 384), 163, 164. 
 Chicago, etc., R. Co. v. Fears (53 
 
 111. 115), 160. 
 Chicago, etc., R. Co. v. Fetsam 
 
 (123 111. 518; 15 N. E. 169), 153, 
 
 159. 
 Chicago, etc., R. Co. v. Flint (22 
 
 111. App. 502), 154. 
 Chicago, etc., R. Co. v. Gravy (58 
 
 111. 83), 163. 
 Chicago, etc., R. Co. v. Gregory 
 
 (58 111. 272), 154, 167. 
 Chicago, etc., R. Co. v. Gretzner 
 
 (46 111. 74; 46 111. 83; 46 111. 74, 75), 
 
 151, 154, 157, 161, 163. 
 Chicago, etc., R. Co. v. Harshman 
 
 (21 Ind. App. 23; 51 N. E. 343), 
 
 234. 
 Chicago, etc., R. Co. v. Harwood 
 
 (90 111. 425), 165, 166. 
 Chicago, etc., R. Co. v. Hazzard 
 
 (26 111. 373), 141, 154, 161. 
 Chicago, etc., R. Co. v. Hogarth 
 
 (38 111. 370), 161, 163. 
 Chicago, etc., R. Co. v. Holmes (68 
 
 Neb. 826; 94 N. W. 1007), 248. 
 Chicago, etc., R. Co. v. Johnson 
 
 (116 111. 206; 4 N. E. 381; 103 
 
 111. 512), 150, 151, 153, 154, 155, 
 
 156, 158, 159, 162. 
 
 Chicago, etc., R. Co. v. Kinmare 
 
 (115 111. App. 132), 302. 
 Chicago, etc., R. Co. v. Krueger 
 
 (124 III. 457; 17 N. E. 52, affirming 
 
 23 111. App. 639), 160. 
 Chicago, etc., R. Co. v. La Porte 
 
 (33 Ind. App. 691; 71 N. E. 
 
 166), 229, 302, 303. 
 Chicago, etc., R. Co. v. Lee (68 III. 
 
 576; 60 111. 501), 160, 161, 164, 
 
 165. 
 Chicago, etc., R. Co. v. Longley 
 
 (2 111. App. 505), 159. 
 Chicago, etc., R. Co. v. Mock (72 
 
 111. 141), 164. 
 Chicago, etc., R. Co. v. Morris (26 
 
 111. 400), 229. 
 Chicago, etc., R. Co. v. Murray (62 
 
 III. 326), 160, 164. 
 Chicago, etc., R. Co. v. O'Connor 
 
 (13 III. App. 62), 160, 166. 
 Chicago, etc., R. Co. v. Payne (59 
 
 111. 534), 155, 163, 165. 
 Chicago, etc., R. Co. v. Pondrom 
 
 (51 III. 333), 162, 163. 
 Chicago, etc., R. Co. v. Pontius (157 
 
 U. S. 209; 15 Sup. Ct. 585; 39 
 
 L. Ed. 675, affirming 52 Kan. 264; 
 
 34 Pac. 739), 12, 17, 19, 22, 66. 
 Chicago, etc., R. Co. v. Pounds (11 
 
 Lea (Tenn.) 130), 218. 
 Chicago, etc., R. Co. v. Pullman 
 
 Southern Car Co. (139 U. S. 79; 
 
 11 Sup. Ct. 490; 35 L. Ed. 97), 
 
 518. 
 Chicago, etc., R. Co. v. Rogers (17 
 
 111. App. 638), 154. 
 Chicago, etc., R. Co. v. Ross (112 
 
 U. S. 377; 28 L. Ed. 787; 5 Sup. 
 
 Ct. 184), 11. 
 Chicago, etc., R. Co. v. Ryan (70 
 
 III. 211; 60 III. 172), 153. 
 Chicago, etc., R. Co. v. Simmons 
 
 (38 III. 242), 154, 161.
 
 XXX 
 
 TABLE OF CASES. 
 
 [References are to pages. 
 
 Chicago, etc., Ry. Co. v. State (86 
 
 Ark. 412; 111 S. W. 456), 280, 487. 
 Chicago, etc., R. Co. v. Still (19 
 
 lU. 499), 163. 
 Chicago, etc., R. Co. v. Sweeney 
 
 (52 111. 325), 163. 
 Chicago, etc., R. Co. v. Thomas 
 
 (155 Ind. 634; 58 N. E. 1040), 
 
 302. 
 Chicago, etc., R. Co. v. Thorson 
 
 (11 lU. App. 631), 154. 
 Chicago, etc., R. Co. v. Triplett 
 
 (38 111. 482), 161, 162, 163, 165. 
 Chicggo, etc., R. Co. v. Van Patten 
 
 (64 111. 510), 151, 160. 163, 164. 
 Chicago, etc., R. Co. v. White (26 
 
 111. App. 586), 154. 
 Chicago, etc., R. Co. v. Wymore 
 
 (40 Neb. 645; 58 N. W. 1120), 273, 
 
 274. 
 Chicago Great W. R. Co. v. Corinth 
 
 (200 Fed. 375), 302. 
 Chicago Great W. R. Co. v. McCor- 
 
 mick (200 Fed. .375; 118 C. C. A. 
 
 527), 256, 292, 308, 312. 
 Chicago, I & L. R. Co. v. Hackett 
 
 (228 U. S. 559; 33 Sup. Ct. 581; 
 
 .57 L. Ed. 581, affirming 170 111. 
 
 App. 140), 23, 27, 297, 311. 
 Chicago Junction Ry. Co. v. King 
 
 (169 Fed. 372; 94 C. C. A. 652; 
 
 affirmed 222 U. S. 222; 32 Sup. 
 
 Ct. 79; 56 L. Ed. 17-3), 81, 82, 93, 
 
 320, 334, 340, 3.57, 358, 361, 364, 
 
 371, 372, 404, 421, 422, 425, 426, 
 
 449, 465, 468, 469, 471, 472, 477, 
 
 478, 487, 497, 503, 853, 860. 
 Chicago, M. & P. S. R. Co. v. United 
 
 States (190 Fed. 882; 101 C. C. A. 
 
 15; 116 C. C. A. 444), 361, 397, 
 
 402, 400, 409, 410. 
 Chicago, M. & St. P. R. Co. v. Min- 
 nesota (134 U. S. 418; 10 Sup. 
 
 Ct. 462, 702; 33 L. Ed. 970), 355. 
 
 Chicago, M. & St. P. Ry. Co. (136 
 Wis. 407; 117 N. W. 686), 506. 
 
 Chicago, M. & St. P. R. Co. v. 
 United States (165 Fed. 423, 425; 
 91 C. C. A. 371; 20 L. R. A. (N. S.) 
 473), 59, 354, 357, 365, 367, 370, 
 374, 397, 399, 400, 414, 421, 425, 
 443, 444, 448, 449, 852, 859, 890. 
 
 Chicago, M. & St. P. R. Co. v. 
 United States (168 Fed. 236), 
 352, 399, 494. 
 
 Chicago, M. & St. P. R. Co. v. 
 Voelker (129 Fed. 522; 65 C. C. A. 
 65; 70 L. R. A. 264; 65 C. C. A. 
 226, reversing 116 Fed. 867), 24, 
 57, 333, 349, 356, 374, 404, 405, 
 406, 408, 411, 472, 476, 489, 602, 
 853, 860. 
 
 Chicago, R. I. & P. Ry. Co. v. Ar- 
 kansas (219 U. S. 453; 31 Sup. Ct. 
 275; 56 L. Ed. 290), 459. 
 
 Chicago, R. I. & P. Ry. Co. v. Brown 
 (185 Fed. 80; 107 C. C. A. 300; 
 229 U. S. 317; 33 Sup. Ct. 840; 
 57 L. Ed. 1204; 3 N. C. C. A. 
 826), 208, 320, 334, 406, 467, 478, 
 482, 484. 
 
 Chicago, R. I. & P. Ry. Co. v. HoUi- 
 
 day (Okla.) (145 Pac. 786), 36, 
 
 39, 311, 324. 
 Chicago, R. I. & P. Ry. Co. v. McBee 
 
 (Okla.) (145 Pac. 331), 39. 
 Chicago, R. I. & P. R. Co. v. Stahley 
 
 (62 Fed. 363), 66, 68. 
 Chisholm v. Georgia (2 Ball. 419, 
 
 475; 1 L. Ed. 440), 283. 
 Chivers v. Rogers (50 La. Ann. 57; 
 
 23 So. 100), 234. 
 
 Choctaw, Oklahoma & Gulf R. R. 
 Co. V. McDade (191 U. S. 64, 68; 
 
 24 Sup. Ct. 24, 102; 48 L. Ed. 96, 
 207, affirming 52 C. C. A. 260; 
 114 Fed. 45S), 200, 291, 474.
 
 TABLK OF CASES. 
 
 XXXI 
 
 [References are to pages.] 
 
 Christian v. Erwin (125 111. 619; 
 
 17 N. E. 707; 22 111. App. 534), 
 
 153, 159, IGG. 
 Christian v. Macon, etc., Co. (120 
 
 Ga. 314; 47 S. E. 23), 145. 
 Christian v. Van Tassel (12 Fed. 
 
 Rep. 884, 890), 168. 
 Chy Lung v. Freeman (92 U. S. 
 
 275, 280; 23 L. Ed. 550). 387. 
 Cicero, etc., St. Ry. Co. v. Meixner 
 
 (160 III. 320; 43 N. E. 823; 31 
 
 L. R. A. 331), 134. 
 Cincinnati, etc., R. Co. v. Adam 
 
 (Ky.) (13 S. W. 428), 229. 
 Cincinnati, etc., R. Co. v. Pratt 
 
 (92 Ky. 233; 17 S. W. 484), 229. 
 Cincinnati, N. O. & T. P. Ry. Co. 
 
 V. Bonham (Tenn.) (171 S. W. 
 
 79), 93, 214. 
 Cincinnati, N. O. & T. P. Ry. Co. 
 
 V. Goldston (156 Ky. 410; 161 S. 
 
 W. 246), 204, 311. 
 Cincinnati, N. O. & T. P. Ry. Co. 
 
 V. Goode (155 Ky. 153; 159 S. W. 
 
 695; 163 Ky. 60; 173 S. W. 329, 
 
 modifying 153 S. W. 247; 154 S. 
 
 W. 911), 58, 96, 256, 307, 308, 
 
 309, 310. 
 Cincinnati, N. O. & T. P. Ry. Co. 
 
 V. Hill (Ky.) (170 S. W. 599), 292. 
 Cincinnati, N. O. & T. P. Ry. Co. 
 
 V. Interstate Commerce Com- 
 mission (162 U. S. 184, 193; 16 
 
 Sup. Ct. 700; 40 L. Ed. 935), 56, 
 
 58, 378, 391. 
 Cincinnati, N. O. & T. P. Ry. Co. 
 
 V. Swann (160 Ky. 458; 169 S. W. 
 
 886), 69, 110, 201, 255, 291, 292, 
 
 293. 
 Cincinnati, N. O. & T. P. Ry. Co. 
 
 V. Wilson (157 Ky. 460; 163 S. W. 
 
 493), 227. 
 Cincinnati, N. O. & T. P. Rv. Co. 
 
 V. Wilson (161 Ky. 640; 17f S. W. 
 
 430), 208. 
 Cincinnati Packet Co. v. Bay (200 
 
 U. S. 179; 26 Sup. Ct. 208; 50 L. 
 
 Ed. 428), 355. 
 
 Civilta, The (103 U. S. 699; 26 L. 
 
 Ed. 599; 6 Ben. 309; Fed. Cas. 
 
 2775), 168. 
 Claflin V. Houseman (93 IJ. S. 130, 
 
 136, 139; 23 L. Ed. 833), 279, 
 
 283, 284, 286, 583, 588, 591. 
 Clarendon, The (6 Sawy. 544; 4 
 
 Fed. 649), 168. 
 Clark V. Chicago G. W. R. Co. 
 
 (Iowa) (152 N. W. 635), 51, 75, 
 
 78, 319. 
 Clark V. Southern Pacific Ry. Co. 
 
 (175 Fed. 122), 38, 287, 295. 
 Clarke v. Holmes (7 Hurlst. & N. 
 
 937;9. L. T. (N. S.) 178; 10 W. R. 
 
 405), 200. 
 Clary v. Chicago, M. & St. P. Ry. 
 
 Co. (141 Wis. 411; 123 N. W. 
 
 649), 197. 
 Cleveland, C. C. & St. L. Ry. Co. 
 
 V. Baker (91 Fed. 224), 478, 484. 
 Cleveland, C. C. & St. L. Ry. Co. 
 
 V. Public Service Commission 
 
 (Ind.) (108 N. E. 515), 344. 
 Cleveland, etc., Ry. Co. v. Curtis 
 
 (134 111. App. 565), 280, 477, 487. 
 Cleveland, etc., Ry. Co. v. Drumm 
 
 (32 Ind. App. 547; 70 N. E. 286), 
 
 247. 
 Cleveland, etc., Ry. Co. v. Max- 
 well (59 111. App. 673), 134. 
 Cleveland, etc., R. Co. v. Osborn 
 
 (36 Ind. App. 34; 73 N. E. 285), 
 
 213. 
 Cleveland, etc., R. Co. v. Osgood 
 
 (36 Ind. App. 34; 70 N. E. 839; 
 
 34 Ind. App. 34; 73 N. E. 285), 
 
 213, 224, 250, 274. 
 Cleveland, etc., Ry. Co. v. Patter- 
 son (37 Ind. App. 617; 78 N. E. 
 
 681), 176. 
 Clinton v. Englebrecht (13 Wall. 
 
 434, 447; 20 L. Ed. 659), 284. 
 Clore V. Mclntire (120 Ind. 262; 
 
 22 N. E. 128), 229, 303. 
 Clvatt V. United States (197 U. S. 
 
 207; 25 Sup. Ct. 429; 49 L. Ed. 
 
 726), 431.
 
 XXXll 
 
 TABLE OF CASES. 
 
 [References are to pages.] 
 
 Clyde V. R. & D. R. Co. (59 Fed. 
 
 394), 518. 
 Cock, The Dr. (5 Mon. L. Mag. 
 
 303), 167. 
 Coe V. ErroU (116 U. S. 525; 6 Sup. 
 
 Ct. 475; 29 L. Ed. 715, affirming 
 
 69 N. H. 303), 49, 59. 
 CoffeyviUe, etc., Co. v. Carter (65 
 
 Kan. 565; 70 Pac. 635), 246, 247. 
 Cohens v. Virginia (6 Wheat. 264, 
 
 299; 5 L. Ed. 257), 384, 812. 
 Colasurdo v. Central R. of New 
 
 Jersey (ISO Fed. 832; afRrmed 192 
 
 Fed. 901; 113 C. C. A. 379), 78, 
 
 79, 82, 84, 92, 93, 469. 
 Cole V. Atchison & S. F. Ry. Co. 
 
 (92 Kan. 132; 139 Pac. 1137), 
 
 35, 68. 
 Coley V. North Carolina R. Co. 
 
 (128 N. C. 534; 39 S. E. 43), 414, 
 
 455. 
 Coley V. North Carolina R. Co. 
 
 (129 N. C. 422; 40 S. E. 195; 
 
 57 L. R. A. 817), 472. 
 CoUelU V. Turner (N. Y.) (109 N. E. 
 
 83, affirming 154 App. Div. 218; 
 
 138 N. Y. Supp. 900), 202. 
 Collins V. Pennsylvania R. Co. (163 
 
 App. Div. 452; 148 N. Y. Supp. 
 
 777), 222, 224, 247, 250, 258, 259, 
 
 264. 
 Collins V. Southern Ry. Co. (124 
 
 Ga. 853; 53 S. E. 388), 145. 
 Columbia, The (27 Fed. 238), 168. 
 Columbia & P. S. R. Co. v. Sauter 
 
 (223 Fed. 604), 98, 204. 
 Columbus, etc., Co. v. Burke (37 
 
 Ind. App. 518; 77 N. E. 409), 
 
 176. 
 Columbus R. Co. v. Dorsey (119 
 
 Ga. 363; 46 S. E. 635), 145. 
 Comer v. Barfield (102 Ga. 489; 
 
 34 S. E. 90), 138, 144. 
 Comer v. Shaw (98 Ga. 545; 25 
 
 S. E. 733), 144. 
 
 Commonwealth v. Casey (43 Pa. 
 
 Sup. Ct. 494), 508. 
 Commonwealth v. Hart (11 Cush. 
 
 130), 400. 
 Commonwealth v. Lehigh Valley R. 
 
 Co. (Pa.) (17 Atl. 179), 58, 355. 
 Conant v. Griffin (48 111. 410), 229. 
 Conley v. Cincinnati, etc., R. Co. 
 
 (Ky.) (12 S. W. 764), 229. 
 Conlin v. City of Charleston (15 
 
 Rich. L. 201), 229. 
 Connecticut, The (103 U. S. 710; 
 
 26 L. Ed. 467), 168. 
 Connecticut, etc., Co. v. New York, 
 
 etc., R. Co. (25 Conn. 265), 217. 
 Connelly v. Union Sewer Pipe Co. 
 
 (184 U. S. 540; 22 Sup. Ct. 431; 
 
 46 L. Ed. 679), 19. 
 Conners v. Burhngton, etc., R. Co. 
 
 (71 Iowa, 490; 32 N. W. 465), 
 
 219. 
 Connole v. Norfolk & W. Ry. Co. 
 
 (216 Fed. 823), 29, 68, 92. 
 Connolly v. Ross (11 Fed. 342), 168. 
 Connor, In re (39 Col. 98, 101; 2 
 
 Am. Rep. 427), 285. 
 Conrad v. Atchison, T. & S. F. Ry. 
 
 Co. (173 Fed. 527), 289. 
 Consolidated Store Co. v. Morgan 
 
 (160 Ind. 241; 66 N. E. 696), 246. 
 Continental, The (14 Wall. 345; 20 
 
 L. Ed. 801, reversing 8 Blatchf. 
 
 33; Fed. Cas. 3141), 167. 
 Cook v. New York, etc., R. Co. (10 
 
 Hun, 426), 250. 
 Cooley V. Philadelphia Port Ward- 
 ens (12 How. 299, 319; 13 L. Ed. 
 
 996), 30, 31, 125, 572, 595. 
 Coon V. Utica, etc., R. Co. (5 N. 
 
 Y. 492), 8. 
 Cooper V. Railway Co. (.56 S. C. 91; 
 
 34 S. E. 16), 131.
 
 TABLE OF CASES. 
 
 XXXIU 
 
 [References are to pages.] 
 
 Cooper Mfg. Co. v. Ferguson (113 
 
 U. S. 727, 736, 737; 5 Sup. Ct. 
 
 739; 28 L. Ed. 1137), 387. 
 Copper River & N. W. Ry. Co. v. 
 
 Heney (211 Fed. 459; 127 C. C. A. 
 
 648), 35, 60, 306. 
 Copper River & N. W. Ry. Co. v. 
 
 Reeder (211 Fed. Ill; 127 C. C. A. 
 
 648), 258. 
 Corbett v. Boston & M. R. Co. 
 
 (Mass.) (107 N. E. 60), 280, 306. 
 Corbett v. Oregon, etc., R. Co. (25 
 
 Utah, 449; 71 Pac. 1065), 248. 
 Corsair, The (145 U. S. 335, 12 
 
 Sup. Ct. 949; 36 L. Ed. 727), 
 
 236, 261. 
 Cory V. Lake Shore & M. S. Ry. 
 
 Co. (208 Fed. 847), 35. 
 Cound V. Atchison, T. & S. F. Ry. 
 
 Co. (173 Fed. 527), 39, 295, 296, 
 . 580. 
 County V. Pacific, etc., Co. (68 
 
 N. .J. L. 273; 53 Ati. 3S6). 230. 
 Coursen v. Ely (37 III. 338), 163. 
 Cousins V. Illinois Cent. R.Co. (126 
 
 Minn. 172; 148 N. W. 58), 42, 96. 
 Covell V. Heyman (111 U. S. 182; 
 
 4 Sup. Ct. 358; 28 L. Ed. 390), 586. 
 Covington V. Bryant (7 Bush., 248), 
 
 148. 
 Covington, etc., Co. v. Kentucky 
 
 (154 U. S. 204; 14 Sup. Ct. 1087; 
 
 38 L. Ed. 962, reversing 15 Ky. L. 
 
 320; 22 S. VV. 851), 32, 54, 58. 
 Cowen V. Ray (47 C. C. A. 452; 
 
 108 Fed. 320), 273. 
 Cox V. Wilmington, etc., Ry. Co. 
 
 (4 Penn. (Del.) 162; 53 Atl. 
 
 569), 246. 
 Crandall v. Chicago G. W. R. Co. 
 
 (Minn.) (150 N. W. 165), 117. 
 
 Crandall v. Nevada (6 Wall. 35), 31. 
 Crape v. Syracuse (183 N. Y. 395; 
 
 76 N. E. 46.5), 230. 
 Cravrford v. New York, etc., R. 
 
 Co. (10 Am. Neg. Rep. 166), 59, 
 
 333, 352, 364, 365, 374, 412, 469, 
 
 487, 497. 
 
 Crew V. St. Louis, etc., R. Co. (20 
 
 Fed. 87), 181. 
 Cross V. Chicago, B. & Q. R. Co. 
 
 (Mo. App.) (177 S. W. 1127), 36, 
 
 42, 98, 105, 202, 204, 255. 
 Cross V. North Carolina (132 U. S. 
 
 131; 10 Sup. Ct. 47; 46 L. Ed. 
 
 — ), 342. 
 Crutcher v. Kentucky (141 XJ. S. 
 
 47, 57, 58, 59; 11 Sup. Ct. 851; 
 
 35 L. Ed. 649, reversing 89 Ky. 
 
 6; 12 S. W. 141), 363,387. 
 Crystal Springs Dist. Co. v. Cox 
 
 (49 Fed. 556; I. C. C. A. 365), 
 
 519. 
 Cumberland, etc., Co. v. Anderson 
 
 (89 Miss. 732; 41 So. 263), 248. 
 Cummings v. Missouri (4 Wall. 277), 
 
 584. 
 Cunningham v. Magoon (18 Pick. 
 
 13), 854. 
 Cutting V. Cutting (6 Fed. 268), 
 
 225. 
 Cypress, The (55 Fed. 333), 168. 
 
 Dacey v. Old Colony R. Co. (153 
 
 Mass. 112; 26 N. E. 437), 353. 
 Daer v. Baltimore & O. R. Co. (197 
 
 Fed. 665; affirmed 204 Fed. 751), 
 
 100. 
 Dailey v. Southern Ry. Co. (Appendix 
 
 G), 867. 
 Daley v. Boston, etc., R. Co. (147 
 
 Mass. 101; 16 N. E. 690), 232, 
 
 303. 
 Daly V. Illinois Central R. Co. (170 111. 
 
 App. 185), 373, 374, 397, 407, 415. 
 Daly V. New Jersey, etc., R. Co. 
 
 (155 Mass. 1; 29 N. E. 507), 226.
 
 XXXIV 
 
 TABLE OF CASES. 
 
 [References are to pages. 
 
 Daniel Ball, The (10 WaU. 557, 
 
 565; 19 L. Ed. 999; Fed. Cas. 
 
 3564, reversing Brown, Admr., 
 
 Cas. 193), 49, 56, 349, 379, 380, 
 
 382, 387, 720, 798, 802. 
 Dare v. Wabash, etc., R. Co. (119 
 
 111. App. 256), 230. 
 Dauntless, The (121 Fed. 420), 247. 
 David Dowe, The (16 Fed. 154), 168. 
 Davidson-Benedict Co. v. Severson 
 
 (109 Tenn. 572; 72 S. W. 967), 
 
 245, 264. 
 Davis V. Elmira Savings Bank 
 
 (161 U. S. 275), 584. 
 Davis V. Southern Ry. Co. (147 
 
 N. C. 68; 60 S. E. 722), 58, 355. 
 Dawson v. Chicago, R. I. & P. Ry. 
 
 Co. (114 Fed. 870), 415, 452, 502. 
 Day V. KeUy (Mont.) (146 Pac. 
 
 930), 255. 
 Daylesford, The (30 Fed. 633), 167, 
 
 169. 
 Deal V. Coal & Coke Ry. Co. (215 
 
 Fed. 285), 98. 
 DeAtley v. Chesapeake & O. R. Co. 
 
 (201 Fed. 591), 35, 41, 69, 288. 
 Debs, In re (158 Fed. 564; affirmed 
 
 15 Sup. Ct. 500; 39 L. Ed. 1092; 
 
 159 U.S. 251), 78, 338, 381, 388, 584. 
 Defiance Water Co. v. Defiance 
 
 (191 U.S. 194), 591. 
 Delaware, L. & W. R. Co. v. Troxell 
 
 (183 Fed. 373; 188 Fed. 842; 
 
 105 C. C. A. 593), 35, 214, 215. 
 Delaware, L. & W. R. Co. v. Yur- 
 
 konis (220 Fed. 429; 35 Sup. Ct. 
 
 902, affirming 213 Fed. 537), 36, 
 
 107, 108, 276, 304, 310, 311. 
 Delk V. St. Louis & S. F. R. Co. 
 
 (220 U. S. 580; 31 Sup. Ct. 617; 
 
 55 L. Ed. 590, reversing 170 Fed. 
 
 556; 95 C. C. A. 642), 97, 333, 361, 
 
 365, 371, 375, 411, 421, 425, 465, 
 
 887. 
 
 Denol V. Central Ry. Co. (119 Ga. 
 
 246; 46 S. E. 107), 145. 
 Denver & R. G. R. Co. v. Arrighi 
 
 (129 Fed. 347; 63 C. C. A. 649), 
 
 477, 484. 
 Denver & R. G. R. Co. v. Gannon 
 
 (40 Colo. 195; 90 Pac. 853); 
 
 472. 
 Denver, etc., R. Co. v. Gunning 
 
 (33 Colo. 280; 80 Pac. 727), 
 
 247, 302. 
 Denver, etc., R. Co. v. Woodward 
 
 (4 Colo. 162), 218. 
 Deppe V. Chicago, etc., R. Co. (36 
 
 Iowa, 52), 17. 
 DeRivera v. Atchison, T. & S. F. Ry. 
 
 Co. (Tex. Civ. App.) (149 S. W. 
 
 223), 36, 38, 39, 213, 233. 
 Detroit, etc., R. Co. v. Van Stein- 
 burg (17 Mich. 99, 118), 176. 
 Detroit St. Ry. Co. v. Mills (85 Mich. 
 
 634; 48N. W. 1007), 353. 
 Detroit, T. & I. Ry. Co. v. State 
 
 (82 Ohio St. 60; 91 N. E. 869), 
 
 338, 343. 
 Detroit, T. & I. Ry. Co. v. State 
 
 (83 Ohio St. 273; 94 N. E. 175), 
 
 340. 
 Devaux v. Salvador (4 Adol. & El. 
 
 420), 170. 
 Devine v. Chicago & C. R. Co. 
 
 (168 111. App. 450), 399, 414, 426. 
 Devine v. Chicago & C. R. Co. 
 
 (259 111. 499; 102 N. E. 803, 
 
 reversing 174 111. App. 324), 366, 
 
 374. 
 Devine v. Chicago & C. R. Co. 
 
 (266 111. 248; 102 N. E. 803; 
 
 107 N. E. 595), 245, 292, 315, 
 
 354, 471, 485. 
 Devine v. Chicago. R. I. & P. Ry. 
 
 Co. (265 111. 641; 107 N. E. 595), 
 
 4, 208, 237, 315.
 
 TABLE OF CASES. 
 
 XXXV 
 
 [References are to pages.] 
 
 Devine v. Illinois Central R. Co. 
 
 (156 111. App. 369), 362, 397. 
 Dewberry v. Southern Ry. Co. (175 
 
 Fed. 307), 37. 
 Dibble v. New York, etc., R. Co. 
 
 (25 Barb. 183), 273. 
 Dickinson v. Northeastern R. Co. 
 
 2 H. & C. 735; 33 L. J. Exch. 
 
 91; 9 L. T. (N. S.) 299; 12 W. 
 
 R. 52), 227. 
 Dickson v. United States (1 Brock. 
 
 — ), 518. 
 Diller v. Cleveland, etc., R. Co. 
 
 (34 Ind. App. 52; 72 N. E. 271), 
 
 213, 227, 234. 
 Dillon V. Great Northern Ry. Co. 
 
 (38 Mont. 485; 100 Pac. 960), 
 
 218, 220, 261. 
 Dillon V. Union Pacific R. Co. (3 
 
 Dill. 325), 181. 
 Dinsmore v. Racine M. R. Co. 
 
 (12 Wis. 649), 345. 
 Dithberner v. Chicago, etc., R. Co. 
 
 (47 Wis. 138; 2 N. W. 69), 12, 17. 
 Dobson V. Whisenhant (101 N. C. 
 
 645), 880. 
 Dodge V. Chicago, G. W. R. Co. 
 
 (la.) (146 N. W. 14), 104, 411. 
 Dodge V. Wolsey (18 How. 331), 584. 
 Dohr V. Wisconsin Central Ry. Co. 
 
 (144 Wis. 545; 129 N. W. 252), 
 
 196. 
 Dolson V. Lake Shore, etc., R. Co. 
 
 (128 Mich. 444; 87 N. W. 629), 
 
 261. 
 Donald v. Chicago, etc., R. Co. (93 
 
 Iowa, 284; 61 N. W. 971; 33 
 
 L. R. A. 492), 266. 
 Donegan v. Baltimore & N. Y. R. 
 
 Co. (165 Fed. 689; 91 C. C. A. 
 
 555), 364, 404, 406, 425, 469, 470, 
 
 471, 478, 481, 484, 485, SGO. 
 
 Dooley v. Seaboard Air Line R. Co. 
 
 (163 N. C. 454; 79 S. E. 970), 
 
 240, 245, 303. 
 Doran v. Pennsylvania R. Co. (93 
 
 Fed. 266; 35 C. C. A. 282), 309. 
 Dorsey v. Columbus R. Co. (121 
 
 Ga. 697; 49 S. E. 698), 302. 
 Dowell V. Burlington, etc., Ry. Co. 
 
 (62 Iowa, 629), 274. 
 Downes v. Bidwell (182 U. S. 258), 
 
 812. 
 Doyle V. White (9 App. Div. (N. Y.) 
 
 521; 41 N. Y. Supp. 628; 75 N. Y. 
 
 St. 628), 11. 
 Draper v. Tucker (69 Neb. 434; 
 
 95 N. W. 1026), 248. 
 Dreher v. Fitchburg (22 Wis. 675), 
 
 162. 
 Dreyer v. People (188 111. 40; 58 
 
 N. E. 620), 519. 
 Duch V. Fitzhugh (2 Lea, 307), 
 
 147, 175. 
 Duke V. St. Louis & S. F. Ry. Co. 
 
 (172 Fed. 684), 218, 245, 250. 
 Dunbar v. Charleston & W. C. Ry. 
 
 Co. (186 Fed. 175), 223. 
 Dungan v. St. Louis & S. F. R. Co. 
 
 (178 Mo. App. 164; 165 S. W. 
 
 1116), 35, 214, 216. 
 Dunmead v. American, etc., Co. (4 
 
 McCrary, 244), 181. 
 Duval v. Hunt (34 Fla. 85; 15 So. 
 
 876), 136. 
 
 Eagle, etc., Mills v. Herron (119 
 
 Ga. 389; 46 S. E. 405), 145. 
 Easter v. Virginian Ry. Co. (W. 
 
 Va.) (86 S. E. 37), 36, 131, 208, 
 
 280. 
 Eastern Ry. Co. v. Ellis (Tex. Civ. 
 
 Aop.) (153 S. W. 701), 35, 36, 
 
 213, 214, 215, 231, 232, 307, 308. 
 East St. Louis, etc., Ry. Co. v. 
 
 O'Hara (150 111. 580; 37 N. E. 
 
 917), 390.
 
 XXXVl 
 
 TABLE OF CASES. 
 
 [References are to pages.] 
 
 East Tennessee, ett;., Ry. Co. v. 
 
 Lilly (90 Tenn. 563; 18 S. W. 118), 
 
 229. 
 East Tennessee, etc., R. Co. v. 
 
 Maloy (77 Ga. 237), 135. 
 Eau Claire National Bank v. Jacknaan 
 
 (204 U. S. 522; 27 Sup. Ct. 391; 
 
 51 L. Ed. 596, affirming 125 Wis. 
 
 465; 104 N. W. 98), 413. 
 E. B. Ward, The (20 Fed. 702), 168. 
 Eclen V. Le.xington, etc., R. Co. 
 
 (14 B. Mon. 165), 217. 
 Edgar V. Costello (14 S. C. 20), 217. 
 Edward Luckenbach, The (94 Fed. 
 
 545), 169. 
 Edwards v. Central, etc., R. Co. 
 
 (118 Ga. 678; 45 S. E. 462), 145. 
 Elgin, etc., R. Co. v. United States 
 
 (168 Fed. 1), 349, 352, 354, 355, 
 
 356, 358, 365, 369, 371, 393, 399, 
 
 736. 
 Ellis V. Louisville, H. & St. L. Ry. 
 
 Co. (155 Ky. 745; 160 S. W. 512), 
 
 255. 
 Ellis V. United States (206 Ij. S. 57), 
 
 921. 
 Elmore v. Seaboard Air Line R. Co. 
 
 (130 N. C. 205, 506; 41 S. E. 
 
 786; 131 N. C. 569; 42 S. E. 989; 
 
 132 N. C. 865; 44 S. E. 620), 
 
 402, 410, 439, 467, 469, 470, 477, 
 
 483, 487. 
 El Paso & N. E. Ry. Co. v. Gutierrez 
 
 (215 U. S. 87; 30 Sup. Ct. 21; 54 
 
 L. Ed. 106; 37 Wash. L. Rep. 782, 
 
 affirming 102 Tex. 378; 117 S. W. 
 
 436, which reversed 102 Tex. Civ. 
 
 App. 378; 117 S. W. 159), 22, 27, 
 
 38, 267, 314. 
 Eiwell V. Hocker (86 Me. 416; 30 
 
 Atl. 84), 11. 
 
 Elwood St. Ry. Co. v. Cooper (22 
 Ind. App. 459; 53 N. E. 1092), 
 228. 
 
 Elwood St. Ry. Co. v. Ross (26 Ind. 
 
 App. 258; 58 N. E. .535), 228. 
 Emery v. Philadelphia (208 Pa. St. 
 
 492; 57 Atl. 977), 249. 
 Employers' Liability Cases (207 U. S. 
 
 463, 498; 28 Sup. Ct. 141; 52 L. 
 
 Ed. 297; 56 L. Ed. 327, affirming 
 
 148 Fed. 997), 22, 24, 27, 28, 77, 
 
 78, 80, 118, 120, 201, 335, 340, 
 
 347, 722. 
 Eng. v. Southern Pac. Co. (210 Fed. 
 
 92), 74, 101, 287. 
 English Employers' Liability Act of 
 
 1880 (43 and 44 Vict. 42), 599. 
 Entwhistle v. Feighner (60 Mo. 
 
 214), 235. 
 Erb V. Morasch (177 U. S. 584; 
 
 20 Sup. Ct. 819; 44 L. Ed. 897, 
 
 affirming 60 Kan. 251; 56 Pac. 
 
 133), 33. 
 Erie R. Co. v. Jacobus (221 Fed. 335), 
 
 43, 69, 207, 208, 212, 315, 319. 
 Erie R. Co. v. Kennedy (191 Fed. 
 
 332; 112 C. C. A. 76), 43, 93, 295, 
 
 313,317,318. 
 Erie R. Co. V. New York (233 U. S. 
 
 671; 34 Sup. Ct. 756; 58 L. Ed. 
 
 1149, reversing 198 N. Y. 369; 
 
 91 N. E. 849), 338, 339, 525. 
 Erie R. Co. v. Russell (183 Fed. 
 
 722; 106 C. C. A. 160), 349, 350, 
 
 354, 357, 358, 365, 469, 485, 855. 
 Erie R. Co. v. United States (197 Fed. 
 
 287; 116 C. C. A. 649), 95, 365, 
 
 466, 890, 910. 
 Erie R. Co. v. Welsh (Ohio St.) 
 
 (105 N. E. 189), 35, 72, 297, 295. 
 Erlingcr v. St. Louis & O. Ry. Co. 
 
 (152 111. App. 640; 245 111. 304; 
 
 92 N. E. 153), 426. 
 
 Eseanaba Co. v. Chicago (107 U. 
 
 S. 678), 30. 
 Evans v. Detroit, G. H. & M. Ry. Co. 
 
 (Mich.) (148 N. W. 490), 101, 315.
 
 TABLE OF CASES. 
 
 XXXVll 
 
 [References are to pages.] 
 
 Evans v. Newland (34 Ind. 112), 
 
 234. 
 Evausville, etc., R. Co. v. Lowder- 
 
 milk (15 Ind. 120), 218. 
 Evarts v. Santa Barbara, etc., R. 
 
 Co. (3 Cal. App. 712; 86 Pac. 
 
 830), 246, 249. 
 Ewald V. Chicago & Northwestern 
 
 R. Co. (70 Wis. 420; 36 N. W. 
 
 12, 591), 89. 
 Ewen V. Chicago, etc., R. Co. (38 
 
 Wis. 613), 303. 
 Explorer, The (20 Fed. 140; 21 Fed. 
 
 135, 140), 167, 108, 171. 
 
 Fajardo v. New York Cent. R. Co. 
 
 (84 N. Y. App. Div. 354), 246. 
 Farley v. New York, N. H. & H. R. 
 
 R. Co. (87 Conn. 328; 87 Atl. 
 
 999), 219. 
 Farley v. New York, N. H. & H. R. 
 
 R. Co. (Conn.) (91 Atl. 650), 203, 
 
 204, 211. 
 Farmers, etc., Bank v. Bearing (91 
 
 U. S. 29; 23 L. Ed. 196), 393. 
 Farrell v. Pennsylvania R. Co. (N. J.) 
 
 (93 Atl. 682), 95. 
 Farrugo v. Philadelphia & Pl. Ry. 
 
 Co. (233 U. S. 352; 34 Sup. Ct. 
 
 591; 58 L. Ed. — ), 286, 324. 
 Farwell v. Boston, etc., R. Co. (4 
 
 Mete. 49; 38 Am. Dec. 339), 8, 
 
 10, 473. 
 Felt V. Denver & R. G. R. Co. (48 
 
 Colo. 249; 110 Pac. 215, 1136), 
 
 350, 357, 358, 362, 373, 391, 400, 
 
 490. 
 Felton V. Spire (75 Fed. 576), 854. 
 Fernette v. Pere Rfkrquette R. Co. 
 
 (Mich.) (144 N. W. 834), 39, 46, 
 
 308. 
 
 Fidelity, etc., Co. v. Buzzard (69 
 
 Kan. 330; 76 Pa. St. 832), 249. 
 Fish v. Chicago, R. I. & P. Ry. Co. 
 
 (Mo.) (172 S. W. 340), 203, 204, 
 
 255, 287, 292, 312. 
 Fish V. Clapman (2 Ga. 349), 518. 
 Fisher v. Cook (125 111. 280; 17 
 
 N. E. 76.3), 152. 
 Fithian v. St. Louis & S. F. Ry. Co. 
 
 (188 Fed. 842), 35, 37, 214, 218, 
 
 233, 249. 
 Flanders v. Georgia S. & F. Ry. Co. 
 
 (Fla.) (67 So. 68), 36, 39, 214, 
 
 310. 
 Flatley v. Memphis, etc., R. Co. 
 
 (9 Heisk. 230), 232. 
 Fleming v. Southern Ry. Co. (131 
 
 N. C. 476; 42 S. E. 905; 132 N. E. 
 
 714; 44 S. E. Rep. 551), 396, 397, 
 
 457, 478. 
 Fletcher v. Baltimore & P. R. Co. 
 
 (168 U. S. 135; 18 Sup. Ct. 35; 
 
 42 L. Ed. 411, reversing 6 App. 
 
 Div. 385), 90. 
 Flood v. Chicago, etc., R. Co. (109 
 
 Minn. 228; 123 N. W. 815; 134 
 
 Am. St. 771; 18 Ana. Cas. 274), 
 
 60. 
 Florida East Coast R. Co. v. Las- 
 
 siter (58 Fla. 234; 50 So. 428), 14. 
 Florida Ry. Co. v. Dorsey (59 Fla. 
 
 260; 52 So. 963), 148. 
 Fogarty v. Northern Pacific Ry. Co. 
 
 (Wash.) (147 Pac. 652), 223, 227, 
 
 240, 242, 246. 
 Folej^ v. Railroad Co. (64 Iowa, 644; 
 
 21 N. W. 124), 64. 
 Foot v. Great Northern R. Co. (81 
 
 Minn. 493; 84 N. W. 342; 52 
 
 L. R. A. 354), 274. 
 Fordyce v. McCouts (51 Ark. 509; 
 
 11 S. W. 694), 235. 
 Fowleker v. Nash (5 Baxt. (Tenn.) 
 
 663), 219.
 
 XXXVlll 
 
 TABLE OF CASES. 
 
 [References are to pages. 
 
 Fowlkes V. Nashville, etc., R. Co. 
 
 (5 Baxt. 663; 9 Heisk. 829), 232. 
 Frank and WiUie, The (45 Fed. 405), 
 
 168. 
 Freeman v. Nashville, etc., Ry. Co. 
 
 (120 Ga. 469; 47 S. E. 931), 
 
 140, 146. 
 Freeman v. Powell (105 Tea. 317; 
 
 144 S. W. 1033; 148 S. W. 290), 
 
 96, 127, 203, 205, 311. 
 Freeman v. Swan (Tex. Civ. App.) 
 
 (143 S. W. 724), 344. 
 Friends, The (4 E. F. Moore 314, 
 
 322), 167. 
 Ft. Smith & W. R. Co. v. Blevins 
 
 (35 Okla. 378; 130 Pac. 525), 288. 
 Ft. Worth & D. C. Ry. Co. v. Cope- 
 land (Tex. Civ. App.) (164 S. W. 
 
 857), 203, 204. 
 Ft. Worth Belt Ry. Co. Ferryman 
 
 (Tex. Civ. App.) (158 S. W. 1181), 
 
 43, 61, 315, 317. 
 Ft. Worth, etc., R. Co. v. Linthicum 
 
 (33 Tex. Civ. App. 375; 77 S. W. 
 
 40), 246. 
 Fulgam V. Midland Valley R. Co. 
 
 (167 Fed. 660), 4, 38, 41, 217, 
 
 219, 571, 574, 575, 594, 597. 
 Fuller V. Baltimore, etc., Ass'n (67 
 
 Md. 433; 10 Atl. 237), 266. 
 Fuller V. Grand Trunk Ry. Co. (1 
 
 Low Cas. L. J. 68), 6. 
 Futz V. Western U. T. Co. (25 Utah, 
 
 263; 71 Pac. 209), 227. 
 
 Caber v. Duluth, S. S. & A. Ry. Co. 
 
 (Wis.) (150 N. W. 489), 71, 72, 97, 
 
 103, 311, 319. 
 Gains v. Detroit, G. H. & M. Ry. 
 
 Co. (Mich.) (148 N. W. 397), 313. 
 Galena, etc., R. Co. v. Fay (16 111. 
 
 567), I'll. 
 
 Galena, etc., R. Co. v. Jacobs (20 
 
 111. 478, 485), 133, 141, 149, 161, 
 
 163. 
 Galena, etc., R. Co. v. Yorwood 
 
 (15 111. 469), 141. 
 Galveston v. Barbour (62 Tex. 172), 
 
 235. 
 Galveston, etc., R. Co. v. Averill 
 
 (Tex. Civ. App.) (136 S. W. 98), 
 
 317. 
 Galveston, etc., R. Co. v. Contreras 
 
 (31 Tex. Civ. App. 489; 73 S. W. 
 
 1051), 228. 
 Galveston, etc., Ry. Co. v. Puenta 
 
 (30 Tex. Civ. App. 246; 70 S. W. 
 
 362), 248. 
 Galveston, H. & S. A. Ry. Co. v. 
 
 Chojnacky (Tex. Civ. App.) (163 
 
 S. W. 1011), 106. 
 Galveston, H. & S. A. Ry. Co. v. 
 
 Kurtz (Tex. Civ. App.) (147 S. W. 
 
 658), 472. 
 Galveston, H. & S. A. R. Co. v. 
 
 United States (183 Fed. 579; 105 
 
 C. C. A. 422), 421, 500. 
 Galveston, H. & S. A. Ry. Co. v. 
 
 United States (199 Fed. 891; 118 
 
 C. C. A. 339), 421, 443, 453, 454. 
 Galveston, H. & S. Ry. v. Bosher 
 
 (Tex. Civ. App.) (165 S. W. 93), 
 
 203. 
 Ganoche v. Johnson, etc., Co. (116 
 
 Mo. App. 596; 92 S. W. 918), 247. 
 Garfield Mfg. Co. v. McLean (18 
 
 111. App. 447), 154. 
 
 Garrett v. Louisville & N. R. Co. 
 
 (197 Fed. 715; 117 C. C. A. 109), 
 
 239, 242, 244, 248, 292, 295. 
 Garrett v. Louisville <fe N. R. Co. 
 
 (235 U. S. 308; 35 Sup.Ct. 32), 303. 
 Gaus V. Railway Co. (174 Mo. 53; 
 
 73 S. W. 686; 61 L. R. A. 475), 54. 
 Gee V. Lehigh V. R. Co. (163 App. 
 
 Div. 274; 148 N. Y. Supp. 882), 
 
 36, 201.
 
 TABLE OF CASES. 
 
 XXXIX 
 
 [References are to pages.] 
 
 Gekas v. Oregon-Wash. R. & Nav. 
 
 Co. (Ore.) (146 Pac. 970), 101, 
 
 208, 292. 
 George v. Chicago, etc., R. Co. (51 
 
 Wis. 603; 8 N. W. 374), 231. 
 George v. Clark (85 Fed. 608; 20 
 
 C. C. A. 274), 480. 
 George and Richard, The (L. R. Ad. 
 
 & Ecc. 466; 24 L. T. (N. S.) 717; 
 
 20 Weekly Rep. 245), 228. 
 Georgia Cotton Oil Co. v. Jackson 
 
 (112 Ga. 620; 37 S. E. 873), 145. 
 Georgia, etc., Co. v. Henderson 
 
 (117 Ga. 480; 43 S. E. 698), 147. 
 Georgia, etc., Co. v. Neely (58 Ga. 
 
 540, 580), 143, 144, 147, 174. 
 Georgia, etc., R. Co. v. Brown (86 
 
 Ga. 320; 12 S. E. 812), 12, 14. 
 Georgia, etc., R. Co. v. Cosby (97 
 
 Ga. 299; 22 S. E. 912), 14. 
 Georgia, etc., R. Co. v. Goldwire 
 
 (56 Ga. 196), 14. 
 Georgia, etc., R. Co. v. Hallman 
 
 (97 Ga. 317; 23 S. E. 73), 143. 
 Georgia, etc., R. Co. v. Hicks (95 
 
 Ga. 301, 302; 22 S. E. 613) 14, 
 
 143. 
 Georgia, etc., R. Co. v. Miller (90 
 
 Ga. 574), 12, 67. 
 Georgia, etc., R. Co. v. Nilus (83 
 
 Ga. 70; 9 S. E. 1049), 144. 
 Georgia, etc., R. Co. v. Rhodes (56 
 
 Ga. 645), 14. 
 Georgia, etc., R. Co. v. Thomas (68 
 
 Ga. 744), 136, 144. 
 Georgia, etc., Ry. Co. v. Sasser (4 
 
 Ga. App. 276; 61 S. E. 998), 147. 
 Georgia Pacific R. Co. v. Davis (92 
 
 Ala. 307; 9 So. 253; 25 Am. St. 
 
 47), 280, 488. 491. 
 Georgia R. Co. v. Ivey (73 Ga. 
 
 499), 12. 
 Georgia R. v. Pittman (73 Ga. 325), 
 
 143. 
 
 Geroux v. Graves (62 Vt. 280; 19 
 
 Atl. 987), 229. 
 Gibbons v. Ogden (9 Wheat. 1, 209, 
 
 210; 6 L. Ed. 23), 79, 386, 573, 
 
 595. 
 Gibson v. Bellingham & N. Ry. Co. 
 
 (213 Fed. 488), 280, 287, 294. 
 Gibbs V. Great Western R. Co. (12 
 
 Q. B. Div. 211), 600. 
 Gila Valley, G. & N. R. Co. v. Hall 
 
 (232 U. S. 94, 101; 34 Sup. Ct. 
 
 229; 58 L. Ed. 521), 200, 207. 
 Gilbert v. Burlington, C. R. & N. 
 
 Ry. Co. (128 Fed. 529; 63 C. C. 
 
 A. 27), 406, 422, 478, 479, 482. 
 Gilman v. Philadelphia (3 Wall. 713; 
 
 18 L. Ed. 96), 30. 
 Gilmer v. Philadelphia (3 Wall. 713), 
 
 31. 
 Gist, Ex parte (26 Ala. 156, 162, 164), 
 
 283, 284, 286. 
 Gladson v. Minnesota (166 U. S. 
 
 427; 17 Sup. Ct. 627; 41 L. Ed. 
 
 1064, affirming 57 Minn. 385; 59 
 
 N. W. 487; 24 L. R. A. 502), 509. 
 Glaze V. Josephine Mills (119 Ga. 
 
 261; 46 S. E. 99), 144. 
 Gleason v. V. M. R. Co. (140 U. S. 
 
 435; 1 Sup. Ct. 859; 35 L. Ed. 
 
 458), 518. 
 Glenn v. Cincinnati, N. O. & T. P. 
 
 R. Co. (157 Ky. 453; 163 S. W. 
 
 461), 97, 203, 211. 
 Gloucester Ferry Co. v. Pennsylvania 
 
 (114 U. S. 196; 5 Sup. Ct. 826; 
 
 29 L. Ed. 158), 77. 
 Glunt v. Pennsylvania R. Co. (Pa.) 
 
 (95 Atl. 109), 78. 
 Goldenstein v. Baltimore & O. R. 
 
 Co. (37 Wash. Law Rep. 2), 27, 
 
 271, 491. 
 Good v. Towns (56 Vt. 410), 227. 
 Goodwin v. Bodeau, etc., Co. (109 
 
 La. 1050; 34 So. 74), 230.
 
 xl 
 
 TABLE OF CASES. 
 
 [References are to pages.] 
 
 Gordon v. New Orleans & G. N. R. 
 
 Co. (135 La. 137, 736; 64 So. 
 
 1014), 315, 405. 
 Gottlieb V. North Jersey St. Ry. 
 
 Co. (72 N. J. Law 480; 63 Atl. 
 
 339), 250. 
 Graber v. Duluth, S. S. & A. R. Co. 
 
 (Wis.) (150 N. W. 489), 325. 
 Grand Trunk W. Rv.Co. v. Lindsay 
 
 (233 U. S. 42; 34"Sup. Ct. 581; 58 
 
 L. Ed. 828, affirming 201 Fed. 836; 
 
 120 C. C. A. 166), 35, 69, 208, 255, 
 
 256, 292, 310, 467, 469, 473, 477, 
 
 482, 483, 485, 49C, 498. 
 Grand Trunk W. Ry. Co. v. Poole 
 
 (93 N. E. 26), 484. 
 Granger v. Pennsylvania R. Co. (84 
 
 N. J. L. 338; 86 Atl. 264), 84, 106, 
 
 116. 
 Grant v. Drj-sdale (10 Rep. 1161), 
 
 600. 
 Gray v. Bennett (3 Met. 522), 393. 
 Gray v. Chicago & N. W. Ry. Co. 
 
 (153 Wis. 637; 142 N. W. 505) 
 
 105, 106. 
 Gray v. Louisville & N. R. Co. (197 
 
 Fed. 874), 340, 352, 366, 369, 399. 
 Great Northern Ry. Co. v. INIusteli 
 
 (222 Fed. 879), 94. 
 Great Northern Ry. Co. v. United 
 
 States (211 Fed. 309; 127 C. C. A. 
 
 595, affirming 206 Fed. 838), 523, 
 
 526, 538. 
 Great Northern Ry. Co. v. United 
 
 States (218 Fed. 302), 526, 535, 
 
 539. 
 Greene, In re (52 Fed. 104), 57. 
 Greenlee v. Southern Ry. Co. (122 
 
 N. C. 977; 30 S. E. 115; 11 Am. 
 
 & Er-g. R. Cas. (N. S.) 45; 41 L. 
 
 R. A. 399; 65 Am. St. Rep. 734), 
 
 467, 469, 470, 472, 477. 
 Griffin V. Willow (43 Wis. 509), 162. 
 Griffith V. Lexington, etc., Ry. Co. 
 
 (124 Ca. 553; 53 S. E. 97), 145. 
 
 Griffiths V. Eari of Dudley (9 Q. B. 
 
 357), 6. 
 Grosso V. Delaware, etc., R. Co. 
 
 (50 N. J. L. 317; 13 Atl. 233), 217. 
 Grov.- V. Oregon Short Line R. Co. 
 
 (44 Utah 160; 138 Pac. 398), 5, 
 
 39, 75, 78, 98, 99, 101, 304. 
 Guana v. Southern Pac. Co. (15 Ariz. 
 
 413; 139 Pac. 782), 97, 203, 205, 
 
 310, 311. 
 Gulf, C. & S. F. Ry. Co. v. Beezley 
 
 (Tex. Civ. App.) (153 S. W. 651), 
 
 213, 214, 252, 303. 
 
 Gulf, C. & S. F. R. Co. V. Fort Grain 
 Co. (Tex. Civ. App.) (73 S. W. 
 845), 57. 
 
 Gulf, C. & S. F. Ry. Co. v. Lester 
 (Tex. Civ. App.) (149 S. W. 841), 
 
 214, 310. 
 
 Gulf C. & S. F. Ry. Co. v. Texas 
 
 (204 U. S. 403; 24 Sup. Ct. 360; 
 
 51 L. Ed. 540, affirming 97 Tex. 
 
 274), 56, 715, 720, 721. 
 Gulf, Colorado, etc., Ry. Co. v. 
 
 Hefley (158 U. S. 98; 15 Sup. 
 
 Ct. 802; 39 L. E. 910), 30, 31, 
 
 386, 509, 572, 595. 
 Gulf, Colorado, etc., Ry. Co. v. 
 
 McGinnis (228 U. S. 173; 33 Sup. 
 
 Ct. 426; 57 L. Ed. 785, reversing 
 
 (Tex. Civ. App.) 147 S. W. 1188), 
 
 203, 208, 222, 224, 230, 240, 242, 
 
 258, 259, 321. 
 Gulf, etc., R. Co. v. Brown (33 Tex. 
 
 Civ. App. 269; 76 S. W. 794), 247. 
 Gulf, etc., R. Co. V. Ellis (165 U. S. 
 
 150; 17 Sup. Ct. 255; 41 L. Ed. 
 
 666, reversing 87 Tex. 19; 26 S. W. 
 
 985), 17, 19. 
 Gulla V. Lehigh, etc., Co. (28 Pa. 
 
 Super. Ct. 11), 228. 
 Cunn V. Barry (15 Wall. 610), 584.
 
 TABLE OF CASES. 
 
 xli 
 
 [References are to pages. 
 
 H 
 
 Hackney v. Missouri, K. & T. Ry. 
 
 Co. (Kan.) (149 Pac. 421), 208, 
 
 255, 256, 292. 
 Haggerty v. Central Railroad Co. 
 
 (31 N.J. Law 349), 223. 
 Haines v. Pearson (100 Mo. App. 
 
 551; 75S. W. 194),247. 
 Hale V. Henkel (201 U. S. 74, 75, 
 
 665, 666; 26 Sup. Ct. 370; 50 L. 
 
 Ed. 652, affirming 139 Fed. 496), 
 
 511. 
 Haley v. Mobile, etc., R. Co. (7 
 
 Baxt. (Tenn.) 239), 219. 
 Hall V. Canadian, etc., Co. (2 Mon- 
 treal L. N. 245), 6. 
 Hall V. Chicago, etc., Ry. Co. (149 
 
 Fed. 564), 15, 30, 489. 
 Hall V. DeCuir (95 U. S. 485, 488- 
 
 490, 497, 498-513; U. S. 485, 
 
 488-490, 497, 498-513; 24 L. Ed. 
 
 547), 387. 
 Hall V. Louisville, etc., R. Co. (157 
 
 Fed. 464), 216, 233, 309. 
 Halverson v. Seattle El. Co. (35 
 
 Wash. 600; 77 Pac. 1058), 246. 
 Hamilton v. Hyde Park Foundry 
 
 (22 Sc. L. R. 709), 600. 
 Hamilton v. Morgan, etc., R. Co. 
 
 (42 La. Ann. 824; 8 So. 586), 
 
 210. 
 Hammill v. Pennsylvania R. Co. 
 
 (N. J.) (94 Atl. 313), 66. 
 Hammond v. Mukwa (40 Wis. 35), 
 
 162. 
 Hammond v. Whittredge (204 U. 
 
 S. 538; 27 Sup. Ct. 396; 51 L. 
 
 Ed. 606, affirming 189 Mass. 45; 
 
 75 N. E. 222), 413. 
 Hammond Packing Co. v. Arkan- 
 sas (212 U. S. 348, 349; 29 Sup. 
 
 Ct. 370; 53 L. Ed. 543, 544), 
 
 511. 
 Hancock v. Norfolk, etc., R. Co. 
 
 (124 N. C. 222; 32 S. E. 679), 
 
 12, 17, 67. 
 
 Hanley v. Kansas City So. Ry. Co. 
 
 (187 U. S. 617; 23 Sup. Ct. 214; 
 
 47 L. Ed. 33, affirming 106 Fed. 
 
 353), 58, 349, 355. 
 Hanna v. Jeffersonville R. Co. (32 
 
 Ind. 113), 231, 232. 
 Hans v. Louisiana (134 U. S. 1), 
 
 812. 
 Hansford v. Payne (11 Bush. 380), 
 
 236, 261. 
 Harden v. North Carolina R. Co. 
 
 (129 N. C. 354; 40 S. E. 184; 
 
 55 L. R. A. 784), 380, 397, 405, 
 
 487. 
 Hardwick v. Wabash R. Co. (181 
 
 Mo. App. 156; 168 S. W. 328), 
 
 4, 36, 42, 95, 242, 243, 255, 258, 
 287, 322. 
 
 Haring v. Great Northern Ry. Co. 
 
 (137 Wis. 367; 119 N. W. 325), 
 
 14. 
 Harkins v. Philadelphia (15 Phila. 
 
 286), 227. 
 Ilarriman v. Northern Securities Co. 
 
 (197 U. S. 244), 812. 
 Harris v. Central R. Co. (78 Ga. 
 
 525; 3 S. E. 355), 303. 
 Harris v. City & E. G. R. Co. (69 
 
 W. Va. 65; 70 S. E. 859), 104. 
 Harrisburg, The (119 U. S. 199; 
 
 7 Sup. Ct. 140; 30 L. Ed. 358, 
 
 reversing 15 Fed. 610), 217, 231. 
 Harrison v. Hughes (125 Fed. 860; 
 
 60 C. C. A. 442), 518. 
 Hartford, The City of (97 U. S. 
 
 323; 24 L. Ed. 930; 11 Blatchf. 
 
 72; Fed. Cas. No. 2752), 168. 
 Hartigan v. Southern Pac. R. Co. 
 
 (86 Cal. 142; 24 Pac. 851), 274. 
 Haskett v. Lush (Mo. App.) (177 
 
 5. W. 712), 204. 
 
 Plawaii v. Manchiki (190 U. S. 
 197; 23 Sup. Ct. 787; 47 L. Ed. 
 1016), 64.
 
 xlii 
 
 TABLE OF CASES. 
 
 [References are to pages.] 
 
 Hawkins v. Johnston (105 Ind. 
 
 29; 4 N. E. 172), 176. 
 Hawkins v. St. Louis & S. F. R. Co. 
 
 (Mo. App.) (174 S. W. 129), 36, 
 
 42, 203, 204, 207, 292. 
 Haynie v. Chicago, etc., R. Co. (9 
 
 lU. App. 105), 303. 
 Hearst v. St. Louis, I. M. & S. Ry. 
 
 Co. (Mo. App.) (173 S. W. 86), 
 
 36, 106, 214. 
 Heath V. Wallace (138 U. S. 582), 
 
 940. 
 Hecht V. Ohio, etc., R. Co. (132 
 
 Ind. 507; 32 N. E. 302; 54 Am. 
 
 & Eng. R. Cas. 75), 218, 233, 273. 
 Heidcamp v. Jersey City, etc., R. 
 
 Co. (69 N. J. L. 284; 55 Atl. 
 
 239), 228. 
 Heil V. Glanding (42 Pa. St. 499), 
 
 175. 
 Heimbach v. Lehigh Valley R. Co. 
 
 (197 Fed. 579), 99. 
 Helm V. Cincinnati, N. O. & T. P. 
 
 Ry. Co. (156 Ky. 240; 160 S. W. 
 
 945), 204. 
 Hench v. Pennsylvania R. Co. 
 
 (246 Pa. 1; 91 Atl. 1056), 41, 
 
 297, 315, 316, 403. 
 Henchey v. Chicago (41 111. 136), 
 
 274. 
 Henderson v. Mayor (92 U. S. 
 
 259; 23 L. Ed. 543), 31. 
 Hendricks v. Western, etc., R. Co. 
 
 (52 Ga. 467), 142. 
 Hennessey v. Bavarian, etc., Co. 
 
 (145 Mo. 104; 46 S. W. 960), 
 
 234. 
 Henning v. Louisville, etc., Co. 
 
 (Ky.) (12 S. W. 550), 229. 
 Hennington v. Georgia (163 U. S. 
 
 299; 10 Sup. Ct. 1086; 41 L. Ed. 
 
 160, affirming 90 Ga. 390; 17 S. E. 
 
 1009), 509. 
 
 Henry B. Fiske, The (141 Fed. 188), 
 
 173. 
 Hepner v. United States (213 U. 
 
 S. 114; 29 Sup. Ct. 499; 53 L. 
 
 Ed. 720; 27 L. R. A. (N. S.) 739; 
 
 10 A. & E. Ann. Cas. 900), 499. 
 Herman v. New Orleans, etc., R. 
 
 Co. (11 La. Ann. 5), 217. 
 Herrick v. Minneapolis, etc., R. Co. 
 
 (31 Minn. 11; 10 N. W. 413), 
 
 12. 
 Herrick v. Minneapolis, etc., R. Co. 
 
 (32 Minn. 435; 21 N. W. 471), 
 
 12, 17. 
 Herring v. Atlantic Coast Line R. 
 
 Co. (N. C.) (84 S. E. 803), 273. 
 Hewill v. East, etc., Co. (Mich.) 
 
 (98 N. W. 992), 240. 
 Hicks v. Barrett (40 Ala. 291), 234. 
 Hicks V. Southern R. Co. (03 S. 
 
 C. 559; 41 S. E. 753), 11. 
 Higgins V. Cherokee R. Co. (73 Ga. 
 
 149), 144. 
 Higgins V. Yelverton (Yelv. 89), 
 
 217. 
 Hill v. Callahan (82 Ga. 113; 8 
 
 S. E. 730), 143. 
 Hill V. Nashville, etc., R. Co. (9 
 
 Heisk. 823), 147, 175. 
 Hill V. New Haven (37 Vt. 501), 
 
 231. 
 Hill V. Pennsylvania R. Co. (178 
 
 Pa. St. 223; 35 Atl. 997; 35 L. 
 
 R. A. 190; 39 W. N. C. 221), 273. 
 Hilton Lumber Co. v. Atlantic 
 
 Coast Line Railroad (141 N. C. 
 
 171; 53 N. E. 823; 6 L. R. A. 
 
 (N. S.) 225), 493. 
 Hinsdale v. New York, etc., R. Co. 
 
 (81 N. Y. App. Div. 617), 247. 
 Hirschkovitz v. Pennsylvania R. 
 
 Co. (C. C.) (138 Fed. 438), 224. 
 Hitchcock V. Munger (15 N. H. 
 
 97), 500.
 
 TABLE OF CASES. 
 
 xliii 
 
 [References are to pages. 
 
 Hobbs V. Bowie (121 Ga. 421; 49 
 
 S. E. 285), 147. 
 Hobbs V. Great Northern Ry. Co. 
 
 (SO Wash. 678; 142 Pac. 20), 292. 
 Hodges V. Webber (65 N. Y. App. 
 
 Div. 170; 72 N. Y. Supp. 508), 
 
 235. 
 Hodnett v. Boston, etc., R. Co. 
 
 (156 Mass. 86; 30 N. E. 224), 226. 
 Hogerty v. Philadelphia & R. Ry. 
 
 Co. (245 Pa. 443; 91 Atl. 854), 
 
 36, 266, 273, 313. 
 Hohenleitner v. Southern Pac. Co. 
 
 (177 Fed. 796), 354, 356, 357, 400, 
 
 402. 405, 406. 
 Holden v. Hardy (169 U. S. 366; 
 
 42 L. Ed. 780; 18 Sup. Ct. 383, 
 
 affirming 14 Utah, 71; 37 L. R. 
 
 A. 103; 46 Pac. 756; 14 Utah, 
 
 96; 37 L. R. A. 108; 46 Pac. 
 
 1105), 12, 601. 
 HoUenbeck v. Berkshire R. Co. (9 
 
 Cush. 478), 236, 261. 
 Holmes v. Clarke (6 Hurlst. & N. 
 
 349; 30 L. J. Exch. (N. S.) 135; 
 
 7 Jur. (N. S.) 397; 3 L. T. (N. S.) 
 
 675; 9 W. R. 419), 200. 
 Holmes v. Railway Co. (6 Sawy. 
 
 262; 5 Fed. 523), 168. 
 Hopkins v. Southern Ry. Co. (110 
 
 Ga. 167; 35 S. E. 70), 145. 
 Horton v. Oregon-Wash. R. & Nav. 
 
 Co. (72 Wash. 503; 130 Pac. 897), 
 
 42, 80, 96, 102. 
 Horton v. Seaboard Air Line R. 
 
 Co. (157 N. C. 146; 72 S. E. 
 
 958), 92, 178, 179, 315. 
 Hosheit v. Lusk (Mo. App.) (177 S. 
 
 W. 712), 50. 
 Hough V. Texas & P. R. Co. (100 U. 
 
 S. 213; 25 L. Ed. 612, reversing 
 
 Fed. Cas. 6221), 181, 200, 291. 
 Houston & T. C. Ry. Co. v. Bight 
 
 (Tex. Civ. App.) (156 S.W. 304), 35. 
 
 Houston, etc., Co. v. Ins. Co. (89 
 
 Tex. 1; 32 S. W. 889; 30 L. R. 
 
 A. 713; 53 Am. St. 17), 347. 
 Houston, etc., R. Co. v. Turner (34 
 
 Tex. Civ. App. 397; 78 S. W. 
 
 712), 246. 
 Howard v. Illinois Central Ry. Co. 
 
 (207 U. S. 403; 28 Sup. Ct. 141; 
 
 52 L. Ed. 297), 14, 24, 573, 596. 
 Hoxie V. New York, N. H. & H. R. 
 
 Co. (82 Conn. 352; 73 Atl. 764, 
 
 reversed 223 U. S. 1; 32 Sup. Ct. 
 
 169; 56 L. Ed. 327), 23, 267, 
 
 276, 278, 281, 576, 582. 
 Hubert v. Topeka (34 Fed. 510), 
 
 244. 
 Hubgh V. New Orleans, etc., R. Co. 
 
 (6 La. Ann. 495), 217. 
 Hudson V. Missouri, K. & T. R. 
 
 Co. (16 Kan. 470), 110. 
 Hull V. Richmond (2 Woodb. & M. 
 
 337), 181. 
 Hunter v. Illinois Central R. Co. 
 
 (188 Fed. 645; 110 C. C. A. 459), 
 
 498. 
 Huntington v. Attrill (146 U. S. 
 
 657; 13 Sup. Ct. 224; 36 L. Ed. 
 
 1123, reversing 70 Md. 191; 2 
 
 L. R. A. 779; 14 Am. St. 344; 
 
 16 Atl. 651), 431. 
 Hutchison v. York, etc., R. Co. (5 
 
 Exch. 343; 14 Jur. 837; 19 L. 
 
 J. (Exch.) 296), 11. 
 Hutchins v. St. Paul, etc., R. Co. 
 
 (44 Minn. 5; 46 N. W. 79), 244. 
 Hutchinson Investment Co. v. Cald- 
 well (152 U. S. 65; 14 Sup. Ct. 
 
 504; 38 L. Ed. 356), 225. 
 Hyatt v. Adams (16 Mich. 180), 
 
 217. 
 Hyde v. Southern Ry. Co. (31 App. 
 
 D. C. 466; 36 Wash. L. Rep. 374), 
 
 22, 27, 40, 267.
 
 xliv 
 
 TABLE OF CASES. 
 
 [References are to pages. 
 
 lannone v. New York, etc., R. Co. 
 
 (21 R. I. 452; 44 Atl. 592; 46 
 
 L. R. A. 730; 79 Am. St. 812), 
 
 104. 
 Illinois Cent. R. Co. v. Backus 
 
 (55 111. 379), 157, 160, 163. 
 Illinois Cent. R. Co. v. Barron (5 
 
 Wall. 90; 18 L. Ed. 591, affirming 
 
 1 Biss. 453; Fed. Cas. 1053), 
 
 244. 
 Illinois Cent. R. Co. v. Behrens 
 
 (223 U. S. 473; 33 Sup. Ct. 648; 
 
 34 Sup. Ct. 646; 57 L. Ed. 1125; 
 
 58 L. Ed. 1051; Ann. Cas. 1914 C, 
 
 163), 22, 28, 29, 69, 71, 80, 97, 106, 
 
 109, 126. 
 Illinois Central R. Co. v. Brook- 
 shire (3 111. App. 225), 160. 
 Illinois Cent. R. Co. v. Cragin (71 
 
 111. 177), 164, 165. 
 Illinois Cent. R. Co. v. Doherty 
 
 (153 Ky. 363; 155 S. W. 1119), 
 
 22, 35, 204, 222, 239, 240, 242, 
 
 246, 286, 301, 303, 311. 
 Illinois Cent. R. Co. v. Egan (203 
 
 Fed. 937; 122 C. C. A. 239), 288, 
 
 291, 324. 
 Illinois Cent. R. Co. v. Hammer 
 
 (72 111. 351), 166. 
 Illinois Cent. R. Co. v. Nelson (203 
 
 Fed. 956; 212 Fed. 69), 96, 253, 
 
 304, 307, 308, 319. 
 Illinois Cent. R. Co. v. McKendree 
 
 (203 U. S. 514; 27 Sup. Ct. 153; 
 
 51 L. Ed. 298), 413. 
 Illinois Cent. R. Co. v. Maffit (67 
 
 III. 431), 163, 164. 
 Illinois Cent. R. Co. v. Pendergrass 
 
 (09 Miss. 425; 12 So. 954), 261. 
 Illinois Cent. R. Co. v. Porter (207 
 
 Fed. 311; 125 C. C. A. 55), 96, 
 
 209, 210, 237, 240, 254, 256, 301, 
 
 302, 473. 
 
 Illinois Cent. R. Co. v. Rogers (221 
 
 Fed. 52), 68, 70, 84, 98, 116, 299. 
 Illinois Cent. R. Co. v. Stewart (223 
 
 Fed. 30), 230. 
 Illinois Cent. R. Co. v. Trowbridge 
 
 (31 111. App. 190), 162. 
 Illinois, etc., R. Co. v. Ashline (56 
 
 111. App. 475), 134. 
 Illinois, etc., R. Co. v. Cozby (69 
 
 111. App. 256), 273. 
 Illinois, etc., R. Co. v. Green (81 
 
 111. 19), 154. 
 Illinois, etc., R. Co. v. Hethering- 
 
 ton (83 lU. 510), 161, 162, 165. 
 Illinois, etc., R. Co. v. IMiddles- 
 
 worth (43 111. 64), 163, 165. 
 Illinois, etc., R. v. Simmons (38 111. 
 
 242), 154, 163. 
 
 Illinois, etc., R. Co. v. Slatton (54 
 
 III. 133), 154, 160, 161. 
 Illinois, etc., R. Co. v. Triplett (38 
 
 111. 482, 485), 157. 
 Indianapolis & G. R. Co. v. Fore- 
 man (162 Ind. 85; 69 N. E. 669), 
 
 66. 
 Indianapolis, etc., R. Co. v. Evans 
 
 (88 lU. 63), 165. 
 Indianapolis, etc., R. Co. v. Horst 
 
 (93 U. S. 291; 23 L. Ed. 898), 
 
 181. 
 Indianapolis, etc., R. Co. v. Houghton 
 
 (157 Ind. 494; 60 N. E. 943; 54 
 
 L.R.A.787), 12. 
 Indianapolis, etc., R. Co. v. Keely 
 
 (23 Ind. 133), 229. 
 IndianapoHs, etc., R. Co. v. Stables 
 
 (62 111. 313), 160, 163, 164. 
 Indianapolis, etc., R. Co. v. Stout 
 
 (53 Ind. 143), 274. 
 Indianapolis, T. & T. Co. v. Kinney 
 
 (171 Ind. 612; 85 N. E. 954), 
 
 19, 67.
 
 TABLE OF CASES. 
 
 xlv 
 
 [References are to pages.] 
 
 Indianapolis Union Ry. Co. v. 
 
 Houlihan {I'u Ind. 494; 60 N. 
 
 E. 943; 54 L. R. A. 787), 13, 17, 
 
 19, 66. 
 Ingle V. Southern Ry. Co. (N. C.) 
 
 (83 S. E. 744), 83. 
 Ingraham v. Hilton, etc., Co. (108 
 
 Ga. 194; 33 S. E. 961), 144. 
 Insurance Co. v. Brame (95 U. S. 
 
 754; 24 L. Ed. 580), 217. 
 Interuational & G. N. Ry. Co. v. 
 
 Elder (44 Tex. Civ. App. 605; 
 
 99 S. W. 856), 414, 489. 
 International & G. N. R. Co. v. 
 
 Lehman (Tex. Civ. App.) (72 S. 
 
 W. 619), 259. 
 International, etc., R. Co. v. Boykin 
 
 (32 Tex. Civ. App. 72; 85 S. W. 
 
 1163), 227, 247. 
 International, etc., R. Co. v. Glover 
 
 (13 Tex. Civ. App. 263; 88 S. W. 
 
 515), 302. 
 International, etc., R. Co. v. Kindred 
 
 (57 Tex. 491), 219. 
 International, etc., R. Co. v. Kuehn 
 
 (70 Tex. 582; 8 S. W. 484), 233, 274. 
 International Text Book Co. v. Pigg 
 
 (217 U. S. 91; 30 Sup. Ct. 481; 
 
 54 L. Ed. 678), 57. 
 Interstate Commerce Commission v. 
 
 Baird (194 U. S. 25; 25 Sup. Ct. 
 
 563; 48 L. Ed. 860, reversing 123 
 
 Fed. 969), 400. 
 Interstate Commerce Commission v. 
 
 Bellaire, 0. & C. Ry. Co. (77 
 
 Fed. 942), 58, 378. 
 Interstate Commerce Commission v. 
 
 Detroit, G. H. & M. R. Co. (167 
 
 U. S. 633, 642; 17 Sup. Ct. 986; 
 
 '42 L. Ed. 306, affirming 74 Fed. 
 
 803; 21 C. C. A. 103, reversing 
 
 57 Fed. 1005), 56, 59, 387. 
 Interstate Commerce Commission v. 
 
 Illinois Central R. Co. (215 U. S. 
 
 452; 30 Sup. Ct. 155; 54 L. Ed. 
 
 280), 77. 
 
 Interstate Commerce Commission v. 
 Seaboard A. L. Ry. Co. (82 Fed. 
 563), 59. 
 
 Interstate Stock Yards v. Indian- 
 apolis Union Ry. Co. (99 Fed. 472), 
 367. 
 
 Ireland v. Oswego, etc., R. Co. (13 
 N. Y. 533), 176. 
 
 Irwin V. Railroad Co. (164 N. C. 
 454; 80 S. E. 78), 245. 
 
 Isbell V. New York, etc., R. Co. 
 (27 Conn. 393), 176. 
 
 Ives V. South Buffalo Ry. Co. (201 
 N. Y. 271; 94 N. E. 431, reversing 
 140 App. Div. 921; 125 N. Y. 
 Supp. 1125; which affirmed 68 
 N. Y. Misc. Rep. 643; 124 N. Y. 
 Supp. 920), 14. 
 
 J. & J. McCarthy, The (55 Fed. 
 
 86), 168. 
 Jackson v. Chicago, M. & St. P. Ry. 
 
 Co. (210 Fed. 495), 51, 74, 82, 105. 
 Jackson v. Chicago, R. I. & P. R. 
 
 Co. (178 Fed. 432), 110. 
 Jackson v. Nashville, etc., K. Co. 
 
 (13 Lea, 491; 49 Am. Rep. 663), 
 
 147, 175. 
 Jacksonville, etc., R. Co. v. South- 
 worth (135 lU. 250; 25 N. E. 
 
 109.3), 159. 
 Jacobson v. Massachusetts (197 U. 
 
 S. 11), 816. 
 James D. Leacy, The (110 Fed. 
 
 685; affirmed 113 Fed. 1019; 51 
 
 C. C. A. 620), 168. 
 Jefferson v. Chapman (127 111. 438; 
 
 20 N. E. 33), 159. 
 Jefferson Branch Bank v. Skelly 
 
 (1 Black. 436), 584. 
 Jeffersonville, etc., R. Co. v. Hen- 
 dricks (41 Ind. 48), 229, 231, 232, 
 
 234.
 
 xlv: 
 
 TABLE OF CASES. 
 
 [References are to pages. 
 
 Jenkins v. Central R. Co. (89 Ga. 
 
 756; 15 S. E. 655), 144. 
 Jennings v. Railroad Co. (96 Minn. 
 
 302; 104 N. W. 1079), 65. 
 Jensen v. Southern P. Co. (N. Y.) 
 
 (109 N. E. 600), 36, 93, 273. 
 Jensen v. Wisconsin Central Ry. 
 
 Co. (145 Wis. 326; 128 N. W. 
 
 982), 197. 
 Jeremiah Godfrey, The (17 Fed. 
 
 738), 168. 
 Joel V. Morrison (6 C. & P. 501), 111. 
 Johnson v. Chicago G. W. Ry. Co. 
 
 (Mo. App.) (164 S. W. 260), 
 
 351, 406, 484. 
 Johnson v. Great Northern Ry. Co. 
 
 (178 Fed. 643, 646; 102 C. C. A. 
 
 89), 82, 93, 333, 365, 366, 407, 421, 
 
 426, 469, 472, 478, 484, 486. 
 Johnson v. Philadelphia, etc., R. Co. 
 
 (163 Pa. St. 127; 29 Atl. 854), 266. 
 Johnson v. Railroad Co. (43 IMinn. 
 
 222; 45 N. W. 156; 8 L. R. A. 
 
 419), 65. 
 Johnson v. Southern Pac. Ry. Co. 
 
 (196 U. S. 1; 25 Sup. Ct. 158; 
 
 49 L. Ed. 363, reversing 117 Fed. 
 
 462; 54 C. C. A. 508), 22, 24, 41, 
 
 59, 67, 118, 199, 331, 332, 334, 335, 
 
 340, 354, 356, 357, 363, 306, 370, 
 
 393, 397, 400, 401, 402, 405, 406, 
 
 408, 431, 405, 489, 514, 602, 724, 
 
 726, 849, 850, 858, 927. 
 Johnson v. St. Paul, etc., R. Co. 
 
 (43 Minn. 222; 45 N. W. 156; 
 
 8 L. R. A. 419), 17, 19. 
 Johnson v. United States (196 U. S. 
 
 1; 25 Sup. Ct. Rep. 158, reversing 
 
 54 CCA. 508; 117 Fed. 462), 399. 
 Jones V. Charleston & W. C Ry. Co. 
 
 (98 S. C 197; 82 S. E. 415), 35, 
 
 222, 224. 
 Jones V. Chesapeake, etc., R. Co. 
 
 (149 Ky. .566; 149 S. W. 951; 
 
 modified, 153 Ky. 378; 155 S. W. 
 
 723), .36, 72, 7S, 100. 301, 313. 
 
 Jones V. Kansas City So. Ry. Co. 
 
 (La.) (68 So. 401), 223, 237, 253, 
 
 287, 312. 
 Jones V. Kansas City (178 Mo. 528; 
 
 77 S. W. 890), 247. 
 Joseph Stickney, The (31 Fed. 156), 
 
 167, 169. 
 JuHa Fowler, The (49 Fed. 279), 168. 
 Jungnitsch v. Michigan, etc., Co. 
 
 (105 Mich. 270; 63 N. W. 296; 
 
 2 Det. Leg. N. 107), 11. 
 Juniata, The (93 U. S. 337; 23 L. 
 
 Ed. 930), 167. 
 
 Kaght V. Sadtler, etc., Co. (91 Mo. 
 
 App. 574), 245. 
 Kamboris v. Oregon & Wash. R. & 
 
 Nav. Co. (Ore.) (146 Pac. 1097), 
 
 36, 95, 96, 280, 302, 313. 
 Kansas City, etc.. R. Co. v. 
 
 Crocker (95 Ala. 412), 396. 
 Kansas City, etc., R. Co. v. Daugh- 
 
 erty (88 Tenn. 721; 13 S. W. 
 
 698), 219. 
 Kansas City, etc., R. Co. v. Flippo 
 
 (138 Ala. 487; 35 So. 457), 280, 
 
 334, 369, 392, 403, 414, 487, 489, 
 
 490, 491. 
 Kansas City, M. & O. Ry. Co. v. 
 
 Pope (Tex. Civ. App.) (152 S. W. 
 
 185, 153 S. W. 103), 36, 95, 214. 
 Kansas City M. & O. Ry. Co. v. 
 
 Roe (Okla.) (150 Pac. 1035), 
 
 240. 
 Kansas City So. R. Co. v. Cook 
 
 (100 Ark. 467; 140 S. W. 579), 97, 
 
 295, 300. 
 Kansas City So. Ry. Co. v. Leslie 
 
 (35 Sup. Ct. 844, reversing 112 Ark. 
 
 305; 167 S. W. 83, 844), 220a, 
 
 220b, 242, 263, 264, 287, 319. 
 Kansas City So. Ry. Co. v. Loesey 
 
 (Ark.) (177 S. W. 875), 202. 
 Kansas City So. Ry. Co. v. Miller 
 
 (Ark.) (175 S. W. 1164), 98.
 
 TABLE OF CASES. 
 
 xlvii 
 
 [References are to pages. 
 
 Kansas City So. Ry. Co. v. Quigley 
 
 (181 Fed. 190), 507. 
 Kansas City So. Ry. Co. v. Railroad 
 
 Commission (106 Fed. 359), 58, 
 
 355. 
 Kansas Pacific Ry. Co. v. Peavey 
 
 (29 Kan. 169; 44 Am. Rep. 630), 
 
 12, 133. 
 Kansas Pacific Ry. Co. v. Pointer 
 
 (14 Kan. 37), 133, 173. 
 Kaufman v. Cleveland, etc., R. Co. 
 
 (144 lad. 456; 43 N. E. 446), 218. 
 Kearney v. Boston & W. R. Co. 
 
 (9 Cush. 108), 236, 261. 
 Kelley v. Chicago, etc., R. Co. (50 
 
 Wis. 381; 7 N. W. 291), 302. 
 Kelley v. Ohio, etc., R. Co. (58 
 
 W. Va. 216; 52 S. E. 520), 249. 
 Kelley v. Rhoades (188 U. S. 1; 
 
 23 Sup. Ct. 259; 47 L. Ed. 359, 
 
 reversing 9 Wyo. 352; 87 Am. 
 
 St. 959; 63 Pac. 935), 347. 
 Kelly V. Chesapeake & O. R. Co. 
 
 (201 Fed. 602), 35, 43, 69, 287, 
 
 288, 295, 300, 310, 313. 
 Kelly V. Great Northern Ry. Co. 
 
 (152 Fed. 211), 24, 129, 335, 356. 
 Kelly V. Illinois Central R. Co. (140 
 
 111. App. 125), 443. 
 Kennedy v. Standard Sugar & Re- 
 finery (125 Mass. 90; 28 Am. Rep. 
 
 214), 261. 
 Kenney v. New York, etc., Co. (49 
 
 Hun, 535; 2 N. Y. Supp. 512), 
 
 302. 
 Kenney v. Seaboard Air Line R. Co. 
 
 (165 N. C. 99; 80 S. E. 1078; 166 
 
 N. C. 566; 80 S. E. 1078; 82 S. E. 
 
 968), 225, 227, 245, 246, 253, 255, 
 
 302, 307, 308. 
 Kentucky Bridges, etc., Co. v. Sydor 
 
 (82 S. W. 989; 26 Ky. L. 951; 68 
 
 L. R. A. 183), 148. 
 
 Kentucky, etc., R. Co. v. McGinty 
 
 (12 Ky. 482; 14 S. W. Rep. 601), 
 
 229. 
 Kentucky, etc., R. Co. v. Thomas 
 
 (79 Ky. 160; 42 Am. Rep. 208), 
 
 175. 
 Kentucky, etc., R. Co. v. Wain- 
 
 wright (Ky.) (13 S. W. 438), 229. 
 Keokuk Packet Co. v. Henry (50 
 
 111. 264), 164. 
 Kepperly v. Ramsden (83 HI. 354), 
 
 154, 162. 
 Kern v. Chicago, M. & P. S. Ry. Co. 
 
 (201 Fed. 404), 101. 
 Kerr v. Forque (54 lU. 482), 161. 
 Ketchum v. Chicago, St. P., M. & 
 
 O. Ry. Co. (Wis.) (136 N. W. 634), 
 
 197. 
 Kewanee v. Depew (80 111. 119), 164. 
 Kiley v. Chicago, M. & St. P. Ry. 
 
 Co. (145 Wis. 326; 128 N. W. 
 
 982), 23. 
 Kiley v. Chicago, M. & St. P. R. Co. 
 
 (138 Wis. 215; 119 N. W. 309; 
 
 120 N. W. 756), 14, 23, 179. 
 Kilpatrick v. Grand Trunk Ry. Co. 
 
 (72 Vt. 288; 47 Atl. 827), 198. 
 Kilpatrick v. Railroad Co. (74 Vt. 
 
 288; 52 Atl. 531; 93 Am. St. 
 
 887), 491. 
 Kindellen v. Mt. Washington R. Co. 
 
 (76 N. H. 54; 79 Atl. 691), 104. 
 Kinney v. Central R. Co. (34 N. J. L. 
 
 273), 234. 
 Kirbo V. Southern Ry. (Ga. App.) 
 
 (84 S. E. 491), 201, 203, 209. 
 Kirby v. United States (174 U. S. 
 
 55; 19 Sup. Ct. 574; 43 L. Ed. 
 
 809), 431. 
 Kiser v. Metropolitan St. R3'. Co. 
 
 (Mo.) (175 S. W. 98), 106. 
 Knapp V. Great Northern Rv. Co. 
 
 (Minn.) (153 N. W. 848), 36, 96, 
 
 212, 253, 294. 296, 307, 319. 
 Knott V. Peterson (125 la. 404; 101 
 
 N. W. 173, 524), 245, 246.
 
 xlviii 
 
 TABLE OF CASES. 
 
 [References are to pages.] 
 
 KnoT.les v. New York, N. H. & H. 
 
 R. Co. (164 App. Div. — ; 150 
 
 N. Y. Supp. 99), 95, 101, 297, 315. 
 Knoxville, etc., R. Co. v. Acuff (92 
 
 Tenn. 26; 20 S. W. 348), 274. 
 Koehler, Ex parte (30 Fed. 867), 58. 
 Koening v. City of Covington (Ky.) 
 
 (17 S. W. 128), 229. 
 Koennecke v. Seaboard A. L. R. 
 
 Co. (S. C.) (85 S. E. 374), 313, 
 
 319. 
 Korrady v. Lake Shore, etc., R. 
 
 Co. (131 Ind. 261; 29 N. E. 1069), 
 
 302, 303. 
 Kramer v. Market St. Ry. Co. (25 
 
 Cal. 134), 217. 
 Kuhns V. Wisconsin, etc., Ry. Co. 
 
 (76 Iowa, 67; 40 N. W. 92), 232. 
 Kumler v. Junction R. Co. (33 Ohio 
 
 St. 150), 104. 
 Kyes V. Valley Telephone Co. (132 
 
 Mich. 281; 93 N. W. 623), 261. 
 
 La Burgogne, In re, (117 Fed. 261), 
 
 217. 
 La Casse v. New Orleans, T. & M. 
 
 R. Co. (135 La. 129; 64 So. 1012), 
 
 35, 105, 107, 214, 215. 
 Lackawanna, The (151 Fed. 499), 
 
 167. 
 Ladd V. Minneapolis, St. P. & S. S. 
 
 M. Ry. Co. (142 Wis. 165; 125 
 
 N. W. 468), 23. 
 Lake Erie, etc., R. Co. v. Charmer 
 
 (161 Ind. 95; 67 N. E. 629), 213. 
 Lake Shore & M. S. Ry. Co. v. 
 
 Benson (97 N. E. 417), 340, 397. 
 Lake Shore & M. S. R. Co. v. United 
 
 States (93 U. S. 442), 345. 
 Lake Shore, etc., R. Co. v. Johnson 
 
 (135 111. 041; 26 N. E. 510), 159. 
 La Mere v. Railway Transfer Co. 
 
 (125 Minn. 159, 526; 145 N. W. 
 
 IOCS), 203, 250, 340, 353,406, 409, 
 
 473, 485. 
 
 Lamphear v. Buckingham (33 Cona. 
 
 237), 229. 
 Lamphere v. Oregon, R. & Nav. Co. 
 
 (196 Fed. 336; 116 C. C. A. 156; 
 
 47 L. R. A. (N. S.) 1, reversing 
 
 193 Fed. 248), 70, 72, 76, 91, 101, 
 
 127. 
 Lanark v. Dougherty (153 111. 163; 
 
 38 N. E. 892), 134. 
 Landigan v. New York, etc., R. Co. 
 
 (5 Civ. Proc. (N. Y.) 76), 231. 
 Larabee v. New York, N. H. & H. 
 
 R. Co. (182 Mass. 348; 66 N. E. 
 
 1032), 397. 
 Latremouille v. Bennington (63 Vt. 
 
 336; 22 Atl. 656; 48 Am. & Eng. 
 
 R. Cas. 265), 11. 
 Lauer v. Northern Pac. Ry. Co. 
 
 (Wash.) (145 Pac. 606), 36, 39, 
 
 42, 201, 313. 
 Lavalle v. St. Paul, etc., R. Co. 
 
 (40 Minn. 249; 41 N. W. 974), 
 
 17, 19. 
 Law V. Illinois Cent. R. Co. (208 
 
 Fed. 869; 126 Fed. 27), 70, 73, 76, 
 
 100. 
 Lee V. Toledo, St. li. & W. R. Co. 
 
 (193 Fed. 685, 768), 287, 288. 
 Lehigh Valley R. Co. v. Common- 
 wealth (Pa.) (18 Atl. 125), 58, 355. 
 Lehigh Valley R. Co. v. Pennsyl- 
 vania (145 U. S. 192; 12 Sup. Ct. 
 
 806; 36 L. Ed. 672), 355. 
 Lehmann v. Folwell (95 Wis. 185; 
 
 70 N. W. 170; 37 L. R. A. 333; 
 
 CO Am. St. Ill), 261. 
 Leisy v. Hardin (135 U. S. 100; 10 
 
 Sup. Ct. 081; 34 L. Ed. 128, 
 
 reversing 78 Iowa, 286; 43 N. W. 
 
 188), 347. 
 Lelt v. St. Lawrence & 0. R. Co. 
 
 (11 Ont. App. Rep. 1), 241. 
 Levin v. United States (128 Fed. 
 
 S20; 03 C. C. A. 476), 286.
 
 TABLE OF CASES. 
 
 xlix 
 
 [References are to pages. 
 
 Lewis V. Pennsylvania R. Co. (220 
 
 Pa. 317; 69 Atl. 821), 490. 
 Lilly V. Charlotte, etc., R. Co. (32 
 
 S. C. 142; 10 S. E. 932), 229. 
 Lindstron v. International, etc., 
 
 Co. (117 Fed. 170), 218. 
 Litlewood v. Mayor (89 N. Y. 24, 
 
 affirming 15 J. & S. 547), 273. 
 Little V. Southern Ry. Co. (120 Ga. 
 
 347; 47 S. E. 953), 145. 
 Little Rock, etc., Ry. Co. v. 
 
 Barker (33 Ark. 350), 217. 
 Little Rock, etc., R. Co. v. Leverett 
 
 (48 Ark. 333; 3 S. W. 50), 235. 
 Lloyd V. North Carolina R. Co. 
 
 (151 N. C. 536; 66 S. E. 604), 510. 
 Lloyd V. Southern Ry. Co. (166 N. 
 
 C. 24; 81 S. E. 1003), 60, 94, 97, 
 
 200, 208, 292, 293, 294, 311, 312. 
 Logan V. United States (144 U. S. 
 
 263), 584. 
 Lombardo v. Boston & M. R. Co. 
 
 (223 Fed. 427), 74, 287. 
 Lord V. Pueblo, etc., R. Co. (12 
 
 Colo. 390; 21 Pac. 148), 235. 
 Louisville & N. R. Co. v. Allen (152 
 
 Ky. 145; 153 S. W. 198; 152 Ivy. 
 
 837; 154 S. W. 371), 58. 
 Louisville & N. R. Co. v. Barrett 
 
 (85 S. E. 923), 108, 311. 
 Louisville & N. R. Co. v. Fleming 
 
 (Ala.) (69 So. 125), 208, 220b, 
 
 242, 243, 245, 247, 255, 258, 262, 
 
 297, 305, 306, 315, 325. 
 Louisville & N. R. Co. v. Hender- 
 son (Ky.) (173 S. W. 343), 255. 
 Louisville & N. R. Co. v. Hcnig 
 
 (162 Ky. 14; 171 S. W. 853), 292. 
 Louisville & N. R. Co. v. Hill (115 
 
 Ala. 334), 810. 
 Louisville & N. R. Co. v. Holloway 
 
 (Ky.) (173 S. W. 343), 256, 292, 
 
 293, 294. 
 Louisville & N. R. Co. v. Joluison 
 
 (161 Ky. 824; 171 S. W. 847), 240, 
 
 258. 
 
 Louisville & N. R. Co. v. Kemp 
 
 (140 Ga. 657; 79 S. E. 558), 35. 
 
 78, 100, 292, 293. 
 Louisville & N. R. Co. v. Lankford 
 
 (209 Fed. 321; 126 C. C. A. 247), 
 
 95, 212, 256, 257, 292. 
 Louisville & N. R. Co. v. Moore 
 
 (156 Ky. 708; 161 S. W. 1129), 
 
 101, 105, 305. 
 Louisville & N. R. Co. v. Mottley 
 
 (219 U. S. 467; 31 Sup. Ct. 265; 
 
 55 L. Ed. 297), 272. 
 Louisville & N. R. Co. v. Parker 
 
 (165 Ky. 658; 117 S. W. 465), 106. 
 Louisville & N. R. Co. v. Scott (108 
 
 Ky. 382; 56 S. W. 674; 50 L. R. 
 
 A. 381), 104. 
 Louisville & N. R. Co. v. Scott 
 
 (219 U. S. 209; 31 Sup. Ct. 171; 
 
 55 L. Ed. 183), 491. 
 Louisville & N. R. Co. v. Stewart 
 
 (156 Ky. 550; 161 S. W. 557; 
 
 modified, 157 Ky. 642; 163 S. W. 
 
 755; 174 S. W. 744), 237, 239, 
 
 242, 246, 252, 258, 293, 294. 
 Louisville & N. R. Co. v. Strange 
 
 (1.56 Kv. 4.39; 161 S. W. 239), 4, 
 
 36, 52, 106, 304, 305. 
 Louisville & N. R. Co. v. United 
 
 States (174 Fed. 1021; 98 C. C. 
 
 A. 664), 356, 493, 495. 
 Louisville & N. Pt. Co. v. United 
 
 States (186 Fed. 280; 108 C. C. A. 
 
 320), 340, 358, 361, 362, 372, 494, 
 
 495, 496, 497. 
 Louisville & N. R. Co. v. Walker 
 
 (162 Kv. 209; 172 S. W. 517), 
 
 63, 69, 98, 102, 125. 
 Louisville & N. R. Co. v. Wene (202 
 
 Fed. 887; 121 C. C. A. 245), 254, 
 
 2.55. 
 Louisville & N. R. Co. v. Wilson 
 
 (ISS Fed. 417; 110 C. C. A. 217), 
 
 497. 
 Louisville & N. R. Co. v. Winkler 
 
 (162 Ky. 843: 173 S. W. 151), 253. 
 Louisville & N. R. Co. v. Yar- 
 
 borough (60 Fla. — ; 61 Fla. 307; 
 
 54 So. 462), 148.
 
 TABLE OF CASES. 
 
 [References are to pages.] 
 
 Louisville, etc., R. Co. v. Berry (2 
 
 Ind. App. 427; 28 N. E. 714), 235, 
 
 259. 
 Louisville, etc., R. Co. v. Collins 
 
 (2 Duv. 114), 148. 
 Louisville, etc., R. Co. v. Common- 
 wealth (80 Ky. 143; 44 Am. Rep. 
 
 468), 148. 
 Louisville, etc., R. Co. v. Coppage 
 
 (Ky.) (13 S. W. 1086), 229. 
 Louisville, etc., R. Co. v. Edmondson 
 
 (128 Ga. 478; 57 S. E. 877), 147. 
 Louisville, etc., R. Co. v. Filbern 
 
 (6 Bush. 674), 148. 
 Louisville, etc., R. Co. v. Jones (45 
 
 Fla. 407; 50 Fla. 225; 39 So. 246, 
 
 485), 218, 224, 226. 
 Louisville, etc., R. Co. v. Louisville, 
 
 etc., Co. (Ky.) (17 S. W. 567), 218. 
 Louisville, etc., R. Co. v. Merri- 
 
 weather (Ky.) (12 S. W. 935), 229. 
 Louisville, etc., R. Co. v. Rush (127 
 
 Ind. 545; 26 N. E. 1010), 241. 
 Louisville, etc., R. Co. v. Sanders 
 
 (86 Ky. 259; 5 S. W. 563), 232. 
 Louisville, etc., R. Co. v. Summers 
 
 (125 Fed. 719), 302. 
 Louisville, etc., R. Co. v. Thompson 
 
 (107 Ind. 442; 8 N. E. IS; 9 N. 
 
 E. 357), 218. 
 Louisville, etc., R. Co. v. Thompson 
 
 (113 Ga. 983; 39 S. E. 483), 145. 
 Louisville, etc., R. Co. v. Trammell 
 
 (93 Ala. 350; 9 S. 870), 303. 
 Louisville, etc., R. Co. v. Vancleave 
 
 (23 Ky. L. 479; 63 S. W. 22), 355. 
 Louisville, etc., R. Co. v. Walker 
 
 (23 Ky. L. 453; 63 S. W. 20), 355. 
 Lovier v. Central, etc., R. Co. (71 
 
 Ga. 222), 144. 
 Low V. Rees Printing Co. (41 Neb. 
 
 127; 59 Pac. 362; 24 L. R. A. 
 
 702), 601. 
 
 Lucas V. New York, etc., R. Co. (21 
 
 Barb. 245), 229. 
 Lucas V. Peoria & E. Ry. Co. (171 
 
 111. App. 1), 373, 376, 493. 
 Luce V. Railroad Co. (67 Iowa, 75; 
 
 24 N. W. 600), 64. 
 Ludd V. Wilkins (118 Ga. 525; 45 
 
 S. E. 429), 145. 
 Luken v. Lake Shore & M. S. Ry. Co. 
 
 (154111.550; 248111.377; 94 N. E. 
 
 175; 140 Am. St. 220; 21 Am. 
 
 Cas. 82), 338, 340, 344, 356, 357, 
 
 361, 399, 402, 414, 422, 426, 472. 
 Lundeen v. Great Northern Ry. Co. 
 
 (Minn.) (150 N. W. 1088), 252. 
 Lundin v. Kansas Pac. Ry. Co. (4 
 
 Colo. 433), 218. 
 Lynch v. Nurdin (4 Eng. C. L. 422), 
 
 148. 
 Lyng V. Michigan (135 U. S. 161, 
 
 166; 10 Sup. Ct. 725; 34 L. Ed. 
 
 150, reversing 74 Mich. 579; 42 
 
 N. W. Rep. 139), 347, 387. 
 Lyon v. Charleston & W. C. Ry. 
 
 (77 S. C. 328; 56 S. E. 18), 461, 
 
 471. 
 Lyons v. Woodward (49 Me. 29), 
 
 217. 
 
 M 
 
 McAdoo v. Kansas City W. Ry. Co. 
 
 (Mo. App.) (164 S. W. 188), 42, 
 
 54, 294, 296, 304. 
 McAllister v. United States (141 U. 
 
 S. 174, 184; 11 Sup. Ct. 949; 35 
 
 L. Ed. 693), 284. 
 McAuliffc v. New York C. & 11. R. 
 
 H. Co. (150 N. Y. Sup. 512), 109, 
 
 315. 
 McAunick v. Mississippi, etc., R. 
 
 Co. (20 Iowa, 338), 12. 
 McClicsnoy v. Illinois Cen. R. Co. 
 
 (107 Fed. 85), 36, 287, 289, 295. 
 McCIclhin V. Chipman (164 U. S. 
 
 347), 584.
 
 TABLE OF CASES. 
 
 [References are to pages. 
 
 McCool V. Smith (1 Black. 459; 17 
 
 L. Ed. 218), 225. 
 McCormick v. Market Bank (165 
 
 U. S. 538; 17 Sup. Ct. 433; 41 
 
 L. Ed. 817, affirming 162 111. 100; 
 
 44 N. E. 381), 413. 
 McCoullough V. Chicago, R. I. & P. 
 
 Ry. Co. (160 Iowa, 452; 142 N. W. 
 
 67), 240, 243, 244, 246, 247, 248, 
 
 249, 250, 253, 287, 293, 303, 319. 
 McCray Case (196 U. S. 27), 577. 
 McCutcheon v. Atlantic, etc., R. Co. 
 
 (81 S. C. 71; 61 S. E. 1108), 355. 
 IMcDaniels v. Royle, etc., Co. (110 
 
 Mo. App. 706; 85 S. W. 679), 227. 
 McDonald v. Pittsburg, etc., R. Co. 
 
 (144 Ind. 459; 43 N. E. 447), 227. 
 McDonald v. Railway Transfer Co. 
 
 (121 Minn. 273; 141 S. W. 177), 
 
 203. 
 McDonald v. Southern M. R. Co. 
 
 (10 Ohio St. 272), 227. 
 McDonald v. Southern R. Co. (71 
 
 S. C. 352; 51 S. E. 138), 227. 
 McDonnell v. Central R. Co. (118 
 
 Ga. 86, 195; 44 S. E. 800, 840), 
 
 147. 
 McGarvey v. Detroit, T. & I. Ry. 
 
 Co. (83 Ohio St. 273; 94 N. E. 
 
 424), 344, 405. 
 McGarvey v. McGarvey (163 Ky. 
 
 242; 173 S. W. 765), 223. 
 McGovern V. Philadelphia &R. Ry. 
 
 Co. (200 U. S. 389; 34 Sup. Ct. — 
 
 reversing 209 Fed. 975 (C. C. A.) 
 
 6 N. C. C. — ), 224, 235, 293. 
 McGuire v. Chicago, B. & O. Rv. 
 
 Co. (131 Iowa, 340; 108: N. W. 
 
 902;33L. R. A. (N. S.)706;affirmed 
 
 219 U. S. 549; 31 Sup. Ct. 259; 
 
 55 L. Ed. 328), 12, 23, 266, 491. 
 Mcintosh V. St. Louis & S. F. R. 
 
 Co. (182 Mo. App. 288; 168 S. W. 
 
 821), 36, 294, 297, 298, 313, 314, 
 
 324, 489. 
 
 Mclver v. Ragan (2 Wheat. 25, 29; 
 
 4 L. Ed. 175), 388. 
 McKeigue v. City of Janesville (68 
 
 Wis. 50; 31 N. W. 298), 235. 
 McKering v. Pennsylvania R. Co. 
 
 (65 N. J. L. 57; 46 Atl. 715), 273. 
 McMahon v. City of New York (33 
 
 N. Y. 642), 223. 
 McNamara v. Washington Terminal 
 
 Co. (35 App. D. C. 230; 38 Wash. 
 
 Law Rep. 343), 22, 27, 491. 
 McNamara v. Washington Terminal 
 
 Co. (37 Wash. D. C. 384, 389), 
 
 23, 72, 102. 
 McNiel, Ex parte (13 Wall. 236; 20 
 
 L. Ed. 624), 30, 589. 
 McNiell V. Southern Ry. Co. (202 
 
 U. S. 543; 26 Sup. Ct. 722; 50 
 
 L. Ed. 1142), 56, 57. 
 Mabel Comeaux, The (24 Fed. 490), 
 
 168. 
 Macon, etc., Ry. Co. v. Anderson 
 
 (121 Ga. 666; 49 S. E. 791), 147. 
 Macon, etc., Ry. Co. v. Barnes (121 
 
 Ga. 443; 49 S. E. 282), 147. 
 Macon, etc., R. Co. v. Davis (28 Ga. 
 
 Ill; IS Ga. 079), 134, 146. 
 Macon, etc., R. Co. v. Denis (18 Ga. 
 
 684), 134. 
 JMacon, etc., Ry. Co. v. Holmes (103 
 
 Ga. 655, 658; 30 S. E. 563, 565), 
 
 138, 142, 144. 
 Macon, etc., R. Co. v. Johnson (38 
 
 Ga. 409, 431), 134, 142, 144. 
 I Macon, etc., Ry. Co. v. ]McLendon 
 
 (119 Ga. 297; 46 S. E. 106), 145. 
 Macon, etc., R. Co. v. Winn (26 
 
 Ga. 250; 19 Ga. 440), 134, 144, 
 
 146. 
 Madison, etc., R. Co. v. Bacon (6 
 
 Ind. 205), 10, 218. 
 Majestic, The (166 U. S. 375; 17 
 
 Sup. Ct. 597; 41 L. Ed. 1039), 
 
 518.
 
 lii 
 
 TABLE OF CASES. 
 
 [References are to pages. 
 
 Malloy V. Northern Pac. R. Co. (151 
 
 Fed. 1019), 266, 267. 
 Malone v. Railway Co. (65 Iowa, 
 
 417), 64. 
 Malott V. Hood (201 111. 202; 66 
 
 N. E. 247, affirming 99 111. 360), 
 
 397, 399, 414, 473. 
 Malott V. Shimer (153 Ind. 35; 54 
 
 N. E. 101), 219. 
 Maney v. Chicago, etc., R. Co. (49 
 
 111. App. 105), 273. 
 Manitoba, The (122 U. S. 97; 7 Sup. 
 
 Ct. 1158; 90 L. Ed. 1095), 168. 
 Mansfield v. Richardson (118 Ga. 
 
 250; 45 S. E. 269), 145. 
 March v. Walker (48 Tex. 375), 258. 
 Maria Martin, The (12 Wall. 31; 
 
 20 L. Ed. 251, affirming 2 Biss. 
 
 41; Fed. Cas. 9079), 168. 
 Marianna Flora, The (11 Wheat. 1; 
 
 6 L. Ed. 405, affirming 3 Mason, 
 
 116; Fed. Cas. 9080), 172. 
 ]Marino v. Lehmaier (173 N. Y. 530; 
 
 66 N. E. 572; 61 L. R. A. 811), 
 
 540. 
 Marsh v. South Carolina, etc., R. 
 
 Co. (56 Ga. 274), 14. 
 Marshall v. Wabash R. Co. (46 Fed. 
 
 269), 227. 
 Martin v. Atchison, T. & S. F. Ry. 
 
 Co. (Kan.) (145 Pac. 849), 96, 208. 
 Martin v. Butte (34 Mont. 281; 86 
 
 Pac. 264), 302. 
 Martin v. Hunter's Lessee (1 Wheat. 
 
 304, 328-333; 4 L. Ed. 97), 282, 
 
 589. 
 Martin v. Wallace (40 Ga. 52), 218. 
 Mary Ida, The (20 Fed. 741), 108. 
 Mary Patten, The (2 La. 196), 169. 
 Mason v. Richmond & D. R. Co. 
 
 (Ill N. C. 482; 16 S. E. 698), 407, 
 
 470. 
 Mason v. Steam Tug (3 Fed. 404), 
 
 168. 
 
 Matthews, In re (122 Fed. 248, 251), 
 
 585. 
 Mattock V. Williamsville, etc., R. 
 
 Co. (Mo.) (95 S. W. 849), 228. 
 Matz V. Chicago & S. R. Co. (88 Fed. 
 
 770), 306. 
 Max Morris, The (137 U. S. 1; 11 
 
 Sup. Ct. 29; 34 L. Ed. 586, affirm- 
 ing 24 Fed. 860; 28 Fed. 881), 
 
 167, 168, 170, 172. 
 Mayor, etc., v. Dodd (58 Ga. 238), 
 
 144, 146. 
 Mayor, etc., v. Third Ave. R. Co. 
 
 (117 N. Y. 404, 666; 22 N. E. 
 
 755), 396. 
 Meeks v. Atlanta, etc., Ry. Co. 
 
 (122 Ga. 266; 50 S. E. 99), 147. 
 Meesel v. Lynn, etc., R. Co. (8 
 
 Allen, 234), 176. 
 Melzner v. Northern Pac. Ry. Co. 
 
 (46 Mont. 162, 277; 127 Pac. 
 
 766, 1002), 35, 36, 217, 222, 224, 
 
 230, 301, 311, 317. 
 Memphis, etc., Co. v. Yager, etc., 
 
 Co. (10 Fed. 395), 168. 
 Merkle v. Bennington Tp. (58 Mich. 
 
 156; 24 N. W. 776), 235. 
 Metz V. Chicago, B. & Q. R. Co. 
 
 (88 Neb. 459; 129 N. W. 994), 23. 
 Mexican Cent. R. Co. v. Glover 
 
 (107 Fed. 356; 46 C. C. A. 334), 6. 
 Mexican Cent. R. Co. v. Knox (114 
 
 Fed. 73; 52 C. C. A. 21), 6. 
 Mexican Cent. R. Co. v. Sprague 
 
 (114 Fed. 544; 52 C. C. A. 318), 6. 
 Michigan Central R. Co. v. Schaffer 
 
 (220 Fed. 809), 203, 210. 
 Michigan Central R. Co. v. Vreeland 
 
 (227 U. S. 59; 33 Sup. Ct. 192; 
 
 57 L. Ed. 192, 417, reversing 189 
 
 Fed. 495), 5, 22, 35, 36, 201, 217, 
 
 219, 224, 227, 230, 237, 239, 241, 
 
 242, 244, 250, 26G, 26.1 293 320.
 
 TABLE OF CASES. 
 
 iiii 
 
 [References are to pages. 
 
 Michigan Headling & Hoop Co. v. 
 
 Wheeler (141 Fed. 61; 72 C. 
 
 C. A. 71), 480. 
 Mickelson v. Truesdale (63 Minn. 
 
 137; 65 N. W. 260), 13. 
 Midland Valley R. Co. v. Le Moyne 
 
 (104 Ark. 327; 148 S. W. 654), 217. 
 Miller v. Illinois Central R. Co. 
 
 (168 Fed. 982), 287. 
 Miller v. Kansas City W. R. Co. 
 
 (180 Mo. App. 501; 168 S. W. 
 
 336), 106. 
 Miller v. Michigan Central R. Co. 
 
 (Mich.) (152 N. W. 235), 255, 291. 
 Milwaukee Ry. Co. v. Kcllog (94 
 
 U. S. 469), 853. 
 Mims V. Atlantic C. L. R. Co. (S. 
 
 C.) (85 S. E. 372), 297. 
 Minneapolis & St. L. Ry. Co. v. 
 
 Herrick (127 U. S. 210; 8 Sup. 
 
 Ct. 1176; 32 L. Ed. 109, affirming 
 
 31 Minn. 11; 47 Am. Rep. 771; 
 
 16 N. W. 413), 12, 17, 22. 
 Minneapolis, St. L. & S. M. Ry. Co. 
 
 V. Popplar (237 U. S. — ; 35 Sup. 
 
 Ct. 609; 59 L. Ed. — , affirming 
 
 121 Minn. 413; 141 N. W. 798; 
 
 Ann. Cas. 1915 D, 383), 325, 401, 
 
 403, 465. 
 Minnesota Iron Co. v. Kline (199 
 
 U. S. 593; 26 Sup. Ct. 159; 50 
 
 L. Ed. 322, affirming 93 Minn. 63; 
 
 100 N. W. 681), 19, 65. 
 Mires v. St. Louis & S. F. Ry. Co. 
 
 (134 Mo. App. 379; 114 S. W. 
 
 1052), 58, 355. 
 Mississippi R. Co. v. Illinois Cent. 
 
 R. Co. (203 U. S. 335, 343; 27 
 
 Sup. Ct. 90; 51 L Ed. 209, affirm- 
 ing 70 C. C. A. 617; 138 Fed. 377), 
 
 21, 572, 594. 
 
 Missouri, etc., Co. v. Brantley (20 
 ■ Tex. Civ. App. 11; 62 S. W. 
 
 94), 274. 
 Missouri, etc., R. Co. v. Blalock (Tex. 
 
 Civ. App.) (147 S. W. 559), 105. 
 
 Missouri, etc., R. Co. v. Freemat 
 
 (Tex. Civ. App.) (73 S. W. 542), 
 
 227. 
 Missouri, etc., R. Co. v. Mackey 
 
 (127 U. S. 205; 32 L. Ed. 107; 
 
 8 Sup. Ct. 1161, affirming 33 Kan. 
 
 298; 6 Pac. 291), 12, 17, 19, 21, 
 
 65. 
 Missouri, etc., R. Co. v. Neaves 
 
 (Tex. Civ. App.) (127 N. W. 1090), 
 
 295, 296. 
 Missouri, etc., R. Co. v. Turner 
 
 (Tex. Civ. App.) (138 S. W. 1126), 
 
 36. 
 Missouri, K. & T. Ry. Co. v. Bunkley 
 
 (Tex. Civ. App.) (153 S. W. 937), 
 
 96, 287, 292. 
 Missouri, K. & T. Ry. Co. v. Denahy 
 
 (Tex.) (165 S. W. 529), 73, 100, 101, 
 
 107. 
 Missouri, K. & T. Ry. Co. v. Evans 
 
 (16 Tex. Civ. App. 68; 41 S. W. 
 
 80), 258. 
 Missouri, K. & T. Ry. Co. v. Fesimire 
 
 (Tex. Civ. App.) (150 S. W. 201), 
 
 107. 
 Missouri, K. & T. Ry. Co. v. Freeman 
 
 (Tex.) (168S. V/. 69),209. 
 Missouri, K. & T. Ry. Co. v. Haber 
 
 (169 U. S. 613; 18 Sup. Ct. 488; 
 
 42 L. Ed. 878, affirming 56 Kan. 
 
 694; 44 Pac. 632), 509. 
 Missouri, K. & T. Ry. Co. v. Haw- 
 ley (Tex. Civ. App.) (123 S. W. 
 
 726), 296, 301. 
 Missouri, K. & T. Ry. Co. v. Lenahan 
 
 (39 Okla. 283; 135 Pac. 382, 507), 
 
 35, 36, 214, 286, 293, 309, 311, 323. 
 Missouri, K. & T. R. Co. v. Me- 
 
 daris (GO Kan. 151; 55 Pac. 
 
 875), 19, 65. 
 Missouri, K. & T. Ry. Co. v. New 
 
 Era Milling Co. (80 Kan. 141; 
 
 101 Pac. 1011), 59.
 
 liv 
 
 TABLE OF CASES. 
 
 [References are to pages.] 
 
 Missouri, K. & T. Ry. Co. v. Rentz 
 
 (Tex. Civ. App.) (162 S. W. 959), 
 
 35, 102. 
 Missouri, K. & T. Ry. Co. v. Sadler 
 
 (Tex. Civ. App.) (149 S. W. 1188), 
 
 22, 35, 36, 39. 
 Missouri, K. & T. Ry. Co. v. United 
 
 States (231 U. S. 112; 34 Sup. Ct. 
 
 26; 58 L. Ed. — ), 522, 523, 528, 
 
 529, 537, 539, 540, 541, 939, 952, 
 
 953, 955. 
 Missouri, K. & T. Ry. Co. v. West 
 
 (232 U. S. 682; 34 Sup. Ct. 471; 
 
 58 L. Ed. — ; 38 Okla. 581; 134 
 
 Pac. 655), 321, 322, 323. 
 Missouri, K. & T. Ry. Co. v. Wulf 
 
 (57 U. S. 355; 226 U. S. 570; 
 
 33 Sup. Ct. 135; 57 L. Ed. 274, 
 
 affirming 192 Fed. 919; 113 C. C. 
 
 A. 665), 35, 214, 216, 232, 233, 
 
 295, 296, 309, 320, 325. 
 Missouri Pac. Ry. Co. v. Barber 
 
 (44 Kan. 612; 24 Pac. 969), 229. 
 Missouri Pac. Ry. Co. v. Brinkmeier 
 
 (77 Kan. 14; 93 Pac. 621; 50 Am. 
 
 & Eng. R. Cas. (N. S.) 441), 280, 
 
 340, 426, 439, 487, 490. 
 Missouri Pac. Ry. Co. v. Castle (172 
 
 Fed. 841; 97 C. C. A. 124), 23. 
 Missouri Pac. Ry. Co. v. Castle (224 
 
 U. S. 541; 32 Sup. Ct. 606; 56 
 
 L. Ed. 875), 36, 344. 
 Missouri Pac. Ry. Co. v. Fitzgerald 
 
 (160 U. S. 556; 40 L. Ed. 336; 
 
 16 Sup. Ct. 389), 591. 
 Missouri Pac. R. Co. v. Kennet (79 
 
 Kan. 232; 99 Pac. 263), 392. 
 Missouri Pac. Ry. Co. v. Larabee 
 
 (211 U. S. 612; -20 Sup. Ct. 214; 
 
 53 L. Ed. 352), 343. 
 Mi8.souri Pac. R. Co. v. Mackey 
 
 (33 Kan. 298; 6 Pac. 291), 12. 
 
 Missouri Pac. Ry. Co. v. United States 
 (211 Fed. 893; 127 C. C. A. 123), 
 516, 531, 533. 
 
 Missouri Ry. Co. v. Elliott (102 Fed. 
 96), 854. 
 
 Mitchell V. Crassweller (13 C. B. 
 23.5), 111. 
 
 Mix V. Hamburg, etc., Co. (85 N. 
 Y. App. Div. 475; 83 N. Y. St. 
 322), 246. 
 
 M. J. Cummings, The (18 Fed. 178), 
 168. 
 
 Mobile County v. Kimball (102 U. S. 
 691; 26 L. Ed. 238, affirming 3 
 Woods, 555; Fed. Cas. 7774), 30. 
 
 Mobile, J. & K. C. R. Co. v. Brom- 
 berg (141 Ala. 258; 37 So. 395), 
 59, 280, 365, 369, 397, 399, 470, 
 472, 477, 478, 487, 489, 491. 
 
 Mobile, J. & K. C. R. Co. v. Turnip- 
 seed (219 U. S. 35; 31 Sup. Ct. 
 136; 55 L. Ed. 78, affirming 91 
 Miss. 273; 46 So. 360; 124 Am. 
 St. 679), 14. 
 
 Moen V. Moen (16 S. D. 214; 92 
 N. W. 1.3), 225. 
 
 Moffett V. Baltimore & O. R. Co. 
 (220 Fed. 3D), 222, 240, 261, 302, 
 303, 317. 
 
 Moliter v. Wabash R. Co. (180 Mo. 
 App. 84; 164 S. W. 188; 168 S. 
 W. 250), 36, 296, 309, 310. 
 
 Monarch, The (1 Wm. Rob. 21), 167. 
 
 Mondon v. N. Y., N. H. & H. R. Co. 
 (223 U. S. 1; 32 Sup. Ct. 169; 56 
 L. Ed. 327; 38 L. R. A. (N. S.) 
 44; 1 U. C. C. 875, reversing 82 
 Conn. 352; 73 Atl. 754), 22, 23, 
 35, 203, 208, 280, 281, 286, 576. 
 
 Monicas v. Baltimore & O. R. Co. 
 (40 App. D. C. 391), 312. 
 
 Montgomery v. Carolina & N. W. 
 R. Co. (163 N. C. 597; 80 S. E. 
 S3), 406, 468.
 
 TABLE OF CASES. 
 
 Iv 
 
 [References are to pages.] 
 
 Montgomery v. Southern Pac. Co. 
 
 (64 Ore. 597; 131 Pac. 507), 42, 
 
 80, 94, 95, 96, 287, 315. 
 Monticello, The (15 Fed. 474), 168. 
 Moody V. Pacific R. Co. (68 Mo. 
 
 470), 232. 
 Moody V. Peterson (11 111. App. 180), 
 
 160, 161, 166. 
 Moore v. American Transportation 
 
 Co. (24 How. 1), 907. 
 Moore v. C. L. King IMfg. Co. (124 
 
 Ga. 576; 53 S. E. 107), 145. 
 Moore v. Dublin Cotton Mills (127 
 
 Ga. 609; 56 S. E. 839), 146. 
 Moore v. Gainsville Midland Ry. 
 
 Co. (9 Ga. App. 496; 71 S. E. 
 
 808), 140. 
 Moran v. HoUings (125 Mass. 93), 
 
 261. 
 Morgan v. Bridge Co. (5 Dill. 96), 
 
 181. 
 Morgan v. Louisiana (118 U. S. 455; 
 
 6 Sup. Ct. 1114; 30 L. Ed. 237, 
 
 afiirming 36 La. Ann. 666), 30. 
 Morier v. St. Paul, M. & M. R. Co. 
 
 (31 Minn. 351; 17 N. W. 952), 
 
 110. 
 Morris v. Duluth, S. S. & A. Ry. Co. 
 
 (108 Fed. 747; 47 C. C. A. 661), 
 
 478, 479. 
 Morris v. St. Louis & S. W. R. Co. 
 
 (Tex. Civ. App.) (158 S. W. 1055), 
 
 403, 472. 
 Morrison v. Baird (10 R. 638), 601. 
 Morrison v. Baltimore & O. Ry. Co- 
 
 (40 App. D. C. 391), 231. 
 Moses Taylor, The (4 Wall. 428; 
 
 71 U. S. 401), 588, 589. 
 Mottley V. Louisville, etc., R. Co. 
 
 (150 Fed. 406), 431. 
 Moyse v. Northern Pacific Ry. Co. 
 
 (41 Mont. 272; 108 Pac. 1062), 
 
 Mt. Adams Ry. Co. v. Lowery (74 
 
 Fed. 463), 854. 
 Mulcahey v. Washburn Car Co. (145 
 
 Mass. 281; 14 N. E. 106; 1 Am. 
 
 St. 458), 261. 
 Murphy v. New York, etc., R. Co. 
 
 (30 Conn. 184), 219. 
 Murray v. Chicago & N. W. Ry. Co. 
 
 (02 Fed. 24), 278, 591. 
 Murray v. So. Car. R. Co. (1 McMuI. 
 
 385; 36 Am. Dec. 268), 9. 
 Murray v. Usher (117 N. Y. 542; 
 
 23 N. E. 564; 46 Hun, 404), 274. 
 Mutual L. Ins. Co. v. Prewitt (31 
 
 Ky. 1319; 105 S. W. 463), 201. 
 Myers v. Norfolk & W. Ry. Co. 
 
 (162 N. C. 343; 78 S. E. 280), 
 
 68, 92, 103, 107. 
 Myrtle v. Nevada, C. & O. Ry. Co. 
 
 (137 Fed. 193), 413, 489. 
 Mystic, The (44 Fed. 399), 168. 
 
 Narramore v. Cleveland, C. C. & 
 
 St. L. Ry. Co. (96 Fed. 298, 300), 
 
 123, 853. 
 Nashville, C. & St. L. R. Co. v. 
 
 Banks (156 Ky. 609; 161 S. W. 
 
 554; 216 Fed. 554), 95, 237, 255, 
 
 257. 
 Nashville, C. & St. L. Ry. Co. v. 
 
 Henry (158 Ky. 88; 164 S. W. 310) 
 
 208, 237, 255, 257, 264, 406, 412, 
 
 426, 467, 469, 470, 473, 477, 484. 
 Nashville, etc., R. Co. v. Alabama 
 
 (128 U. S. 96; 9 Sup. Ct. 28; 
 
 32 L. Ed. 352, affirming 83 Ala. 
 
 71; 3 So. 702), 33, 38. 
 Nashville, etc., R. Co. v. Carroll 
 
 (6 Heisk. 347), 147, 175. 
 Nashville, etc., R. Co. v. Prince (2 
 
 Heisk. (Tenn.) 580), 219.
 
 Ivi 
 
 TABLE OF CASES. 
 
 [References are to pages.] 
 
 Nashville, etc., R. Co. v. Wheless 
 (10 Lea, 741; 43 Am. Rep. 317), 
 147, 175. 
 Natchez, etc., R. Co. v. Cook (63 
 
 Miss. 38), 217. 
 Nathan Hale, The (48 Fed. 700), 168. 
 Naylor v. Pittsburg, etc., R. Co. 
 
 (4 Ohio C. C. (N. S.) 437), 223. 
 Neal V. Delaware (103 U. S. 370; 
 
 26 L. Ed. 567), 591. 
 Neal V. St. Louis, I. M. & S. R. 
 
 Co. (71 Ark. 445; 78 S. W. 220), 
 
 423, 424, 488. 
 Neal V. Wilmington, etc., Co. (3 
 
 Penn. (Del.) 467), 245. 
 Neil V. Idaho & W. N. R. Co. (23 
 
 Idaho, 74; 125 Pac. 331), 91, 97, 
 
 102, 133, 198, 203, 252, 255, 292. 
 Neilson v. Brown (13 R. I. 651), 218. 
 Nelson v. Galveston, etc., Ry. Co. 
 
 (78 Tex. 621; 14 S. W. 1021), 
 
 228. 
 Nelson v. Northern Pac. Ry. Co- 
 
 (Mont.) (148 Pac. 238), 255. 
 New Jersey Exp. Co. v. Nichols 
 
 (33 N. J. L. 435), 132. 
 New Orleans v. Benjamin (153 U. 
 
 S. 411; 38 L. Ed. 764; 14 Sup. 
 
 Ct. 905), 591. 
 New Orleans Cotton Exchange v. 
 
 Cincinnati, etc., R. Co. (2 Inter- 
 state Cora. 289), 58, 355. 
 Newport News, etc., R. Co. v. 
 
 Dentzel (91 Ky. 42; 14 S. W. 958), 
 
 261. 
 Newport News & N. V. Co. v. United 
 
 States (61 Fed. 488; 9 C. C. A. 
 
 579), 518. 
 New York, The (175 U. S. 187; 20 
 
 Sup. Ct. 67; 44 L. Ed. 126, revers- 
 ing 27 C. C. A. 154; 54 U. S. App. 
 
 248; 82 Fed. SI 9), 168. 
 
 New York C. R. R. Co. v. Carr (238 
 
 U. S. 260), 98. 
 New York C. & H. R. R. Co. v. 
 
 Carr (35 Sup. Ct. 780, affirming 
 
 157 N. Y. App. Div. 941; 142 N. 
 
 Y. Supp. 1111), 72, 92, 102. 
 New York C. & H. R. R. Co. v. 
 
 United States (165 Fed. 833; 91 
 
 C. C. A. 519), 494. 
 New York, C. & St. L. R. Co. v. 
 
 Niebel (214 Fed. 952), 242, 243, 
 
 244, 249, 255, 256, 260, 319, 326. 
 New York, N. H. & H. R. R. Co. v. 
 
 Vizvori (210 Fed. 118; 126 C. C. 
 
 A. 632), 203, 211, 294, 311. 
 New York, etc., R. Co. v. New York 
 
 (165 U. S. 628; 17 Sup. Ct. 418; 
 
 41 L. Ed. 853, affirming 142 N. Y. 
 
 646; 37 N. E. 568), 33. 
 Nicholas v. Chesapeake, etc., Ry. 
 
 Co. (127 Ky. 310; 105 S. W. 
 
 481; 17 L. R. A. (N. S.) 861; 32 
 
 Ky. 270), 280, 287, 487. 
 Nichols V. Chesapeake & O. Ry. Co. 
 
 (195 Fed. 913, 115 C. C. A. 601), 
 
 231, 287, 406, 421, 471, 473, 477, 
 
 484, 491, 497. 
 Nichols V. Tanner (117 Ga. 489; 
 
 43 S. E. 489), 147. 
 Niles V. Central Vt. Ry. Co. (87 Vt. 
 
 356; 89 Atl. 629), 35, 36, 39, 
 
 297. 
 Nix V. Southern Ry. Co. (4 Ga. 
 
 App. 331; 61 S. E. 292), 147. 
 Nordgord v. Maysville & N. R. Co. 
 
 (218 Fed. 737, affirming 211 Fed. 
 
 721), 49. 
 Norfolk & W. Ry. Co. v. Dixie 
 
 (111 Va. 813; 69 S. E. 1106), 491. 
 Norfolk & W. R. Co. v. Earnest 
 
 (229 U. S. 114; 33 Sup. Ct. 654; 
 
 57 L. Ed. 564, 651, 785, 1096), 
 
 253, 254, 256, 318, 320, 337. 
 Norfolk & W. Ry. Co. v. Hazelrigg 
 
 (179 Fed. 551; 95 C. C. A. 637), 
 
 40(), 426, 472, 479, 491, 497.
 
 TABLE OF CASES. 
 
 Ivii 
 
 [References are to pages.] 
 
 Norfolk & W. R. Co. v. Hazelrigg 
 
 (184 Fed. 828; 107 C. C. A. 66), 
 
 296, 406, 478, 480. 
 Norfolk & W. Ry. Co. v. Holbrook 
 
 (U. S.) (35 Sup. Ct. 143; 59 L. 
 
 Ed. — , reversing 215 Fed. 687), 78, 
 
 98, 220, 242, 243, 244, 245, 261. 
 Norfolk & W. Ry. Co. v. Stevens 
 
 (97 Va. 631; 34 S. E. 525; 46 L. 
 
 R. A. 367), 259. 
 Norfolk & W. R. Co. v. United States 
 
 (177 Fed. 623; 101 C. C. A. 249), 
 
 354, 356, 361, 372, 397, 402, 403, 
 
 405, 406, 408, 414, 421, 426, 495, 
 
 496, 886. 
 Norfolk & W. Ry. Co. v. United 
 
 States (191 Fed. 302; 101 C. C. A. 
 
 249; 112 C. C. A. 46), 404, 421, 
 
 422, 495, 496, 497. 
 Norfolk & W. Ry. Co. v. United 
 
 States (Appendix G), 877. 
 Norfolk, etc., Ry. Co. v. Pennsyl- 
 vania (136 U. S. 114, 115, 118, 120; 
 
 10 Sup. Ct. 958; 34 L. Ed. 394, 
 
 reversing 114 Pa. 256; 6 Atl. 45), 
 
 58, 387. 
 Norfolk, etc., Ry. Co. v. Perrow 
 
 (101 Va. 345; 43 S. E. 614), 147. 
 Norfolk Southern R. Co. v. Friebee 
 
 (35 Sup. Ct. 781, affirming 167 
 
 N. C. 290; 83 S. E. 360; first 
 
 appeal, 163 N. C. 351; 79 S. E. 685; 
 
 52 L. R. A. (N. S.) 1114), 256, 264, 
 
 293. 
 North Carolina R. Co. v. Zackary 
 
 (232 U. S. 248; 34 Sup. Ct. 305; 
 
 58 L. Ed. 591, reversing 156 N. C. 
 
 496; 72 S. E. 858), 35, 42, 50, 59, 
 
 60, 69, 94, 240, 310, 319, 321, 322, 
 
 324, 350, 357, 400, 428. 
 North Chicago, etc., R. Co. v. Monka 
 
 (4 111. App. 664), 160. 
 Northern Bank v. Porter Tp. (110 
 
 U. S. 608), 812. 
 
 Northern Pac. R. Co. v. Ellison (3 
 
 Wash. 225; 28 Pac. 233), 229. 
 Northern Pac. R. Co. v. Maerkl (198 
 
 Fed. 1; 117 C. C. A. 237), 70, 72, 
 
 76, 100, 101, 209, 220, 260, 261, 
 
 262, 264, 473. 
 Northern Pac. Ry. Co. v. Slaght 
 
 (205 U. S. 122; 27 Sup. Ct. 442; 
 
 51 L. Ed. 378), 306. 
 Northern Pac. Ry. Co. v. State (222 
 
 U. S. 370; 32 Sup. Ct. 160; 56 
 
 L. Ed. 237; Appendix G), 337, 
 
 349, 510, 525, 932. 
 Northern Pac. Ry. Co. v. United 
 
 States (213 Fed. 577), 526. 
 Northern Pacific Ry. Co. v. United 
 
 States (220 Fed. 108), 528, 529. 
 Northern Queen, The (117 Fed. 906), 
 
 218. 
 North Pennsylvania R. Co. v. Heile- 
 
 man (49 Pa. St. 60), 176. 
 North Star, The (106 U. S. 17; 1 
 
 Sup. Ct. 41, affirming 8 Blatchf. 
 
 209; Fed. Cas. 10331), 168. 
 Norton v. Erie R. Co. (163 App. 
 
 Div. 468; 148 N. Y. Supp. 771), 
 
 35, 39, 106, 250. 
 Nutt V. Knut (200 U. S. 12; 26 Sup. 
 
 Ct. 216; 50 L. Ed. 348, affirming 
 
 83 Miss. 365; 35 So. 686; 102 Am. 
 
 St. 452; 84 Miss. 465; 36 So. 689, 
 
 reversing 84 INIiss. 465; 36 So. 
 
 689), 413. 
 
 Oberlin v. Oregon-W. R. & N. Co. 
 (Ore.) (142 Pac. 554), 98, 311. 
 
 O'Brien v. Boston, etc., R. Co. (138 
 Mass. 387; 52 Am. Rep. 279), 104. 
 
 O'Brien v. Chicago & N. W. Ry. 
 (116 Fed. 502), 17, 568. 
 
 O'Brien v. Star Line Limited (1 
 • Butterworth's Workmen's Com- 
 pensation Cases, 177, 181), 110. 
 
 O'Connoll V. Leary (145 Mass. 311), 
 810.
 
 Iviii 
 
 TABLE OF CASES. 
 
 [References are to pages. 
 
 O'Donnel v. Allegheny R. Co. (59 
 
 Pa. St. 239; 98 Am. Dec. 336), 
 
 104. 
 Ohio, etc., R. Co. v. Eaves (42 III. 
 
 2S8), 160. 
 Ohio, etc., R. Co. v. Porter (92 111. 
 
 437), 155. 
 Ohio, etc., R. Co. v. Shonefelt (47 
 
 111. 497), 154, 161, 163. 
 Ohio, etc., R. Co. v. Tindall (13 Ind. 
 
 366), 218. 
 Oldfield V. New York, etc., R. Co. 
 
 (14 N. Y. 310), 223. 
 Oliver v. Houghton Co. St. Ry. Co- 
 
 (134 Mich. 367; 96 N. W. 434; 
 
 104 Am. St. 607; 3 Ann. Cas. 
 
 53), 261. 
 Oliver v. Northern Pac. Ry. Co. (196 
 
 Fed. 432), 34, 35, 104, 127, 216, 266, 
 
 315. 
 Olsen V. Nixon (61 N. J. L. 671; 40 
 
 Atl. 694; 4 Am. & Eng. Neg. 
 
 Cases, 515), 11. 
 Olson V. Flavel (34 Fed. 477), 168. 
 Olympia, The (61 Fed. 120; 9 C. C- 
 
 A. 393), 519. 
 Omaha St. Ry. Co. v. Interstate 
 
 Commerce Commission (230 U. S. 
 
 324; 33 Sup. Ct. 890; 57 L. Ed. 
 
 1501; 46 L. R. A. (N. S.) 385), 
 
 54. 
 Opsahl V. Northern Pac. Ry. Co. 
 
 (78 Wash. 197; 13S Pac. 681), 
 
 201, 208. 
 Oratava, The (5 Mon. L. Mag. 45, 
 
 362), 167. 
 Oregon-Washington R. & Nav. Co. 
 
 v. United States (222 Fed. 887), 
 
 5, 541. 
 Oregon-Washington R. & Nav. C6. 
 
 v. United States (223 Fed. 596), 
 
 538. 
 
 Osborn v. Gillett (L. R. 8 Exch. 88; 
 
 42 L. J. Exch. 53; 28 L. T. (N. S.) 
 
 197; 21 W. R. 409), 217. 
 Osborne v. Cincinnati, N. 0. & T. 
 
 P. Ry. Co. (158 Ky. 176; 164 S. 
 
 W. 818), 517, 522, 528, 538. 
 Osborne v. Florida (164 U. S. 650, 
 
 655; 17 Sup. Ct. 214; 41 L. Ed. 
 
 586, affirming 33 Fla. 162; 25 L. 
 
 R. A. 120; 4 Interst. Com. 731; 
 
 14 So. 588; 39 Am. St. 99), 363, 
 
 387. 
 Otos V. Great Northern Ry. Co. 
 
 (Minn.) (150 N. W. 922), 59. 
 Oulighan v. Butler (189 Mass. 287; 
 
 75 N. E. 726), 302. 
 Oyster v. Burlington, etc., Co. (65 
 
 Neb. 719; 91 N. W. 699; 59 L. 
 
 R. A. 291), 274. 
 
 Pacific Coast R. Co. v. United 
 
 States (173 Fed. 448), 334, 340, 
 
 349, 350, 358, 3S0. 
 Pacific R. Co. v. Maguire (20 Wall. 
 
 36), 584. 
 Pacific Ry. Co. v. Castle (172 Fed. 
 
 841), 344. 
 Packet Co. v. Catlettsburg (105 U. 
 
 S. 559; 26 L. Ed. 1), 30. 
 Packet Co. V. McCue (17 Wall. 508; 
 
 21 L. Ed. 705), 89. 
 Padgett V. Seaboard Air Line Ry. 
 
 Co. (98 S. C. 244; 83 S. E. 633), 
 
 107, 111. 
 Pankey v. Atchison, T. & S. F. 
 
 Ry. Co. (Mo. App.) (168 S. W. 
 
 274), 287, 292. 
 Parker v. Atlantic City R. Co. (N. 
 
 J. L.) (93 Atl. 574), 203, 208. 
 Parker v. Crowcll, etc., Co. (115 
 
 La. 463; 39 So. 445), 249. 
 Parnielee v. Farro (22 111. 467), 161. 
 Parsons v. Chicago & N. W. Ry. 
 
 Co. (167 U. S. 447; 17 Sup. Ct. 
 
 8S7; 42 L. Ed. 231), 58. 
 Parson.s v. Delaware <t H. Co. 
 
 (153 N. V. Supp. 179), 106.
 
 TABLE OF CASES. 
 
 lix 
 
 [References are to pages.] 
 
 Partee v. St. Louis, etc., R. Co. 
 
 (204 Fed. 970), 230. 
 Passaic, The (190 Fed. 644), 35, 37, 
 
 43, 93. 
 Passenger Cases, The (7 How. 283), 
 
 31. 
 Patry v. Chicago & W. I. Ry. Co. 
 
 (265 111. 310; 106 N. E. 843), 68. 
 Patten v. Faithorn (152 111. App. 
 
 426), 361, 365. 
 Patterson v. Pittsburg & Connells- 
 
 ville R. R. Co. (76 Pa. St. 389), 
 
 475. 
 Patton V. Cincinnati, N. 0. & T. P. 
 
 Ry. (208 Fed. 29), 287. 
 Paulkey v. Atchison, T. & S. F. Ry. 
 
 Co. (Mo.) (168 S. W. 274), 255. 
 Pawnee, The (205 Fed. 333), 43. 
 Payne v. New York, S. & W. R. Co. 
 
 (201 N. Y. 436; 95 N. E. 79, 
 
 modifying 141 App. Div. 833; 
 
 125 N. Y. Supp. 1011. See 127 
 
 N. Y. Supp. 1135), 304. 
 Pecos & N. T. Ry. Co. v. Rosenbloom 
 
 (Tex Civ. App.) (141 S. W. 175), 
 
 106. 
 Peden v. American Bridge Co. (120 
 
 Fed. 523), 302. 
 Pedersen v. Delaware, L. & W. R. 
 
 Co. (229 U. S. 146; 33 Sup. Ct. 
 
 648; 57 L. Ed. 1125; 3 U. C. C. 
 
 779, reversing 199 Fed. 537; 117 
 
 C. C. A. 33, which affirmed 184 
 
 Fed. 737), 69, 70, 71, 72, 73, 74, 76, 
 
 82, 83, 96, 98, 100, 101, 116, 127, 
 
 320. 
 Peek V. Boston & Maine R. Co. 
 
 (223 Fed. 448), 36, 287, 297. 
 Peers v. Nevada, etc., Co. (119 Fed. 
 
 400), 218, 302. 
 Peery v. Illinois Central R. Co. 
 
 (123 Minn. 264; 143 N. W. 724), 
 
 58, 102. 
 Pegasus, The (19 Fed. 46), 168. 
 
 Pelin V. New York Central R. Co. 
 
 (92 App. Div. 71; 92 N. Y. Hupp. 
 
 468; affirmed, without opinion, 
 
 188 N. Y. 565; 91 N. E. 1171), 
 
 540. 
 Pelton v. Illinois C. R. Co. (Iowa) 
 
 (156 N. W. 236), 311. 
 Pennell v. Philadelphia & R. Ry. 
 
 Co. (231 U. S. 675; 34 Sup. Ct. 
 
 220; 58 L. Ed. 430, affirming 203 
 
 Fed. 681; 122 C. C. A. 77), 330, 
 
 397, 404. 
 
 Pennsylvania v. Wheeling, etc., 
 
 Bridge Co. (18 How. 421; 15 L. 
 
 Ed. 435), 30, 573, 595. 
 Pennsylvania Co. v. Cole (214 Fed. 
 
 948), 255, 256, 292. 
 Pennsylvania Coal Co. v. Kelly 
 
 (156 111. 9; 40 N. E. 938), 134. 
 Pennsylvania, etc., R. Co. v. Meyers 
 
 (136 Ind. 242; 36 N. E. 32), 218. 
 Pennsylvania R. Co. v. Goodman 
 
 (62 Pa. 329), 241. 
 Pennsylvania R. Co. v. Goughnour 
 
 (208 Fed. 961; 126 C. C. A. 39), 
 
 210, 255, 312. 
 Pennsylvania Ry. Co. v. Knight 
 
 (192 U. S. 21), 56. 
 Pennsylvania R. Co. v. Knox (218 
 
 Fed. 748), 52. 
 Pennsylvania R. Co. v. Long (94 
 
 Iiid. 250), 235, 259. 
 Pennsylvania R. Co. v. Righter (42 
 
 N. J. L. 180), 132. 
 Pennsylvania R. Co. v. Sheely (221 
 
 Fed. 901), 95, 253, 254. 
 Penny v. New Orleans, Great North- 
 ern R. Co. (135 La. 962; 66 So. 
 
 313), 35, 39, 214, 311. 
 Pensacola Tel. Co. v. Western Union 
 
 Tel. Co. (96 U. S. 1, 8; 24 L. Ed. 
 
 708, affirming 2 Woods, 643: 
 
 Fed. Cas. 10960), 32, 57, 387. 
 People V. Briggs (47 Hun, 266), 810. 
 People V. Briggs (114 N. Y. 56; 20 
 
 N. E. 820), 500.
 
 Ix 
 
 TABLE OF CASES. 
 
 [References are to pages.] 
 
 People V. Erie R. Co. (198 N. Y. 
 
 369; 91 N. E. 849; 29 L. R. A. 
 
 (N. S.) 240, reversing 135 N. Y. 
 
 App. Div. 767; 119 N. Y. Supp. 
 
 873), 510, 540. 
 People V. Welch (141 N. Y. 273; 
 
 36 N. E. 328; 24 L. R. A. 117; 
 
 38 Am. St. 793), 280. 
 Peoria Bridge, etc., v. Loomie (20 
 
 111. 236), 163. 
 Peoria, etc., Ry. Co. v. Miller (11 
 
 111. App. 375), 161. 
 Perham v. Portland Electric Co. 
 
 (33 Ore. 458; 53 Pac. 14; 40 L. 
 
 R. A. 799; 72 Am. St. 730), 244. 
 Perigo V. Chicago, etc., R. Co. (55 
 
 Iowa, 326; 7 N. W. 621), 235. 
 Petersfield v. The Judith (Abbott 
 
 on Shipping, 231), 167. 
 Peterson v. Delaware, L. & W. R. 
 
 Co. (229 U. S. 140; 33 Sup. Ct. 
 
 648; 57 L. Ed. 1125), 51. 
 Pfeiffer v. Oregon-W. R. & N. Co. 
 
 (Ore.) (144 Pac. 762), 180. 
 Philadelphia & R. Ry . Co. v. United 
 
 States (191 Fed. 1; 111 C. C. A. 
 
 661), 352, 376, 399, 422, 468. 
 Philadelphia, B. & W. R. Co. v. 
 
 Schubert (224 U. S. 603; 32 Sup. 
 
 Ct. 589; 56 L. Ed. 911, affirming 
 
 36 App. D. C. 565), 22, 266, 267. 
 Philadelphia, B. & W. R. Co. v. 
 
 Tucker (35 App. D. C. 123), 27, 
 
 91, 198. 
 Philadelphia, etc., R. Co. v. Winkler 
 
 (4 Penn. (Del.) 387; 56 Atl. 112; 
 
 affirmed 4 Penn. (Del.) 80; 53 
 
 Atl. 90), 334, 397, 401, 403, 404, 
 
 412. 
 Pierce v. Atlanta Cotton Mills (79 
 
 Ga. 782; 4 S. E. 381), 143. 
 Piersen v. N. Y. S. & W. R. Co. (S3 
 
 N. .J. L. 601; 85 Atl. 233), 69, 
 
 83, 09, 105. 
 Pinson v. Southern Ry. Co. (85 
 
 S. C. 355; 67 S. E. 404), 459. 
 
 Pisane v. Shanley (66 N. J. L. 1; 
 
 48 Atl. 618), 274. 
 Pittsburg, C. C. & St. L. R. Co. 
 
 V. Farmers' T. & S. Co. (Ind.) 
 
 (108 N. E. 108), 94, 208, 292. 
 Pittsburg, C. C. & St. L. R. Co. v. 
 
 Glenn (219 Fed. 148), 84, 316, 319. 
 Pittsburg, C. C. & St. L. R. Co. v. 
 
 Naylor (73 Ohio St. 115; 76 N. E. 
 
 505), 223. 
 Pittsburg, C. C. & St. L. Ry. Co. v. 
 
 State (87 N. E. 1034), 338. 
 Pittsburg, etc., R. Co. v. Collins 
 
 (168 Ind. 467; 80 N. E. 415), 13. 
 Pittsburg, etc., R. Co. v. Cox (55 
 
 Ohio St. 497; 45 N. E. 641), 35 
 
 L. R. A. 507), 266. 
 Pittsburg, etc., R. Co. v. Gipe (160 
 
 Ind. 360; 65 N. E. 1034), 274. 
 Pittsburg, etc., R. Co. v. Hosea (152 
 
 Ind. 412; 53 N. E. 419), 218, 
 
 274, 491. 
 Pittsburg, etc., R. Co. v. Kinmare 
 
 (203 111. 388; 67 N. E. 826), 248. 
 Pittsburg, etc., R. Co. v. Knutson 
 
 (09 111. 103), 164. 
 Pittsburg, etc., R. Co. v. Lightheiser 
 
 (163 Ind. 247; 71 N. E. 218, 660), 
 
 15. 
 Pittsburg, etc., R. Co. v. Lightheiser 
 
 (168 Ind. 438; 78 N. E. 1033), 12, 
 
 15, 66. 
 Pittsburg, etc., R. Co. v. Mitchell 
 
 (175 Ind. 196; 91 N. E. 735; 93 
 
 N. E. 996), 287. 
 Pittsburg, etc., R. Co. v. Montgom- 
 ery (152 Ind. 1; 45 N. E. .582; 49 
 
 N. E. 482; 69 L. R. A. 875; 71 
 
 Am. St. 30), 12, 17, 491. 
 Pittsburg, etc., R. Co. v. Moore 
 
 (152 Ind. 345; 53 N. E. 290; 44 
 
 L. R. A. 638), 266, 274. 
 Pittsburg, etc., R. Co. v. Ross (169 
 
 Ind. 3; SO N. E. 845), 12, 67. 
 Pittsburg, etc., Ry. Co. v. Shannon 
 
 (11 III. App. 222), 160. 166.
 
 TABLE OF CASES. 
 
 Ixi 
 
 [References are to pages. 
 
 Plumley v. Massachusetts (155 U. 
 
 S. 461), 812. 
 Plummer v. Northern Pac. Ry. Co. 
 
 (152 Fed. 206), 24, 334, 339, 472. 
 Popplar V. Minneapolis, St. P. & 
 
 S. S. M. Ry. Co. (121 Minn. 413; 
 
 141 N. W. 798), 362, 406, 410, 
 
 477, 484, 498. 
 Porter v. Ocean S. S. Co. (113 Ga. 
 
 1007; 39 S. E. 470), 145. 
 Potter V. Baltimore & O. R. Co. (37 
 
 Wash. Law Rep. 466), 22, 271. 
 Potter V. Chicago, etc., R. Co. (46 
 
 Iowa, 399), 17. 
 Powell V. Freeman (105 Tex. 317; 
 
 148 S. W. 290), 96. 
 Prater v. Tennessee, etc., Co. (105 
 
 Tenn. 496; 58 S. W. 1068), 274. 
 Prather v. Richmond, etc., R. Co. 
 
 (80 Ga. 427; 9 S. E. 530; 12 Am. 
 
 St. 263), 142. 
 Price V. Railroad Co. (33 S. C. 556; 
 
 12 S. E. 413), 274. 
 Price V. Richmond, etc., R. Co. (38 
 
 S. C. 199; 17 S. E. 732), 274. 
 Priestly v. Fowler (3 M. & W. 1), 
 
 8, 10. 
 Prigg V. Pennsylvania (16 Pet. 536, 
 
 615, 620, 621; 10 L. Ed. 1060), 
 
 284, 286. 
 Proctor & Lohman v. People (24 
 
 111. App. 599), 500. 
 Providence, The (98 Fed. 133; 38 
 
 C. C. A. 670), 168. 
 Provident, etc., v. Carter (2 111. App. 
 
 34), 161. 
 Pym V. Great, etc., Ry. Co. (2 
 
 B. & S. 759), 218. 
 
 Queen v. Fihon (24 Can. S. C. 482, 
 affirming 4 Can. Exch. 134), 6. 
 
 Queen v. Grenier (30 Can. S. C. 
 42), 6. 
 
 Quin v. Moore (15 N. Y. 432), 223. 
 Quincy v. Barker (81 111. 300), 154. 
 Quincy Coal Co. v. Hood (77 111. 
 
 68), 229. 
 Quinlen v. Welch (69 Hun, 584; 
 
 23 N. Y. Supp. 963), 228. 
 
 Railroad v. Bean (94 Tenn. 388; 
 
 29 S. W. 370), 234. 
 Railroad Co. v. Fain (12 Lea, 35), 
 
 147. 
 Railroad Co. v. Fuller (17 Wall. 
 
 560; 21 L. Ed. 710), 30. 
 Railroad Co. v. Gladmon (15 Wall. 
 
 401; 21 L. Ed. 114), 181. 
 Railroad Co. v. McClure (10 WaU. 
 
 511), 584. 
 Railroad Co. v. Stout (17 Wall. 657; 
 
 21 L. Ed. 745, affirming 2 Dill. 
 
 294; Fed. Cas. 13504), 176. 
 Railroad Co. v. Thomp.son (54 Ga. 
 
 509), 12. 
 Railroad Co. v. Walker (11 Heisk. 
 
 383), 175. 
 Railroad Com. v. Texas & P. Ry. Co. 
 
 (Tex. Civ. App.) (140 S. W. 829), 
 
 510. 
 Railway v. Bowles (71 Miss. 1003; 
 
 15 So. 138), 356. 
 Railway Co. v. Alabama (128 U. S. 
 
 99), 596. 
 Railway Co. v. Bagley (60 Kan. 
 
 424; 56 Pac. 759), 389. 
 Railway Co. v. B'Shears (59 Ark. 
 
 237, 244; 27 S. W. 2), 388. 
 Railway Co. v. Husen (95 U. S. 465, 
 
 471, 472, 473; 24 L. Ed. 527), 387. 
 Railway Co. v. Lilly (90 Tenn. 563; 
 
 IS S. W. 243; 49 Am. & Eng. R. 
 
 Cas. 495), 234. 
 Railway Co. v. Taylor (210 U. S. 
 
 281), 722, 760, 762.
 
 Ixii 
 
 TABLE OF CASES. 
 
 [References are to pages. 
 
 Raines v. Southern Ry. Co. (N. C.) 
 
 (85 S. E. 294), 130, 180, 224, 225, 
 
 240, 248, 253, 292, 303. 
 Raisin v. Mitchell (Carr & Payne, 
 
 252), 148. 
 Raisler v. Ohver (97 Ala. 719; 12 
 
 So. 238; 38 Am. St. 215), 279. 
 Randolph v. Brunswick, etc., Ry. 
 
 Co. (120 Ga. 969; 48 S. E. 396) 147. 
 Raunsaville v. Central R. Co. (N. J.) 
 
 (94 Atl. 392), 36. 
 Ray V. Merrill & King Lumber Co. 
 
 (211 Fed. 717; 220 Fed. 295), 
 
 43, 49, 50. 
 Reagan v. Mercantile Trust Co. 
 
 (154U. S. 413),584. 
 Rector v. City Deposit Bank (200 
 
 U. S. 405; 26 Sup. Ct. 289; 50 
 
 L.Ed. 527), 413. 
 Reddington v. Railroad Co. (108 
 
 Iowa, 96; 78 N. W. 800), 65. 
 Reed v. Northeastern R. Co. (37 
 
 S. C. 42; 16 S. E. 289), 219. 
 Reed v. Queen Anne R. Co. (4 Penn. 
 
 (Del.) 413; 57 Atl. 529), 246. 
 Reid V. Colorado (187 U. S. 137; 
 
 23 Sup. Ct. 92; 47 L. Ed. 108), 
 
 79, 509. 
 Reiter, etc., Co. v. Hawlin (144 Ala. 
 
 192; 40 So. Rep. 280), 246. 
 Rhodes v. Iowa (170 U. S. 412; 
 
 18 Sup. Ct. 664; 42 L. Ed. 1088, 
 
 reversing 90 Iowa, 496; 58 N. W. 
 
 887; 21 L. R. A. 245), 56, 59, 347. 
 
 Rice V. Boston & M. R. Co. (203 
 
 Fed. 580), 287, 310, 313. 
 Rich V. St. Louis «t S. F. R. Co. 
 
 (166 Mo. App. 379; 148 S. W. 
 
 1011), 35, 36, 42, 95, 214, 222, 311. 
 Richelif'U v. Union P. R. Co. 
 
 (Nc},.j (149 N. W. 772), 224. 
 Richmond, (!(c., Co. v. Hammond 
 
 (93 Ala. 181; 9 So. Rqp. 577), 235. 
 Richmond, etc., R. Co. v. Howard 
 
 (79 Ga. 44; 3 S. E. 426), 144. 
 
 Richmond R. Co. v. Mitchell (92 
 
 Ga. 77; 18 S. E. 290), 146. 
 Ried V. Great Eastern Ry. Co. (L. 
 
 R. 3 Q. R. 555; 37 L. J. Q. B. 
 
 278; 18 L. T. (N. S.) 822; 16 
 
 W. R. 1040), 273. 
 Rief V. Great Northern (126 Minn. 
 
 430; 148 N. W. 309), 96, 272. 
 Rietveld v. Wabash R. Co. (129 
 
 la. 249; 105 N. W. 515), 223. 
 Rio Grande So. R. Co. v. Campbell 
 
 (44 Colo. 1; 96 Pac. 986), 414. 
 Ritchie V. People (155 111. 98; 40 
 
 N. E. 454; 29 L. R. A. 79), 601. 
 Rivera v. Atchison, T. & S. F. Ry. 
 
 Co. (Tex. Civ. App.) (149 S. W. 
 
 223), 35. 
 Roach v. Imperial Mining Co. (7 
 
 Fed. 698; 7 Sawy. 224), 219. 
 Robb V. Connelly (111 U. S. 624, 637; 
 
 28 L. Ed. 542; 4 Sup. Ct. 544, 
 
 551), 584, 585, 591. 
 Robbins v. Shelby County Taxing 
 
 District (120 U. S. 489, 492; 7 
 
 Sup. Ct. 592; 30 L. Ed. 694, 
 
 reversing 13 Lea, 303), 32, 125. 
 Roberge v. Burnham (124 Mass. 
 
 277), 810. 
 Roberts v. Albany, etc., R. Co. 
 
 (114 Ga. 678; 40 S. E. 698), 145. 
 Robertson v. Baldwin (165 U. S. 
 
 275, 277, 279, 280; 17 Sup. Ct. 
 
 326; 41 L. Ed. 715), 283, 284, 286, 
 Robertson v. Russell (12 R. 638), 
 
 001. 
 Robins V. Cubit (140 L. T. 535), 
 
 600. 
 Robinson v. Baltimore & Ohio R. 
 
 Co. (U. S.) (35 Sup. Ct. 491; 
 
 58 L. Ed. — ; 40 App. D. C. 169), 
 
 61, 105, 267, 273. 
 Robinson v. Georgia R., etc., Co. 
 
 117 Ga. 16S; 43 S. E. 452), 227.
 
 TABLE OF CASES. 
 
 Ixiii 
 
 [References are to pages.] 
 
 Rockford, etc., R. Co. v. Coultas 
 
 (67 111. 398), 151. 
 Rockford, etc., R. Co. v. Hillmer 
 
 (72 lU. 235), 164. 
 Rodman v. Missouri Pac. Ry. Co. 
 
 (65 Kan. 645; 70 Pac. 642; 59 
 
 L. R. A. 704), 231. 
 Rogers v. Steamer St. Charles (19 
 
 How. 108; 15 L. Ed. 563), 167. 
 Rogers v. United States (141 U. S. 
 
 548; 12 Sup. Ct. 91; 35 L. Ed. 
 
 853), 503. 
 RoUestone v. T. Cassier & Co. (3 
 
 Ga. App. 161; 59 S. E. 442), 145, 
 
 146. 
 Roquemore v. Albany, etc., R. Co. 
 
 (127 Ga. 330; 56 S. E. 424), 145. 
 Rose V. Des Moines, etc., R. Co. 
 
 (39 Iowa, 246), 12. 
 Rosney v. Erie R. Co. (124 Fed. 90; 
 
 135 Fed. 314; 68 C. C. A. 155), 
 
 59, 394, 859. 
 Ross V. St. Louis & S. F. R. Co. 
 
 (Kan.) (144 Pac. 844), 292. 
 Rowlands v. Chicago & N. W. Ry. 
 
 Co. (149 Wis. 51; 135 N. W. 
 
 156), 212. 
 Ruck V. Chicago M. & St. P. Ry. 
 
 Co. (153 Wis. 158; 140 N. W. 
 
 1074), 42, 105. 
 Runt V. Illinois, etc., R. Co. (88 
 
 Miss. 575; 41 So. 1), 227. 
 Russell V. Central Ry. (119 Ga. 705; 
 
 46 S. E. 858), 145. 
 Ryan v. Carter (93 U. S. 78), 400. 
 Ryan v. Cumberland Valley R. R. 
 
 Co. (23 Pa. St. 384), 8. 
 Ryland v. Atlantic Coast Line R. 
 
 Co. (57 Fla. 143; 49 So. 745), 136. 
 
 Sabine Trans. Case (227 U. S. Ill; 
 33 Sup. Ct. 229; 57 L. Ed. 442), 
 49. 
 
 Safford v. Drew (3 Duer. 627), 229. 
 Saiek v. Pacific R. Co. (193 Fed. 
 
 303), 287, 288. 
 San Antonio & A. P. Ry. Co. v. 
 
 Wagner (Tex. Civ. App.) (166 S. 
 
 W. 24), 405, 484, 490. 
 San Antonio, etc., R. Co. v. Brock 
 
 (Tex. Civ. App.) (80 S. W. 422), 
 
 245. 
 Sanders v. Central Ry. Co. (123 Ga. 
 
 763; 50 S. E. 728), 145, 146. 
 Sanders v. Charleston & W. C. Ry. 
 
 Co. (97 S. C. 50; 81 S. E. 283), 
 
 82, 88, 95. 
 San Jose Land, etc., Co. v. San 
 
 Jose Ranch Co. (189 U. S. 177; 
 
 23 Sup. Ct. 487; 47 L. Ed. 765, 
 
 affirming 129 Cal. 673; 62 Pac. 
 
 269), 413. 
 San Pedro, L. A. & S. L. R. Co. v. 
 
 Davide (210 Fed. 870; 127 C. C. 
 
 A. 454), 51, 75, 102. 
 San Pedro, L. A. & S. L. R. Co. v. 
 
 United States (213 Fed. 326), 512, 
 
 514, 515, 522, 526, 939. 
 San Pedro, L. A. & S. L. R. Co. v. 
 
 United States (220 Fed. 737), 538. 
 Sapphire, The (11 Wall. 164; 20 L. 
 
 Ed. 127), 167. 
 Saratoga, The (94 Fed. 221; 36 
 
 C. C. A. 208, reversing 87 Fed. 
 
 349), 173. 
 Sargent v. Baublis (215 111. 430; 74 
 
 N. E. 455), 490. 
 Saunders v. Louisville, etc., R. Co. 
 
 (40 C. C. A. 465; 111 Fed. 708), 
 
 234. 
 
 Saunders v. Southern Ry. Co. (N. 
 
 C.) (83 S. E. 573), 98. 
 Savannah, etc., Ry. Co. v. Day (91 
 
 Ga. 676; 17 S. E. 959), 138. 
 Savannah, etc., R. Co. v. Hatcher 
 
 (118 Ga. 273; 45 S. E. 239), 145.
 
 Ixiv 
 
 TABLE OF CASES. 
 
 [References are to pages. 
 
 Savannah, etc., R. Co. v. Stewart 
 
 (71 Ga. 427), 136, 138. 
 Savannah El. Co. v. Bell (124 Ga. 
 
 663; 53 S. E. 109), 146, 224. 
 Sawyer v. Sauer (10 Kan. 466), 133, 
 
 134. 
 Scandinavia, The (156 Fed. 403), 
 
 172, 173. 
 Schaub V. Hannibal & St. J. R. Co. 
 
 (106 Mo. 74; 16 S. W. 924), 241. 
 Scheffler v. Minneapolis, etc., R. Co. 
 
 (32 Minn. 125; 19 N. W. Rep. 
 
 656), 217. 
 Schendel v. Chicago & N. W. Ry. Co. 
 
 (Wis.) (133 N. W. 830), 197. 
 Schlemmer v. Buffalo, etc., R. Co. 
 
 (205 U. S. 1; 27 Sup. Ct. 407; 28 
 
 Sup. Ct. 616; 51 L. Ed. 681, 
 
 reversing 207 Pa. St. 198; 56 Atl. 
 
 417), 22, 24, 67, 118, 280, 333, 335, 
 
 339, 354, 397, 400, 405, 465, 476, 
 
 477, 483, 487, 494, 849, 850. 
 Schlemmer v. Buffalo, R. & P. Ry. 
 
 Co. (220 U. S. 590; 31 Sup. Ct. 
 
 561; 55 L. Ed. 596, affirmed 222 Pa. 
 
 470; 71 Atl. 1053), 200, 280, 465, 
 
 472, 476, 478, 483, 484, 486, 487. 
 Schmidt v. Chicago, etc., R. Co. 
 
 (83 111. 405), 164, 165. 
 Schmidt v. Deegan (69 Wis. 300; 
 
 34 N. W. 83), 274. 
 Schreiber v. Sharpless (110 U. S. 
 
 76, 80), 575, 597. 
 Schroeder v. Chicago, etc., R. Co. 
 
 (47 Iowa, 375), 17. 
 Schuyler National Bank v. Bollong 
 
 (24 Neb. 827; 40 N. W. 417), 279. 
 Schwarz v. Judd (28 Minn. 371; 10 
 
 N. W. 208), 229. 
 Schweig v. Chicago, M. & St. P. 
 
 Ry. Co. (205 Fed. 96), 515. 
 Schweig V. Chicago, M. & St. P. 
 
 Ry. Co. (210 Fed. 750), 201.. 207, 
 
 515, 540. 
 
 Scott V. Donald (165 U. S. 58; 17 
 Sup. Ct. 262; 41 L. Ed. 648), 
 31. 
 
 Seaboard Air Line Ry. v. Duvall 
 (225 U. S. 477; 32 Sup. Ct. 790; 
 
 56 L. Ed. 1171; 57 L. Ed. — ), 
 69, 310, 321, 322. 
 
 Seaboard Air Line R. Co. v. Horton 
 (233 U. S. 492; 58 L. Ed. 1062; 
 34 Sup. Ct. 635; 228 U. S. 433; 
 
 57 L. Ed. 907, reversing 162 N. C. 
 424; 78 S. E. 494), 4, 35, 200, 201, 
 202, 203, 207, 211, 291, 292, 322, 
 323. 
 
 Seaboard Air Line R. Co. v. Moore 
 
 (228 U. S. 433; 33 Sup. Ct. 580; 
 
 57 L. Ed. 907, affirming 193 Fed. 
 
 1022; 113 C. C. A. 668), 255, 312, 
 
 320. 
 Seaboard Air Line Ry. v. Padgett 
 
 (U. S.) (35 Sup. Ct. 481; 58 L. 
 
 Ed. — , affirming (S. C.) 83 S. E. 
 
 633), 322. 
 Seaboard Air Line R. Co. v. Tilgh- 
 
 man (35 Sup. Ct. 653, 704, reversing 
 
 167 N. C. 163; 83 S. E. 315, 1090), 
 
 237, 253. 
 Sears v. Atlantic C. L. R. Co. (N. 
 . ,,C.) (86 S. E. 176), 95, 208, 292. 
 Seattle, etc., Co. v. Hartless (144 
 
 Fed. 379), 249. 
 Seawall v. Kansas City, etc., R. 
 
 Co. (119 Mo. 222; 24 S. W. 1002), 
 
 58, 355. 
 Second Employer's Liability Case 
 
 (223 U. S. 1; 33 Sup. Ct. 169; 56 
 
 L. Ed. 327), 73, 116, 222, 267. 
 Secord v. St. Paul, etc., R. Co. 
 
 (5 McCrary, 515), 181. 
 Senn v. Southern Ry. Co. (124 
 
 Mo. 621; 28 S. W. 66), 235. 
 Serapis, The (51 Fed. 92, 266, re- 
 versing 49 Fed. 393, 396), 167, 
 
 168, 173. 
 Serensen v. Northern Pac. Ry. Co. 
 
 (45 Fed. 407). 229.
 
 TABLE OF CASES. 
 
 Ixv 
 
 [References are to pages.] 
 
 Seringapatam, The (5 N. C. 61, 66), 
 
 167. 
 Seward v. The Vera Cruz L. R. 
 
 (10 App. Cas. 59), 239, 293. 
 Shade v. Northern Pac. Ry. Co. 
 
 (206 Fed. 353), 49, 50, 69, 296. 
 Shanks v. Delaware, L. & W. R. Co. 
 
 (N. Y.) (108N. E. 644), 108. 
 Shanks v. Delaware, L. E. & W. R. 
 
 Co. (163 App. Div. 565; 148 N. Y. 
 
 Supp. 1034), 69, 70, 76, 106. 
 Shanley v. Philadelphia & R. R. 
 
 Co. (221 Fed. 1012), 116. 
 Shannon v. Boston & M. R. Co. 
 
 (Vt.) (92 Atl. 167), 35, 231, 232. 
 Shannon v. Union R. Co. (27 R. I. 
 
 475; 63 Atl. 488), 104. 
 Shaver v. Pennsylvania Co. (71 
 
 Fed. 931), 491. 
 Sheean v. New York (75 N. Y, 
 
 Supp. 802), 921. 
 Shelby, etc., Co. v. Southern Ry. 
 
 Co. (147 N. C. 66; 60 S. E. 721), 
 
 58, 355. 
 Sherlock v. Ailing (93 U. S. 99; 
 
 23 L. Ed. 819, affirming 44 Ind. 
 
 184), 21, 79, 218, 572, 594. 
 Sherman v. Johnson (58 Yt. 40; 2 
 
 Atl. 707), 217. 
 Sherman v. Western Stage Co. (24 
 
 Iowa, 515), 232. 
 Sherrer v. Banner Rubber Co. (227 
 
 Mo. 347; 126 S. W. 1037), 461. 
 Shohoney v. Quincy, O. & K. C. Ry. 
 
 Co. (223 Mo. 649; 122 S. W. 1025), 
 
 467, 489, 491. 
 Shreveport v. Cole (129 U. S. 36; 
 
 32 L. Ed. 589; 9 Sup. Ct. 210), 
 
 591. 
 Siebold, Ex parte (100 U. S. 371; 
 
 25 L. Ed. 717), 78, 590. 
 Siegel v. New York Cent. & H. R. 
 
 R. Co. (178 Fed. 873), 350, 365, 
 
 372, 421, 422, 426, 443, 478. 
 Simmons v. Seaboard, etc., R. Co. 
 
 (120 Ga. 225; 47 S. E. 570), 145. 
 
 Sims v. Macon, etc., Ry. Co. (28 
 
 Ga. 93), 146. 
 Sinnot v. Davenport (22 How. 227; 
 
 16 L. Ed. 243), 509. 
 Sluber v. McEntee (142 N. Y. 200; 
 
 47 N. Y. App. Div. 471; 66 N. Y. 
 
 Supp. 580, affirmed 164 N. Y. 58; 
 
 58 N. E. 4), 274. 
 Small V. Kreech (Tenn.) (46 S. W. 
 
 1019), 274. 
 Smith V. Alabama (124 U. S. 465; 
 
 8 Sup. Ct. 564; 31 L. Ed. 508, 
 
 affirming 76 Ala. 69), 33, 509. 
 Smith V. Atlantic Coast Line R. Co. 
 
 (210 Fed. 761; 127 C. C. A. 311), 
 
 307, 308, 483, 484. 
 Smith V. Camas Prairie Ry. Co. 
 
 (216 Fed. 799), 35, 287. 
 Smith V. Detroit & T. S. L. R. Co. 
 
 (175 Fed. 506), 289, 295, 296. 
 Smith V. Industrial Accident Com. 
 
 (Calif. App.) (147 Pac. 600), 36, 97. 
 Smith V. Lehigh, etc., R. Co. (177 
 
 N. Y. 379; 69 N. E. 729), 250. 
 Smith V. Michigan, etc., R. Co. (35 
 
 Ind. App. 188; 73 N. E. 928), 227. 
 Smith V. Nashville, etc., R. Co. (6 
 
 Heisk. 174), 147, 175. 
 Smith V. Northern Pac. Ry. Co. 
 
 (79 Wash. 448; 140 Pac. 685), 
 
 47, 98, 297, 301, 324. 
 Smith V. Southern Ry. Co. (129 
 
 N. C. 374; 40 S. E. 86), 519. 
 Smith V. St. Louis & S. F. R. Co. 
 
 (Kas.) (148 Pac. 759), 255. 
 Smith V. State (66 Md. 215; 7 Atl. 
 
 49), 389. 
 Smith V. United States (157 Fed. 
 
 721; 85 C. C. A. 353), 400. 
 Snead v. Central Georgia Ry. Co. 
 
 (151 Fed. 608), 24, 356. 
 Snyder v. Lake Shore, etc., Ry. Co. 
 
 (131 Mich. 418; 91 N. W. Rep. 
 
 643), 246.
 
 Ixvi 
 
 TABLE OF CASES. 
 
 [References are to pages.] 
 
 Snyder v. Southern Pac. Ry. Co. 
 
 (187 Fed. 492; Appendix G), 
 
 334, 446, 847. 
 South Carolina R. Co. v. Mix (68 
 
 Ga. 572), 303. 
 South Covington & C. St. Ry. Co. 
 
 V. Co\4ngton (U. S.) (35 Sup. Ct. 
 
 158; 58 L. Ed. — , reversing 146 
 
 Ky. 592; 143 S. W. 78), 54. 
 South Covington & C. St. Ry. Co. 
 
 V. Finan (153 Ky. 340; 155 S. W. 
 
 742), 35, 39, 54, 291, 305, 316. 
 South, etc., R. Co. v. SuUivan (59 
 
 Ala. 272), 274. 
 Southern Cotton Oil Co. v. Skipper 
 
 (125 Ga. 368; 5 S. E. 110), 143. 
 Southern, etc., R. Co. v. Johnson 
 
 (114 Ga. 329; 40 S. E. 235), 14. 
 Southern, etc., Co. v. Cassin (111 
 
 Ga. 575; 36 S. E. 881), 273. 
 Southern Ind. Exp. Co. v. United 
 
 States Exp. Co. (88 Fed. 659), 363. 
 Southern Ind. R. Co. v. Harrell 
 
 (161 Ind. 262; 68 N. E. 262), 66. 
 Southern Pacific Co. v. Hall (100 
 
 Fed. 760), 880. 
 Southern Pacific Co. v. AIcGinnis 
 
 (174 Fed. 649), 38. 
 Southern Pac. Co. v. Pillsbury 
 
 (Cal.) (151 Pac. 277), 58, 101, 105, 
 
 273. 
 Southern Pacific Co. v. Tomlinson 
 
 (163 U. S. 369; 16 Sup. Ct. 171), 
 
 274. 
 Southern Pacific Co. v. Vaughn 
 
 (Tex. Civ. App.) (165 S. W. 885), 
 
 315. 
 Southern Pacific R. Co. v. Allen (48 
 
 Tex. Civ. App. 66; 106 S. W. 
 
 Rep. 441), 280, 472, 487. 
 Southern R. Co. v. Maxwell (113 
 
 Tenn. 464; 82 S. W. Rep. 1137), 
 
 302. 
 Southern Ry. Co. v. Anslcy (8 Ga. 
 
 App. .325; 68 S. E. lOSG), 2f)5, 
 
 296, 304, 310, 314. 317. 
 
 Southern Ry. Co. v. Bandy (120 Ga. 
 
 463; 47 S. E. 923), 145. 
 Southern Ry. Co. v. Barfield (115 
 
 Ga. 724; 42 S. E. 95), 147. 
 Southern Ry. Co. v. Bennett (233 
 
 U. S. 80; 34 Sup. Ct. 566; 57 L. 
 
 Ed. — ), 321. 
 Southern Ry. Co. v. Brown (126 
 
 Ga. 1; 54 S. E. 911), 145. 
 Southern Ry. Co. v. Carson (194 
 
 U. S. 137; 24 Sup. Ct. 609; 48 
 
 L. Ed. 907, affirming 68 S. C. 55; 
 
 46 S. E. 525), 414, 467, 469, 470. 
 Southern Ry. Co. v. Cunningham 
 
 (123 Ga. 90; 50 S. E. 979), 147. 
 Southern Ry. Co. v. Dean (Ga.) (57 
 
 S. E. 702), 146. 
 Southern Ry. Co. v. Crockett (234 
 
 U. S. 725; 34 Sup. Ct. 897; 58 
 
 L. Ed. 1564), 203, 204, 208, 322, 
 
 339, 340, 361, 362, 373, 397, 398, 
 
 401, 402, 408, 409, 410, 465, 473. 
 Southern Ry. Co. v. Gadd (207 Fed. 
 
 277; 125 C. C. A. 21; 233 U. S. 
 
 572; 34 Sup. Ct. 696; 58 L. Ed. 
 
 — , affirming 207 Fed. 277), 210, 
 
 320, 323, 325. 
 Southern Ry. Co. v. Gladner (Ga. 
 
 App.) (58 S. E. 249), 145. 
 Southern Ry. Co. v. Gore (128 Ga. 
 
 027; 58 S. E. 180), 145. 
 Southern Ry. Co. v. Howerton (Ind.) 
 
 (105 N. E. 1025, reversing 101 
 
 N. E. 121; 103 N. E. 121), 36, 
 
 201, 203, 212, 287, 305, 324. 
 Southern Ry. Co. v. Jacobs (166 
 
 Va. — ; 81 S. E. 99), 35, 95, 203, 
 
 204, 208, 211. 
 Southern Ry. Co. v. King (217 U. S. 
 
 524; 30 Sup. Ct. 594; 54 L. Ed. 
 
 868, affirming 160 Fed. 332; 87 
 
 CCA. 284), 344. 
 Southern Ry. Co. v. Roger (219 
 
 Fed. 702), 311.
 
 TABLE OF CASES. 
 
 Ixvii 
 
 [References are to pages.] 
 
 Southern Ry. Co. v. Monchett (3 
 
 Ga. App. 266; 59 S. E. 710), 145. 
 Southern Ry. Co. v. Peters (Ala.) 
 
 (69 So. 611), 95, 98, 181, 237, 292, 
 
 312. 
 Southern Ry. Co. v. Puckett (Ga. 
 
 App.) (85 S. E. 809), 94, 287. 
 Southern Ry. Co. v. Rowe (2 Ga. 
 
 App. 557; 59 S. E. 462), 145. 
 Southern Ry. Co. v. R. R. Com. 
 
 (Ind.) (109 N. E. 759), 414. 
 Southern Ry. Co. v. Railroad Com- 
 mission (236 U. S. 439; 35 Sup. 
 
 Ct. 304; 54 L. Ed. — , reversing 
 
 179 Ind. 23; 100 N. E. 337), 39, 
 
 338, 344, 414, 415, 498, 502. 
 Southern Ry. Co. v. Simmons (105 
 
 Va. 651; 55 S. E. 459; 44 Am. & 
 
 Eng. R. Cas. 572), 401, 405, 408. 
 Southern Ry. Co. v. Smith (205 
 
 Fed. 360; 123 C. C. A. 488), 95, 
 
 258, 291. 
 Southern Ry. Co. v. Snyder (187 
 
 Fed. 497, 492), 333, 334, 340, 354, 
 
 356, 357, 373, 400. 
 Southern Ry. Co. v. Snyder (205 
 
 Fed. 868; 124 C. C. A. 60), 33, 
 
 37, 433. 
 Southern Ry. Co. v. United States 
 
 (222 U. S. 20; 32 Sup. Ct. 2; 51 
 
 L. Ed. 681; 3 N. C. C. 822; 56 
 
 L. Ed. 72, affirming 164 Fed. 347; 
 
 54 L. Ed. 868), 334, 336. 338, 339, 
 
 351, 358, 361, 373, 409, 424, 465, 
 
 892, 907. 
 Southern Ry. Co. v. Vaughn (Tex. 
 
 Civ. App.) (164 S. W. 885), 252. 
 Southern Ry. Co. v. Vessell (Ala.) 
 
 (68 So. 336), 224. 
 Southern Ry. Co. v. Wiley (9 Ca. 
 
 App. 249), 71 S. E. 11), 140. 
 Southwestern Brewery & Ice Co. v. 
 
 Schmidt (226 U. S. 162; 33 Sup. 
 
 Ct. 68; 57 L. Ed. 170), 200. 
 Southwestern, etc., R. Co. v. Paulk 
 
 (24 Ga. 536), 218. 
 Southwestern R. Co. v. Johnson 
 
 (60 Ga. 667), 142, 146. 
 
 Spain V. St. Louis, etc., R. Co. 
 
 (151 Fed. 522), 24, 334. 
 Spinder v. Atchison, T. & S. F. Ry. 
 
 Co. (Kan.) (148 Pac. 747), 98, 202. 
 Spokane & I. E. R. Co. v. United 
 
 States (210 Fed. 243; 127 C. C. A. 
 
 61, affirming 206 Fed. 988; Ap- 
 pendix G), 398, 415, 417, 498, 503, 
 
 903. 
 Sprague v. Wisconsin Central R. 
 
 Co. (104 Minn. 58; 116 N. W. 
 
 104), 469, 478, 483, 487. 
 Springfield, etc., Ry. Co. v. DeCamp 
 
 (11 111. App. 475), 161. 
 Stafford v. Norfolk & W. Ry. Co. 
 
 (202 Fed. 605), 78, 310, 313. 
 Staley v. Illinois Cent. R. Co. (111.) 
 
 (109 N. E. 342, reversing 186 111. 
 
 App. 593), 273, 292. 
 Standard, etc., Co. v. Munsey (33 
 
 Tex. Civ. App. 416; 76 S. W. 
 
 931), 247. 
 Starin v. New York (115 U. S. 248; 
 
 6 Sup. Ct. 28; 29 L. Ed. 388, 
 
 affirming 21 Fed. 593), 489. 
 Staunton Coal Co. v. Fischer (119 
 
 111. App. 284), 230. 
 St. Bernard Cypres v. Johnson 
 
 (222 Fed. 246), 101. 
 St. Louis & S. F. R. Co. v. Conarty 
 
 (35 Sup. Ct. 785, reversing 106 
 
 Ark. 421; 155 S. W. 93), 95, 101, 
 
 220, 260, 264, 286, 287, 317, 426, 
 
 469. 
 
 St. Louis & S. F. R. R. v. Conerty 
 (238 U. S. 243), 110. 
 
 St. Louis & S. F. R. Co. v. Cox 
 (Tex. Civ. App.) (159 S. W. 1042), 
 295 310 
 
 St. Louis & S. F. R. Co. v. Delk 
 (158 Fed. 931; 86 C. C. A. 95; 14 
 A. & E. Ann. Cas. 233; reversed 
 in 220 U. S. 578; 31 Sup. Ct. 617; 
 55 L. Ed. 590), 68, 333, 349, 350, 
 356, 357, 371, 375, 411, 440, 455, 
 472, 811.
 
 Ixviii 
 
 TABLE OF CASES. 
 
 [References are to pages.] 
 
 St. Louis & S. F. R. Co. v. Fithian 
 
 (106 Ark. 491; 155 S. W. 88), 
 
 286, 291, 317. 
 St. Louis & S. F. R. Co. v. Snowden 
 
 (Okla.) (149 Pac. 1083), 38, 205, 
 
 212, 295, 297. 
 St. Louis & S. F. Ry. Co. v. State 
 
 (87 Ark. 562; 113 S. W. 203), 
 
 68, 355. 
 St. Louis Cordage Co. v. Miller 
 
 (126 Fed. 495), 472. 
 St. Louis, etc., R. Co. v. Black 
 
 (79 Ark. 179; 95 S. W. 155), 302. 
 St. Louis, etc., R. Co. v. Cleere 
 
 (Ark.) (88 S. W. 995), 247. 
 St. Louis, etc., R. Co. v. Duke 
 
 (192 Fed. 309; 112 C. C. A. 564), 
 
 244. 
 St. Louis, etc., R. Co. v. Geer (Tex. 
 
 Civ. App.) (149 S. W. 1178), 222, 
 
 242, 244, 250, 258. 
 St. Louis, etc., R. Co. v. Manly (58 
 
 111. 300), 163. 
 St. Louis, etc., R. Co. v. Mathias 
 
 (Ark.) (91 S. W. 763), 248. 
 St. Louis, etc., R. Co. v. INIatthews 
 
 (165 U. S. 1; 41 L. Ed. 611; 17 
 
 Sup. Ct. 243, affirming 121 Mo. 
 
 298; 24 S. W. 591; 25 L. R. A. 
 
 161), 12. 
 St. Louis, etc., R. Co. v. Paul (173 
 
 U. S. 404; 43 L. Ed. 746; 19 Sup. 
 
 Ct. 419, affirming 64 Ark. 83; 
 
 37 L. R. A. 504; 62 Am. St. 154; 
 
 40 S. W. 705), 13, 19. 
 St. Louis, etc., R. Co. v. Todd (.36 
 
 111. 409), 163, 164. 
 St. Louis, etc., Ry. Co. v. Bowles 
 
 (Tex. Civ. App.) (72 S. W. Rep. 
 
 451), 245. 
 St. Louis, etc., R. Co. v. Haist (71 
 
 Ark. 258; 72 S. W. 893), 248. 
 St. Louis, etc., Ry. Co. v. Vickers 
 
 (122 U. S. 360), 584. 
 
 St. Louis, I. M, & S. Ry. Co. v. 
 
 Coke (Ark.) (175 S. W. 1177), 
 
 297, 314, 325. 
 St. Louis, I. M. & S. Ry. Co. v. 
 
 Crafts, (237 U. S. — ; 35 Sup. Ct. 
 
 704, 707, affirming (Ark.) 171 S. 
 
 W. 1185), 217, 218, 220a, 233, 
 
 236, 262, 204, 293, 326. 
 St. Louis, I. M. & S. Ry. Co. v. 
 
 Conley (187 Fed. 949; 110 C. C. A. 
 
 97), 4, 22, 41. 
 St. Louis, I. M. & S. Ry. Co. v. Daw- 
 son (68 Ark. 1; 56 S. V/. 46), 261. 
 St. Louis, I. M. & S. Ry. Co. v. 
 
 Hesteriy (228 U. S. 702; 33 Sup. 
 
 Ct. 703; 57 L. Ed. 1031, reversing 
 
 98 Ark. 240; 135 S. W. 874), 35, 
 
 36, 40, 217, 222, 240, 252, 261, 
 
 276, 295, 297, 299, 306, 321, 322, 
 
 325, 361. 
 St. Louis, I. M. & S. Ry. Co. v. Mc- 
 
 Whirter (229 U. S. 265; 33 Sup. 
 
 Ct. 858; 57 L. Ed. 1179, reversing 
 
 145 Ky. 427; 140 S. W. 672), 40, 
 
 208, 321, 322, 323, 469, 506, 513, 
 
 521, 540. 
 St. Louis, I. M. & S. R. Co. V. Neal 
 
 (83 Ark. 591; 78 S. W. 220; 98 
 
 S. W. 958; affirmed 210 U. S. 281; 
 
 28 Sup. Ct. 616; 52 L. Ed. 1061), 
 
 332, 409, 413, 423, 488, 489. 
 St. Louis, I. M. & S. Ry. Co. v- 
 
 Neal (71 Ark. 445; 78 S. W. 
 
 220), 472. 
 St. Louis, I. M. & S. Ry. Co. v. 
 
 Rodgens (Ark.) (176 S. W. 696), 
 
 244, 256, 259, 262, 305, 312. 
 St. Louis, I. M. & S. Ry. Co. v. 
 
 Stamps (84 Ark. 241; 104 S. W. 
 
 1114), 261. 
 St. Louis, I. & M. S. Ry. Co. v. 
 
 State (102 Ark. 205; 143 S. W. 
 
 913), 536.
 
 TABLE OF CASES. 
 
 Ixix 
 
 [References are to pages. 
 
 St. Louis, I. M. & S. Ry. Co. v. 
 
 Taylor (210 U. S. 281, 286; 28 
 
 Sup. Ct. 616; 52 L. Ed. 1061; 
 
 21 Am. Neg. Rep. 464; 74 Ark. 
 
 445; 78 S. W. 220; 83 Ark. 591; 
 
 98 S. W. 959), 40, 280, 322, 332, 
 
 333, 334, 335, 339, 357, 409, 410, 
 
 413, 423, 457, 465, 467, 487, 576, 
 
 798, 803, 811, 812, 886, 887. 
 
 St. Louis, I. M. & S. Ry. Co. v. 
 
 York (92 Ark. 554; 123 S. W. 
 
 376), 406, 426, 478, 483, 487. 
 
 St. Louis, S. F. & T. R. Co. v. Seale 
 
 (229 U. S. 156; 33 Sup. Ct. 651; 
 
 57 L. Ed. 1129, reversing (Tex. 
 
 Civ. App.) 148 S. W. 1099), 35, 
 
 36, 40, 69, 94, 127, 214, 217, 222, 
 
 293. 295, 310, 321, 323. 
 
 St. Louis S. W. Ry. Co. v. Anderson 
 
 (Ark.) (173 S. W. 834), 95, 96, 
 
 129, 472, 484. 
 
 St. Louis S. W. Ry. Co. v. Brothers 
 
 (Tex. Civ. App.) (165 S. W. 488), 
 
 102, 213. 
 
 St. Louis S. W. Ry. Co. v. Harvey 
 
 (144 Fed. 806), 110. 
 
 St. Louis, S. &T. Ry . Co. v. Johnston 
 
 (78 Tex. 536; 15 S. W. 104), 259. 
 
 St. Louis S. W. Ry. Co. v. United 
 
 States (183 Fed. 770; 106 C. C. 
 
 A. 136), 493, 495, 500, 927. 
 
 Staley v. Illinois Central R. Co. 
 
 (111.) (109 N. E. 342, reversing 
 
 iS6 111. App. 593), 36, 76, 82, 102. 
 
 State V. Adams Exp. Co. (170 Ind. 
 
 138; 85 N. E. 337, 936), 414. 
 State V. Baltimore, etc., Ry. Co. 
 
 (36 Fed. 655), 266. 
 State V. Chicago, M. & St. P. Ry. 
 
 Co. (40 Minn. 267; 41 N. W. 
 
 1047), 58, 355. 
 State V. Chicago, M. & St. P. Ry. 
 
 Co. (136 Wis. 407; 117 N. W. 
 
 686; 19 L. R. A. (N. S.) 326), 
 
 119, 338, 351, 510, 525, 573, 596. 
 
 State V. Kansas City, F. S. & M. R. 
 
 Co. (70 Mo. App. 634), 500. 
 State V. Lauer (55 N. J. L. 205; 26 
 
 Atl. 180; 20 L. R. A. 61), 132. 
 State V. Loomis (115 Mo. 807), 19. 
 State V. Missouri Pacific Ry. Co. 
 
 (222 Mo. 658; 111 S. W. 500), 
 
 298, 338, 414, 510, 573, 596. 
 State V. Northern Pacific R. Co. 
 
 (53 Wash. 673; 102 Pac. 876), 
 
 510. 
 State V. Northern Pacific Ry. Co. 
 
 (36 Mont. .582; 93 Pac. 945; 15 
 
 L. R. A. (N. S.) 134), 338, 510. 
 State V. Soale (36 Ind. App. 73; 74 
 
 N. E. Ill), 228. 
 State V. Texas & N. 0. R. Co. (Tex. 
 
 Civ. App.) (124 S. W. 984), 338, 
 
 510. 
 State V. Wabash R. Co. (Mo.) 
 
 (141 S. W. 646), 338, 510. 
 State Freight Tax Case (15 Wall. 
 
 232, 275, 280; 21 L. Ed. 146; re- 
 versing 62 Pa. St. 286; 1 Am. 
 
 Rep. 399), 32, 125, 387. 
 Steam Dredge No. 1 (134 Fed. 161; 
 
 67 C. C. A. 67; 69 L. R. A. 293) 
 
 (denying the applicability of the 
 
 doctrine of Davies v. Mann) 10 
 
 Mes. & Wils. 546), 168. 
 Stearns v. Chicago, R. I. & P. R. Co. 
 
 (148 N. W. 128), 365. 
 Steinhouser v. Savannah, etc., R. Co. 
 
 (118 Ga. 195; 44 S. E. 800), 147. 
 Stemples v. Metropolitan St. Ry. Co. 
 
 (174 N. Y. 512; 66 N. E. 1117), 
 
 247, 248. 
 Stephen Morgan, The (94 U. S. 599; 
 
 23 L. Ed. 930), 168. 
 Stephens v. American, etc., Co. (38 
 
 Ind. App. 414; 78 N. E. 335), 176. 
 Stephens v. Chicago, M. & St. P. 
 
 Ry. Co. (206 Fed. 855), 287.
 
 Ixx 
 
 TABLE OF CASES. 
 
 [References are to pages.] 
 
 Stephens v. Nashville, etc., R. Co. 
 
 (10 Lea, 448), 274. 
 Stephens\411e, N. & S. T. Ry. Co. 
 
 V. Shelton (Tex. Civ. App.) (163 
 
 S. W. 1034), 255. 
 Sterling, The (106 U. S. 647; 1 Sup. 
 
 Ct. 89; 27 L. Ed. 98), 168. 
 Sternberg v. Cape Fear & S. V. R. 
 
 Co. (29 S. C. 510; 7 S. E. 836), 
 
 58, 355. 
 Stewart v. Bloom (11 Wall. 493), 
 
 927. 
 Stewart v. Seaboard Air Line Ry. 
 
 (115 Ga. 624; 41 S. E. 981), 147. 
 Stewart v. Terre Haute, etc., R. Co. 
 
 (103 Ind. 44; 2 S. E. 208), 229. 
 Stockmann v. Terre Haute, etc., R. 
 
 Co. (15 Mo. App. 503), 235. 
 Stone V. Railroad Co. (171 Mass. 
 
 536), 853. 
 Stratton v. Central City Horse Ry. 
 
 Co. (95 111. 25), 154. 
 Stratton v. Morris (89 Tenn. 497), 17. 
 Strauser v. Chicago, B. & Q. R. Co. 
 
 (193 Fed. 293), 287, 288. 
 Stroble v. Railroad Co. (71 Iowa, 
 
 555; 31 N. W. 63), 64. 
 Strode v. St. Louis Transit Co. (Mo.) 
 
 (87 S. W. 976), 273. 
 Strother v. Union Pacific R. Co. 
 
 (220 Fed. 731), 289, 304. 
 Stuart v. Evans (31 W. R. 706), 6, 
 
 601. 
 Stucke V. Orleans R. Co. (50 La. 
 
 Ann. 188; 23 So. 342), 11. 
 Sturges V. Crowninshield (4 Wheat. 
 
 122), 584. 
 Sullivan v. Union Pac. Ry. Co. (2 
 
 Fed. 447; 1 McCrary, 301), 217. 
 Sunnyside, The (91 U. S. 208; 23 
 
 L. Ed. 302, reversing Brown, 
 
 Ad. Cas. 227; Fed. Cas. 13620J, 
 
 167. 
 
 Suttle V. Choctaw, O. & G. R. Co. 
 
 (144 Fed. 668; 75 C. C. A. 470), 
 
 397, 405, 406, 478, 479, 481. 
 Sweet V. Chicago & N. W. Ry. Co. 
 
 (157 Wis. 400; 147 N. W. 1054), 
 
 208, 210, 204, 243, 293, 311. 
 Sweetland v. Chicago, etc., R. Co. 
 
 (117 Mich. 329; 75 N. W. 1066; 
 
 43 L. R. A. 568), 261. 
 Swift & Co. V. Johnson (138 Fed. 
 
 867), 227. 
 Swoboda v. Union Pacific R. Co. 
 
 (87 Neb. 200; 27 N. W. 215), 
 
 23, 117. 
 Syracuse, The (18 Fed. 828), 168. 
 
 Taggert v. Republic Iron & Steel 
 
 Co. (141 Fed. 910; 73 C. C. A. 
 
 144), 402, 404, 410. 
 Tanor v. Municipal, etc., Co. (84 
 
 N. Y. Stat. 1053; 88 App. Div. 
 
 251), 223. 
 Taylor v. Boston, etc., R. Co. (188 
 
 Mass. 390; 74 N. E. 591), 356, 370, 
 
 380, 414. 
 Taylor v. Carryl (20 How. 595; 
 
 15 L. Ed. 1028), 585. 
 Taylor v. Cranberry, etc., Co. (94 
 
 N. C. 525), 231. 
 Taylor v. Prairie Peeble Phosphate 
 
 Co. (61 Fla. 455; 54 So. 904), 398. 
 Taylor v. San Antonio, etc., Co. 
 
 (15 Tex. Civ. App. 344; 93 S. 
 
 W. 674), 228. 
 Taylor's Case (see St. Louis, I. M. 
 
 & S. R. Co. V. Taylor). 
 Taylor v. Southern Ry. Co. (Ind. 
 
 App.) (101 N. E. 506), 304. 
 Taylor v. Southern Ry. Co. (178 
 
 Fed. 380), 37, 39, 74.
 
 TABLE OF CASES. 
 
 Ixxi 
 
 [References are to pages. 
 
 Taylor v. Taylor (232 U. S. 363; 
 
 34 Sup. Ct. 350; 58 L. Ed. 638; 
 
 204 N. Y. 135; 97 N. E. (N. Y.) 
 
 502; Am. Cas. 1913 D, 276; 144 
 
 App. Div. 634; 128 N. Y. Supp. 
 
 378), 35, 220, 250, 259, 262. 
 Taylor v. United States (3 How. 
 
 197; 11 L. Ed. 559), 393. 
 Taylor v. Wells Fargo & Co. (220 
 
 Fed. 796), 267. 
 Tays V. Echer (6 Tex. Civ. App. 
 
 188; 24S. W. 954),519. 
 Teal V. Fulton (53 U. S. 292), 586, 
 
 587. 
 Teel V. Chesapeake & Ohio Ry. Co. 
 
 (204 Fed. 918; 123 C. C. A. 240; 
 
 47 L. R. A. (N. S.) 21), 287. 
 Telegraph Co. v. Texas (105 U. S. 
 
 460), 32. 
 Tennessee v. Davis (100 U. S. 257), 
 
 584. 
 Terre Haute, etc., R. Co. v. Voelker 
 
 (31 111. App. 314), 155, 161. 
 Teutonia, The (23 Wall. 77; 23 L. 
 
 Ed. 44), 167. 
 Texarkana & Ft. S. Ry. Co. v. Casey 
 
 (Tex. Civ. App.) (172 S. W. 729), 
 
 307, 309. 
 Texarkana, etc., R. Co. v. Fugier 
 
 (16 Tex. Ct. 724; 95 S. W. 563), 
 
 249. 
 Texas & N. O. R. Co. v. Miller 
 
 (221 U. S. 408; 31 Sup. Ct. 534; 
 
 55 L. Ed. 789), 491. 
 Texas & N. 0. R. Co. v. Sabine 
 
 Transportation Co. (121 S. W. 
 
 256), 58. 
 Texas & P. R. Co. v. Carhn (111 
 
 Fed. 777; 189 U. S. 354; 23 Sup. 
 
 Ct. 585; 47 L. Ed. 849), 67. 
 Texas & P. R. Co. v. Harvey (228 
 
 U. S. 521; 33 Sup. Ct. 518; 57 
 
 L. Ed. 852), 200. 
 
 Texas & P. Ry. Co. v. Interstate 
 
 Commerce Commission (162 U. S. 
 
 197; 16 Sup. Ct. 666; 40 L. Ed. 
 
 940, reversing 4 Interstate Com. 
 
 Rep. 408; 6 C. C. A. 653; 20 U. S. 
 
 App. 1; 57 Fed. 948), 381, 383. 
 Texas & P. Ry. Co. v. Rigsby (222 
 
 Fed. 221), 336, 469. 
 Texas & P. Ry. Co. v. Swcaringen 
 
 (122 Fed. 193), 472. 
 Texas & P. Ry. Co. v. White (Tex. 
 
 Civ. App.) (177 S. W. 1185), 78, 
 
 102, 202. 
 Texas, etc., R. Co. v. Green (15 
 
 Tex. Ct. 133; 95 S. W. 694), 248, 
 
 249. 
 Texas, etc., Ry. Co. v. Robertson 
 
 (82 Tex. 657; 17 S. W. 1041), 
 
 228. 
 Thelluson v. Woodford (4 Ves. 227; 
 
 11 Ves. 112), 228. 
 Third St. R. Co. v. Lewis (173 U. 
 
 S. 457; 19 Sup. Ct. 451; 43 L. Ed. 
 
 766), 488. 
 Thomas v. Boston (219 Fed. 180), 
 
 100. 
 Thomas v. Boston & M. R. R. (218 
 
 Fed. 113), 75. 
 Thomas v. Chicago & N. W. Ry. 
 
 Co. (202 Fed. 766), 35, 218, 220, 
 
 222, 230, 240, 286, 287, 294, 296, 
 
 301, 304, 317. 
 Thomas v. Georgia, etc., R. Co. 
 
 (38 Ga. 222), 396. 
 Thomas v. Quartermain (18 Q. B. 
 
 693), 6, 601. 
 Thomas v. Union Pac. Ry. Co. (1 
 
 Utah, 132), 217. 
 Thompson v. Central R. Co. (54 
 
 Ga. 509), 138. 
 Thompson v. Cincinnati, N. O. & 
 
 T. P. Ry. Co. (165 Ky. 256; 176 
 
 S. W. 1006), 100, 305, 306. 
 Thompson v. Ft. Worth, etc., R. 
 
 Co. (97 Tex. 590; 80 S. W. 990), 
 
 274. 
 Thompson v. Wabash R. Co. (Mo.) 
 
 (171 S. W. 364), 36, 59.
 
 Ixxii 
 
 TABLE OF CASES. 
 
 [References are to pages.] 
 
 Thompson v. Wabash Ry. Co. (184 
 
 Fed. 55-4), 214, 233. 
 Thomson v. Columbia & P. S. S. Co. 
 
 (205 Fed. 203), 93. 
 Thornbro v. Kansas City, M. & O. 
 
 Ry. Co. (91 Kan. 084; 139 Pac. 
 
 410, on rehearing 92 Kan. 681; 
 
 142 Pac. 250), 95, 97, 208, 214, 
 
 237, 255, 412, 472, 485. 
 Thornburg v. American, etc., Co. 
 
 (141 Ind. 443; 40 N. E. 1062), 
 
 227, 228. 
 Thornton v. Seaboard Air Line Ry. 
 
 (98 S. C. 348; 82 S. E. 433), 203, 
 
 208. 
 Tift V. Jones (78 Ga. 700; 3 S. E. 
 
 399), 144. 
 Tilley v. Hudson, etc., Co. (29 N. Y. 
 
 252; 86 Am. Dec. 297; 24 N. Y. 
 
 471), 223, 241. 
 Toledo, etc., R. Co. v. Cline (135 
 
 111. 41; 25 N. E. 846; 31 111. App. 
 
 563), 153, 154, 155, 159, 161. 
 Toledo, etc., Ry. Co. v. ISIcGinnis 
 
 (71 lU. 346), 164. 
 Toledo, etc., Ry. Co. v. O'Connor 
 
 (77 111. 391), 164, 166. 
 Toledo, etc., Ry. Co. v. Spencer (66 
 
 111. 528), 163. 
 Toledo R. Co. v. Bartley (172 Fed. 
 
 82), 853. 
 Toledo, St. L. & W. R. Co. v. Gordon 
 
 (177 Fed. 152; 100 C. C. A. 572), 
 
 477, 478, 484. 
 Toledo, St. L. & W. R. Co. v. Slavin 
 
 (236 U. S. 457; 35 Sup. Ct. 306; 
 
 58 L. Ed. — , reversing 88 Ohio St. 
 
 536; 106 N. E. 1077), 36, 297, 
 
 310, 314, 322, 323. 
 Tonsellito v. New York Cent. & 
 
 H. R. R. Co. (N. J.) (94 Atl. 
 
 804), 96, 107, 212, 222, 319. 
 Tralich v. Chicap;o, M. & St. P. Ry. 
 
 Co. (217 Fed. 075), 74, 78, 82, 295. 
 
 Tranham v. Charieston & W. C. Ry. 
 
 Co. (S. C.) (75 S. E. 331), .58. 
 Transportation Co. v. Parkersburg 
 
 (107 U. S. 691; 2 Sup. Ct. 7.32; 
 
 27 L. Ed. 584), 30. 
 Trott V. Birmingham R. Co. (144 
 
 Ala. 383; 39 So. 716), 302. 
 Troxell v. Delaware, L. & W. R. Co. 
 
 (227 U. S. 434; 33 Sup. Ct. 274; 
 
 57 L. Ed. 274, affii-ming 200 Fed. 
 
 44; 118 C. C. A. 272), 214, 215. 
 Troxler v. Southern Ry. Co. (124 
 
 N. C. 191; 32 S. E. 550; 44 L. 
 
 R. A. 312; 70 Am. St. 580), 468, 
 
 469, 470. 
 Truesdell v. Chesapeake & R. Co. 
 
 (159 Ky. 718; 169 S. W. 471), 
 
 78, 100, 203, 204. 
 Tsmura v. Great Northern Ry. Co. 
 
 (58 Wash. 316; 108 Pac. 774), 83, 
 
 92, 296, 297, 299, 469. 
 Tucker v. Central Ry. Co. (122 Ga. 
 
 387; 50 S. E. 128), 147. 
 TuUis V. Lake Erie, etc., R. Co. 
 
 (175 U. S. 349; 20 Sup. Ct. 136; 
 
 44 L. Ed. 192; 105 Fed. 554), 
 
 12, 13, 10, 22. 
 Turiey v. Atlanta, etc., R. Co. (127 
 
 Ga. 594; 56 S. E. 748), 145. 
 Turrettin v. Chicago, St. P., M. & 
 
 O. R. Co. (95 Minn. 408; 104 
 
 N. W. 225), 469, 478, 483, 487. 
 Tynan v. Walker (35 Cal. 634; 95 
 
 Am. Dec. 152), 389. 
 
 U 
 
 Ulrich V. New York, etc., R. Co. 
 
 (193 Fed. 768), 288, 295, 304, 313. 
 Union Bridge Co. v. United States 
 
 (201 U. S. 364; 27 Sup. Ct. 367), 
 
 .332, 3.34. 
 Union, etc., Co. v. Kollaher (12 111. 
 
 App. 400), 154, 160, 160.
 
 TABLE OF CASES. 
 
 Ixxiii 
 
 [References are to pages.] 
 
 Union, etc., Co. v. Monaghan (13 
 
 111. App. 148), 155, 166. 
 Union Pacific R. Co. v. Brady (161 
 
 Fed. 719; 88 C. C. A. 579), 406, 
 
 478, 479. 
 Union Pac. R. Co. v. Fuller (204 
 
 Fed. 45; 120 C. C. A. 359), 210. 
 Union Pac. R. Co. v. Roeser (69 Neb. 
 
 62; 95 N. W. 68), 302. 
 Union Pac. Ry. Co. v. Rollins (5 
 
 Kans. 167), 133, 134. 
 Union Pac. R. Co. v. Wyler (158 
 
 U. S. 285; 39 L. Ed. 983; 15 Sup. 
 
 Ct. 877), 216, 232, 233, 306, 309. 
 Union Ry., etc., Co. v. Shacklet 
 
 (119 111. 232; 10 N. E. 896), 303. 
 Union Stock Yards Co. v. United 
 
 States (169 Fed. 409), 59, 365. 
 Union, etc., Co. v. State (100 Md. 634; 
 
 60 Atl. 248), 302. 
 United States v. Atchison, etc., Ry. 
 
 Co. (150 Fed. 442), 432, 439, 451. 
 United States v. Atchison, T. & S. 
 
 F. Ry. Co. (Appendix G), 392, 399, 
 
 403, 404, 405, 407, 409, 444, 503, 843. 
 United States v. Atchison, T. & S. 
 
 F. R. Co. (163 Fed. 517; 90 C. C. 
 
 A. 327), 421, 425, 426, 798, 803. 
 United States v. Atchison, T. & S. 
 
 F. Ry. Co. (166 Fed. 160, 163), 
 
 518, 534, 535. 
 United States v. Atchison, T. & S. 
 
 F. R. Co. (167 Fed. 696; Appendix 
 
 G), 394, 401, 402, 407, 408, 416, 
 
 421, 422, 440, 443, 444, 446, 448, 
 
 449, 496, 728, 758, 762, 852. 
 United States v. Atchison, T. & S. 
 
 F. Ry. Co. (212 Fed. 1000), 536, 
 
 537, 538. 
 United States v. Atchison, T. & S. 
 
 F. Ry. Co. (220 U. S. 37; 31 
 
 Sup. Ct. 362; 55 L. Ed. — , affirm- 
 ing 177 Fed. 114), 515, 530, 532, 
 
 533, 908, 927, 931. 
 
 United States v. Atchison, T. & S. 
 
 F. Ry. Co. (Kent's Index-Digest, 
 
 125), 883. 
 United States v. Atlantic Coast Line 
 
 R. Co. (Appendix G), 358, 399, 
 
 414, 419, 421, 470, 493, 494, 500, 
 
 801, 889, 924. 
 United States v. Atlantic Coast Line 
 
 R. Co. (— Fed. 77), 488. 
 United States v. Atlantic Coast Line 
 
 R. Co. (153 Fed. 918), 334, 338, 
 
 340, 400, 421, 448, 451, 472, 477, 
 
 491, 493, 494, 495. 
 United States v. Atlantic Coast Line 
 
 R. Co. (168 Fed. 175, decided 
 
 Feb. 24, 1909; Appendix G), 349. 
 United States v. Atlantic Coast Line 
 
 R. Co. (173 Fed. 764; 98 C. C. A. 
 
 110), 519, 534, 535, 540. 
 United States v. Atlantic Coast Line 
 
 R. Co. (182 Fed. 284), 493, 499. 
 United States v. Atlantic Coast Line 
 
 Ry. Co. (211 Fed. 897; 127 C. C. 
 
 A. 123), 340, 512, 531, 532, 533, 
 
 539. 
 United States v. Atlantic Coast Line 
 
 R. Co. (214 Fed. 498), 365. 
 United States v. Baltimore & O. R. 
 
 Co. (Appendix G), 334, 416, 421, 
 
 444, 449, 455, 503, 786, 861. 
 United States v. Baltimore & O. R. 
 
 Co. (26 App. D. C. 587, 851), 493, 
 
 604. 
 United States v. Baltimore & 0. 
 
 Ry. Co. (170 Fed. 456; Appendix 
 
 G), 340, 354, 357, 401, 407, 421, 
 
 422, 472, 477, 496, 827. 
 United States v. Baltimore & O. R. 
 
 Co. (176 Fed. 114), 394, 461, 462, 
 
 493, 496. 
 United States v. Baltimore & O. R. 
 
 Co. (184 Fed. 94), 397, 414, 415, 
 
 416, 502, 503.
 
 Ixxiv 
 
 TABLE OF CASES. 
 
 [References are to pages. 
 
 United States v. Baltimore & O. S. 
 
 W. R. Co. (159 Fed. 33, 38; 86 
 
 C. C. A. 223), 493, 495, 503, 797, 
 
 802, 809. 
 United States v. Baltimore, etc., R. 
 
 Co. (Appendix G), 422, 470. 
 United States v. Bell Telephone 
 
 Co. (159 U. S. 548; 16 Sup. Ct. 
 
 69; 40 L. Ed. 225), 431. 
 United States v. Belt Ry. Co. (168 
 
 Fed. 542; Appendix G), 798, 802, 
 
 821. 
 United States v. Boston & M. R. 
 
 Co. (168 Fed. 148; Appendix G), 
 
 334, 353, 394, 407, 414, 415, 416, 
 
 452, 459, 495, 496, 502, 779. 
 United States v. Boyer (85 Fed. 425), 
 
 58. 
 
 United States v. Central of Ga. Ry. 
 Co. (157 Fed. 616, 893), 57, 339, 
 340, 349, 350, 364, 376, 392, 394, 
 397, 405, 406, 407, 408, 410, 493, 
 495, 496. 
 
 United States v. Central Ry. Co. 
 (167 Fed. 893), 850. 
 
 United States v. Chesapeake & 0. 
 Ry. Co. (213 Fed. 748; Appendix 
 G), 365, 373, 399, 401, 407, 408, 
 
 453, 459, 461, 470, 495, 768, 911. 
 United States v. Chicago & N. W. 
 
 Ry. Co. (157 Fed. 616; reversed 
 168 Fed. 236), 340, 351, 356, 357, 
 373, 400, 414, 448, 452, 502, 850. 
 
 United States v. Chicago & N. W. 
 Ry. Co. (219 Fed. 342), 524, 528. 
 
 United States v. Chicago, B. & Q. 
 Ry. Co. (156 Fed. 180), 340, 451. 
 
 United States v. Chicago, B. & Q. 
 R. Co. (35 Sup. Ct. 634, affirming 
 211 Fed. 12; 127 C. C. A. 438), 
 353, 465. 
 
 United States v. Chicago, etc., R. 
 Co. (Appendix G), 470, 495. 
 
 United States v. Chicago, etc., R. 
 Co. (81 Fed. 783), 378. 
 
 United States v. Chicago, etc., R. 
 Co. (143 Fed. 353, 373), 352, 354, 
 364, 365, 367, 412, 494. 
 
 United States v. Chicago, etc., R. 
 Co. (163 Fed. 775), 421, 422, 440, 
 500. 
 
 United States v. Chicago, etc., R. 
 Co. (173 Fed. 684; Appendix G), 
 394, 411, 495, 501. 
 
 United States v. Chicago, etc., R. 
 Co. (156 Fed. 180, 182, 616; 
 affirmed 170 Fed. 556; 95 C. C. A. 
 42) 397, 399, 410, 422, 431, 435, 451. 
 
 United States v. Chicago Great 
 Western Ry. Co. (162 Fed. 775; Ap- 
 pendix G), 334, 340, 349, 353, 358, 
 371, 373, 392, 393, 399, 407, 412, 
 422, 443, 444, 446, 448, 449, 459, 
 461, 470, 493, 495, 496, 497, 500, 
 502, 797, 798, 801, 802. 
 
 United States v. Chicago, M. & St. 
 P. Ry. Co. (149 Fed. 486; affirmed 
 165 Fed. 423; 91 C. C. A. 373; 
 Appendix G), 57, 67, 333, 334, 337, 
 339, 340, 349, 351, 352, 355, 357, 
 358, 374, 380, 397, 401, 404, 405, 
 406, 408, 412, 449, 451, 718, 850, 
 851, 852, 887. 
 
 United States v. Chicago, M. & P. 
 S. Ry. Co. (195 Fed. 783), 513, 517. 
 
 United States v. Chicago, M. P. S. 
 Ry. Co. (197 Fed. 624), 339, 340, 
 350, 512, 517, 525, 529, 537, 951, 
 953, 954. 
 
 United States v. Chicago, M. & P. 
 S. Ry. Co. (219 Fed. 632, 1011), 
 530, 531. 
 
 United States v. Chicago N.-W. Ry. 
 Co. (Appendix G), 953. 
 
 United States v. Chicago, R. I. & P. 
 Ry. Co. (173 Fed. 684; Appendix 
 G), 41, 340, 411, 493, 495, 791.
 
 TABLE OF CASES. 
 
 Ixxv 
 
 [References are to pages.] 
 
 United States v. Cincinnati, H. & 
 
 D. R. Co. (Appendix G), 760. 
 United States v. Cleveland, C. C. & 
 
 St. L. Ry. Co. (unreported), 541. 
 United States v. Colorado Midland 
 
 Ry. Co. (202 Fed. 732; 121 C. 
 
 C. A. 194), 453, 454. 
 United States v. Colorado & N. W. 
 
 R. Co. (209 U. S. 544; 157 Fed. 
 
 321, 342; 85 C. C. A. 27), 57, 58, 
 
 334, 337, 340, 347, 349, 350, 351, 
 
 354, 364, 380, 391, 573, 595, 720, 
 
 721, 738. 
 United States v. Cook (17 Wall. 
 
 168; 21 L. Ed. 538), 400. 
 United States v. DeGoer (38 Fed. 
 
 80), 575, 597. 
 United States v. Delaware, L. & W. 
 
 R. Co. (152 Fed. 269), 59. 
 United States v. Denver & R. G. 
 
 Co. (163 Fed. 519; 90 C. C. A. 
 
 329), 364, 400, 401, 402,. 404, 406, 
 
 407, 408, 425, 455, 470, 493, 494, 
 
 798, 803. 
 United States v. Denver & R. G. R. 
 
 Co. (197 Fed. 629), 339, 517, 522, 
 
 523, 529, 538. 
 United States v. Denver & R. G. R. 
 
 Co. (220 Fed. 293), 534. 
 United States v. Dixon (15 Pet. 141), 
 
 400. 
 United States v. El Paso & S. W. R. 
 
 Co. (Appendix G. Two cases), 
 
 339, 351, 401, 404, 405, 408, 703, 708. 
 United States v. Erie R. Co. (35 Sup. 
 
 Ct. 621, reversing 212 Fed. 853; 
 
 129 C. C. A. 307, on first appeal 
 
 197 Fed. 287; 116 C. C. A. 649), 
 
 351, 352, 353, 364, 365, 366, 370, 
 
 459, 462, 465, 466. 
 United States v. Erie R. Co. (166 
 
 Fed. 352), 58, 340, 349, 355, 358 
 
 371, 405, 419, 421, 422, 425, 601, 
 
 859. 
 
 United States v. Fox (94 U. S. 315; 
 
 24 L. Ed. 192), 225. 
 United States v. Galveston, H. & 
 
 S. A. Ry. Co. (unreported), 537, 
 
 538. 
 United States v. Garbish (222 U. S. 
 
 261), 921. 
 United States v. Geddes (Appendix 
 
 G), 340. 
 United States v. Geddes (131 Fed. 
 
 452; 65 C. C. A. 320), 349, 378, 
 
 381, 737. 
 United States v. Geddes (180 Fed. 
 
 480), 378, 391. 
 United States v. Grand Trunk R. 
 
 Co. (203 Fed. 775), 353, 365, 422, 
 
 426, 466. 
 United States v. Great Northern 
 
 Ry. Co. (145 Fed. 438), 334, 338, 
 
 351, 358, 369, 399. 
 United States v. Great Northern Ry. 
 
 Co. (150 Fed. 229), 339, 402, 404, 
 
 408, 421, 432, 439, 451. 
 United States v. Great Northern Ry. 
 
 Co. (206 Fed. 838), 512, 514, 526, 
 
 527, 936, 939. 
 United States v. Great Western Ry. 
 
 Co. (162 Fed. 775), 349. 
 United States v. Great Western 
 
 Ry. Co. (174 Fed. 399), 419. 
 United States v. Houston, B. & T. 
 
 Ry. Co. (205 Fed. 344), 494, 516, 
 
 531, 533, 539. 
 United States v. Illinois Central R. 
 
 Co. (170 Fed. 542; 166 Fed. 997; 
 
 95 C. C. A. 628, reversing 156 Fed. 
 
 182; certiorari denied 214 U. S. 
 
 520; Appendix G), 67, 339, 340, 
 
 372, 392, 393, 394, 397, 399, 401, 
 
 402, 403, 410, 414, 415, 419, 421, 
 
 422, 426, 435, 439, 445, 452, 492, 
 
 493, 494, 495, 497, 503, 504, 805, 
 
 853.
 
 Ixxvi 
 
 TABLE OF CASES. 
 
 [References are to pages. 
 
 United States v. Illinois Central R-. 
 
 Co. (177 Fed. 801; 101 C. C. A. 
 
 15), 41, 333, 340, 402, 406, 426. 
 United States v. Illinois Central R. 
 
 Co. (180 Fed. 630), 506, 517, 522, 
 
 523. 
 United States v. Indiana, etc., R. Co. 
 
 (156 Fed. 565), 431. 
 United States v. Indiana Harbor 
 
 R. Co. (157 Fed. 565), 402, 404, 
 
 419, 422. 
 United States v. International & 
 
 G. N. R. Co. (174 Fed. 638; 98 
 
 C. C. A. 392), 354, 357, 358, 361, 
 
 370, 371, 372, 399, 400, 859. 
 United States v. Kansas City Southern 
 
 Ry. Co. (189 Fed. 471; Appendix 
 
 G), 419, 453, 494, 498, 512, 514, 
 
 518, 522, 523, 524, 534, 537, 538, 
 
 953, 955. 
 United States v. Kansas City Southern 
 
 Ry. Co. (202 Fed. 828; 121 C. C. 
 
 A. 136; Appendix G), 392, 419, 
 
 453, 494, 495, 498, 507, 512, 513, 
 
 514, 523, 537, 538, 539, 541, 921, 
 
 953, 955. 
 United States v. Ku-by (7 Wall. 
 
 482), 816. 
 United States v. Lacher (134 U. S. 
 
 629; 10 Sup. Ct. 625; 33 L. Ed. 
 
 1080), 431. 
 United States v. Lehigh Valley R. 
 
 Co. (Appendix G), 407, 801. 
 United States v. Lehigh Valley R. 
 
 Co. (115 Fed. 373), 58, 355. 
 United States v. Lehigh Valley R. 
 
 Co. (160 Fed. 696; Appendix G), 
 
 356, 369, 422, 495, 740, 797. 
 United States v. Lehigh Valley R. 
 
 Co. (162 Fed. 410; Appendix G), 
 
 356, 365, .369, 392, 394, 401, 408, 
 
 425, 470, 740, 852. 
 United States v. Lehigh Valley R. 
 
 Co. (219 Fed. .532), .535, 541. 
 
 United States v. Louisville & N. 
 
 R. Co. (Appendix G), 809. 
 United States v. Louisville & N. 
 
 R. Co. (1.56 Fed. 193, 195), 394, 
 
 418, 426, 444, 445, 452. 
 United States v. Louisville & N. Pi.. 
 
 Co. (162 Fed. 185), 356, 357, 370, 
 
 392, 394, 399, 400, 401, 403, 405, 
 
 406, 407, 470, 493, 495, 797, 802. 
 United States v. Louisville & N. R. 
 
 Co. (167 Fed. 306), 493, 495, 498, 
 
 503. 
 United States v. INIilwaukee & St. P. 
 
 Ry. Co. (212 Fed. 574), 537. 
 United States v. Minneapolis, St. P. 
 
 & S. S. M. Ry. Co. (unreported), 
 
 541. 
 United States v. Missouri, K. & T. 
 
 Ry. Co. (208 Fed. 957), 512, 530, 
 
 532, 533. 
 United States v. Missouri, K. & T. 
 
 Ry. Co. (unreported; affirmed 231 
 
 U. S. 112; 34 Sup. Ct. 26; 58 L. 
 
 Ed. — ) 537, 538. 
 United States v. Missouri Pacific 
 
 Ry. Co. (unreported), 531. 
 United States v. Missouri Pacific 
 
 Ry. Co. (206 Fed. 847), 512, 515, 
 
 526, 527. 
 United States v. Missouri Pacific Ry. 
 
 Co. (213 Fed. 169), 534. 
 United States v. Montpelier & W. 
 
 R. R. Co. (175 Fed. 874), 392, 
 
 403, 494, 495. 
 United States v. Moore (95 U. S. 763), 
 
 940. 
 United States v. Morsraan (42 Fed. 
 
 448), 363. 
 United States v. Nevada County 
 
 Narrow Gauge Co. (167 Fed. 695; 
 
 Appendix G), 394, 401, 402, 404, 
 
 405, 407, 408, 411, 470, 493, 495, 
 
 490, 706, 803.
 
 TABLE OF CASES. 
 
 Ixxvii 
 
 [References are to pages.] 
 
 United States v. Nev/ York Central 
 
 & H. R. R. Co. (205 Fed. 42S), 
 
 365. 
 United States v. Norfolk & W. R. 
 
 Co. (184 Fed. 99), 397, 416, 503. 
 United States v. Northern Pacific 
 
 Co. (Appendix G), 529, 537, 893, 
 
 940, 950. 
 United States v. Northern Pacific 
 
 T. Co. (144 Fed. 861), 59, 352, 354, 
 
 357, 364, 365, 367, 370, 376, 399, 
 400, 431. 
 
 United States v. Northern Pacific 
 
 Ry. Co. (213 Fed. 539), 340, 444, 
 
 528, 538, 953, 955. 
 United States v. Northern Pacific 
 
 R. Co. (215 Fed. 64), 524, 535, 537. 
 United States v. Oregon Short Line 
 
 R. Co. (180 Fed. 483), 422, 495. 
 United States v. Oregon-W. R. & 
 
 N. Co. (213 Fed. 688), 513, 539. 
 United States v. Oregon-W. R. & 
 
 Nav. Co. (218 Fed. 925), 513. 
 United States v. Pacific Coast Ry. 
 
 Co. (173 Fed. 453; affirmed 173 
 
 Fed. 448; Appendix G), 58, 351, 
 
 358, 497, 714. 
 
 United States v. Pacific Ry. Co. 
 (Appendix G), 380. 
 
 United States v. Pennsylvania R. 
 Co. (162 Fed. 408; Appendix G), 
 335, 356, 365, 369, 392, 394, 401, 
 
 407, 408, 422, 470, 495, 750, 840. 
 United States v. Pere IMarquette R. 
 
 Co. (211 Fed. 220), 340, 353, 365, 
 367, 373, 421, 422, 426, 466. 
 United States v. Philadelphia & R. 
 Ry. Co. (160 Fed. 696; 162 Fed. 403, 
 405, 408; Appendix G), 356, 364, 
 365, 369, 392, 394, 401, 402, 407, 
 
 408, 422, 425, 426, 470, 493, 495, 
 744, 797, 798, 801, 803, 823, 852. 
 
 United States v. Philadelphia & R. 
 Ry. Co. (223 Fed. 215), 397, 407. 
 
 United States v. Pittsburgh, C. C. & 
 
 St. L. Ry. Co. (143 Fed. 300), 
 
 59, 355, 364, 365, 431. 
 United States v. Ramsey (197 Fed. 
 
 144; 116 C. C. A. 568), 345, 515. 
 United States v. Riley (104 Fed. 
 
 275), 575, 597. 
 United States v. Rio Grande W. 
 
 Ry. Co. (174 Fed. 399), 402, 443, 
 
 444, 497. 
 United States v. Sheridan-Kirk Con- 
 tract Co. (149 Fed. 809), 922. 
 United States v. Southern Pac. Co. 
 
 (Appendix G), 352, 371, 373, 407, 
 
 449, 918. 
 United States v. Southern Pac. Co. 
 
 (145 Fed. 438), 850. 
 United States v. Southern Pacific 
 
 Ry. Co. (135 Fed. 122; 94 C. C. A. 
 
 629), 431. 
 United States v. Southern Pacific 
 
 Co. (157 Fed. 459), 518, 523, 534, 
 
 538. 
 United States v. Southern Pac. Co. 
 
 (154 Fed. 897), 333, 364, 367, 421, 
 
 432, 443, 444, 448, 449, 451. 
 United States v. Southern Pacific 
 
 Co. (167 Fed. 699; Appendix G), 
 
 356, 364, 365, 373, 374, 392, 397, 
 
 401, 402, 404, 406, 407, 408, 412, 
 
 426, 440, 443, 444, 446, 448, 449, 
 
 495, 496, 772, 852. 
 United States v. Southern Pacific 
 
 (169 Fed. 407; 94 C. C. A. 629), 
 
 352, 357, 373, 374, 421, 422, 425, 
 
 426, 443. 
 United States v. Southern Pacific Co. 
 
 (177 Fed. 796), 373. 
 United States v. Southern Pac. Co. 
 
 (209 Fed. 562; 126 C. C. A. 384), 
 
 512, 534, 537, 538, 956. 
 United States v. Southern Pac. Co. 
 
 (220 Fed. 745), 534, 535, 538.
 
 Ixxviii 
 
 TABLE OF CASES. 
 
 [References are to pages. 
 
 United States v. Southern Ry. Co. 
 
 (105 Fed. 122), 352. 
 United States v. Southern Ry. Co. 
 
 (Appendix G), 334, 373, 399, 796, 
 
 956. 
 United States v. Southern Ry. Co. 
 
 (135 Fed. 122), 333, 339, 340, 349, 
 
 355, 364, 401, 408, 411, 421, 439, 
 
 451, 493. 
 United States v. Southern Ry. Co. 
 
 (164 Fed. 347; affirmed 222 U. S. 
 
 20; 32 Sup. Ct. 2; 56 L. Ed. — ), 
 
 337, 338, 347, 358, 359, 399, 851. 
 United States v. Southern R. Co. 
 
 (167 Fed. 198, 699; Appendix G), 
 
 355, 402, 414, 421, 422, 470, 493. 
 United States v. Southern Ry. Co- 
 
 (170 Fed. 1014), 340, 357, 392, 
 
 394, 397, 399, 400, 401, 402, 403, 
 
 407, 421, 422, 495, 496. 
 United States v. Southern Ry. Co. 
 
 (Kent's Index-Digest, 125), 883. 
 United States v. Spokane & I. E. R,. 
 
 Co. (unreported), 416. 
 United States v. Spokane & I. E. 
 
 R. Co. (206 Fed. 988), 353, 356, 
 
 370, 503. 
 United States v. St. Louis, I. M. & S. 
 
 Ry. Co. (154 Fed. 516), 353, 357, 
 
 369, 370, 376, 397, 399, 432, 443, 
 
 444, 850, 852. 
 United States v. St. Louis S. W. Ry. 
 
 Co. (189 Fed. 28, 954; 106 C. C. A. 
 
 230), 340, 353, 397, 493, 500, 508, 
 
 514, 532, 533, 539. 
 United States v. St. Louis S. W. 
 
 Ry. Co. (Appendix G), 334, 370. 
 United States v. Standard Oil Co. 
 
 (155 Fed. 305), 58. 
 United States v. Stowell (133 U. S. 
 
 1 ; 10 Sup. Ct. 244; 33 L. Ed. 555), 
 
 393. 
 
 United States v. Terminal R. Assn. 
 
 (see Appendix G), 340, 394, 414, 
 
 455, 470, 754. 
 United States v. Toledo Terminal 
 
 R. Co. (unreported), 373, 404, 407. 
 United States v. Trans-Missouri 
 
 Freight Assn. (116 U. S. 290, 370), 
 
 940. 
 United States v. Trinity & B. V. Ry. 
 
 Co. (211 Fed. 448), 419, 421, 451, 
 
 453, 454, 498. 
 United States v. Union Pacific R. 
 
 Co. (160 Fed. 65; 95 C. C. A. 
 
 433), 518, 534. 
 United States v. Union Stock Yards 
 
 (161 Fed. 919; affirmed 169 Fed. 
 
 404), 345, 354, 367, 368. 
 United States v. Union Stock Yards 
 
 & T. Co. (192 Fed. 330), 364, 367, 
 
 374. 
 United States v. Wabash R. Co. 
 
 (168 Fed. 1; 172 Fed. 864; Ap- 
 pendix G), 407, 421, 495, 711, 819. 
 United States v. Wabash-Pittsburg 
 
 Ter. Ry. Co. (Appendix G), 838. 
 United States v. Wabash Terminal 
 
 Ry. Co. (Appendix G), 415, 452, 
 
 503. 
 United States v. Western & A. R. Co. 
 
 (184 Fed. 336), 350, 354, 361, 372. 
 United States v. WheeHng (Ap- 
 pendix G), 352. 
 United States v. Wheeling & L. E. 
 
 R. Co. (167 Fed. 198; Appendix 
 
 G), 334, 335, 338, 354, 357, 399, 
 
 400, 425, 722, 797, 802, 859. 
 United States v. Wiltberger (5 Wheat. 
 
 76; 5 L.Ed. 37), 389. 
 
 United States v. Winona & St. P. 
 
 R. Co. (67 Fed. 948, 957; 15 C. 
 
 C. A. 96, 104), 284. 
 United States v. Wong Kim Ark 
 
 (160 U. S. 649), 812.
 
 TABLE OF CASES. 
 
 Ixxix 
 
 [References are to pages.] 
 
 United States v. Yazoo & M. V. R. 
 
 Co. (.203 Fed. 159), 512, 513. 
 United States, etc., Co. v. Sullivan 
 
 (22 App. Dec. 115), 226. 
 Utah, etc., Co. v. Diamond, etc., 
 
 Co. (26 Utah, 299; 73 Pac. 524), 
 
 247. 
 
 Van Amburg v. Vicksburg, etc., 
 
 R. Co. (37 La. Ann. 651), 219. 
 Van Brimmer v. Texas & P. Ry. 
 
 Co. (190 Fed. 394), 83, 92. 287. 
 Vance v. Vance (108 U. S. 514, 521; 
 
 2 Sup. Ct. 854; 27 L. Ed. 808), 
 
 388. 
 Vance v. Vandercook (170 U. S. 
 
 438; 18 Sup. Ct. 674; 42 L. Ed. 
 
 1100), 32. 
 Vandalia R. Co. v. Holland (Ind.) 
 
 (108 N. E. 580), 58, 98, 472. 
 Vandalia R. Co. v. Stringer (Ind.) 
 
 (106 N. E. 865), 35, 295, 318. 
 Van Doran v. Pennsylvania R. Co. 
 
 (93 Fed. 266; 35 C. C. A. 282), 
 
 233. 
 Vanordstrand v. Northern P. Ry. 
 
 Co. (Wash.) (151 Pac. 89), 290. 
 Vaughan v. St. Louis & S. F. R. Co. 
 
 (177 Mo. App. 155; 164 S. W. 144), 
 
 35, 39, 96, 214, 215, 216. 
 Vaux V. Salvador (4 Ad. & El. 431), 
 
 167. 
 Vessel Owners' Towing Co. v. Wil- 
 son (63 Fed. 630; 24 U. S. App. 
 
 49), 169. 
 Vick v. New York Cent., etc., R. Co. 
 
 (95 N. Y. 267; 47 Am. Rep. 36), 
 
 104. 
 Vickery v. New London Northern Ry. 
 
 Co. (87 Conn. 634; 89 Atl. 277), 
 
 35, 39, 303, 307, 311, 312. 
 Vicksburg, etc., R. Co. v. PhiUips 
 
 (64 Miss. 693; 2 So. 537), 261. 
 Vicksburg R. R. Co. v. Putnam (118 
 
 U. S. 545), 854. 
 
 Victory, The (68 Fed. 400; 25 U. S. 
 App. 271), 169. 
 
 Vindicator, etc., Co. v. Firstbrook 
 (36 Colo. 498; 80 Pac. 313), 14. 
 
 Vinson v. Willingham Cotton Mills 
 (2 Ga. App. 53; 58 S. E. 413), 145. 
 
 Virginia Ehrman, The (97 U. S. 
 309; 24 L. Ed. 890), 168. 
 
 Virginia Ry. Co. v. United States 
 (223 Fed. 748), 425, 466. 
 
 Voelker v. Chicago, M. & St. P. R. 
 Co. (116 Fed. 867; affirmed 129 
 Fed. 522; 65 C. C. A. 226; 70 
 L. R. A. 264), 67, 340, 342, 350, 
 354, 357, 366, 397, 399, 400, 401, 
 402, 404, 412, 414, 432, 439, 458, 
 467, 469, 472, 477, 486, 490, 850, 
 853. 
 
 Voight v. Baltimore & O. South- 
 western Ry. (176 U. S. 498), 567. 
 
 Voris v. Chicago, M. & St. P. Ry. 
 Co. (172 Mo. App. 125; 157 S. W. 
 835), 107. 
 
 Vreeland v. Michigan Central R. 
 Co. (189 Fed. 495; reversed, 
 227 U. S. 59; 33 Sup. Ct. 192; 
 57 L. Ed. 417), 245. 
 
 W 
 
 Wabash, etc., R. Co. v. Century 
 
 Trust Co. (32 Alb. L. Jr. 96), 181. 
 Wabash, etc., R. Co. v. Conkling 
 
 (15 111. App. 157), 11. 
 Wabash, etc., R. Co. v. Moran (13 
 
 111. App. 72), 155. 
 Wabash R. Co. v. Hayes (234 U. S. 
 
 86; 34 Sup. Ct. 729; 58 L. Ed. 
 
 1226, affirming 180 111. App. 511), 
 
 35, 51, 74, 292, 304, 307, 318, 324. 
 Wabash R. Co. v. Illinois (118 U. S. 
 
 557; 7 Sup. Ct. 4; 30 L. Ed. 244, 
 
 reversing 105 111. 236), 32.
 
 Ixxx 
 
 TABLE OF CASES. 
 
 [References are to pages.] 
 
 Wabash R. Co. v. United States (168 
 
 Fed. 1; Appendix G), 59, 121, 333, 
 
 335, 337, 339, 340, 349, 351, 354, 
 
 358, 365, 372, 373, 399, 400, 414, 
 
 470, 493, 497, 498, 736, 851, 859, 
 
 977. 
 Wabash R. Co. v. United States (172 
 
 Fed. 864; 97 C. C. A. 284), 397, 
 
 422, 426. 
 Wabash Ry. Co. v. Jones (5 III. 
 
 App. 607), 160. 
 Wagner v. Chicago & A. R. Co. 
 
 (265 111. 245; 106 N. E. 809), 35, 
 
 60, 61, 266, 267, 272. 
 Walker v. Atlanta, etc., R. Co. (103 
 
 Ga. 826; 30 S. E. 503), 143. 
 Walker v. Georgia, etc., Co. (122 
 
 Ga. 368; 50 S. E. 121), 147. 
 Wallace v. Connor (38 Ga. 199), 
 
 218. 
 Walsh V. Lake Shore & M. S. Ry. Co. 
 
 (Mich.) (151 N. W. 754), 203, 
 
 208, 253, 255, 292. 
 Walsh V. New York, N. H. & H. R. 
 
 Co. (173 Fed. 494), 22, 38, 217, 
 
 219 250 597. 
 Walsh V. 'Whitely (21 Q. B. Div. 
 
 371), 600. 
 Walton V. Bryn Mawr Hotel Co. 
 
 (160 Pa. St. 3; 28 Atl. 438), 11. 
 Walton V. Southern R. Co. (179 Fed. 
 
 175), 296, 297, 298, 299. 
 Wanderer, The (21 Fed. 140), 107, 
 
 171. 
 Ward V. Milwaukee, etc., Ry. Co. 
 
 (29 Wis. 144), 162. 
 Warfield v. Sanburn (9 Ga. App. 
 
 321; 71 S. E. 703), 140. 
 Warren v. Engleliart (13 Neb. 283; 
 
 13 N. W. 401). 229. 
 Washington, The (5 Jurist, 1067), 
 
 167. 
 Washington & G. R. Co. v. McDade 
 
 (135 U. S. 554; 34 L. Ed. 235; 
 
 10 Sup. Ct. 1044), 291. 
 
 Washington, P. & C. Ry. Co. v. 
 
 Magruder (198 Fed. 218), 523, 
 
 537, 538. 
 Washington R. Co. v. Huckey (166 
 
 U. S. 521), 853. 
 Washington Ry. Co. v. Downey (40 
 
 App. D. C. 147), 23, 50. 
 Washington Western Ry. (27 Inter- 
 state Commerce Commission 630), 
 
 48. 
 Watson V. Seaboard, etc., R. Co. 
 
 (133 N. C. 188; 45 S. E.555), 245. 
 Watson V. St. Louis, I. M. & S. Ry. 
 
 Co. (169 Fed. 942; affirmed 32 
 
 Sup. Ct. 169), 4, 22, 112, 116, 120, 
 
 335, 426. 
 Watson's Trial (32 How. St. Tr. 
 
 125), 880. 
 Waymen v. Southard (10 Wheat. 
 
 1), 201. 
 Weber v. Great Northern R. Co. 
 
 (125 Minn. 348; 147 N. W. 427), 
 
 253. 
 Webster v. Atlantic, etc., R. Co. 
 
 (81 S. C. 46; 61 S. E. 1080), 131. 
 Webster v. Norwegian Min. Co. 
 
 (137 Cal. 399; 70 Pac. 276), 302. 
 Weir V. Rountree (173 Fed. 776), 
 
 491. 
 Weldon V. Wisconsin (91 U. S. 275; 
 
 23 L. Ed. 347), 77. 
 Welles V. Castles (69 Mass. 325), 
 
 519. 
 Welton V. Missouri (91 U. S. 275, 
 
 280; 23 L. Ed. 347, reversing 55 
 
 Mo. 288), 125, 387. 
 Wescott V. Central Vt. R. Co. (61 
 
 Vt. 438, 638; 17 Atl. 745), 229, 
 
 302. 
 Western, etc., R. Co. v. Blooming- 
 dale (74 Ga. 604), 144. 
 Western, etc., R. Co. v. Bradford 
 
 (113 Ga. 276; 38 S. E. 823), 145. 
 Western, etc., Ry. Co. v. Ferguson 
 
 (113 Ga. 708; 39 S. E. 306), 140, 
 
 145.
 
 TABLE OF CASES. 
 
 Ixxxi 
 
 [References are to pages.] 
 
 Western, etc., R. Co. v. Herndon 
 
 (114 Ga. 168; 39 S. E. 911), 142, 
 
 145. 
 Western, etc., Ry. Co. v. York 
 
 (128 Ga. 687; 58 S. E. 183), 140, 
 
 146. 
 Western Gas Co. v. Danner (97 Fed. 
 
 892), 880. 
 Western R. Co. v. Russell (144 Ala. 
 
 142; 39 So. 311), 250, 251. 
 Western U. T. Co. v. Quinn (56 111. 
 
 319), 154. 
 Western Union Tel. Co. v. Pendleton 
 
 (122 U. S. 347; 7 Sup. Ct. 1126; 
 
 30 L. Ed. 1187, reversing 95 Ind. 
 
 12; 48 Am. Rep. 692), 32, 57. 
 Whalen v. Gordon (95 Fed. 314; 37 
 
 C. C. A. 70), 306. 
 Whalley v. Philadelphia & R. Ry. 
 
 Co. (Pa.) (93 Atl. 1016), 466. 
 Wheeler v. Oak Harbor Head Lin- 
 ing & Hoop Co. (126 Fed. 348; 
 
 61 C. C. A. 250), 480. 
 Wheeling Terminal Ry. Co. v. 
 
 Russell (209 Fed. 795; 126 C. C. 
 
 A. 519), 96, 315, 316, 350, 394, 496. 
 Whirley v. Whiteman (1 Head, 610), 
 
 147, 175. 
 White V. Central Vt. Ry. Co. (87 
 
 Vt. 330; 89 Atl. 618; affirmed 
 
 35 Sup. Ct. 865), 36, 243, 244, 255, 
 
 297, 303, 312. 
 White V. Hart (13 Wall. 646), 584. 
 White V. Missouri P. Ry. Co. (Mo. 
 
 App.) (178 S. W. 83), 280. 
 Whitford v. Panama R. Co. (23 
 
 N. Y. 465), 217. 
 WhitseU V. Railroad Co. (120 N. C. 
 
 557; 27 S. E. 125), 467. 
 Whittaker v. Illinois, etc., R. Co. 
 
 (176 Fed. 130), 295, 296. 
 Wight V. Michigan Central R. Co. 
 
 (161 Mich. 216; 126 N. W. 414; 
 
 17 Det. Leg. N. 289), 426. 
 
 Wilcox V. Luco (118 Cal. 642; 45 
 
 Pac. 676; .50 Pac. 758; 62 Am. St. 
 
 306; 45 L. R. A. 582), 279. 
 Wilkins v. Grant (118 Ga. 522; 
 
 45 S. E. 415), 145. 
 Willard v. Swanson (126 111. 381; 
 
 18 N. E. 548), 152, 1.59. 
 Willett V. IlUnois Central R. Co. 
 
 (122 Minn. 513; 142 N. W. 883), 
 
 402, 406, 410, 412, 426. 
 Willever v. Delaware, L. & W. R. 
 
 Co. (N. J.) (94 Atl. 595), 78, 97, 
 
 102, 292. 
 William Cox, The (9 Fed. 672), 168. 
 WilHam Murtagh, The (17 Fed. 
 
 259), 168. 
 Williams' Est., In re (130 Iowa, 553; 
 
 107 N. W. 608), 250. 
 WiUis, etc., Co. v. Grizzell (198 lU. 
 
 313; 65 N. E. 74), 227. 
 Wilson V. Blackbird, etc., Co. (2 
 
 Pet. 245; 7 L. Ed. 412), 30. 
 Wilson V. Merry (L. R. 1 Sc. & Div. 
 
 App. Cas. 326; 19 L. T. (N. S.) 
 
 30), 11. 
 Wilson V. United States (220 U. S. 
 
 614; 31 Sup. Ct. 538; 55 L. Ed. 
 
 610), 511. 
 Wiltsie V. Town of Linden (77 Wis. 
 
 152; 46 N. W. 234), 229. 
 Winchester v. Case (5 111. App. 
 
 486), 160. 
 Winfield & N. Y. Cent. & H. R. R. 
 
 Co. (153 N. Y. Supp. 499), 36. 
 Winfree v. Northern Pac. Ry. Co. 
 
 (227 U. S. 296; 33 Sup. Ct. 273; 
 
 57 L. Ed. 518, affirming 173 Fed. 
 
 65), 41, 314, 230. 
 Winkler v. Philadelphia, etc., R. 
 
 Co. (4 Penn. (Del.) 80; 53 Atl. 
 
 90; affirmed 4 Penn. (Del.) 387; 
 
 56 Atl. 112), 68, 356, 371, 396, 
 
 397, 401, 467, 472, 473, 477.
 
 Ixxxii 
 
 TABLE OF CASES. 
 
 [References are to pages.] 
 
 Winters v. Minneapolis & St. L. Ry. 
 
 Co. (126 Minn. 260; 148 N. W. 
 
 106), 100, 294. 
 Wisconsin v. Chicago, M. & St. P. 
 
 Ry. Co. (117 N. W. 686), 572, 595. 
 Wm. Johnson & Co. v. Johnson (86 
 
 Fed. 888), 168. 
 Woodward v. Chicago, etc., R. Co- 
 
 (23 Wis. 400), 229, 234. 
 Worden v. Humeston, etc., R. Co* 
 
 (72 Iowa, 201; 33 N. W. 629), 219- 
 World's Columbian Exposition v. 
 
 Bell (76 lU. App. 591), 11. 
 Wright V. Chicago, R. I. & P. R. Co. 
 
 (94 Neb. 317; 143 N. W. 220), 106. 
 Wright V. Yazoo & M. V. R. Co. 
 
 (197 Fed. 94), 200, 208, 209. 
 Wrightsville & T. R. Co. v. Tomp- 
 kins (9 Ga. App. 154; 70 S. E. 
 
 955), 140. 
 Wrightsville, etc., Co. v. Gornite 
 
 (129 Ga. 204; 58 S. E. 769), 144, 
 
 145, 147. 
 Wrightsville, etc., R. Co. v. Latti- 
 
 more (118 Ga. 581; 45 S. E. 
 
 453), 145. 
 Wyatt v. WiUiams (43 N. H. 102), 
 
 217. 
 
 Yarmouth v. France (19 Q. B. Div. 
 
 659), 601. 
 Yazoo & M. R. Co. v. Wright (207 
 
 Fed. 281; 125 C. C. A. 25), 210, 
 
 258 
 Yazoo & M. V. R. Co. v. Wright 
 
 (235 U. S. 376; 35 Sup. Ct. 130), 
 
 324. 
 Yelton V. Evansville, etc., R. Co. 
 
 (134 Ind. 414; 33 N. E. 629), 274. 
 York V. St. Louis, I. M. & S. R. 
 
 Co. (86 Ark. 244; 110 S. W. 803), 
 
 469, 472, 478, 483, 487. 
 Yost v. Union Pac. R. Co. (245 Mo. 
 
 219; 149 S. W. 577), 37, 38, 407. 
 Youge V. Kinney (28 Ga. Ill), 142, 
 
 144, 146. 
 
 Zachary v. North Carolina R. Co. 
 
 (156 N. C. 496; 72 S. E. 858), 
 
 91, 179. 
 Zeratsky v. Chicago, M. & St. P. 
 
 Ry. Co. (141 Wis. 423; 123 N. 
 
 W. 904), 175, 177, 179, 182, 189. 
 Zikos V. Oregon R. & N. Co. (179 
 
 Fed. 893), 4, 22, 23, 37, 78, 82, 92, 
 
 112, 116, 121, 218, 272, 277, 278, 
 
 281. 
 Zucker v. United States (161 U. S. 
 
 475), 810.
 
 PART I. 
 Federal Employers' Liability Act
 
 Federal Employers' Liability and 
 Safety Appliance Acts 
 
 CHAPTER I. 
 
 ABOLITION OF FELLOW SERVANT RULE. 
 
 SECTION. SECTION. 
 
 1. Object and purpose of Act of 2. Rule of fellow servant in Eu- 
 of 1908. ropean countries. 
 
 3. Quebec and Mexico. 
 
 § 1. Object and Purpose of Act of 1908.— On the floor of 
 the Senate, Senator Doliver thus explained the object and 
 purpose of the Act of 1908 : 
 
 "First, it modifies the old law of the negligence of co- 
 employes. The old law, which took root in the United 
 States two generations ago, was to the effect that an em- 
 ploye injured by the negligence of a fellow workman could 
 not recover. * * * The proposition was that an employe 
 injured by the negligence of a fellow servant could not re- 
 cover. This bill abolishes that doctrine, and gives the em- 
 ploye the right to recover for injuries arising from the 
 negligence of his fellow w^orkmen. That is the first proposi- 
 tion. 
 
 The second proposition modifies the law whereby in other 
 generations workmen were held by the court to assume 
 the risks arising from defective machinery. That was an
 
 2 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 inheritance, I reckon, of the common law, and at the time 
 the courts originally established the doctrine, it had some 
 sense in it and a little justice. There was some reason why 
 a man working with simple machinery should look to it that 
 the machinery with M^hich he worked was in good order. 
 But the doctrine is obsolete as applied to the present day 
 occupations of those workmen who were employed by the 
 common carriers of the world. It would require a brake- 
 man to know all about the machinery of a freight train, 
 though it may be half a mile long, as he goes out upon his 
 day's work. Everybody with a moderate sense of justice 
 must see that the common law applicable to the assumption 
 of risks for deficient machinery has no rational application 
 to the complex industrial concerns of our o\\ti time. 
 
 In the third place, this proposed statute modifies radically 
 the law of contributory negligence. As administered by our 
 courts, it has been uniformly held that an employe suffering 
 an injury to which his own negligence contributed, cannot, 
 by reason of that participation in the injury, have any re- 
 covery at law. The proposed statute liberalizes the doctrine 
 of the law. It is based upon the theory that where an injury 
 occurs partly by reason of the negligence of the employer 
 and partly by reason of the negligence of an employe, the 
 jury ought to determine what portion of the injury arises 
 from the negligence of the plaintiff, and take away from 
 the sum total of his damage allowed that part which can 
 properly be apportioned to his own negligence. That prin- 
 ciple has been called in some of the books the doctrine of 
 comparative negligence. 
 
 In the fourth place, the proposed bill undertakes to mod- 
 ify somewhat the common law applicable to certain agree- 
 ments or contracts made between employers and their 
 workmen, in which the latter agree, in consideration of some 
 form of insurance or indemnity fund, to give up the right 
 to sue in the courts. It has been held, as a matter of public 
 policy, that a workman cannot contract himself out of his 
 right or the rights of his legal representatives to recover
 
 ABOLITION OF FELLOW SERVANT RULE. 3 
 
 for damages. That is to say, the courts have held that it is 
 against public policy to sustain a contract by which a work- 
 man, merely by consideration of his wages and his employ- 
 ment, agrees to withhold any claims for damages iu case of 
 his injury. But many insurance societies have grown up 
 in connection with the protection of our railways, which not 
 only undertake to pay a man for damages arising out of 
 injuries, but have also certain other features in the nature 
 of sick benefits and other insurance. They have been re- 
 garded by the courts as valid and binding agreements. This 
 proposed law means simply that where a workman sues for 
 injury for which he is entitled to recover, he shall not have 
 his recovery defeated by reason of one of these insurance 
 agreements; but it also says that in case the railway has con- 
 tributed anything to the insurance fund which he has en- 
 joyed, the amount that the railway has contributed shall 
 be deducted in the calculation of the damages which he is 
 entitled to recover. 
 
 These are the four propositions (contained in this bill, and 
 I have an idea that there is not a member of tile Senate who 
 does not recognize the equity and justice involved in all 
 four of them. 
 
 The fact is, we have been at least a generation behind 
 the whole world in the adoption of the doctrines and prin- 
 ciples to which I have referred. Outside of England, there 
 has not in modern times been a country in Europe that does 
 not now give its workmen all the advantages that are pro- 
 vided by this bill. There is hardly an American state in 
 these recent years w'hich has not taken this step forward in 
 industrial justice. 
 
 The codes of nearly all the countries in Europe were de- 
 rived, directly or indirectly, from the civil law, and wherever 
 the civil law crossed the water, these doctrines which we 
 are introducing into the United States Courts in this bill 
 have found acceptance. This is so in the courts of Quebec, 
 he recent English compensation acts illustrate the pres- 
 ent day reaction against the severity of the common law. The
 
 4 FEDERAL EMPLOYERS LIABILITY ACT. 
 
 fact is that every country in the world has been engaged 
 in the careful study of the relations of its working millions 
 to its prosperity, and to its civilization, and this bill pro- 
 poses to do for workmen seeking the protection of the 
 courts of the United States, what the enlightened juris- 
 prudence of all the modern nations has already done for 
 their workmen under similar conditions."^ 
 
 § 2. Rule of fellow servant in European countries.— The 
 rule of the common law respecting the liability of the mas- 
 ter to his servant for damages occasioned by an injury 
 inflicted by the negligent act of his fellow servant, does not 
 obtain in any European countries having the Civil Law for 
 
 ^60 Cong. Record. 1st Sess., p. 
 4527. "The passage of the original 
 act and the perfection thereof by 
 the ajnendments herein proposed, 
 stand forth as a declaration of 
 public policy to change radically, 
 as far as congressional power can 
 extend, those rules of the common 
 law which the president, in a re- 
 cent speech at Chicago, character- 
 ized as 'unjust.' President Tait, 
 in his address at Chicago, Septem- 
 ber 16, 1909, referred 'to the con- 
 tinuance of unjust rules of law 
 exempting employers from liability 
 for accidents.' The public policy 
 which we now declare is based upon 
 the failure of the common law to 
 meet the modern industrial condi- 
 tions, and is based not alone upon 
 the failure of those who are in the 
 United States, but their failure in 
 other countries as well. Mr. As- 
 quitli, present Prime Minister of 
 England, said that it was 'revolt- 
 ing to sentiment and judgment that 
 men who met with accidents 
 through the necessary exigencies of 
 daily occupation, should be a 
 charge Ufxjn tlieir own families.' " 
 Senate Report 432, Gist Congress, 
 2d Sess., March 22, 1910. p. 2. 
 
 "The primary object of the act 
 was to promote the safety of em- 
 
 ployes of railroads while actively 
 engaged in the movement of inter- 
 state commerce, and is well calcu- 
 lated to subserve the interests of 
 such commerce by affording suc^i 
 protection; there being, as it seems, 
 a substantial connection between 
 the object sought to be attained by 
 the act and the means provided to 
 accomplish that object." St. Louis, 
 I. ]VL & S. Ry. Oo. V. Conley, 187 
 Fed. 949. See also Fulgham v. 
 Midland Valley R. Co., 167 Fed. 
 060; Zikos v. Oregon R. & N. Co., 
 179 Fed. 893, and Watson v. St 
 Louis, I. M. & S. Ry. Co., 169 
 Fed. 942. 
 
 That the rule concerning the negli- 
 gence of fellow servants has been 
 abolished, see Devine v. Chicago R. 
 L & P. Ry. Co., 265 111. 641; 107 N. 
 E. 595. 
 
 Seaboard Airhne R. Co. v. Hor- 
 ton, 233 U. S. 452; 34 Sup. Ct. 635; 
 58 L. Ed. 1062, reversing 162 N. C. 
 424; 78 S. E. 494. 
 
 Louisville & N. R. Co. v. Strange, 
 156 Ky. 439; 161 S. W. 239; Bowers 
 V. Southern Rv. Co., 10 Ga. App. 367; 
 73 S. E. 677; Hardwick v. Wabash R. 
 Co., 181 Mo. App. 156: 168 S. W. 328. 
 
 It was evidently not the purposes 
 of Congress to prevent negligence on 
 the part of interstate employes; for if 
 that had been the purpose it would
 
 ABOLITION OF FELLOW SERVANT RULE. 
 
 the basis of their own laws. The Code Napoleon made the 
 employer answerable for all injuries received by his work- 
 men,- and this code is still in force in Belgium and Holland. 
 In Italy and Switzerland, the doctrine of fellow servant does 
 not prevail.^ Nor does it in Germany and Austria,* not in 
 the latter country at least since 1869.^ In 1888, England 
 adopted a statute which abolished the rule of fellow servant 
 with reference to the operation of railroad trains, and in 
 1897 it extended the law so as to apply to many of the 
 hazardous employments of that country." In the English 
 Workman's Compensatory Act of 1906,^ contributory negli- 
 gence does not defeat the workmen's rights to recover dam- 
 ages, or compensation, but "if it is proved that the injury 
 to the workmen is attributable to the serious and willful mis- 
 conduct of that workman, any compensation claimed in 
 respect of that injury shall, unless the injury results in death 
 or serious and permanent disability, be disallowed."^ 
 
 have provided for the liability of an 
 engineer or the railroad company for 
 an injury to a passenger on a highway, 
 struck through the negligence of the 
 interstate employe. Evidently the 
 purpose of the Act is to create a right 
 of action against a railroad company 
 in favor of an employe for injuries 
 sustained by him while engaged in 
 interstate commerce. 
 
 It may be remarked that there is, 
 strictly speaking, no Federal law of 
 negligence, the Federal courts simply 
 applying the law of negligence as a 
 part of the state law where the injury 
 was occasioned. This is true of the 
 doctrine of respondeat superior. It is 
 considered that this act for the first 
 time creates a substantive right in 
 favor of one party against another, 
 based on the proposition that there 
 is a right of action. 
 
 The Supreme Court has declared 
 that "The obvious purpose of Con- 
 gress was to save a right of action to 
 certain relatives dependent upon an 
 employe wrongfully injured, for the 
 loss and damages resulting to them 
 financially by reason of the wrongful 
 death." Michigan Central R. Co. v. 
 Vreelend, 227 U. S. 59; 33 Sup. Ct. 
 
 192; 57 L. Ed. 192, reversing 189 
 Fed. 495. 
 
 The purpose of the statute is not 
 to abridge, but to enlarge the lia- 
 bility of interstate carriers, and a ser- 
 vant engaged in interstate commerce, 
 who is injured, may recover under the 
 common law where the facts and cir- 
 cumstances would entitle him to 
 maintain an action thereunder, regard- 
 less of the statute. Grow v. Oregon 
 Short Line R. Co., 44 Utah — ; 138 
 Pac. 398. 
 
 "One purpose of Congress was to 
 adopt a uniform rule operating alike 
 on all employes of railroad companies 
 engaged in interstate commerce." 
 "It was desired to make it easier for 
 employes to recover damages for 
 injuries caused by negligence, and not 
 to impose conditions destructive, not 
 of the remedy, but of the right." 
 Burnett v. Atlantic Coast Line R. 
 Co., 163 N. C. 186; 79 S. E. 414. 
 
 ^Dalloz, 1841, 1st partie, p. 271. 
 
 ^ Law Quarterly Review, 184. 
 
 * 9 Jurid. Rev., p. 271. 
 
 ^ Cong. Record, 60 Cong. Record, 
 1st Sess., p. 4435. 
 
 For an excellent review of the law of 
 negligence as applied to master and
 
 6 FEDERAL EMPLOYERS LLLBILITY ACT, 
 
 § 3. Quebec and Mexico. — The doctrine of fellow servant 
 does not obtain in Quebec, in that respect following the 
 French law yet there in force ; ^ but in Ontario and the re- 
 mainder of British North America, the rule does yet ob- 
 tain/° In a case brought in a Circuit Court of the United 
 States to recover damages for an injury received in the 
 Province of Quebec, the court enforced the doctrine concern- 
 ing fellow servant that prevails in that province/^ In 
 Mexico, the master is liable to his servant for an injury 
 caused bv the negligence of a fellow servant. ^- 
 
 servant in Continental countries, and 
 a short reviev/ of the Act of 1908, see 
 the address of Hon. Addison C. Harris 
 before the Indiana State Bar Associ- 
 ation, July 7, 1909, published in the 
 proceedings of that Association for the 
 year 1909. See also the report of the 
 Committee on Jurisprudence before 
 the same Association July 6, 1910, 
 read by Mr. Harris, as well as the 
 discussion following. 
 
 * See Appendix C. 
 
 ' 6 Edw. VII, cap. 58. 
 
 * See Ruegg's Employer's Liability, 
 338. See also Thomas v. Quarter- 
 main, 18 Q. B. Div. 693; Griffiths v. 
 Dudley, 9 Q. B. Div. 357; Stuart v. 
 Evans, 31 W. R. 706. 
 
 Referring to the argument in favor 
 of the fellow-servant rule as declared 
 by the courts of this country and 
 England, it has been observed by an 
 eminent authority: /'If, in countries 
 where the doctrine of common em- 
 ployment has been more or less cir- 
 cumscribed, none of the evil results 
 which it is declared to have obviated 
 can be detected, it may be safely con- 
 cluded that no harm would have been 
 produced if the doctrine had never 
 been applied, and that no harm will 
 result if it should be entirely abro- 
 gated by the legislature — the only 
 authority by which such a change in 
 the law can now be affected." La- 
 batt, Master and Servant, 2 vol., p. 
 1325. 
 
 9 Canadian Pac. Ry. v. Robin- 
 son, 14 Can. S. C. 105, 115; City 
 Demolombe, Vol. 31, No. 368, and 
 Sourdiat, Vol. 2, No. 911. See Ful- 
 ler V. Grand Trunk Ry. Co., 1 Loap 
 Cas. L. J. 68; Bourdeau v. Grand 
 Trunk Ry. Co. 2 Low Cas. L. J. 
 1&6, and Hall v. Canadian, etc., 
 Co. 2 Montreail L. N. 245. 
 
 10 "According to the French law 
 common emplojinent is no defense, 
 and does not exonerate the em- 
 ployer from liability for the negli- 
 gence of a servant who may by 
 his negligence have caused an ac- 
 cident from whicli another servant 
 has suffered." Asbestos, etc., Co. 
 V. thirand, 30 Can. S. C. 285; 'ine 
 Queen v. Grenicr, 30 Can. S. C. 
 42; The Queen v. Filion, 24 Can. 
 S. C. 482, affirming 4 Can. Excli. 
 134; Belanger v. Riopel, 3- Mon- 
 treal S. C. 198. 
 
 11 Boston, etc.. R. Co. v. McDuf- 
 fey, 25 C. C. A. 247; 51 U. S. 
 App. Ill; 73 Fed. Rep. 934. 
 
 12 ;Mexican Cent. R. Co. v. Knox, 
 114 Fed. Rep. 73; 52 C. C. A. 21; 
 Mexican Cent. R. Co. v. Sprague, 
 114 Fed. Rep. 544; 52 C. C. A. 
 318. See also Mexican Cent. R. 
 Co. v. Glover, 107 Fed. Rep. 356; 
 46 C. C. A. 334.
 
 CHAPTER 11. 
 
 CONSTITUTIONALITY OF STATUTE— EFFECT ON 
 STATE LEGISLATION. 
 
 CONSTITUTIONALITY. 
 
 5. 
 
 6. 
 
 9. 
 
 10. 
 
 11. 
 
 SECTION. 
 
 12. Constitutionality of Wiscon- 
 
 sin and Nebraska statutes. 
 
 13. Invalidity of Act of 1906. 
 
 14. Tlie parts of the Act of 1906 
 
 rendering it invalid. 
 
 15. Congress can only legislate con- 
 
 cerning interstate commerce. 
 
 16. Inter relation of interstate and 
 
 intrastate commerce as effect- 
 ing constitutionality of statute. 
 
 17. Effect of Act of 1908 on State 
 
 legislation. 
 
 18. Effect of Act of 1908 on State 
 
 legislation, continued. 
 
 19. Result of decisions. 
 
 20. Effect of repeal of Federal 
 
 statute. 
 
 21. Must interstate employee bring 
 
 his action on the statute? 
 
 22. Act of 1906, validity in District 
 
 of Columbia and Territories. 
 
 23. Construction of statute. 
 
 24. State courts must follow Federal 
 
 court decisions — appeal 25 in 
 pari materia with Safety Ap- 
 pliance Acts. 
 
 § 4. Power of Congress to increase liabilities of master. — 
 
 The validity of statutes increasing or changing the liability 
 of a master to his servant, is one that presents itself at an 
 early stage in the discussion of the question of his liability 
 under this Federal Employers' Liability Act. This question 
 presents itself in three aspects: 
 
 First — The power of Congress to change or modify the 
 liability at common law of a master to his servant, concerning 
 his liability for the negligence of his fellow servant. 
 
 Second — The power of Congress to enact a law author- 
 
 7 
 
 SECTION. 
 
 4. Power of Congress to increase 
 liabilities of master. 
 
 Authorizing a recovery for 
 negligent act of fellow serv- 
 ant. 
 
 Basis of rule of master's non- 
 liability for negligence of 
 a fellow servant. 
 
 Validity of statute allowing 
 a recovery for an injury 
 occasioned by a fellow serv- 
 lajit's negligence. 
 
 Validity of statute as to past 
 contracts of employment. 
 
 Limiting statute to employees 
 of railroad companies — 
 Fourteenth Amendment. 
 
 Validity of statute classifying 
 instrumentalities. 
 
 Power of Congress to enact 
 statute of 1908.
 
 O FEDERAL EMPLOYERS LIABILITY ACT. 
 
 izing a recovery when the servant has been guilty of negli- 
 gence contributing to his injury. 
 
 Third — The power of Congress to legislate upon any 
 phase of the relation of master and servant. » 
 
 § 5. Authorizing a recovery for negligent a,ct of fellow 
 servant, — In discussing the power of a Legislature to change 
 the law with reference to the liability of a master to his 
 servant — not taking into consideration that Congress must 
 limit the scope of its legislation to masters and servants en- 
 gaged in interstate commerce — decisions of state courts are 
 by analogy available. The doctrine that a master is not 
 liable to his servant for an injury inflicted upon him by the 
 negligence of his fellow servant is a rule of law enunciated 
 and enforced by the courts without any legislative sanction, 
 adopted by them from a supposed or assumed public policy. 
 This rule was announced in England in 1837.^ in South Car- 
 olina in 1838,^ in Massachusetts in 1842,^ and in Pennsyl- 
 vania in 1854.* In Massachusetts, the conclusion reached 
 was upon what had been decided in South Carolina and 
 England.^ 
 
 § 6. Basis of rule of master's non-liability for negligence 
 of fellow servant. — In South Carolina, the basis for the rule 
 assumed by the Supreme Court, holding the master not 
 liable to his servant for injuries inflicted by the negligence 
 of his fellow servant, is that the injured servant had entered 
 into a joint undertaking with his fellow with a common 
 employer or ma.ster, each having stipulated for the per- 
 formance of his several part; and as each of them was not 
 liable to the master for the conduct of the other, conversely 
 the master was not liable to one for the conduct of the other, 
 
 ' Priestly v. Fowler, .3 M. «S; W. 1. * Ryan v. C'umherland Valley R. 
 
 ^McMurray v. So. Car. R. R. R. Co. 2.3 Pa. St. 384. 
 
 Co. 1 McMullen, 385; 36 Am. "The rule was adopted in New 
 
 Dec. 208. York in 185 1. Coon v. Utica, etc., 
 
 •Farwel! v. Bost^)n. etc., R. Co. R. Co. 5 N, Y. 492, 
 4 Mete. 40; 38 Am. Dec. 339,
 
 CONSTITUTIONALITY OP STATUTE. 9 
 
 but was, when he was not at fault, only liable to his servant 
 for his wages." 
 
 In Massachusetts the question was put upon the ground 
 of implied contract, — that the contract of employment im- 
 plied upon the part of the servant that he assumed all risk 
 arising from the negligence of his fellow; and this exemp- 
 tion was declared to rest upon considerations of public policy. 
 "Where several persons," said the court, "are employed in 
 the conduct of one common enterprise or undertaking, and 
 the safety of each depends much on the care and skill with 
 which each other shall perform his appropriate duty, each 
 is an observer of the conduct of the others, can give notice 
 of any misconduct, incapacity, or neglect of duty, and leave 
 the service, if the common employer will not take such pre- 
 cautions and employ such agents as the safety of the whole 
 party may require. By these means the safety of each will 
 be much more effectively secured than could be done by a 
 resort to the common employer for indemnity in ease of loss 
 by the negligence of each other." Speaking of servants em- 
 ployed in different departments, and applying the rule to 
 them, the court further said: "When the object to be accom- 
 plished is one and the same, when the employers are the same, 
 and the several persons employed derive their authority and 
 compensation from the same source, it would be extremely 
 difficult to distinguish what constitutes one department and 
 what a distinct department of duty. It would vary the cir- 
 cumstances of each case.'' The master is not exempt from 
 liability, in such case, because the servant has better means 
 of providing for his safety when he is employed in immediate 
 connection with those from whose negligence he might suffer, 
 but because the implied contract of the master does not ex- 
 tend to indemnify the servant against the negligence of any 
 
 "Murray v. So. Car. R. Co. 1 tion into the conditions of each 
 
 McMuI. 385; 36 Am. Dec. 268. case, and award or withhold dam- 
 
 ^ Was not this language prompt- ages as the facts of each particu- 
 
 ed by an unwillingness of the lar case would demand as a matter 
 
 court to undertake an investiga- of justice and right?
 
 10 FEDERAL EMPLOYERS' LIABILITY ACT, 
 
 one but himself ;^ and he is not liable in tort as for the negli- 
 gence of his servant, because the person suffering does not 
 stand in the relation of a stranger, but is one whose rights 
 lare regulated by contract, express or implied."" In Indiana, 
 in 1855, the Supreme Court said: "It is considered that 
 public policy requires that servants engaged in common em- 
 ployment shall not have an action against their principal for 
 injuries resulting from the negligence of one or more of such 
 servants, because the tendency of such a doctrine is to make 
 them anxious and watchful and interested for the faithful 
 conduct of each other, and careful to induce it, while the 
 opposite doctrine would tend in a different direction. ^° The 
 safety and welfare of the public, therefore, demand the 
 establishment of the principle of the non-liability on the 
 part of the employer in such case ;^^ while, when estab- 
 lished, it can work no injury to the servant,^* because his en- 
 tering upon the service is voluntary,^^ is with a knowledge of 
 its hazards, and with a power and right to demand such 
 wages " as he should deem compensatory. ' ' ^^ The doctrine of 
 Priestly v. Fowler ^^ was stated by Baron Alderson in a sub- 
 sequent case in these words: "They have both engaged in a 
 common service, the duties of which impose a certain risk 
 on each of them, and in case of negligence on the part of 
 the other, the party injured knows that the negligence is that 
 of his fellow servant and not of his master." "He knew when 
 he was engaged in the service that he was exposed to the 
 risk of injury, not only from his own want of skill and care, 
 but also from the want of it on the part of his fellow servant, 
 
 * Where was the autliority to " Experience shows that it does, 
 
 say there was an implied con- until legislature after legislature 
 
 tract? Did not the court merely has been compelled to modify the 
 
 assume there was such contract? harsh rule announced by these de- 
 
 ' Farwell v. Boston, etc., R. Co. cisions. 
 
 4 Mete. 49; 38 Am. Dec. 339. "True only in a limited sense, 
 
 '"This is a strange assumption because of the pressure that mod- 
 
 in view of the law on the subject em civilization thrusts upon the 
 
 in Continental Europe. laboring man to secure for him- 
 
 " Experience of long years' du- self and family the sustenance of 
 
 ration shows that the public in life. 
 
 Westf-rn Continental Europe are as "The supply of labor fixes the 
 
 safely cared for as in England wages. 
 
 and much more so than in '"Madison, etc. R. Co. v. Bacon. 
 
 Am^TJca, as against tlie careless- Ind. 205. 
 
 ne»8 of servants. '• 3 Meea & Wels, 1.
 
 CONSTITUTIONALITY OF STATUTE. 
 
 11 
 
 and he must be supposed to have contracted on the terms 
 that, as between himself and his master, he would run the 
 risk, 'a risk which he' must be taken to have agreed to run 
 when he entered into the defendant's service." "The prin- 
 ciple is," Baron Alderson again said, "that a servant, when 
 he engages to serve a master, undertakes, as between himself 
 and his master, to run all the ordinary risks of the service, 
 and this includes the risk of negligence on the part of a fel- 
 low servant, whenever he is acting in the discharge of his 
 duty as servant of him who is common master of both. ' ' ^^ 
 
 § 7. Validity of statute allowing a recovery for an injury 
 occasioned by a fellow servant's negligence.— From an ex- 
 amination of the cases quoted and cited in the foregoing sec- 
 tion, it will be seen that they rest upon practically two 
 grounds : That it is against public policy to allow a servant to 
 recover damages occasioned by the negligence of his fellow 
 
 " Hutchinson v. York, etc., R. 
 Co. 5 Exch. 343; 14 Jur. 837; 19 
 L. J. (Exch.) 296. 
 
 The English rule was forced 
 upon the courts of Scotland by the 
 decision of the House of Lords in 
 Wilson V. Merry, L. R. 1 Sc. & 
 Div. App. Cas. 326; 19 L. T. (N. 
 S.) 30. 
 
 For a few of the hundreds of 
 cases upon this question, see Wa- 
 bash, etc, R. Co. V. Conkling, 15 
 111. App. 157; Stucke v. Orleans 
 R. Co. 50 La. Ann. 188, 23 So. 
 Rep. 342; Ackerson v. Dennison, 
 117 Mass. 407; World's Colum- 
 bian Exposition v. Bell, 76 111. 
 App. 501; Doyle v. White, 9 App. 
 Div. (N. Y.) 521; 41 N. Y. Supp. 
 628 ; 75 N. Y. St. Rep. 628 ; Hicka 
 V. Southern R. Co. 63 S. C. 559; 
 41 S. E, Rep. 753; Barton's Hill 
 Coal Co. V. Ried, 3 Macq. H. L. 
 Cas. 266; Baltimore, etc., R. Co. 
 V. Colvin, 118 Pa. St. 230; 12 Atl. 
 Rep. 337; 20 W. N. C. 531; Chi- 
 cago, etc., R. Co. V. Ross, 112 U. 
 S. 377; 28 L. Ed. 787: 5 Sup. Ct. 
 Rep. 184; Latremouille v. Ben- 
 ninston, 63 Yt. b36; 22 Atl. Rep. 
 
 656; 48 Am. & Eng. R. Cas. 
 265; Walton v. Bryn Mawr Hotel 
 Co., 160 Pa. St. 3; 28 Atl. Rep. 
 438; Olsen v. Nixon, 61 N. J. L. 
 671; 4 Am. Neg. Rep. 515; 40 
 Atl. Rep. 694; Jungnitsch v. 
 Michigan, etc., Co. 105 Mich. 270; 
 63 N. W. Rep. 296; 2 Det. Leg. 
 N. 107; Elwell v. Hocker, 86 Me. 
 416; 30 Atl. Rep. 84. 
 
 After a review of the early cases 
 on this subject, Hon. Addison C. 
 Harris said in his address befoi'e 
 the Indiana State Bar Association, 
 July 7, 1909 (Indiana Bar Asso- 
 ciation Report for 1909, p. 50): 
 "So, now no matter how negligent 
 the employer might be, yet if it 
 appeared ( 1 ) that the accident was 
 caused by the negligence of a fel- 
 low servant, or (2) that the serv- 
 ant injured contributed in the 
 slightest degree to the accident, 
 in none of these cases was there 
 any right of action. And these 
 rules were supported by the pre- 
 sumption (3) that the accident 
 was caused by some fault of the 
 servant, because generally men are 
 not injured while carefully doing 
 their work; and so the burden of 
 proof was put upon him to show
 
 12 
 
 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 servant, and the other is that he has by his contract for 
 service impliedly assumed the risk of such association or of 
 his fellow servant's negligence. Such being the case, it read- 
 ily follows that the legislature can change the rule of public 
 policy or provide that the implied undertaking shall not be a 
 part of the contract for service. In the usual employers li- 
 ability statutes this is done only to a limited extent, by pro- 
 viding in what particular instance the servant may recover 
 for injuries occasioned by his fellow's negligence, or by 
 providing in what particular instances the relation in law 
 of fellow servant shall not be deemed to exist. Such statutes 
 have been universally upheld, both by the state and Federal 
 courts. ^^ This power has been stated thus tersely: "It is 
 
 both the negligence of his em- affirming 31 Minn. 11; IG N. W. 
 ployes and that he had not in any Rep. 413; 47 Am. Rep. 771; Pitts- 
 wise helped or contributed to the burg, etc., R. Co. v. IMontgomery, 
 accident. And the court went fur- 152 Ind. 1; 49 N. E. Rep. 482; 
 ther and held (4) that if the 69 L. R. A. 875; 71 Am. St. 30; 
 workmen knew, or in the exercise Pittsburg, etc., R. Co. v. Light- 
 of ordinary care and observation heiser, 168 Ind. 438; 78 N. E. 
 shouild have known, of the negli- Rep. 1033; Indianapolis, etc., R. 
 gence of the master, then he could Co. v. Houghton, 157 Ind. 494; 60 
 not recover, even though in the N. E. Rep. 943: 54 L. R. A. 787; 
 hurry and stress of his hazardous Pittsburg, etc., R. Co. v. Ross, 169 
 service at the immediate time of 
 the accident he did not recall his 
 master's negligence." 
 
 >' McAunick v. Mississippi etc., 
 R. Co. 20 Iowa, 338; Bucklew v. 
 Central, etc., R. Co. 64 Iowa, 611; 
 Rose v. Des Moines, etc., R. Co. 
 39 Iowa, 246; Kansas, etc., R. Co. 
 V. Peavey, 29 Kan. 109; Missouri 
 Pacific R. Co. V. Mackey, 33 Kan. 
 298; 6 Pac. Rep. 291; Attorney- 
 General V. Railroad Cos. 35 Wis. 
 425; Dithberner v. Chicago, etc., 
 R. Co. 47 Wi.s. 138; 2 N. W. Rep. 
 60; Herrick v. Minnea])olis, etc., 
 
 R. Co. 31 Minn. 11; 16 N. W. 
 
 Rep. 413 (upholding Iowa stat- 
 ute) ; Herrick v. Minneapolis, etc., 
 
 R. Co. 32 Minn. 435; 21 N. W. 
 
 Rep. 471; Missouri, etc., R. Co. 
 
 V. .Mackey, 127 U. S. 205; 32 L. 
 
 Ed. 107; 8 Sup. Ct. Rep. 1161, 
 
 affirming 33 Kan. 298; 6 Pac. 
 
 Rep. 291 ; Minneapolis, etc., R. Co. 
 
 v. Herrick, 127 U. S. 210; 32 L. 
 
 Ed. 109; 8 Slip. Ct. Itc'p. 1176, 
 
 Ind. 3; 80 N. E. Rep. 84.'); Chi- 
 cago, etc., Ry. Co. v. Pontius, 157 
 U. S. 209; 39 L. Ed. 675; 15 Sup. 
 Ct. Rep. 585, affirming 52 Kan. 
 264; 34 Pac. Rep. 739; Baltimore, 
 etc., R. Co. v. Voight, 176 U. S. 
 498; 44 L. Ed. 560; 20 Sup. Ct. 
 Rep. 385; McGuire v. Ch'Vago, ^tc, 
 R. Co. 131 Iowa, 340; 108 N. W. 
 Rep. 902; Hancock v. Railway Co. 
 r-4 N. C. 222; 32 S. E. Rep. 670; 
 Tullis V. Lake Erie, etc., R. Co. 
 175 U. S. 348; 44 L. Ed. 192: 
 20 Sup. Ct. Rep. 136; Railroad 
 Co. V. Thompson, 54 Ga. 509; 
 Georgia R. Co. v. Ivey, 73 Ga. 
 499; Georgia R. Co. v. Brown, 86 
 Ga. 320; Creorgia R. Co. v. Miller, 
 90 Ga. 574; St. Louis, etc., R. Co. 
 V. Matthews, 165 U. S. 1 ; 41 L. 
 Ed. 611; 17 Sup. Ct. Rep. 243; 
 affirming 121 Mo. 298; 25 L. R. 
 A. 161; 24 S. W. Rep. 591; Hol- 
 den v. Hardy, 169 U. S. 366: 42 
 L. Ed. 780; 18 Sup. Ct. Rep. 
 .".H3; affirming 14 Utah, 71; 37
 
 CONSTITUTIONALITY OF STATUTE. 13 
 
 competent for the legislature, in the exercise of the police 
 power, to take steps for the protection of the lives and limbs 
 of all persons who may be exposed to dangerous agencies in 
 the hands of others. " ^'-^ In a recent case in Colorado the valid- 
 ity of a statute abolishing the doctrine of co-service as a 
 defense was passed upon and the statute upheld in the fol- 
 lowing language: "The final and important question is the 
 validity of the co-employe act. It is urged that the act is 
 unconstitutional in that it is in conflict with the fourteenth 
 amendment to the Federal Constitution, because it deprives 
 persons of their property without due process of law. The act 
 in question renders the employer liable for damages result- 
 ing from injuries to or death of an employe, caused by the 
 negligence of a co-employe in the same manner, and to the 
 same extent, as if the negligence causing the injury or death 
 was that of the employer. That the act in question may be 
 regarded by some as harsh or unjust, because imposing too 
 great a disability, is not a matter which we can consider in 
 determining its validity by constitutional tests. Whether or 
 not the employer is liable under the act in question must be 
 determined by each particular case based on the provisions 
 of the act. It does not deprive him of any defense to the 
 liability thereby imposed which, under the established rules 
 of law could be regarded as sufficient, save and except his 
 own lack of negligence ; but such a defense is not a consti- 
 tutional right. The law itself, as a rule of conduct, may, 
 unless constitutional limitations forbid, be changed at the 
 will of the legislature. The exercise of the discretion of 
 that branch of the government to enact laws cannot be ques- 
 
 L. R. A. 103; 46 Pac. Rep. 756; N. E. Rep. 415; Mickelson v. 
 
 14 Utah, 96; 37 L. R. A. 108: Truesdale, 63 Minn. 137; 65 N. 
 
 46 Pac. Rep. 1105; St. Louis, etc., W. Rep. 260. 
 
 R. Co. V. Paul, 173 U. S. 404; '"Indianapolis, etc., R. Co. v. 
 
 43 L. Ed. 746; 19 Sup. Ct. Rep. Houlihan, 157 Ind. 494; 60 N. E. 
 
 419; affirming 64 Ark. 83; 37 L. Rep. 943; 54 L. R. A. 787. See 
 
 R. A. 504; 62 Am. St. Rep. 154; Tullis v. Railway Co. 175 U. S. 
 
 40 S. W. Rep. 705; Pittsburg, etc., 348; 20 Sup. Ct. Rep. 136; 44 L, 
 
 R. Co. V. Collins, 168 Ind. 467; 80 Ed. 192. .
 
 14 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 tioned so long as such laws do not conflict with either state 
 or Federal constitutional provisions. No such provisions have 
 been called to our attention w^hich limit the authority of the 
 general assembly to abolish the rule heretofore existing which 
 exempted the employer from liability to employes caused by 
 the negligence of a co-employe, and render him liable to his 
 employes for the negligence of a co-employe. For the pur- 
 pose of providing for the safety and protection of employes 
 in the service of a common employer, the law making power 
 has the undoubted authority to abrogate the exception to the 
 general rule respondeat superior in favor of the employer, 
 and make him liable to one of his employes for damages 
 caused by the negligence of another employe while acting 
 Avithin the scope of his employment, regardless of the fact 
 that such employes are fellow servants. ' ' ^^ 
 
 § 8. Validity of statute as to past contracts of employ- 
 ment. — Where the servant has entered into the employment 
 of a master before the statute has taken effect, but the em- 
 ployment is not for a continuous service — as in the case of a 
 railroad engineer — and after the passage of the statute is in- 
 
 20 Vindicator, etc., Co. v. First- K. Oo. v. Brown, 86 Ga. 320; 12 
 
 brook, 36 Colo. 498: 86 Pac. Kep. S. E, Rep. 812; Georgia, etc., E. 
 
 313. Mobile, J. & K. C. R. Co. Co. v. Cosby, 97 Ga. 299; 22 S. 
 
 V. Turnipseed, 219 U. S. 35; 31 E. Rep. 912; Southern, etc., R. 
 
 Sup. Ct. 136; '55 L. Ed. 78; affirm- Co. v. Johnson, 114 Ga. 329; 40 
 
 incr 01 Miss. 273; 46 So. 360; S. E. Rep. 235; Georgia, etc., R. 
 
 124 Am. St. 679; Florida East Co. v. Ivey, 73 Ga. 499; Georgia, 
 
 Coast V. Lassiter, 58 Fla. 234; etc., R. Co. v. Hicks, 95 Ga. 301; 
 
 50 So. 428. 22 S. B. Rep. 613; Chandler v. 
 
 That a statute imj^sing liabil- Southern R. 'Oo. 113 Ga. 130; 38 
 
 ity on the master for an injury to S. E. Rep. 305. 
 
 his servant where lie, the master, For a recent case on this ques- 
 
 is not negligent, see Ives v. South tion, see Kilcy v. Chicago, etc., 
 
 Ruflalo Ry. Co. 201 N. Y. 271; R. Oo. 138 Wis. 215; 119 N. W. 
 
 94 N. E. 431; reversing 140 N. Y. Rep. 309; 120 N. W. 756, and 
 
 App. Div. 921; 125 N. Y. Supp. Having v. Great Northern Ry. Co. 
 
 1125, whicli affirmed 08 N. Y. 137 Wis. 367; 119 N. W. Rep. 325. 
 
 Misc. Rep. 643; 124 N. Y. Supp. Tliese last two cases hold that 
 
 920. the excepting of office and shop 
 
 For some Georgia cases holding employes of a railroad from the 
 
 under Die Code that a rtxiovery operation of the act does not ren- 
 
 can lie had for an injury cjiused dor it invalid. See Callahan v. 
 
 by the negligence of a fellow serv- Bridge Co., 170 Mo. 473; 71 S. W. 
 
 ant, see (icorgia, etc., R. Co, v. Rep. 208; 60 L. R. A. 249; 94 
 
 Goldwire, 56 Ga. 196; Marsh v. Am. St. Rep. 746; Howard v. Illi- 
 
 Souili Carolina, etc., R. Co. 56 nois Central Rv. Co. 207 U. S. 
 
 (ia. 274; Cieorgia, etc., R. Co. v. 463; 28 Sup. Ct. Rep. 141; 62 
 
 Rhodes, 56 Ga. 645; Georgia, etc., L. Ed. 297.
 
 CONSTITUTIONALITY OP STATUTE. 15 
 
 jured by a fellow servant, and he would not have had a right 
 of recovery except for its provisions, he may recover his dam- 
 ages, and such legislation is not retroactive nor does it impair 
 the obligation of a contract. ^'^ This question came before the 
 Circuit Court for the Northern District of Iowa upon a con- 
 struction of the act of June 11, 1906,-- but the court held 
 that the statute in its terms was not retroactive. The question 
 then before the court was whether the act of Congress had 
 taken away a right of action given by an Iowa statute, the 
 cause of action having arisen in 1905 ; and the court held 
 that the act of 1906 had no retroactive effect, and if it did 
 so have as to take away the cause of action, it would be void.-^ 
 
 § 9. Limiting statute to employes of railroad companies 
 — Fourteenth Amendment. — A statute concerning liability 
 of a master to his servant for injuries occasioned by his fellow 
 is not special legislation, nor is it the taking of prop- 
 erty without due process of law. ' ' The company calls attention 
 of the court," said Justice Field of the Supreme Court of the 
 United States, "to the rule of law exempting from liability 
 an employer for injuries to emploj^es caused by the negligence 
 or incompetency of a fellow servant w^hich prevailed in Kan- 
 sas and in several other states previous to the act of 1874, 
 unless he had employed such negligent or incompetent serv- 
 ant without reasonable inquiry as to his qualifications, or had 
 retained him after knowledge of his negligence or incom- 
 petency. The rule of law is conceded where the person in- 
 jured, and the one by whose negligence or incompetency the 
 injury is caused, are fellow servants in the same common 
 employment, and acting under the same immediate action 
 * * * Assuming that this rule would apply to the case 
 presented but for the law of Kansas of 1874, the contention 
 
 =» Pittsburg, etc., R. Co. v. Light- "^ C. 3073, 34 statute at L. 232. 
 
 heiser, 168 Ind. 438; 78 N. E. '"TiaU v. Chicago, etc., R. Co. 
 
 Rep. 1033; Pittsburg, etc., R. Co. 149 Fed. Rep. 564. 
 V. Lightheiser, 163 Ind. 247; 71 
 N. E. Rep. 218, 660.
 
 16 FEDERAL EMPLOYERS' LL4.BILITY ACT. 
 
 of the company * * * jg that the law imposes upon rail- 
 road companies a liability not previously existing, in the 
 enforcement of which their property maj^ be taken ; and thus 
 authorizes, in such cases, the taking of property without due 
 process of law, in violation of the fourteenth amendment. 
 
 * * * The supposed hardship and injustice consist in im- 
 puting liability to the company, where no personal wrong or 
 negligence is chargeable to it or to its directors. But the 
 same hardship and injustice, if there be any, exist where the 
 company, without any M^rong or negligence on its part, is 
 charged for injustice to passengers. * * * The utmost 
 care on its part will not relieve it from liability, if the pas- 
 senger injured be himself free from contributory negligence. 
 The law of 1874 extends this doctrine and fixes a liability 
 upon railroad companies, where injuries are subsequently suf- 
 fered by employes, though it may be by the negligence or 
 incompetency of a fellow servant in the same general employ- 
 ment and acting under the same immediate direction. That its 
 passage was within the competency of the legislature we ean 
 have no doubt. The objection that the law of 1874 deprives 
 the railroad companies of the equal protection of the law is 
 even less tenable than the one considered. It seems to act 
 upon the theory that legislation which is special in its char- 
 acter is necessarily within the constitutional inhibition; but 
 nothing can be further from the fact. The greater part of 
 all legislation is special, either in the objects sought to be 
 attained by it, or in the extent of its application. Laws for 
 the improvement of municipalities, the opening and widen- 
 ing of particular streets, the introduction of water and gas, 
 and other arrangements for the safety and convenience of 
 their inhabitants, and the laws for the irrigation and drain- 
 age of particular lands, for the construction of levees and 
 the bridging of navigable rivers, are instances of this kind. 
 
 * * * A law giving to mechanics Ji lien on buildings con- 
 structed or repaired by them, for the amount of their work, 
 and a law reciuiring railroad corporations to erect and main-
 
 CONSTITUTIONALITY OF STATUTE. 
 
 17 
 
 tain fences along their roads, separating them from land of 
 adjoining proprietors so as to keep cattle off their tracks, are 
 instances of this kind. Such legislation is not obnoxious to 
 the last clause of the fourteenth amendment, if all persons 
 subject to it are treated alike under similar circumstances 
 and conditions in respect of both the privileges conferred 
 and the liabilities imposed. * * * But the hazardous 
 character of the business of operating a railway would seem 
 to call for special legislation with respect to railroad cor- 
 porations, having for its object the protection of their em- 
 ployes as well as the safety of the pubic."-* In a subse- 
 quent case a like decision was made, where a statute applied 
 only to railroads.-^ 
 
 " Missouri Pacific Ry. Co. v. 
 Mackey, 127 U. S. 205; 8 Sup. Ct. 
 Rep. 1 161 ; 32 L. Ed. 107 ; affirming 
 33 Kan. 298; 6 Pac. Rep. 291; 
 Minneapolis, etc., R. Co. v. Her- 
 rick, 127 U. S. 210; 8 Sup. Ct 
 Rep. 1176; 32 L. Ed. 109, and af 
 firming Herrick v. Minneapolis 
 etc., R. Co. 31 Minn. 11; 16 N, 
 W. Rep. 413: 47 Am. Rep. 771 
 Herrick v. Minneapolis, etc., Co 
 32 Minn. 435; 21 N. W. Rep. 471 
 Pittsburg, etc., R. Co. v. Mont 
 gomery, 152 Ind. 1 ; 49 N. E. Rep 
 482; 69 L. R. A. 875; 71 Am. St 
 Rep. 30; Indianapolis Union Ry 
 Co. V. Houlihan, 157 Ind. 494; 60 
 N. E. Rep. 943; 54 L. R. A. 787. 
 
 "Gulf, etc., R. Co. V. Ellis, 165 
 U. S. 150; 17 Sup. Ct. Rep. 255: 
 41 L. Ed. 666; reversing 87 Tex. 
 19; 26 S. W. Rep. 985, Alummun 
 Co. V. Ramsey 32 Sup. Ct., 76. 
 
 Deppe V. Chicago, etc., R. Co. 36 
 Iowa, 52; Schroeder V. Chicago, 
 etc., R. Co. 47 Iowa, 375 ; Potter v. 
 Chicago, etc., R. Co. 46 Iowa, 399 ; 
 O'Brien v. Chicago, etc., R. Co. 116 
 
 Fed. Rep. 502; Chicago, etc.. R. Co. 
 V. Pontius, 52 Kan. 264; 34 Pac. 
 Rep. 739; affirmed, 157 U. S. 209; 
 15 Sup. Ct. Rep. 585; 39 L. Ed. 
 675; Lavallee v. St. Paul, etc., 
 R. Co. 40 Minn. 249; 41 N. W. 
 Rep. 974; Johnson v. St. Paul, 
 etc., R. Co. 43 Minn. 222; 45 N. 
 W. Rep. 156; 8 L. R. A. 419; 
 Hancock v. Norfolk, etc., R. Co. 
 124 N. C. 222; 32 S. E. Rep. 
 679 ; Indianapolis, etc., R. Co. v. 
 Houlihan, 157 Ind. 494; 60 N. E. 
 Rep. 943; 54 L. R. A. 787; Dith- 
 berner v. Chicago, etc., R. Co., 47 
 Wis. 138. 
 
 There has been much discussion 
 whether or not the prohibition in 
 the Fourteenth Amendment pro- 
 hibiting states enacting laws giv- 
 ing unequal protection to citizens 
 is the same in meaning with ref- 
 erence to such states as the pro- 
 hibition in the Fifth Amendment 
 is with reference to the power of 
 Congress. The question has never 
 been decided. See Stratton v. 
 INIorris, 89 Tenn. 497.
 
 18 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 §10. Validity of statute classifying instrumentalities.— 
 
 Not only may the legislature select railway compauies for 
 legislation concerning their employes, but it may specify in 
 what particulars they shall be liable, as, for instance, con- 
 cerning "any signal, telegraph office, switch yard, shop, 
 round house, locomotive engine or train upon a railway." 
 "These," said the Supreme Court of Indiana, "were proper 
 to be selected as sources of unusual danger which should be 
 guarded against ; the object to be accomplished was to incite 
 railroad companies to use the utmost diligence in the selection 
 and supervision of their servants who are put in charge of 
 these dangerous agencies, so that fewer lives and limbs of 
 those who are entitled to claim the protection of our laws 
 would be sacrificed; the legislature evidently considered 
 that strangers and employes (the attorney and the ticket 
 seller, for example) who w^ere not fellow servants of those in 
 charge of the agencies named were sufficiently protected by 
 the railroad company's existing liability to them for the 
 negligent operation of those dangerous agencies; the legis- 
 lature evidently determined to protect all persons who were 
 not already protected for the negligent use of particular in- 
 struments; this classification is made on the basis of the 
 peculiar hazards in railroading, relating equally to all em- 
 ployers within the class; to separate railroading from other 
 business was not an unconstitutional discrimination, because 
 the dangers (the basis of the classifications) do not arise 
 from the same sources ; but the claim that a classification not 
 made on the basis of dangerous agencies employed in the 
 business, but founded on the question whether the employe 
 who was injured without his fault by a fellow servant's 
 negligent use of a dangerous agency was acting at the time 
 on his own initiative in the line of his duty or under the 
 orders of a superior, is the only constitutional classification, 
 is unwarranted; a train is wrecked through the negligence 
 of the engineer, two brakemen are injured without fault on 
 their part, one acting at the time in obedience to the con-
 
 CONSTITUTIONALITY OP STATUTE. 
 
 19 
 
 ductor's orders, the other acting on his own initiative within 
 the line of his duty ; there should be and there is no consti- 
 tutional limitation upon the legislature's exercise of the 
 police power by which a law may not be enacted to protect 
 both brakemen equally from the negligence of the engineer. 
 We hold, therefore, that the act is not obnoxious to the ob- 
 jections urged by appellants. ' ' -^ 
 
 § 11. Power of Congress to enact statute of 1908. — The 
 
 Employers Liability Act of 1906 was stricken down because 
 congress had attempted to legislate upon a subject or sub- 
 ject-matter that related wholly to the power of a state ; and 
 had so attempted to interblend that power with its power to 
 legislate upon the subject of interstate commerce that the 
 several clauses could not be separated and those clauses re- 
 lating alone to interstate commerce remain. It was upon 
 this ground alone that this statute of 1906 was overthrown. 
 
 * Indianapolis Union Ry. Co. v. 
 Houlihan, 167 Ind. 494; 60 N. E. 
 Rep. 943; 54 L. R. A. 787. 
 
 That a classification cannot be 
 made arbitrarily, see Gulf, etc., 
 R. Co. V. Ellis, 165 U. S. 150; 
 17 Sup. Ct: Rep. 255; 41 L. Ed, 
 666; State v. Loomis, 115 Mo. 
 807; Missouri Pacific R. Co. v. 
 Mackey, 127 U. S. 205; 8 Sup. 
 Ct. Rep. llfil; 32 L. Ed. 107; St. 
 Louis, etc., R. Co. v. Paul, 173 
 U. S. 404; 19 Sup. Ct. Rep. 419; 
 43 L. Ed. 746; Connelly v. Union 
 Sewer Pipe Co. 184 U. S. 540; 22 
 Sup. Ct. Rep. 431; 46 L. Ed. 679; 
 Akeson v. R. Co. 106 Iowa, 54; 
 75 N. W. Rep. 676; Lavallee v. 
 St. Paul, etc., R. Co. 40 Minn. 
 249; 41 N. W. Rep. 947; Johnson 
 V. St. Paul, etc., R. Co. 43 Minn. 
 222; 45 N. W. 156: Missouri, 
 etc., R. Co. V. Medaris, 60 Kan. 
 151; 55 Pac. Rep. 875: Indiana- 
 polis T. & T. Co. V. Kinney, 171 
 
 Ind. 612; 85 K E. Rep. 954; 
 Tullis V. Lake Erie, etc., R. Co. 
 175 U. S. 349; 20 Sup. Ct. Rep. 
 136; 44 L. Ed. 192; 105 Fed. Rep. 
 554; Minnesota Iron Co. v. Kline, 
 199 U. S. 593: 26 Sup. Ct. Rep. 
 159; 50 L. Ed. 322; Chicago, etc., 
 R. Co. V. Pontius, 157 U. S. 209; 
 15 Sup. Ct. Rep. 585; 39 L. Ed. 
 075; affirming 52 Kan. 264; 34 
 Pac. Rep. 739. An employee is 
 as much an instrument in the for- 
 warding of interstate commerce 
 as a car loaded with interstate 
 traffic; and Congress has as much 
 power to legislate with reference 
 to him as to the car. It certainly 
 is a confession of the great weak- 
 ness of the government wlien it is 
 claimed that the United States 
 can legislate concerning a car en- 
 gaged in interstate commerce but 
 is powerless to legislate for the 
 protection of an employee hand- 
 ling that car.
 
 20 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 But the court was very careful to point out that congress 
 had the power to enact a statute relating to employers and 
 employes engaged in interstate commerce, where the statute 
 was enacted for the protection of the employe. In discussing 
 the act of 1906, and meeting the assertion that there was a 
 total want of power in congress in any conceivable aspect to 
 regulate the subject with which the act dealt, and also stating 
 that "if it be that from the nature of the subject no power 
 whatever over the same can, under an}^ conceivable circum- 
 stances, be possessed by congress, we ought to so declare, ' ' the 
 Supreme Court, through Justice White, said: 
 
 "1. The proposition th'at there is an absolute want of 
 power in congress to enact the statute is based on the as- 
 sumption that as the statute is solely addressed to the regu- 
 lation of the relations of the employer to those whom he 
 employs and the relation of those employed by him among 
 themselves, it deals with subjects which cannot under any 
 circumstances come within the power conferred upon con- 
 gress to regulate commerce. 
 
 As it is patent that the act does regulate the relation 
 of master and servant in the cases to which it applies, it 
 must follow that the act is beyond the authority of congress 
 if the proposition just stated be well founded. But we may 
 not test the power of congress to regulate commerce solely 
 by abstractly considering the particular subject to which a 
 regulation relates, irrespective of whether the regulation in 
 question is one of interstate commerce. On the contrary, 
 the test of power is not merely the matter regulated, but 
 whether the regulation is directly one of interstate com- 
 merce, or is embraced within the grant conferred on congress 
 to use all lawful means necessary and appropriate to the 
 execution of the power to regulate commerce. We think of 
 the unsoundness of the contention, that because the act regu- 
 lates the relation of master and servant, it is unconstitu- 
 tional, because under no circumstances and to no extent can 
 the regulation of such subject be within the grant of author-
 
 CONSTITUTIONALITY OP STATUTE. 21 
 
 ity to regulate commerce, is demonstrable. We say this be- 
 cause we fail to perceive any just reason for holding that 
 congress is without power to regulate the relation of master 
 and servant, to the extent that regulations adopted by con- 
 gress on that subject are solely confined to interstate com- 
 merce, and, therefore, are within the grant to regulate that 
 commerce or w^ithin the authority given to use all means 
 appropriate to the exercise of the powers conferred. T® il- 
 lustrate: Take the case of an interstate railway train, that 
 is, a train moving in interstate commerce, and the regulation 
 of which therefore is, in the nature of things, a regulation 
 of such commerce. It cannot be said that because a regula- 
 tion adopted by congress as to such train when so engaged 
 in interstate commerce deals with the relation of the master 
 to the servants operating such train or the relations of the 
 servants engaged in such operation between themselves, that 
 it is not a regulation of interstate commerce. This must be, 
 since to admit the authority to regulate such train, and yet 
 to say that all regulations which deal with the relation of 
 master and servants engaged in its operation are invalid for 
 want of power would be but to concede the power and then 
 to deny it, or, at all events, to recognize the power and yet 
 to render it incomplete. Because of the reasons just stated 
 we might well pass from the consideration of the subject. 
 We add, however, that we think the error of the proposition 
 is shown by previous decisions of this court. Thus, the want 
 of power in a state to interfere with an interstate commerce 
 train, if thereby a direct burden is imposed upon interstate 
 commerce, is settled beyond question.^^ And decisions 
 cited in the margin,-^ holding that state statutes which regu- 
 
 '^ Mississippi E. R. Co. v. Illi- Commissioners, 207 U. S. .328; 28 
 
 nois Cent. R. R., 203 U. S. 336, Sup. Ct. Rep. 121; 52 L. Ed. 230. 
 
 343; 27 Sup. Ct. Rep. 90; 51 L. =* Sherlock v. Ailing, 93 U. S. 
 
 Ed. 209; affirming 70 C. C. A. 99; 23 L. Ed. 819; affirming 44 
 
 617; 138 Fed. Rep. 377, and Ind. 184; Missouri Pacific Ry. Co. 
 
 cases cited; Atlantic Coast Line v. Mackey, 127 U. S. 205: 8 Sup. 
 
 R. R. V. Wharton et al. Railroad Ct. Rep, 1161; 32 L. Ed. 107;
 
 22 
 
 FEDERAL EMPLOYERS LIABILITY ACT. 
 
 late the relation of master and servant were applicable to 
 those actually engaged in an operation of interstate com- 
 merce, because the state power existed until congress acted, 
 by necessary implication, refute the contention that a regu- 
 lation of the subject, confined to interstate commerce, when 
 adopted by congress would be necessarily void because the 
 regulation of the relation of master and servant was, how- 
 ever, intimately connected with interstate commerce, beyond 
 the power of congress. And a like conclusion also per- 
 suasively results from previous rulings of this court concern- 
 ing the act of congress, known as the Safety Appliance 
 Act."^^ The validity of the statute is now settled.^^^ 
 
 affirming 33 Kan. 298; 6 Pac. Rep. 
 291; Minneapolis, etc., Ry. Co. v. 
 Herrick, 127 U. S. 210; 8 Sup. Ct. Rep. 
 1176; 32 L. Ed. 109; affirming 31 
 Minn. 11; 16 N. W. Rep. 413; 47 Am. 
 Rep. 771; Chicago, etc., Ry. Co. v. 
 Pontius, 157 U. S. 209; 155 Sup. Ct. 
 Rep. 58; 39 L. Ed. 675; affirming 52 
 Kan. 264; 34 Pac. Rep. 739; Tullis v. 
 Lake Erie & W. R. R. 175 U. S. 348; 
 20 Sup. Ct. Rep. 136; 44 L. Ed. 192. 
 
 ^ Employers' Liability Cases, 207 
 U. S. 463; 28 Sup. Ct. Rep. 143; 52 
 L. Ed. 297; decided January 6, 1908, 
 and citing Johnson v. Southern 
 Pacific Co. 196 U. S. 1; 25 Sup. Ct. 
 Rep. 158; 49 L. Ed. 303, reversing 54 
 C. C. A. 508; 117 Fed. Rep. 462; 
 Schlemmer v. Buffalo, Rochester, etc., 
 Ry. 205 U. S. 1; 27 Sup. Ct. Rep. 407; 
 51 L. Ed. 68, reversing 207 Pa. St. 
 198; 56 Atl. Rep. 417. 
 
 The question of the constitution- 
 ality of this statute was practically 
 foreclosed in this language used in a 
 subsequent case: "In this case [the 
 Employers' Liability case] the court 
 sustained the authority of Congress, 
 under its power to regulate interstate 
 commerce, to prescribe the rule of 
 liability, as between interstate carriers 
 and its employees in such interstate 
 commerce, in cases of personal in- 
 juries received by employees while 
 actually eng.agcd in such commerce." 
 Adair v. United States, 208 U. S. 161, 
 178; 28 Sup. Ct. Rep. 277; 52 L. Ed. 
 436, reversing 1.52 Fed. Rep. 737. 
 
 **° The act is constitutional. Mon- 
 don V. New York, N. II. & R. R. Co. 
 223 U. 3. 1; 32 Sup. Ct. 32; 56 L. Ed. 
 
 327, reversing 82 Conn. 352; 73 Atl. 
 754; St. Louis, I. M. & S. Ry. Co. v. 
 Conley, 187 Fed. 949; Walsh v. New 
 York, N. H. & H. R. Co. 173 Fed. 494; 
 Watson V. St. Louis, I. M. & S. R. 
 Co. 169 Fed. 942; Zikos v. Oregon R. 
 & N. Co. 179 Fed. 893; El Paso & N. 
 E. Ry. Co. V. Gutierrez, 215 U. S. 87; 
 30 Sup. Ct. 21; 54 L. Ed. 106; 37 
 Wash. L. Rep. 782; affirming 117 S. 
 W. 436, which reversed (Tex. Civ. 
 App.), 117 S. W. 159, and approved 
 Hyde v. Southern Ry. Co., 31 App. 
 D. C. 466; Cain v. Southern Ry. Co. 
 199 Fed. 211; Illinois Central R. Co. 
 V. Doherty, 153 Ky. 363; 155 S. A. 
 1119; Missouri, K. & T. Ry. Co. v. 
 Sadler (Tex. Civ. App.), 149 S. W. 
 1188; Philadelphia B. & W. R. Co. v. 
 Schubert, 224 U. S. 603; 32 Sup. Ct. 
 589; 56 L. Ed. 911, affirming 36 App. 
 D. C. 565; Chicago B. & O. R. Co. v. 
 McGuire, 219 U. S. 549; 31 Sup. Ct. 
 259; 55 L. Ed. 328; Hyde v. Southern 
 R. Co., 31 App. D. C. 466; Illinois 
 Cent. R. Co. v. Behrens, 233 V. S. 
 473; 34 Sup. Ct. 646; 58 L. Ed. 1051. 
 
 "The power of Congress to deal 
 with the subject comes from its power 
 to regulate commerce between the 
 states." Michigan Cent. R. Co. v. 
 Vreeland, 227 U. S. 59; 33 Sup. Ct. 
 192; 57 L. Ed. 192, reversing 189 
 Fed. '495. 
 
 Section three has been held valid. 
 McNamera v. Washington Terminal 
 Co., 35 App. D. C. 230; Potter v. 
 Baltimore & 0. R. Co. 37 Wash. Law 
 Rep. 466. Section 5 is constitutional. 
 Philadelphia B. & W. R. Co. v. 
 Schubert, 224 U. S. 603; 32 Sup. Ct.
 
 § 12. Constitutionality of Wisconsin and Nebraska Stat- 
 utes. — The statute of Wisconsin allowing a recovery where 
 the plaintiff has contributed to his injuries by his negli- 
 gence, but apportioning the damages according to his neg- 
 ligence which contributed to the injury, has been held consti- 
 tional. It is not void because it applies only to railroads; 
 nor is it void because it exempts office and shop employees 
 from its provisions.-^* So the Nebraska statute has been 
 held valid.-^t 
 
 589; 56 L. Ed. 911, affirming 36 App. 
 D. C. 565. [See also McGuire v. 
 Chicago, B. & O. Ry. Co. 131 Iowa, 
 340; 108 N. W. 902, on the vaUdity 
 of a state statute.] In one case it was 
 decided that Congress has authority 
 to prescribe rules of liability as be- 
 tween an interstate carrier and its 
 employees in interstate commerce in 
 case of injury to the employee while 
 actually engaged in such commerce; 
 that the Act of June 22, 1908, does 
 not attempt to delegate judicial 
 power of the United States to state 
 courts, in violation of Article 3 of the 
 Constitution, but creates substantive 
 rights not solely cognizable in the 
 Federal courts, but which may be 
 availed of in any court of competent 
 jurisdiction, State or Federal; that 
 the Act is not invalid because it 
 results in establishing rules and meas- 
 ures of liability in cases to which it 
 applies, different from those which 
 e.xist under the state laws in other 
 cases arising from the relation of 
 master and servant, nor because it 
 gives a right of recovery in case of the 
 death of an employee to different 
 parties; that whether or not the Act 
 is effective to carry out the purpose 
 intended, and thus promote inter- 
 state commerce, is a legislative and 
 not a judicial question, which can not 
 affect the constitutional power of 
 Congress to enact it; and that the Act 
 is not unconstitutional as denying the 
 equal protection of the laws to the 
 carriers affected thereby. If section 
 5 was invalid, it was held that its 
 invalidity would not affect the re- 
 mainder of the Act. Zikos v. Oregon 
 R. & N. Co. 179 Fed. 893. 
 
 In the case of Hoxie v. New York, 
 N. H. & H. R. Co. 82 Conn. 352; 73 
 Atl. 754, almost every line of the Act 
 was held to be unconstitutional. That 
 was a suit brought in a state court to 
 recover damages. The Supreme 
 Court held that a state court had no 
 jurisdiction of such an action — one 
 brought under the statute — and then 
 in its eagerness to strike down the Act, 
 violated a practically universal prac- 
 
 tice — never to pass upon the con- 
 stitutionality of a statute unless 
 necessary to a disposal of the case, 
 especially so if the court had no 
 jurisdiction of the action brought — 
 and held the entire Act unconsti- 
 tutional. The prejudice of the writer 
 of that opinion against Federal 
 legislation is manifest throughout the 
 opinion. Because of this opinion. 
 Congress, in 1910, amended the Act 
 expressly, giving state courts juris- 
 diction. See also Mondon v. New 
 York, etc., R. Co. 82 Conn. 373; 73 
 Atl. 762; reversed 223 U. S. 1; 32 
 Sup. Ct. 169; 56 L. Ed. 327. The 
 application of this statute to carriers 
 within the District of Columbia, 
 whose lines extend beyond the 
 District, that is, who are also in- 
 terstate commerce carriers, does not 
 render the Act unconstitutional. 
 Washington Ry. Co. v. Downey, 40 
 App. D. C. 147. 
 
 The power to regulate carriers 
 within the District of Columbia does 
 not depend on the interstate com- 
 merce clause, but to the power of 
 congress to legislate generally for the 
 District. McNamara v. Washington 
 Terminal Co. 37 App. D. C. 389. 
 
 Within the states the Act of June 
 11, 1906, is not valid for any purpose. 
 Chicago I. & L. R. Co. v. Hackett, 
 228 U. S. 559; 33 Sup. Ct. 581; 57 
 L. Ed. 581, affirming 170 111. App. 140. 
 
 23* Kiley v. Chicago, M. & St. P. 
 Ry. Co. 145 Wis. 326; 128 N. W. 982; 
 Kilev V. Chicago, M. & St. P. Ry. Co. 
 138 Wis. 215; 119 N. W. 309; 120 N. 
 W. 756; Ladd v. Minneapolis, St. P. 
 & S. S. M. Ry. Co. 142 Wis. 165; 
 125 N. W. 468. 
 
 2'tSwoboda v. Union Pacific R. Co. 
 87 Neb. 200; 127 N. W. 215; Missouri 
 Pacific Ry. Co. v. Castle, 172 Fed. 
 841. This Nebraska statute covers 
 the case of a railway company's ser- 
 vant employed in the water supply 
 department and engaged in drilling 
 a well to be used in supplying its 
 locomotives with water. Metz v. 
 Chicago, B. & Q. R. Co. 88 Neb. 459; 
 129 N. W. 994.
 
 24 
 
 FEDERAL EMPLOYERS LL^ILITY ACT. 
 
 § 13. Invalidity of Act of 1906.— The ground of the de- 
 cision ^° of the Supreme Court was that matters pertaining 
 to the state and those pertaining to the Federal Government 
 
 The validity of the Act of 1006 
 had been before the lower courts, 
 and in four cases had been held 
 constitutional. The reasoning of 
 these cases upholds the claim that 
 Congress has the power to enact 
 a statute on the subject; and upon 
 that question may be considered 
 authoritative, though, as applied 
 to the ground upon which that act 
 was held invalid, they cannot be 
 BO considered. They are Spain v. 
 St. Louis, etc., R. Co. 151 Fed. 
 Rep. 522, from the Eastern Dis- 
 trict of Arkansas, decided March 
 13, 1907; Snead v. Central 
 Georgia Ry. Co. 151 Fed. Rep. 
 608, from the Southern District of 
 Georgia, decided March 25, 1907; 
 Plummer v. Northern Pacific Ry. 
 Co. 152 Fed. Rep. 206, from the 
 Western District of Washington, 
 decided March 2, 1907, and Kel- 
 ley V. Great Northern Railway Co. 
 152 Fed. Rep. 211, from the Dis- 
 trict of Minnesota, decided March 
 11, 1907. None of these cases 
 make any reference to any of the 
 others. 
 
 On the other hand, December 31, 
 1906, the Circuit Court for the 
 Western District of Kentucky held 
 the statute of 1906 void, both on 
 the ground that Congress had no 
 power to legislate upon the sub- 
 ject-matter as it related to inter- 
 state commerce, and also that it 
 was void upon the ground the Su- 
 preme Court later held it invalid. 
 Brooks v. Southern Pac. Co. 148 
 Fed. Rep. 986. A similar decision 
 was rendr-rcd in the Circuit Court 
 for the Western District of Ten- 
 
 nessee. Howard v. Illinois Cen- 
 tral R. Co. 148 Fed. Rep. 997, de- 
 cided January 1, 1907. These 
 were the two cases appealed from 
 and affirmed as the Employer's Li- 
 ability Cases. 
 
 For cases upholding the validity 
 of the Safety Appliance statute. See 
 Johnson v. Railroad. 196 U. S. 1; 
 25 Sup. Ct. Rep. 158; 49 L. Ed. 
 363; affirming 117 Fed. Rep. 462; 
 and Schlemmer v. Railroad, 205 
 U. S. 1; 27 Sup. Ct. Rep. 407; 
 51 L. Ed. 88; reversing 207 Pa. 
 St. 198; 56 Atl. Rep. 417. See 
 also Chicago, etc., R. Co. v. 
 Voelker, 129 Fed. Rep. 526; S. C. 
 110 Fed. Rep. 867. 
 
 See also speech of Congressman 
 Henry of Texas, 60 Cong. Record, 
 1st Sess., p. 4427. See pp. 4428, 
 4429, 4430 and 4431 for report of 
 minority holding the proposed act 
 of 1908 unconstitutional, and pp. 
 4428, 4431, 4432, 4433 for speech 
 of Congressman Littlefield of 
 Maine, holding the bill unconsti- 
 tutional. See also pp. 4434, 4435 
 and 4436 ( inserted in this work as 
 Appendix B) of same volume, 
 holding bill valid. For dissenting 
 views from the majority report in 
 favor of the bill of Congressman 
 Parker of New Jersey, see pp. 4437 
 and 4438 of same volume. 
 
 '* Employers' Liability Cases, 
 207 U. S. 463; 28 Sup. Ct. Rep. 
 141; 52 L. Ed. 297, affirming 
 Brooks V. Southern Pac. ^o. 148 
 Fed. Rep. 986, and Howard v. 
 Illinois Central Ry. Co. 148 Fed. 
 Rep. 997.
 
 CONSTITUTIONALITY OF STATUTE. 25 
 
 were so blended that they could not be separated by the 
 court, and, therefore, the whole act must be held void.-''' 
 
 § 14. The parts of the Act of 1906 rendering it invalid. — 
 
 In analyzing the statute of 1906 and pointing out the clauses 
 which rendered it invalid, and why it must be considered in- 
 valid, Justice White called particular attention to the fact 
 that the act did not confine itself to the business of interstate 
 commerce, but sought to embrace all who engaged in inter- 
 state commerce as common carriers, regardless of the fact 
 that the servant injured may have had nothing whatever to 
 do with interstate commerce or the carrier when he was in- 
 jured, may not have been working in connection with the busi- 
 ness of interstate commerce. In presenting this phase of the 
 case, he said: "From the first section it is certain that the 
 act extends to every individual or corporation who may en- 
 gage in interstate commerce as a common carrier. Its all 
 embracing words leave no room for any other conclusion. 
 It may include, for example, steam railroads, telegraph 
 lines, telephone lines, the express business, vessels of 
 every kind, whether steam or sail, ferries, bridges, wagon 
 lines, carriages, trolley lines, etc. Now, the rule which the 
 statute establishes for the purpose of determining whether 
 all the subjects to which it relates are to be controlled by its 
 provisions is that any one who conducts such business be a 
 'common carrier engaged in trade or commerce in the Dis- 
 
 " Chief Justice Fuller and Jus- prepared to agree with what was 
 tices White, Day, Peckham and stated in the opinion delivered by 
 Brewer adopted this view. Jus- Justice White. In that deter- 
 tices Moody, Harlan, McKenna and mination Justices Harlan, McKen- 
 Holmes hold that the invalid por- na, Moody and Holmes agreed, 
 tions can be separated by inter- It will thus appear that six out 
 pretation, and as so separated it of the nine judges concurrca in 
 is valid. .Just ces White and the assumption that Congress 
 Day neld that Congress had the ctnild enact a valid statute con- 
 power to enact a valid statute cerning the liability of employers 
 upon the subject, while Justices of an interstate carrier for in- 
 Brewer, Peckham and Chief Jus- juries occasioned in interstate bus- 
 tice Fuller declared they were not iness.
 
 26 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 trict of Columbia, or in any territory of the United States, 
 or between the several states,' etc. That is, the subjects 
 stated all come within the statute when the individual or 
 corporation is a common carrier who engages in trade or 
 commerce between the states, etc. From this it follows that 
 the statute deals with all the concerns of the individuals or 
 corporations to which it relates if they engage as common 
 carriers in trade or commerce between the states, etc., and 
 does not confine itself to the interstate commerce business 
 which may be done by such persons. Stated in another form, 
 the statute is addressed to the individuals or corporations 
 who are engaged in interstate commerce and is not confined 
 solely to regulating the interstate commerce business which 
 such persons may do; that is, it regulates the persons be- 
 cause they engage in interstate commerce and does not alone 
 regulate the business of interstate commerce. And the con- 
 clusion thus stated, which flows from the text of the act 
 concerning the individuals or corporations to which it is 
 made to apply, is further demonstrated by a consideration 
 of the text of the statute defining the servants to whom it 
 relates. Thus, the liability of a common carrier is declared 
 to be in favor of 'any of its employes.' As the word 'any' 
 is unqualified, it follows that liability to the servant is co- 
 extensive with the business done by the employers whom the 
 statute embraces; that is, it is in favor of any of the em- 
 ployes of all carriers who engage in interstate commerce. 
 This also is the rule as to the one who otherwise would 
 be a fellow servant, by whose negligence the injury or death 
 may have been occasioned, since it is provided that the right 
 to recover on the part of any servant will exist, although the 
 injury for which the carrier is to be held resulted from 'the 
 negligence of any of its officers, agents or employes.' The 
 act then being addressed to all common carriers engaged in 
 interstate commerce, and imposing a liability upon them in 
 favor of any of their (imployes, without qualification or re- 
 striction as to the business in which the carriers or their
 
 CONSTITUTIONALITY OF STATUTE. 27 
 
 employes may be engaged at the time of the injury, of neces- 
 sity includes subjects wholly outside of the power of con- 
 gress to regulate commerce. "Without stopping to consider 
 the numerous instances where although a common carrier is 
 engaged in interstate commerce such carrier may in the 
 nature of things also transact business not interstate com- 
 merce, although such local business may indirectly be related 
 to interstate commerce, a few illustrations showing the opera- 
 tion of the statute as to matters wholly independent of inter- 
 state commerce will serve to make clear the extent of the 
 power which is exerted by the statute. Take a railroad 
 engaged in interstate commerce, having a purely local branch 
 operated wholly within a state. Take again the same road 
 having shops for repairs, and it may be for construction 
 work as well as a large accounting and clerical force, and 
 having, it may be, storage elevators and warehouses, not to 
 suggest besides the possibility of its being engaged in other 
 independent enterprises. Take a telegraph company engaged 
 in the transmission of interstate and local messages. Take 
 an express company engaged in local as w^ell as in interstate 
 business. Take a trolley line moving wholly within a state 
 as to a large part of its business and yet as to the remainder 
 crossing the state line. 
 
 As the act thus includes many subjects wholly beyond the 
 power to regulate commerce and depends for its sanction 
 upon that authority, it results that the act is repugnant to 
 the Constitution, and cannot be enforced unless there be 
 merit in the propositions advanced to show that the statute 
 may be saved. ' ' ^- 
 
 § 15. Congress can only legislate concerning interstate 
 business. — In the case in the Supreme Court, an endeavor 
 was made to uphold the Act of 1906 on the ground that 
 "any one who engages in interstate commerce thereby sub- 
 
 32 Employers' Liability Oases, And as to the District of Cohun- 
 
 207 U. S. 463; 28 Sup. Ct. Kep. bia: Philadelphia, B. & W. R. Co. 
 
 143; 52 L. Ed. 297. v. Tucker, 35 App. D. C. 123; Mc- 
 
 The Act of 1906 was valid as Namara v. Washington Terminal 
 
 to the territories. El Paso & N. Co. 35 App. D. C. 230; Hyde v. 
 
 E. R. Co. V. Gutierrez, 215 U. S. Southern Ry. Co. 31 App. D. C. 
 
 87: 30 Sup. Ct. 21; 54 L. Ed. 466; 36 Wash. L. Rep. 374; Gold- 
 
 106, affirming 102 Tex. 378; 117 stein v. Baltimore & O. R. Co. 37 
 
 S W 426 • Atchison, T. & S. F. Wash. L. Rep. 2. It is not vahd for 
 
 Ry. Co. V. Mills (Tex. Civ. App.), any purpose within the states. Chi- 
 
 1A9 Q W dSO cago I. & L. R. Co. V. Hackett, 22s 
 
 581, affirming 170 111. App. 140.
 
 28 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 mits all his business concerns to the regulating of congress." 
 To this claim the court said: "To state the proposition is 
 to refute it. It assumes that because one engages in inter- 
 state commerce he thereby endows congress with power not 
 delegated to it by the Constitution ; in other words, with the 
 right to legislate concerning matters of purely state concern. 
 It rests upon the conception that the Constitution destroyed 
 that freedom of commerce which it was the purpose to pre- 
 serve, since it treats the right to engage in interstate com- 
 merce as a privilege which cannot be availed of except upon 
 such conditions as congress may prescribe, even although the 
 conditions would be otherwise beyond the power of congress. 
 It is apparent that if the contention were well founded it 
 would extend the power of congress to every conceivable 
 subject, however inherently local, would obliterate all the 
 limitations of power imposed by the Constitution, and would 
 destroy the authority of the states as to all conceivable matters 
 which from the beginning have been, and must continue to 
 be, under their control so long as the Constitution endures." ^^ 
 
 " Employers' Liability Cases, 207 U. S. 463; 28 Sup. Ct. Rep. 143; 52 L. 
 Ed. 297. Illinois Central R. Co. v. Behrens, 233 U. S. 473; 34 Sup. Ct. 646; 58 
 L. Ed. 1051.
 
 CONSTITUTIONALITY OF STATUTE, 29 
 
 § 16. Interrelation of interstate and intrastate commerce 
 as effecting Constitutionality of Act. — The statute is not 
 invalid, though, merely because it nia}^ also affect interstate 
 commerce. "Considering the status of the railroad as a 
 highway for both interstate and intrastate commerce." 
 said Justice Van Devanter, "the interdependence of the 
 two classes of traffic in point of movement and safety, the 
 practical difficulty in separating and dividing the general 
 work of the switching crew, and the nature and extent of 
 the power confided to Congress by the commerce clause of 
 the constitution, we entertain no doubt that the liability 
 of the carrier for injuries suffered by a member of the 
 crew in the course of its general work was subject to 
 regulation by Congress, whether the particular service 
 being performed at the time of the injury, isolatedly con- 
 sidered, was in interstate or intrastate commerce. "^^"^ 
 
 § 17. Effect of Act of 1908 on State Legislation.— A ques- 
 tion of great importance is, "What is the effect of the Act 
 of 1908 upon state legislation, where the business of inter- 
 state commerce is involved?" Before the passage of either 
 the Act of 1906 or that of 1908, many states had enacted 
 statutes which applied in terms to carriers engaged in inter- 
 state commerce, and even to carriers when engaged in the 
 business of interstate commerce ; recoveries had been 
 allowed by employes in many instances where they received 
 their injuries while engaged in such business. As congress 
 had not yet legislated upon the subject, fewer difficulties 
 were presented than there are now. The legislation of 1908 
 is so much broader in many of its most vital provisions that 
 
 ""Illinois Central R. Co. v. 64G; 58 L. Ed. 1051; Connole v. 
 Behrens, 233 U. S. 473; 34 Sup. Ct. Norfolk & W. Hy. Co. 216 Fed. 823.
 
 30 FEDERAL, EMPLOYERS' LIABILITY ACT. 
 
 few occasions will probably present themselves; nevertheless, 
 the question is an important one. This question under the 
 Act of 1906 was discussed but not decided.^* No question 
 seriously arises where a state statute and the Act of 1908 
 cover the same incident or injury : that the latter will control 
 and the former must give way.^^ There is a line of cases 
 which hold that where a state statute amounts to the regu- 
 lation of interstate commerce, yet local in its character, it 
 can be sustained by reason of the absence of congressional 
 legislation in respect thereto.^* In one case, speaking of 
 quarantine regulations, the Supreme Court of the United 
 States has said: "It may be conceded that whenever con- 
 gress shall undertake to provide for the commercial cities of 
 the United States a general system of quarantine, or shall 
 confide the execution of the details of such system to a 
 National Board of Health, or to local boards, as may be 
 found expedient, all state laws on the subject will be abro- 
 gated, at least so far as the two are inconsistent."^^ In 
 another case it was said: "Generally, it may be said in 
 respect to laws of this character that, though resting upon 
 the police power of the state, they must yield whenever con- 
 gress, in the exercise of the powers granted to it, legislates 
 upon the precise subject-matter, for that power, like all other 
 
 ^Hall V. Chicago, etc., Ry. Co. parte McNiel, 13 Wall. 236; 20 
 
 149 Fed. Rep. 564. L. Ed. 624: Mobile County v. 
 
 »(;ulf, etc., Ry Co. v. Hefley, Kimball, 102 U. S. 691; 26 L. 
 
 158 U. S. 98; 15 Sup. Ct. Rep. Ed. 238, affirming: 3 Woods, 555; 
 
 802; 39 L. Ed. 910. Fed. Cas. No. 7,774; Packet Co. v. 
 
 "Such are Railroad Co. v. Ful- Cattlesburg, 105 U. S. 559; 26 
 
 ler, 17 Wall. 560; 21 L. Ed. 710; L. Ed. 1; Transportation Co. v. 
 
 Wilson V. Blackbird, etc., Co. 2 Rarkersburg, 107 U. S. 691; 2 
 
 Pet. 245; 7 L. Ed. 412; Cooley v. Sup. Ct. Rep. 732: 27 L. Ed. 584; 
 
 Philadelphia Port Wardens, 12 Escanaba Co. v. Chicago, 107 U. S. 
 
 How. 299; 13 L. Ed. 996; Penn- 678; Morgan v. Louisiana, 118 U. 
 
 sylvania v. Wheeling, etc.. Bridge, S. 455; 6 Sup. Ct. Rep. 1114; 30 
 
 18 How. 421; 15 L. Ed. 435; U Ed. 237; affirming 36 La. Ann. 
 
 Brig James firay v. Ship John 606. 
 
 Eraser, 21 How. 184; 16 L. Ed. "Morgan v. Louisiana, supra, 
 
 106; rjilman v. Philadelphia, 3 quoted in Gulf, etc., R. Co. v. Hef- 
 
 Wall. 713; 18 L. Ed. 90; Ex ley, supra.
 
 CONSTITUTIONALITY OF STATUTE. ^\ 
 
 reserved powers of the states, is subordinate to those terms 
 conferred by the Constitution upon the nation. "^^ In an 
 earlier case it was said: "It is said, however, that, under 
 the decisions of this court, there is a kind of neutral ground, 
 especially in that covered by the regulation of commerce, 
 which may be occupied by the state, and its legislation be 
 valid so long as it interferes with no act of congress or treaty 
 of the United States. Such a proposition is supported in the 
 passenger cases,^^ by the decisions of this court in CooJey 
 V. Tihe Board of Wardens,*^ and by the cases of Crandall v. 
 Nevada*^ and by Gilmer v. Philadelphia.*^ But this doc- 
 trine has always been controverted in this court, and has sel- 
 dom, if ever, been stated without dissent. These decisions, 
 however, all agree, that under the commerce clause of the 
 Constitution, or within its compass, there are powers, which, 
 from their nature, are exclusive in Congress; and, in the 
 case of Cooley v. The Board of Wardens,*^ it was said, that 
 'whatever subjects of this power are in their nature national, 
 or admit of one uniform system or plan of regulation, may 
 justly be said to be of such a nature as to require exclusive 
 legislation by Congress.' A regulation which imposes oner- 
 ous, perhaps impossible, conditions on those engaged in active 
 commerce with foreign nations, must of necessity be national 
 in its character. ' ' ** 
 
 § 18. Effect of Act of 1908 on State Legislation, con- 
 tinued. — The cases from which these quotations are made 
 do not necessarily settle the question ; for the subject of 
 interstate commerce under the decisions has greatly expanded 
 in the last thirty years. Many of the cases discussing the 
 subject have resulted in distinctions being drawn concerning 
 what are and what are not acts of interstate commerce; and, 
 
 ««Gulf, etc., Ry. Co. v. Hefley, *=3 Wall. 713. 
 
 supra. *' Supra. 
 
 ^n How. 283. "Henderson v. Mayor, 92 U. S. 
 
 *''12 How. 299. 259; 23 L. Ed. 543. 
 
 " 6 Wall. 35.
 
 32 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 of course, in all instances where the Supreme Court of the 
 United States reached the conclusion that a state statute did 
 not interfere with or was not a regulation of commerce be- 
 tween the states, no further question was presented of the 
 power of a state to legislate upon questions of interstate com- 
 merce. In 1886 was decided a case of far-reaching conse- 
 quences, and which called forth legislation by Congress upon 
 the subject of interstate commerce. A statute of Illinois 
 undertook to regulate shipments over railroads where they 
 were made both solely within the state as well as beyond its 
 borders; and the court held so much of it as related to ship- 
 ments beyond the state lines was void, because it was legis- 
 lation upon a subject the regulation of which had been 
 confided solely to Congress. This was a decision rendered 
 before Congress had legislated upon the subject-matter of the 
 Illinois statute.^^ Eight years later the doctrine of this case 
 was applied to a bridge between two states, holding that 
 one of the states could not regulate the tolls for passengers 
 over it, for the reason that only Congress could regulate 
 them.*" But in considering this subject, it must not be over- 
 looked that the interstate commerce law of the Constitution 
 does not prohibit a state exercising its police power for the 
 
 *^ Wabash R. Co. v. Illinois, 118 a tax upon the instrumentalities 
 
 U. S. 557; 7 Sup. Ct. Rep. 4; 30 of interstate commerce, even in 
 
 L. Ed. 244 ; reversing 105 111. the absence of congressional legis- 
 
 236. lation. State Freight Tax Cases, 
 
 *« Covington, etc., Co. v. Ken- 15 Wall. 232; 21 L. Ed. 146; re- 
 tucky. 154 U. S. 204; 14 Sup. Ct. versing 02 Pa. St. 286; 1 Am. 
 Rep. 1087; 38 L. Ed. 962; re- Rep. 399; Robbins v. Shelby Tax- 
 versing 15 K. L. Rep. 320; 22 S. ing District, 120 U. S. 489; 7 
 W. Rep. 851. Sup. Ct. Rep. 592; 30 L. Ed. 694, 
 
 A state cannot discriminate reversing 13 Leo 303; Western 
 
 against liquors being imported Union Tel. Co. v. Pendleton, 122 
 
 into it so long as it recognizes \\ S. 347; 7 Sup. Ct. Rep. 1126; 
 
 their sale, manufacture and use. ',]() L. Ed. 11S7: reversing 95 Tnd. 
 
 Scott V. Lkmald. 165 U. S. .58; 12; 48 Am. Rep. 692; Telegraph 
 
 17 Sup. Ct. Rep. 262; 41 L. Ed. Co. v. Texas, 105 U. S. 460; Pen- 
 
 648; Vance v. Vanderc(M)k, 170 U. sacola Tel. Co. v. Western Union 
 
 S. 438; 18 Sup. Ct. Rep. 674; 42 Tel. Co. 96 L. S. 1; 24 L. Kd. 
 
 L. Ed. 1100. 70S; affirming 2 Woods, 643; 
 
 Of course, a state cannot levy Fed. Cas. No. 10,900.
 
 COXSTITUTIONALITY OF STATUTE. 33 
 
 safety and health of its own inhabitants. Thus, a statute 
 concerning color-blindness of railroad engineers is valid, al- 
 though they may be engaged in running locomotives hauling 
 trains from one state to another, on the ground that it was 
 the plain duty for a state to make provisions for the safety 
 of its inhabitants.*^ So statutes respecting crossings of rail- 
 roads and highways of railway companies engaged in inter- 
 state commerce are valid ; so are statutes regulating the speed 
 of trains within municipalities.*^ So are statutes requiring 
 guard posts on railroad trestles and bridges.*^ But notwith- 
 standing these decisions, it is an accepted rule that in all 
 instances where freedom of commerce between the states is 
 directly involved, the failure of Congress to enact a statute 
 fitting a particular instance is to be taken as an indication 
 of the will of that body that such commerce should remain 
 free and untrammeled ; and in such instances attempted state 
 legislation on such particular instances is void. Yet notwith- 
 standing this general rule, where Congress enacted a law 
 making it unlawful to transport known diseased cattle from 
 one state to another, a state statute imposing a civil liabil- 
 ity upon a railway company which brought diseased cattle 
 into the state, and another statute that made it a finable of- 
 fense to bring into the state cattle which, within ninety days 
 before their importation, had herded with stock having a 
 contagious disease, were held valid; for the state had not 
 assumed charge of their transportation but was aiming to 
 protect its own people and their property against the danger 
 of contact with diseased stock. But it was said in substance 
 that if the entire subject of transportation of diseased stock 
 
 *' Smith V. Alabama, 124 U. S. 584; 20 Sup. Ct. Eep. 819; 44 L. 
 
 465; 8 Sup. Ct. Rep. 564; 31 L. Ed. 897; affirming 60 Kan. 251; 
 
 Ed. 508, affirming 76 Ala. 69; 56 Pac. Rep. 133. 
 Nashville, etc., R. Ck). v. Alabama, " New York, etc., R. Co. v. New 
 
 128 U. S. 96; 9 Sup. Ct. Rep. York, 165 U. S. 628; 17 Sup. Ct. 
 
 28; 32 L. Ed. 352; affirming 83 Rep. 418; 41 L. Ed. 853; attirm- 
 
 Ala. 71; 3 So. Rep. 702. ing 142 N. Y. 646; 37 N. E. Rep. 
 
 «Eib V. Morasch, 177 U. S. 568.
 
 34 
 
 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 from one state to another had been taken over by Congress 
 and a system devised by which such stock could be excluded 
 or their transportation so regulated as not to endanger the 
 inhabitants or property of the receiving state, all local regu- 
 lations would cease and remain suspended until the Federal 
 statute was repealed and the Federal control abandoned.^'^ 
 
 § 19. Result of decisions. — The Federal Act covers every 
 instance of any person suffering an injury from negli- 
 gence while he is employed "in commerce between any 
 of the several states or territories, or between any of the 
 states and territories, or between the District of Columbia 
 and any of the states and territories, or between the District 
 of Columbia or any of the states and territories and any 
 foreign nation," and all state regulations are void, because 
 
 5" Oliver v. Northern Pac. Ry. Co. 
 196 Fed. 432. It is clear, from the 
 debates, that many of the Senators 
 entertained the notion that the act 
 would nullify all state legislation upon 
 the same subject so far as it related to 
 employees engaged in interstate com- 
 merce. In discussing the subject, 
 Senator Bacon said: "Aly proposition 
 is this — and as a proposition of law 
 I do not think I can possibly be mis- 
 taken in it — that whenever the Con- 
 gress of the United States has juris- 
 diction to enact a law for the regu- 
 lation of interstate commerce, it 
 necessarily nuUifies the law of a state 
 passed upon the same subject, and 
 that when you pass this law no law 
 of any state prescribing the rules of 
 liabiUty for an employee engaged in 
 interstate commerce is any longer of 
 any force or effect. That is necessar- 
 ily so, and whether it can be enforced 
 in a state court or in a federal court, 
 the law thereafter must be this law 
 and no other law. The day it is pas- 
 sed every state law which prescribes 
 a rule of liaiMlity for an employee en- 
 gaged in interstate commerce is an- 
 nulled, and it is the same as if it had 
 been the repeal of the law of the 
 state." 
 
 Senator Bevoridge: "Our power is 
 exclusive when we act." 
 
 Senator Bacon: "Absolutely so. 
 There is no doubt aV)out that in the 
 world. It is only a question of juris- 
 diction to act." 
 
 Senator Beveridge: "Certainly." 
 
 Senator Bacon: "If we have the 
 jurisdiction to act, and do act, the 
 federal law is supreme, and it nullifies 
 every state law on the subject." 
 
 Senator Clay: "My idea was that 
 when the bill should become a law 
 all laws in the state fixing the rule of 
 liability of common carriers engaged 
 in interstate commerce would be 
 superseded by virtue of this law, and 
 whenever an employee proceeds 
 against a railway company for in- 
 juries suffered, he must look to this 
 statute to fix the rule of liability, and 
 not to the statute of the state." 
 
 Senator Borah: "If a party is en- 
 gaged at the time of his injury in 
 interstate commerce, his rights and 
 obligations must undoubtedly be 
 settled by the law which we shall pass. 
 If he should be engaged in state com- 
 merce or interstate commerce, the 
 state law would obtain. In other 
 words, this proposed law would only 
 annul the state law in so far as it 
 affects interstate commerce." 
 
 Senator Clay: "I think the Senator 
 is eminently correct. The statute of 
 Georgia, fixing a liability against 
 railroad companies in favor of em- 
 ployees relating to commerce within 
 the state would not be changed by the 
 passage of this statute. It would 
 simply affect the employees engaged 
 at the time of the accident in inter- 
 state commerce. I do not think there 
 is any question about that." 60 
 Cong. Record, 1st Sess., pp. 4528,4529.
 
 CONSTITUTIONALITY OF STATUTE. 
 
 35 
 
 Congress has manifested a desire and has covered the whole 
 subject so far as was the intention of Congress that such an 
 employe should have a right of action. The entire question 
 resolves itself into a matter of construction. A careful read- 
 ing of the statute shows that Congress has covered the en- 
 tire subject of liability of an interstate railroad company 
 for negligence to its employe engaged in interstate com- 
 merce ; and that question has been settled by many deci- 
 sions.^^ 
 
 § 20. Effect of repeal of federal statute. — The question, 
 of course, is a speculative one, but will bear allusion to in 
 
 " Taylor v. Taylor, 232 U. S. 363 
 34 Sup. Vt. 350; 58 L. Ed. 638; Smith 
 V. Camas Prarie Ry. Co. 216 Fed. 799 
 Thomas v. Chicago & N. W. Ry. Co 
 202 Fed. 766; The Pasaic, 190 Fed 
 694; DeAtley v. Chesapeake & O 
 R. Co. 201 Fed. 591; Kelly v. Chesa- 
 peake & O. R. Co. 201 Fed. 602 
 Delaware, I. & W. R. Co. v. Troxell 
 
 188 Fed. 842; Michigan Central R 
 Co. V. Vreeland, 227 U. S. 59; 33 
 Sup. Ct. 192; 57 L. Ed. 417, reversing 
 
 189 Fed. 495; Missouri, K. & T. Ry. 
 Co. V. Wulf, 226 U. S. 570; 33 Sup. 
 Ct. 135; 57 L. Ed. 274, affirming 192 
 Fed. 919; 113 C. C. A. 665; Grand 
 Trunk W. Ry. Co. v. Lindsay, 233 
 U. S. 42; 34 Sup. Ct. 581 ; 58 L. Ed. 828, 
 affirming 201 Fed. 836; 120 C. C. A. 
 166; Seaboard Air Line R. Co. v. 
 Horton, 233 U. S. 492; 34 Sup. Ct. 
 635; 58 L. Ed. — , reversing 162 N. C. 
 424; 78 S. E. 494; North Carolina 
 R. Co. V. Zackary, 232 U. S. 248; 
 34 Sup. Ct. 305; 58 L. Ed. 591, revers- 
 ing 156 N. C. 496; 72 S. E. 858; 
 Mondu V. N. Y. N. H. & H. R. R. 
 Co. 223 U. S. 1; 32 S. C. 169; 56 L. 
 Ed. 327; 38 L. R. A. (N. S.) 44; 1 N. 
 C. C. 875, reversing 82 Conn. 352; 
 73 Atl. 754; St. Louis, S. F. & T. R. 
 Co. V. Scale, 229 U. S. 156; 33 Sup. 
 Ct. 651; 57 L. Ed. 1129; Wabash R. 
 Co. V. Hayes, 234 U. S. 86; 34 Sup. 
 Ct. 729; 58 L. Ed. 1226, affirming 180 
 111. App. 511; St. Louis, etc., Ry. v. 
 Hesterly, 228 U. S. 702; 33 Sup. Ct. 
 703; 57 L. Ed. 1031, reversing 94 
 Ark. 240; 135 S. W. 874; Fithian v. 
 St. Louis & S. F. Ry. Co. 188 Fed. 842; 
 Copper River & N. W. Ry, Co. v. 
 Heney, 211 Fed. 459; Cory v. Lake 
 Shore & M. S. Ry. Co. 208 Fed. 847; 
 Oliver v. Northern Pac. Ry. Co. 196 
 Fed. 432. Many states have decided 
 the same way. Niles v. Central Vt. 
 Ry. Co. 87 Vt. 356; 89 Atl. 629; 
 Louisville & N. R. Co. v. Kemp, 140 
 Ga. 657; 79 S. E. 558; Missouri, K. & 
 
 T. Ry. Co. V. Lenahan, 39|Okla. 283; 
 135 Pac. 383; Penny v. New Orleans 
 Great Northern R. Co. 135 La. 
 962; 66 So. 313; Wagner v. Chicago 
 & A. R. Co. 265 111. 245; 106 N. E. 
 809; VandaUa R. Co. v. Stringer (Ind.) 
 106 N. E. 865; Shannon v. Boston & 
 M. R. Co. (Vt.) 92 Atl. 167; Cole v. 
 Atchison & S. F. Ry. Co. 92 Kan. 
 132; 139 Pac. 1177; La Casse v. 
 New Orleans, T. & M. R. Co. 135 
 La. 129; 64 So. 1012; Dungan v. St. 
 Louis & S. F. R. Co. 178 Mo. App. 
 164; 165 S. W. 1116; Vaughan v. 
 St. Louis & S. F. R. Co. 177 Mo. 
 App. 155; 164 S. W. 144; Southern Ry. 
 Co. V. Jacobs, 116 Va. — ; 81 S. E. 99; 
 Vickery v. New London Northern 
 Ry. Co. 87 Conn. 634; 89 Atl. 277; 
 Missouri K. & T. Ry. Co. v. Rentz 
 (Tex. Civ. App.) 162 S. W. 959; 
 Missouri, K. & T. Ry. Co. v. Sadler 
 (Tex. Civ. App.) 149 S. W. 1188; 
 Melzner v. Northern Pac. Ry. Co. 
 46 Mont. 162; 127 Pac. 1002; Rich v. 
 St. Louis & S. F. R. Co. 166 Mo. App. 
 379; 148 S. W. 1011; Rivera v. 
 Atchison, T. & S. F. Ry. Co. (Tex. 
 Civ. App.); 149 S. W. 223; South 
 Covington & C. St. Ry. Co. v. Finan, 
 153 Ky. 340; 155 S. W. 742; Illinois 
 Cent. R. Co. v. Dohertv, 153 Ky. 
 363; 155 S. W. 1119; Eastern Ry. Co. 
 v. Ellis (Tex. Civ. App.) 153 S. W. 
 701; Houston & T. C. Ry. Co. v. 
 Bight (Tex. Civ. App.) 156 S. W. 304; 
 Burnett v. Atlantic Coast Line R. 
 Co. 163 N. C. 186; 79 S. E. 414; Erie 
 R. Co. V. Welsh (Ohio St.) 105 N. E. 
 189; Burtnett v. Erie R. Co. 159 App. 
 Div. 712; 144 N. Y. Supp. 969; Nor- 
 ton v. Erie R. Co. 163 App. Div. 468; 
 148 N. Y. Supp. 771; Jones v. Charles- 
 ton & W. C. Ry. Co. 98 S. C. 197; 
 82 S. E. 415; Bramlett v. Southern 
 Ry. Co. 98 S. C. 319; 82 S. E. 501; 
 Armbruster v. Chicago, R. I. & P. 
 Ry. Co. (Iowa) 147 N. W. 337; 
 Bradbury v. Railway Co. 149 Iowa
 
 36 
 
 FEDERAL EMPLOYERS' LIABILITiT ACT. 
 
 this connection. What would be the effect of a repeal of this 
 federal statute? The Supreme Court of the United States 
 has in a way answered this question when it declared that 
 the Federal Act must remain supreme "until Congress shall 
 again remit the subject to the reserved police power of the 
 states."^ In a number of cases it has been pointed out that 
 the true effect of the Federal Act is merely to suspend ex- 
 isting state legislation and render it inoperative so long as 
 it remains in force.- 
 
 51; 128 N. W. 1; 40 L. R. A. (N. S.) 
 684; Bouchard v. Central Vt. Ry. 
 Co. 87 Vt. 399; 89 Atl. 475; White v. 
 Central Vt. Ry. Co. 87 Vt. 330; 89 Atl. 
 618; Niles v. Central Vt. Rv. Co. 87 
 Vt. 356; 89 Atl. 629; Hogerty v. 
 Philadelphia & R. Ry. Co. (Pa.) 91 
 Atl. 854; Louisville & N. R. Co. v. 
 Strange, 156 Ky. 439; 161 S. W. 239; 
 Moliter v. Wabash R. Co. 180 Mo. 
 App. 84; 168 S. W. 250; Hardrick v. 
 Wabash R. Co. 181 Mo. App. 156; 
 168 S. W. 328; Mcintosh v. St. Louis 
 & S. F. R. Co. 182 Mo. App. 288; 
 168 S. W. 821; Flanders v. Georgia, 
 S. & F. Ry. Co. (Fla.) 67 So. 68; 
 Lauer v. Northern Pac. Ry. Co. 
 (Wash.) 145 Pac. 606; Shannon v. 
 Boston & M. R. (N. H.) 92 Atl. 167; 
 Missouri, K. & T. Ry. Co. v. Lenahan, 
 39 Okla. 283; 135 Pac. 383; Charleston 
 & W. C. Ry. Co. V. Anchors, 10 Ga. 
 App. 322; 73 S. E. 551; Southern Ry. 
 Co. V. Howerton (Ind.) 105 N. E. 
 1025; Kansas City, M. & O. Ry. Co. 
 V. Pope (Tex. Civ. App.) 1.52 S. W. 
 185; Eastern Ry. Co. v. ElUs (Tex. 
 Civ. App.) 1.53 S. W. 701; De Rivera 
 V. Atchison, T. & S. F. Ry. Co. (Tex. 
 Civ. App.) 149 S. W. 223; Gee v. 
 Lehigh V. R. Co. 163 App. Div. 274; 
 148 N. Y. Supp. 882; St. Louis, S. F. 
 & T. R. Co. V. Scale, 229 U. S. 156; 
 33 Sup. Ct. 651; 57 L. Ed. 1129, 
 reversing (Tex. Civ. App.) 148 S. W. 
 1099; St. Louis, I. M. & S. Ry. Co. v. 
 Hesterly, 228 U. S. 702; 33 Sup. Ct. 
 702; 57 L. Ed. 1031, reversing 98 Ark. 
 240; 135 S. W. 874; Hearst v. St. 
 Louis, I. M. & S. Ry. Co. (Mo. App.) 
 173 S. W. 86; Rich v. St. Louis & S. 
 F. R. Co. 163 Mo. App. 379; 148 S. 
 W. 1011; Thompson v. Wabash R. 
 Co. (Mo.) 171 S. W. 364; Ex parte 
 Atlantic Coast Line R. Co. (Ala.) 67 
 So. 256; Easter v. Virginian Ry. Co. 
 (W. Va.) 86 S. E. 37. 
 
 Even a state statute enacted prior 
 to this federal statute must give way 
 to the latter; for the power of (/ongress 
 over the subject is in no way afTectcd 
 by its inaction. Rich v. St. Louis & 
 S. F. R. Co. 163 Mo. App. 379; 148 
 S. W. 1011. 
 
 For other cases holding that the 
 action must be based on the Federal 
 Act, and can not be based on a state 
 statute or at common law, see Mc- 
 Chesney v. Illinois Central R. Co. 
 197 Fed. 85; Hawkins v. St. Louis & 
 S. F. R. Co. (Mo. App.); 174 S. W. 
 129; Atlantic Coast Line R. Co. v. 
 Jones (Ala. App.) 67 So. 632; Kam- 
 boris V. Oregon & Wash. R. & Nav. 
 Co. (Ore.) 146 Pac. 1097; Delaware, 
 L. & W. R. Co. V. Yurkonis, 220 Fed. 
 429, affirming 213 Fed. 537; Toledo, 
 St. L. & W. R. Co. V. Slavin (U. S.) 
 35 Sup. Ct. 306; 58 L. Ed. — , re- 
 versing 88 Ohio St. 536; 106 N. E. 
 1077; Melzner v. Northern Pac. Ry. 
 Co. 46 Mont. 162; 127 Pac. 1002; 
 Chicago, R. I. & P. Ry. Co. v. HoUi- 
 day (Okla.) 145 Pac. 786; Cross v. 
 Chicago, B. & Q. R. Co. (Mo. App.) 
 177 S. W. 1127; St. Louis & S. F. R. 
 Co. V. Snowdon (Okla.) 149 Pac. 
 1083; Knapp v. Great Northern Ry. 
 Co. (Minn.) 153 N. W. 848; Peek v. 
 Boston & Maine R. Co. 223 Fed. 448. 
 
 There can be no recovery by an 
 interstate employee under a Work- 
 man's Compensation Statute. Smith 
 V. Industrial Accident Com. (Calif. 
 App.) 147 Pac. 600; Staley v. lUinois 
 Central R. Co. (111.) 109 N. E. 342, 
 reversing 186 111. App. 593; Raunsa- 
 ville V. Central R. Co. (N. J.) 94 Atl. 
 392; Winfield v. N. Y. Cent. & H. 
 R. R. Co. 153 N. Y. Supp. 499; 
 Southern Pac. Co. v. Piltsbury (Cal.) 
 151 Pac. 277. See Jensen v. Southern 
 P. Co. (N. Y.) 109 N. E. 600. But 
 there can be for interstate employees 
 not covered by the Federal Act. Jen- 
 sen V. Southern P. Co., supra. 
 
 > Michigan Central R. Co. v. 
 Vreeland, 227 U. S. 59; 33 Sup. Ct. 
 192; 57 L. Ed. 192, reversing 189 
 Fed. 495. 
 
 = Missouri, K. & T. Ry. Co. v. 
 Sadler (Tex. Civ. App.) 149 S. W. 
 1188; Missouri, etc., R. Co. v. Turner 
 (Tex. Civ. App.) 138 S. W. 1126; 
 Missouri, etc., R. Co. v. Castle, 172 
 Fed. 841; 97 C. C. A. 124; Missouri, 
 etc., R. Co. v. Castle, 224 U. S. 541; 
 32 Sup. Ct. 606; 56 L. Ed. 875; Jones 
 V. Chesapeake, etc., R. Co. 149 Ky. 
 566; 149 S. W. 951.
 
 COXSTITUTTOXALITY OF STATUTE. 37 
 
 § 21. Must interstate employee bring his action on the 
 statute? — If the act of Congress is exclusive, must an em- 
 ployee engaged in interstate commerce, when injured, bring 
 his action upon the statute? This is a very important 
 question, and it bas been ansv^rered. Since the act of Con- 
 gress repeals or suspends state legislation within the scope of 
 its provisions such an employee must bring his action upon 
 the statute, and if he does not he will be defeated.^^* It is 
 now settled by several eases that the statute ''was intended 
 by Congress to cover the entire subject-matter of the lia- 
 bility of carriers by railroad while engaged in interstate 
 commerce to employees if the employee injured or killed is 
 at the time engaged in such interstate commerce, and that 
 it is plenary and supersedes all other law relating to such 
 liability ; ' ' and the court added : ' ' Consequently this action, 
 founded on a State statute, can not now be maintained." 
 The action had been brought on a state statute, but the 
 railway company insisted that, as the deceased was a loco- 
 motive engineer engaged at the time of his injury in moving 
 interstate traffic, it should have been brought upon the Fed- 
 eral statutes; and the court upheld its contention.^^^ In an- 
 other case it was said: "It is clear that the [Federal] Act 
 of April 22, 1908, superseded and took the place of all state 
 statutes regulating relations of employers and employees 
 engaged in interstate commerce by railroads. It covered 
 not only injuries sustained by employees engaged in that 
 commerce resulting from the negligence of the master and 
 his servants, and from defects in the designated instru- 
 mentalities in use in that commerce, but also dealt with 
 contributory and comparative negligence and assumed risk, 
 
 51* If the pleading does not sliow showed that the plaintiff was not 
 
 that the plaint? ff was engaged in engaged in interstate commerce 
 
 interstate commerce, bnt the evi- when injured, the verdict must be 
 
 dence develops the fact that he for the defendant; and no answer 
 
 was, then there would be a fatal or plea to that effect is necessary, 
 
 variance that would defeat him sia Dewberry v. Southern Ry. Co. 
 
 unless the complaint or declara- 175 Fed. 307. This view has been 
 
 tion was amended. The defendant held in the following cases: Tay- 
 
 could file an answer or plea lor v. Southern Ey. Co. 178 Fed. 
 
 setting up the fact that he was so 380; Bottoms v. St. Jjouis & S. F. 
 
 engaged which would present an R. Co. 170 Fed. 318; Zikos v. 
 
 issue for the jury; and if proven Oregon R. & N. Co., 179 Fed. 893; 
 
 the verdict must be for the de- Fithian v. St. Louis & S. F, Ry. 
 
 fendant. See § 19. Co. 188 Fed. 812; The Passaic, 
 
 So if there was a declaration 190 Fed. 644; Yost v. Union Pac. R. 
 
 upon the statute, but the evidence Co. 245 Mo. 219; 149 S. W. 577.
 
 38 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 making in certain eases, at least, the master an insurer of 
 the safety of the servant while in his employment in that 
 commerce. It covers and overlaps the whole state legisla- 
 tion, and is therefore exclusive. All state legislation on that 
 subject must give away before that act." ^^'^ Nor can a state 
 or territorial statute be resorted to in order to defeat the 
 cause of action given by the Federal statute.^^'' After 
 quoting section two of the Federal Act, it was said in one 
 •case: "Here, then, is an act of Congress, enacted for the 
 purpose of enabling employes of common carriers by rail- 
 road to recover damages for injuries suffered by them while 
 employed by the common carriers in the territories. The 
 section of the act quoted has specific application to the 
 territories, and, being the supreme law of the land, super- 
 sedes all other laws embracing the same subject-matter." 
 The court then makes a short analysis of the statute, and 
 adds: "When the act is analyzed, it becomes apparent that 
 it was the purpose of Congress to confer rights and benefits 
 upon the injured employee which were denied him by the 
 ■common law, and hence the existence of a common law right 
 of action on the part of an injured employee cannot, in 
 reason, be claimed in the presence of this act of Congress. 
 Indeed, the act is the law, and the only law ^^^ under which 
 suits like the present one may be brought. It is the law 
 
 51b Fulgham v. Midland R. Co. 117 S. W. 436; Clark v. Southern 
 
 167 Fed. 660. It was held that in Pacific Go. 175 Fed. 122; Nashville, 
 
 this case, the action having been C. & St. L. Ry. Oo. 128 U. S. 
 
 brought upon the Federal skitute, 96; 9 Sup. Ct. 28; 32 L. Ed. 352. 
 
 resort could not be had to the In the last case Justice Field says : 
 
 Arkansas statute to enable the "It is conceded that the power of 
 
 administrators of an interstate Congress to regulate interstate 
 
 commerce employee to enforce the conunereo is plenary; that, as in- 
 
 employee's right of action, it hav- cidcmt to it. Congress may legislate 
 
 ing died with him, because the as to the qualification and liabili- 
 
 Federal statute gave no right of ties of employees and otliers on 
 
 action to his personal repr(>senta- railway trains engaged in that 
 
 tives. Walsh v. New York, N. H. commerce; and that such legisla- 
 
 & n. R. Co. 173 F(>d. 494. tion will supersede any state 
 
 ■"■'ic Southern Pacific Co. v. Mc- action on the subject." 
 
 Ginnis, 174 Fed. 649; El Pasio & cid This was an action brought 
 
 N. E. Ry. CV>. V. Gutierrez, 215 to recover damages for an injury 
 
 U. S. 87"; 30 Sup. Ct. 21; 54 L. sustained in a territory. Do Ri- 
 
 Ed. 106, affirming 102 Tex. 376; vera v. Atcliison, T. &\s. Fe l^y. 
 
 Co. Tex. Civ. App. 149 S. W. 223; 
 Yost V. Union Pac. R. Co. 245 Mo. 
 219; 149 S. W. 577. See § 18.
 
 CONSTITUTIONALITY OF STATUTE. 
 
 39 
 
 of the ease, by which the rights of the employee and the 
 liability of the carriers are measured. The very subject- 
 matter of the controversy is federal. "°^® 
 
 "e Cound V. Atchison, T. & S. F. 
 Ry. Co. 173 Fed. 527; Taylor v. 
 Southern Ry. Co. 178 Fed. 380. 
 
 "There is a count in the declara- 
 tion omitting the statement that the 
 petitioner and defendant company 
 were engaged in interstate commerce 
 at the time of the alleged injury, the 
 Employer's Liability Act, superseding 
 all other law, will be controlling on 
 the question of the jurisdiction of this 
 court and the right of removal." 
 Bottoms V. St. Louis & S. F. R. Co, 
 179 Fed. 318. 
 
 A state court has held that the 
 action must be brought under this 
 statute where the employee is in- 
 jured in the forwarding of interstate 
 traffic. Bradbury v. Chicago, R. I. & 
 Pac. Ry. Co. 149 Iowa 51; 128 N. 
 W. 1. 
 
 The federal statute supersedes the 
 common law right of action. Lauer 
 V. Northern Pac. Ry. Co. (Wash.) 
 145 Pac. 606 (Contra, Grow v. Oregon 
 Short Line R. Co. (Utah) 138 Pac. 
 398) and a state statute. Vickery v. 
 New London Northern Ry. Co. 87 
 Conn. 634; 89 Atl. 277; South Coving- 
 ton & C. St. Ry. Co. V. Finan, 153 
 Ky. 340; 155 S. W. 742, and a terri- 
 torial act. Rivera v. Atchinson, T. & 
 S. F. Ry. Co. (Tex. Civ. App.) 149 
 S. W. 223, and the constitution of 
 South Carolina. Bramlett v. South- 
 ern Ry. Co. 98 S. C. 319; 82 S. E. 501. 
 
 A party can not elect to proceed 
 under a state statute. Vickery v. 
 New London Northern Ry. Co. 87 
 Conn. 634; 89 Atl. 277. 
 
 A statute allowing a father damages 
 for his mental pain and suffering and 
 loss of services caused by the wrong- 
 ful death of his son is annulled by the 
 federal statute if he be killed when 
 engaged in interstate commerce. 
 Flanders v. Georgia, S. & F. Ry. Co. 
 (Fla.) 67 So. 68. 
 
 If a case be made out under a 
 state statute but not sufficient to 
 recover under the Federal Act, there 
 can be no recovery if the injured 
 person was an interstate employee 
 when injured. South Covington & 
 C. St. Ry. Co. v. Finan, 153 Ky. 310; 
 155 S. W. 742. 
 
 If a cause of action be alleged at 
 common law, a replication alleging 
 an action under the Federal Act is a 
 departure. Niles v. Central Vt. Ry. 
 Co. 87 Vt. 356; 89 Atl. 629. 
 
 A state statute allowing interest on 
 the verdict is annulled. Norton v. 
 Erie R. Co. 163 App. Div. 468; 148 
 N. Y. Supp. 771. 
 
 If a recovery be had under the com- 
 mon law or under a state statute, the 
 question of liability under the federal 
 statute can not be raised for the 
 first time on appeal. Chicago, R. I. & 
 P. Ry. Co. V. HoUiday (Okla.) 145 
 Pac. 786. 
 
 If the complaint set forth a cause 
 of action under the Federal Act, the 
 question of liability under a state 
 statute only may be raised on the 
 introduction of the evidence. Penny 
 V. New Orleans Great Northern R. 
 Co. 135 La. 962; 66 So. 313. 
 
 Where a widow sued under a state 
 law for the death of her husband 
 when engaged in interstate com- 
 merce it was held that there was no 
 waiver of the objection that the right 
 of action was under the Federal Act, 
 no waiver having been pleaded, a 
 demurrer to the evidence having been 
 filed and a motion in court having 
 been made. By pleading contribu- 
 tory negligence and assumption of 
 which it was also held that the de- 
 fendant did not adopt the theory that 
 the case was governed solely by the 
 state statute. In this Missouri case 
 it was held that a judgment in Kansas 
 rendered on the state statute was 
 void. Vaughan v. St. Louis & S. F. 
 R. Co. 177 Mo. App. 155; 164 S. W. 
 144. 
 
 A state statute limited to intrastate 
 employees is not in conflict with the 
 federal statute. Fernette v. Pere 
 Marquette R. Co. (Mich.) 144 N. W. 
 834; Southern Ry. Co. v. R. R. Com- 
 mission, 179 Ind. 23; 100 N. E. 337; 
 Missouri, K. & T. Ry. Co. v. Sadler 
 (Tex. Civ. App.) 149 S. W. 1188. 
 
 The constitution of Oklahoma did 
 not adopt the federal statute of July 
 1, 1906, that was held unconstitu- 
 tional. Chicago, R. I. & P. Ry. Co. 
 V. McBee (Okla.) 145 Pac. 331.
 
 4Q FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 § 22. Act of 1906, validity in District of Columbia and 
 Territories. — The act of 1906 was held invalid also as to a 
 cause of action arising in the District of Columbia.^^ And 
 the same holding was made with respect to the territories.^' 
 
 § 23. Construction of statute. — As this statute was 
 enacted for the benefit of the employe, and is an implied decla- 
 ration on the part of the Congress that the old and harsh rules 
 of the common law were inadequate for the protection of his 
 life and limbs when applied to the new and changed condi- 
 tions of industrial life under which he is compelled to render 
 services in order to gain a livelihood, and thereby not become a 
 burden on the public for support in case of his injury, it is to 
 be liberally construed so as to carry out the intention of the 
 legislature. The argument of hardship upon the railroad com- 
 pany is not to be considered. That argument is plausible 
 "only when the attention is directed to the material interest 
 of the employer to the exclusion of the interests of the em- 
 ploye and the public." When an injury happens to an em- 
 ploye, there must be a hardship to him. "If its burden is 
 transferred, so far as it is capable of transfer, to the em- 
 ployer, it is a hardship to him. It is quite conceivable that 
 Congress, contemplating the inevitable hardship of such in- 
 juries,^* and hoping to diminish the economic loss to the com- 
 munity resulting from them, should deem it wise to impose 
 their burdens upon those who would measurably control their 
 causes, instead of upon those who are in the main helpless 
 in that regard.'"^"' In construing the Safety Appliance Act, 
 
 The question of liability only under U. S. 702; 33 Sup. Ct. 703; 57 L. Ed. 
 
 the federal statute may be raised 1031, reversing 98 Ark. 240; 135 S. W. 
 
 for the first time in an action on a 874. 
 
 state statute or at common law at the ^^ Hyde v. Southern Ry. Co. 31 
 
 close of tlie evidence. St. Louis, S. App. D. C. 466. But see same case, 
 
 F. & T. Ry. Co. V. Scale, 229 U. S. 36 Wash. L. Rep. 374. 
 156; .33 Sup. Ct. 651; 57 L. Ed. 1129, "Atchison, etc., Rv. Co. v. Mills, 
 
 reversing (Tex. Civ. App.) 149 S. W. 49 Tex. Civ. App. 349; 108 S. W. 
 
 1099; St. Louis, I. M. & S. Ry. Co. v. Rep. 480. 
 
 McWhirter, 229 U. S. 265; 33 Sup. " Injury bv unlawful couplings. 
 
 Ct. 858; 57 L. Ed. 1179, reversing 145 " St. Louis^! etc., Ry. Co. v. Taylor, 
 
 Ky. 427; 140 S. W. 672; St. Louis, 210 U. S. 210; 28 Sup. Ct. Rep. 616; 
 
 I. M. & S. Ry. Co. V. Hesterly, 228 52 L. Ed. 1061.
 
 CONSTITUTIONALITY OF STATUTE. 41 
 
 Chief Justice Fuller said: "The primary object of the act 
 was to promote the public welfare by securing the safety of 
 employes and travelers, and it was in that aspect that it was 
 remedial, while for violations a penalty, one hundred dol- 
 lars, recoverable in a civil action, was provided for, and in 
 that aspect it was penal. But the design to give relief was 
 more dominant than to inflict punishment, and the act might 
 well be held to fall within the rule applicable to statutes to 
 prevent fraud upon the revenue, and for the collector of 
 customs, that rule not requiring absolute strictness of con- 
 struction." ^^ Of course, in the Federal Employers' Liabil- 
 ity Act no quasi oifense is involved — only a civil liability; 
 but the above quotation, aside from reference to the penal 
 offense, is quite applicable. "The statute is remedial in the 
 character, and it should 'be so construed as to prevent the 
 mischief and advance the remedy. "^'^ In another case it 
 was said: "The statute in question, while it is remedial in 
 the sense that it affects the remedy in accident cases, is not 
 of the nature of those remedial statutes which Tiave re- 
 ceived a liberal and expansive application at the hands of 
 the court, such as statutes intended to remedy a mischief, 
 to promote public justice, to correct innocent mistakes, to 
 cure irregularities in judicial proceedings, or to give effect 
 to the acts and contracts of individuals according to the 
 intent thereof . "''•^ The act under consideration should be as 
 broadly and as liberally construed as possible ;"^^ and to 
 cover every act of negligence.®" But the act only applies to 
 certain cases, leaving some cases without its provisions.®^ 
 
 "Johnson v. Southern Pac. Ry. P. Ry. Co. (Iowa) 147 N. W. 337; 
 
 Co. 196 U.S. 1; 25 Sup. Ct. Rep. 158; Hench v. Pennsylvania R. Co. 246 
 
 49 L. Ed. 363, reversing 117 Fed. Rep. Pa. 1; 91 Atl. 1056. 
 
 462; 54 C. C. A. 508; United States v. ^9 Atlantic Coast Line R. Co. v. 
 
 Illinois Central R. Co. 177 Fed. 801; Jones (Ala.) 63 S. E. 693; citing 
 
 United States v. Chicago, R. I. & P. Behrens v. Illinois Central R. Co. 
 
 Ry. Co. 173 Fed. 684. 192 Fed. 581. 
 
 " St. Louis, M. & S. Ry. Co. v. ^o DeAtley v. Chesapeake & O. R. 
 
 Conley, 187 Fed. 949; 110 C. C. A. 97. Co. 201 Fed. 591. 
 
 " Winfree v. Southern Pacific Ry. «' Baltimore & O. R. Co. v. Whit- 
 Co. 173 Fed. 65; Fulgham v. Midland acre, 124 Md. ; 92 Atl. 1060. 
 
 Valley R. Co. 167 Fed. 660. "The act under consideration should 
 
 The statute must be liberally con- be as broadly and liberally construed 
 
 strued. St. Louis, I. M. & S. Ry. Co. as possible." Atlantic Coast Line 
 
 V. Conley, 187 Fed. 949; 110 C. C. A. R. Co. v. Jones (Ala.) 63 So. 693. 
 97; Armbruster v. Chicago, R. I. &
 
 42 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 § 24. State Courts must follow Federal Court Decisions 
 — Appeal. — The decisions of the Federal Courts in the con- 
 struction of this Statute are controlling and will be followed 
 by the state courts.^- If there be a conflict between the 
 decisions of the Federal Courts, but not of the Supreme 
 Court, the state courts will adopt that construction given 
 the statute which seems the most reasonable one.*'^ An ap- 
 peal lies from the decision of a state court construing the 
 statute to the United States Supreme Court upon the ques- 
 tion of construction, or at least a writ of error from the 
 latter court to the former.^* 
 
 § 25. In Pari Materia with Safety Appliance Acts. — The 
 
 Safety Appliance Acts — the Act requiring all interstate cars 
 to be equipped with automatic couplers — were enacted for 
 the protection of employees of interstate railroads operat- 
 ing trains ; and the statute giving employees of such employ- 
 ers a right of action when injured is in line with such Acts. 
 The courts, therefore, construe these several acts in pari 
 materia in an action by such an employee to recover damages 
 for an injury he received because of an insufficient coupler.*^^ 
 
 " Montgomery v. Southern Pac. N. W. 58; Armbruster v. Chicago, 
 Co. 64 Ore. 597; 131 Pac. 507; Horton R. I. & P. Ry. Co. (Iowa) 147 N. W. 
 V. Oregon & Wash. Nav. Co. 72 337; McAdow v. Kansas City West- 
 Wash. 503; 130 Pac. 897; Ruck v. em Ry. Co. (Mo. App.) 164S. W. 188; 
 Chicago, M. & St. P. Ry. Co. 153 Hawkins v. St. Louis & S. F. R. Co. 
 Wis. 158; 140 N. W. 1074; McAdow (Mo. App.) 174 S. W. 129. 
 V. Kansas City W. Ry. Co. (Mo. App.) Although there is no Federal com- 
 
 1G4 S. W. 188; Hardwick v. Wabash mon law, yet State Courts must 
 R. Co. 181 Mo. App. 156; 168 S. W. follow the Federal Courts where 
 328; Lauer v. Northern Pac. Ry. Co. they declare what is the common 
 (Wash.) 145 Pac. 606; Rich v. St. law. Cross v. Chicago, B. & Q. R. 
 Louis & S. F. R. Co. 166 Mo. App. Co. (Mo. App.) 177 S. W. 1127. 
 379; 148 S. W. 1011; Cousins v. « iluck v. Chicago, M. & St. P. Ry. 
 
 Illinois Cent. R. Co. (Minn.) 148 Co. 153 Wis. 158; 140 N. W. 1074. 
 
 «^ Hardwick v. Wabash R. Co. 
 
 181 Mo. App. 156; 168 S. W. 328. 
 "■' North Carolina R. Co. v. Zack- 
 
 cry, 232 U. S. 248; 34 Sup. Ct. 305; 
 
 58 L. Ed. 591, reversing 156N.C.496; 
 
 72S.E.858.
 
 CHAPTER III. 
 TO WHAT RAILROADS STATUTE APPLIES. 
 
 SECTION SECTION 
 
 26. Carriers within territories. dividual cars sent to state 
 
 27. Carriers engaged in interstate points. 
 
 commerce. 33. Interurban and street railway 
 
 28. Branch railroad. common carriers. 
 
 29. Logging railroad. 34. "While engaged in commerce 
 
 30. Common carriers. between the states." 
 
 31. Cut-off not yet devoted to inter- 35. Illustrations on interstate corn- 
 
 state traffic — working on merce transactions. 
 
 bridge. 36. Two companies operating over 
 
 32. Interstate train of empty cars same railroad. 
 
 broken up and afterwards in- 37. Lessor and lessee. 
 
 § 26. Carrier within Territories. — Congress has plenary 
 power in all matters pertaining to the territories, the Dis- 
 trict of Columbia, the Panama Canal Zone, and other pos- 
 sessions of the United States. A common carrier by railroad 
 in such divisions of the United States is liable "to any per- 
 son suffering injury while he is employed by such carrier in 
 any of said jurisdiction." The statute, of course, covers the 
 territory of Alaska, the District of Columbia, Porto Rico, 
 Hawaiian Islands and the Philippine Islands.^ 
 
 § 27. Carriers engaged in interstate commerce. — The 
 common carrier must be one "by railroad."^ No other com- 
 mon carrier is covered by the statute. It must be a "common 
 carrier by railroad while engaging in commerce between any 
 of the several states or territories, or between any of the 
 states and territories, or between the District of Columbia 
 and of the states or territories, or between the District of 
 Columbia or any of the states or territories and any foreign 
 nation or nations." Therefore, any railroad company carry- 
 ing commercial products from one state to another, or from 
 a state to a territory or vice versa, or from a state to the 
 
 ' American R. Co. v. Birch, 224 U. terminus of the carrier. The Passaic, 
 
 S. 547; 32 Sup. Ct. 603; 56 L. Ed. 879; 190 Fed. 644; Erie R. Co. v. Kennedy, 
 
 American R. Co. v. Dedricksen, 227 191 Fed. 3.32; 112 C. C. A. 76; Erie 
 
 U. S. 145; 33 Sup. Ct. 224; 57 L. Ed. R. Co. v. Jacobus, 221 Fed. 335. It 
 
 456 (Safety Appliance Act). does not apply to a business cor- 
 
 ^ Ray v. Merrill & King Lumber poration. Ft. Worth Belt Ry. Co. 
 
 Co. 211 Fed. 717. It does not apply v. Pennyman (Mo. App.) 158 S. W. 
 
 to a carrier by water. (The Pawnee, 1181; nor to an employee of an inter- 
 
 205 Fed. 333), unless the vessel is state railway company who injured 
 
 operated as a part of a railway system, his fellow servant. Kelly v. Chesa- 
 
 as a ferryboat to reach the station or peake & O. Ry. Co. 201 Fed. 602. 
 
 43
 
 44 FEDERAL, EMPLOYERS' LIABILITY ACT. 
 
 District of Columbia or vice versa, or from a state or terri- 
 tory to a foreign nation, as to Old Mexico or to Canada, or 
 to British Columbia, comes within its provisions. So if a com- 
 mon carrier by railroad carry commercial products from the 
 interior of a state bordering on the seashore and then load it 
 upon its own ocean going vessels and carry it to a foreign 
 port, it would be engaged in commerce between such state 
 and a foreign nation ; and likewise it would be so engaged 
 even though it did not have its own vessels if it undertook 
 to secure their transportation across the ocean to a foreign 
 port. But if it only undertook to transport and deliver them 
 to a consignee at the seaport, and such consignee was to for- 
 ward them to a foreign nation, it would not be engaging in 
 commerce between a state and a foreign nation. Yet if it ac- 
 cepted goods billed and addressed to a foreign nation and 
 undertook to deliver them to a company or vessel engaged in 
 transporting articles to the port of the destination of such 
 goods it would be engaged in commerce between a state and 
 a foreign nation.^ Difficult questions necessarily arise when a 
 question not purely of interstate commerce is involved. The 
 Safety Appliance Act, however, affords a reasonable analogy 
 and in a measure solves some of the questions that arise. 
 That statute provides that "any common carrier engaged in 
 interstate commerce by railroad" shall equip its cars with 
 automatic couplers. The Employers' Liability Act applies 
 to a "common carrier by railroad while engaging in com- 
 merce between any of the several states." There is prac- 
 tically no difference in meaning between these two phrases 
 of these two statutes so far as designating the common carriers 
 to which they are applicable. Under the Safety Appliance 
 Act it has been held that a railroad wholly within a state- 
 not even so much as touching the boundary line of the state — • 
 may be engaged in interstate traffic and be liable to equip 
 its cars in accordance with its provisions.^ And so it has 
 
 1 Tlio distinction is a fine ono, under the Safety Applinnce Art. Soe 
 but it \h justilied bv llK' decisions Sees 2r)7. 250 
 
 •' ' - See Sees. 244, 250.
 
 TO WHAT RAILROADS STATUTE APPLIES. 45 
 
 been held that the same railroad (situated in Colorado^ — a 
 narrow gauge road — was engaged in interstate traffic when 
 it received express packages of an express company, shipped 
 by such express company from Kansas City, Missouri, de- 
 livered to it within the state of Colorado, and re-shipped by 
 transferring from the car of lan interstate commerce railroad to 
 its own narrow gauge cars, the packages being billed to a sta- 
 tion on its road.^ On the contrary, in an instance similar to 
 the first instance given, where a narrow gauge road, wholly 
 within the state of Ohio, operated in connection with ths 
 Baltimore and Ohio Railroad, where the goods were of neceS' 
 sity transferred from a narrow gauge car to a wide gauge 
 car, it was held that such narrow gauge road was not en- 
 gaged in interstate commerce.* The latter decision is, how- 
 ever, sharply criticised in the former decision;^ and to the 
 author the reasoning in the Colorado case rests upon a 
 sounder basis. So under the Interstate Commerce Act it has 
 been held that a belt railroad, used to transfer freight cars 
 around a city, and so prevent their transportation through 
 said city, having connections with interstate commerce rail- 
 roads, was subject to such act." So the movement of cars 
 in the car yards of a railroad, such cars not being properly 
 equipped with automatic couplers, but which had been 
 brought by such railroad from another state, was a violation 
 of that act.'^ Likewise it has been held that a railroad com- 
 pany carrying from one state to another on its own construc- 
 tion cars, its own iron rails, in cars not properly equipped 
 with automatic brakes, was liable to the penalty of the act im- 
 posed for using insufficiently equipped cars in interstate com- 
 merce.^ The phrase "while engaging in commerce between 
 any of the several states" is, especially in the light of these 
 decisions, a very broad and far-reaching one. Of course, 
 while transporting freight having its origin in a state to 
 another point within the same state, not in connection with 
 
 3 See Sees. 244, 259. • See Sec. 247. 
 
 * See Sec. 259. ' See Sees. 246, 248, 249. 
 
 * See Sec. 290. « See Sec. 239.
 
 46 
 
 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 other freight brought from another state, would not be en- 
 gaging in interstate commerce or commerce between the states; 
 and an employe of the company injured while engaged in 
 such commerce could not come within the provisions of the 
 statute if he was injured; but if there was a single car load 
 of products in the train en route from another state to a 
 point within the state of destination, that would convert the 
 entire train into an interstate commerce relation, and the 
 railroad company would then be engaged in commerce be- 
 tween the states.^ 
 
 ' Femette v. Pere Marquette R. 
 Co. (Mich.) 144 N. W. 834. See il- 
 lustrations of Justice White quoted 
 in Section 13. 
 
 This phase of the subject did not 
 escape the attention of the able law- 
 yers in the Senate. This debate took 
 place in part in the Senate: 
 
 Senator Bacon: "Now, I want 
 to ask the Senator a question by 
 way of illustration. Of course, 
 never mind how large a train may 
 be and liow full of goods it may 
 be, all the balance of it may be 
 intrastate freight, but if upon that 
 train tiiere is one single box that 
 is to cross the line, it makes the 
 train engaged in interstate com- 
 merce. I want to illustrate it to 
 the Senator [Dolliver of Iowa] by a 
 concrete case. We will suppose thnt 
 a train starts from Richmond [Va.] 
 to Alexandria [Va.]. These are ter- 
 minal points for the train. It has 
 freight consigned exclusively to 
 Alexandria or to points between 
 Riciimnnd and Alexandria. That 
 males it altogether out of the 
 jurisdiction of this bill; but if at 
 Orange Court House [Va.], on the 
 way, a man puts on it a box of 
 eigarn which is consignp<l to a 
 party in I'altiriiorc, that would 
 ininic(lial<'1y cliiingc the character 
 of (he (rain, would it not, and 
 
 make it after that a train en- 
 gaged in interstate commerce?" 
 
 Mr. Dolliver: "I will say to the 
 Senator, if I understand correctly 
 the decisions of the Supreme Court, 
 that they are to the effect that 
 a railroad that is entirely within 
 a state, but carrying commerce 
 destined to points outside the 
 state, is engaged in interstate 
 commerce and is subject to the in- 
 terstate commerce act." 
 
 Mr. Bacon: "That is a clear 
 statement of the law. Then I am 
 correct in the suggestion that on 
 a train leaving Richmond and 
 coming to Alexandria, those being 
 terminal points, having no freight 
 except for Alexandria and inter- 
 mediate points, if, when it reached 
 Orange Court House, a box of 
 cigars was put on it, consigned to 
 Baltimore, it would be converted 
 at once from a train not subject 
 to the provisions of this act into 
 one that is subject to it. Am I 
 not correct in that. I ask the Sen- 
 ator from Towa ? I am correct in 
 the conclusion that at Orange 
 Court House it will be converted 
 into a train, employees of which 
 would liocome engaged in inter- 
 Htute commerce, and everything 
 (Continued on page 53.)
 
 TO WHAT RAILROADS STATUTE APPLIES. 47 
 
 § 28. Branch Railroad. — The use of a branch line may be 
 such as to bring the railroad within the Federal Statute. 
 Thus in Washington in an action to recover damages for in- 
 juries inflicted, it was alleged that the defendant owned and 
 operated a system of railways with several branches, and 
 was engaged in interstate commerce between several states 
 from Minnesota to Puget Sound and Oregon, and that one 
 of its branches extended out of the city of Tacoma, south- 
 easterly, on which the accident to the employe happened, 
 and this was held to show sufficiently that this branch line 
 on which the accident happened was used in carrying on in- 
 terstate commerce. While this was a question of pleading, 
 yet no question was raised that the employe was not en- 
 titled to recover on the ground that he was not injured by 
 an interstate railroad, or at a place where the railroad 
 was not an interstate railway.^ 
 
 § 29. Logging railroad. — Where the defendant, a rail- 
 road, owned a large tract of timber land, and was engaged 
 in "logging" the land, selling all logs upon the open market, 
 and in connection with this land it owned a logging road of 
 standard narrow gauge build, which was connected by 
 switch or siding with the Great Northern Railway ; that it 
 operated over its road engines and logging cars ; that it had 
 large booming grounds in the waters of Puget Sound, several 
 miles away ; that operated several large logging camps 
 upon its lands ; that over its logging road it ran five or six 
 logging trains each day to and from its various camps 
 and placed in the booms over a half million logs a day; 
 
 ^ "It is true, as the appellant argues, were used by the appellant in its 
 that there is no direct allegation in the business of interstate commerce, 
 complaint that the so-called Wilkison Moreover, the record discloses that 
 branch was, at the time of the injury, the trial proceeded throughout on 
 used by the appellant in interstate this theory . . . and indeed the 
 commerce; but we tnink it is clearly court charged the jury, without 
 so inferable from the facts alleged. exception from the appellant, that 
 While the language might have been the fact that the appellant was en- 
 better chosen, it is plain that the gaged in interstate commerce on 
 pleader meant to allege, and would this branch of the road was conceded 
 be commonly understood as alleging by both parties." Smith v. Northern 
 that the interstate system, as well Pac. Ry. Co. 79 Wash. 448; 140 Pac. 
 as the several branches mentioned, 685.
 
 48 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 that it sold these logs to mills upon Puget Sound ; that 
 poles and piles which it cut from its land were sold to a 
 company, which shipped them from Washington to Califor- 
 nia ; that the logs were sold by it from its booms to a mill on 
 Puget Sound operated within Washington, and were manu- 
 factured by this mill, with other logs purchased by it from 
 other sources, and sold on the market upon orders received 
 by the mill from the eastern and central western states and 
 coast cities and from foreign countries, and from the State 
 of Washington ; that about 80 percent of the output of the 
 mill was shipped to other states or foreign countries and 
 from the State of Washington; that the defendant was a 
 corporation organized under local laws, and among its 
 authorized power was that of a common carrier together 
 with numerous other powers ; that the defendant never at 
 any time operated its road as a common carrier and ten- 
 dered it in any way to the public for service ; that the ser- 
 vices rendered by it had all been private, and for the purpose 
 of carrying to its booming ground the timber taken from its 
 land ; that no other product had been taken over the road 
 except some timber taken from the land of another under 
 contract with it to log the land for the owner and deliver 
 the logs in the waters of Puget Sound ; and certain poles and 
 piles taken from its land were sold to a pole company, at a 
 certain rate per stumpage and were delivered to this boom, 
 it was held that the railroad company was not engaged in in- 
 terstate commerce. "A concern is not a common carrier 
 that is engaged in transporting its own products, and before 
 a concern incorporated as a common carrier could come with- 
 in the terms of the Employers' Liability Act of Congress, 
 it would have to do something further than merely file its 
 articles of incorporation. The timber holdings and the rail- 
 road are held by the same concern, operated together as one 
 property; the railroad is used as a 'plant' facility to bring 
 the logs to the booming grounds of the defendant on tide 
 water.^ The defendant was simply placing the product of 
 
 * Citing; joint rates with Washington Western Ry. 27 Interstate Commerce 
 Commission Report G30.
 
 TO WHAT RAILROADS STATUTE APPLIES. 49 
 
 its own land in its own booming grounds so as to be in a 
 marketable condition. The act of the defendant in placing its 
 logs in the boom on sale grounds can best be compared to 
 the former placing its corn or wheat in a crib or granary, 
 and when so placed to dispose of it upon the market to per- 
 sons offering the best prices. So long as the products of the 
 forest of the defendant reuiained in the booming grounds, 
 it certainly cannot be contended that any relation of com- 
 mon carrier or interstate commerce could enter into or at- 
 tach thereto. If no interstate commerce character or com- 
 mon carrier relation could attach to the logs in the boom by 
 being permitted to remain there covering a long period of 
 time, the fact that they remain there for a short interval can- 
 not change that relation or character." After quoting from 
 several cases the opinion concludes as follows: "In the in- 
 stant case the logs had not entered upon their final journey 
 to their ultimate destination. They had simply been ac- 
 cumulated in their raw state and shipped to the boom 
 grounds, where they were distributed to the various mills, 
 which purchased the logs and manufactured them into lum- 
 ber. I do not believe that the act was intended to cover such 
 a case, and the conclusion is inevitable that the facts in this 
 case do not bring the plaintiff within the Liability Act, un- 
 der which this action is prosecuted. Another conclusion on 
 the part of the court, it seems to me, would be revolutionary 
 in endeavoring to adopt a plan or system which had not been 
 contemplated by Congress to the business interests of the 
 country, and no good purpose could be subserved,"^ 
 
 § 30. Common Carrier. — Not only must the defendant be 
 a railway company, but it must be a "common carrier." 
 "Under this act," it was said in one case, "a cause of action 
 
 ^ Ray V. Merrill & King Lumber Co. and relies on Bacon v. Illinois, 227 
 
 211 Fed. 717, affirmed 220 Fed. 295. U. S. 504; 33 Sup. Ct. 299; 57 L. Ed. 
 
 The court quotes here the Daniel 615. To same effect is Shade v. 
 
 Ball Case, 10 Wall. 5G5; 19 L. Ed. Northern Pac. Ry. Co. 206 Fed. 353. 
 
 999; Coe v. Errol, 116 U. S. 525; An identical case is Nordgord v. 
 
 6 Sup. Ct. 475; 29 L. Ed. 715; the Mavsville & N. R. Co. 218 Fed. 737, 
 
 Sabine Trans. Case, 227 U. S. Ill; affirming 211 Fed. 721. 
 33 Sup. Ct. 229; 57 L. Ed. 442,
 
 50 
 
 FEDERAL, EMPLOYERS' LIABILITY ACT. 
 
 is not set out against the Oso Logging Company, for the 
 complaint neither alleges that the Oso Logging Company is 
 a common carrier, nor does it set out facts sufficient to 
 justify that conclusion. In other words, all the facts recited 
 might be true, and the defendant Oso Logging Company not 
 be a common carrier, as, for example, if 'the logs, poles, lum- 
 ber and other materials' being handled in the freight cars 
 belonged to the defendant logging company, and if this de- 
 fendant was transporting logs and lumber products owned 
 by it from the State of Washington to other states, it might 
 be engaged in interstate commerce, but it would not thereby 
 become a common carrier. It is alleged in the complaint 
 that 'plaintiff was employed at the time of his injury by the 
 defendant to assist in the repairing of the cars of the 
 Northern Pacific Railway Company and replacing them upon 
 the railroad track repaired;' but this might be true, and, 
 further, it [the logging company] might use some of the 
 cars of the railroad company, as alleged, in hauling and 
 transporting lumber, logs, and other materials, without be- 
 ing or becoming a common carrier. This alone would not 
 justify the conclusion that the logging company was such a 
 carrier; to be a common carrier it is necessary that such 
 carrier should undertake to serve all who see fit to employ 
 it. It is not alleged in express terms that the logging com- 
 pany is a common carrier, nor any facts stated from 
 which it might reasonably be so inferred."* 
 
 § 31. Cutoff not yet devoted to Interstate Traffic — Work- 
 ing on bridge. — An employe working in the construction of 
 a part of a railway track that has not yet been devoted to 
 interstate traffic is not within the statute. In one instance 
 it was sought to hold a railway company liable to an em- 
 ploye injured while constructing a bridge or a cutoff. No 
 
 * Shade v. Northern Pac. Ry. Co. Co. v. Downey, 40 App. D. C. 147. 
 2()0 Kwl. 3.')3. To same effect, Ray v. Hauling empty cars from one state 
 
 Merrill <fe King Logging Co. 211 to another is interstate commerce. 
 Fed. 717. North Carolina R. Co. v. Zackary, 
 
 A carrier of passengers only is a 232 U. S. 248: 34 Sup. Ct. 305; 58 L. 
 commf)n carrier within the meaning Ed. 501, reversing 156 N. C. 496; 
 of the Federal Act. Wasliington Ry. 72 S. E. 858. 
 
 The term common carrier includes 
 the receiver of a niiiroad. Section 7 
 of Act. Sec Ilcsheit v. Lusk (Mo. 
 App.) 177 S. W. 712.
 
 TO WHAT RAILROADS STATUTE APPLIES. 5]^ 
 
 rails had been placed on the cutoff. It had never been used, 
 and was not being used at the time of the injury, in inter- 
 state commerce ; and could not be so used until iron rails 
 were placed in position. "The mere fact that it was the pur- 
 pose and intention to so use it at some future time did not 
 make it an instrumentality of interstate commerce. That 
 purpose and intention might be changed, and it might never 
 be used in interstate commerce, or at all. The argument 
 that the building of the cutoff was the mere correction or 
 prevention of a defect in insufficiency of the defendant's in- 
 instrumentality for conduct of interstate commerce is too 
 remote and inconsequential to convince. The building of 
 such a cutoff is new construction for use in interstate com- 
 merce, as much as the building of a new engine or cars or 
 plans prescribed by a railroad company to run over the cut- 
 off or to take the place of an engine or car worn out in in- 
 terstate commerce would be. The Federal Employers' Li- 
 ability Act protects only those employed in interstate com- 
 merce. Those employed in the preparation or construction 
 of road beds, rails, ties, ears, engines, and other instrumen- 
 talities which are not intended for use in interstate com- 
 merce, but have never been and are not in use therein, are 
 not employed in interstate commerce, and are not protected 
 by that act. There was no error in the ruling of the trial 
 court that an employe engaged in the construction of a 
 bridge, 600 feet distant from a railroad, on a cutoff more 
 than a mile in length, which had never been provided with 
 rails or used as a railroad, was not employed in interstate 
 commerce, although his employer was engaged, and when 
 the cutoff should be completed intended to use it in inter- 
 state commerce. "° 
 
 § 32. Interstate train of empty cars broken up and 
 
 ^ Bravis v. Chicago, M. & St. P. Ry. Co. 210 Fed. 495, and distinguish- 
 
 Ry. Co. 217 Fed. 234; citing Peterson ing San Pedro v. L. A. & S. L. R. Co. 
 
 V. Delaware, L. & W. R. Co. 229 U. v. Davide, 210 Fed. 870; 127 C. C. A. 
 
 S. 146; 33 Sup. Ct. 648; 57 L. Ed. 4.54. Repairing side tracks, Clark v. 
 
 1125; Wabash R. Co. v. Hayes, 234 Chicago G. W. R. Co. (Iowa), 152 N. 
 
 U. S. 86; 34 Sup. Ct. 729; 58 L. Ed. W. 635. 
 1226; Jackson v. Chicago, M. & St. P.
 
 52 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 afterwards individual cars sent to state points. — The inter- 
 state character of cars may be lost, if they be not loaded 
 with interstate traffic, by the train being broken up, al- 
 though the cars, under new orders, be sent to points within 
 the state. Thus a train consisting of an engine, caboose 
 and empty coal cars was destined to certain coal mines in 
 Kentucky. A few of them had been brought from points in 
 Tennessee, and the remainder from points in Kentucky. 
 The orders to the conductor were to bring all the cars to a 
 designated point in Kentucky, which he did ; but he had no 
 orders to carry them any farther. After reaching that 
 point, nineteen of these cars, some of which had come from 
 Tennessee, were put into a train and under new orders sent 
 to another point in Kentucky; and during this last journey 
 a brakeman, while acting as flagman, was killed through the 
 negligence of the railroad company; and suit because of his 
 death was brought under the Federal statute, but the Ken- 
 tucky Court of Appeals held that an action on that statute 
 for the death would not lie, because the train was not an in- 
 terstate train.*^ Empty cars were delivered in New York to 
 the railroad to which they belonged, and were then, being in 
 the hands of the owner, according to railroad regulations 
 and practice, "at home." They were afterwards moved, 
 without being billed or destined for any particular place, to 
 points in Pennsylvania, where such cars were usually as- 
 sembled for distribution and use, and, not being needed at 
 such points, were from time to time moved to other distri- 
 buting points in that state. They were still "drifting" or 
 waiting to be assigned to service, Avhen an injury to a brake- 
 man on a train on which they were being moved occurred. 
 It was held that the interstate movement of such cars ceased 
 when they reached the first distributing point in Pennsyl- 
 vania ; and tliereafter their movement did not constitute in- 
 terstate commerce.'' 
 
 * Louisville & N. R. Co. v. Strange, ' Pennsylvania R. Co. v. Kno.x, 
 
 156 Ky. 439; 161 S. W. 239. 218 Fed. 748.
 
 TO WHAT RAILROADS STATUTE APPLIES. 
 
 53 
 
 § 33. Interurban and street railway common carriers. — 
 An interesting phase of the question now under discussion 
 is that pertaining to common carriers by the so-called inter- 
 urban electric railways and by street railways. The former 
 partake more of the character of a common carrier by steam 
 railroad than the latter, and in principle do not differ from 
 them. It is beyond discussion that the statute includes all 
 common carriers by electric interurban railroads when en- 
 gaged in interstate commerce. There are many instances, also, 
 where common carriers by street railroads pass from one 
 state to another and carry passengers across state lines. 
 Such is the case between Kansas City, Missouri, and Kansas 
 City, Kansas; so between New Albany and Jeffersonville, 
 Indiana, and Louisville, Kentucky; so between Cincinnati, 
 Ohio, and Covington, Kentucky; so between the District of 
 Columbia and Alexandria, Virginia; and so between Niagara 
 
 would be subject to this law at 
 this point, and from there to Alex- 
 andria." 
 
 Mr. Dolliver: "I have no doubt 
 that is true." 
 
 Mr. Bacon: "Very well. The 
 point I want to ask the Senator 
 is this : If on the line of road be- 
 tween Richmond and Orange Court 
 House an accident occurs, the rule 
 of liability would be determined 
 by the law of Virginia, because 
 there would be no interstate com- 
 merce; but after the box of cigars 
 had been put on at Orange Court 
 House if an accident and an injury 
 occurred between there and Alex- 
 andria, although it was the same 
 train and the same crew and the 
 same people, the rule of liability 
 would be determined by this law. 
 If the injury was incurred before 
 the train reached Orange Court 
 House, the case would go into the 
 state court, and be determined by 
 Virginia law. But after the box 
 of cigars had been put on the 
 train at Orange Court House, if 
 an injury occurred to the crew of 
 the same train, the case would go 
 into the federal court and be de- 
 
 termined by the act of Congress 
 as to the rule of liability. Am I 
 correct in that?" 
 
 Mr. Dolliver: "If the court will 
 agree with the judgment of the 
 Senator." 
 
 Mr. Bacon: "I just simply 
 wished to know the opinion of the 
 Senator. These are intricacies of 
 the law which I thought it was 
 well the Senator should inform us 
 a.bout." 
 
 Mr. Dolliver: "All those ques- 
 tions have been discussed in the 
 court and the laws between inter- 
 state and state commerce fairly 
 well defined." 
 
 Mr. Bacon. "That would be the 
 efli'ect in this particular case." 60 
 Cong. Record, 1st Sess., p. 4547.
 
 54 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 City, New York, and Canada. Other illustrations might be 
 named. These several common carriers by street railroads 
 are beyond question common carriers by railroad ; and when 
 transporting passengers (or even freight as they sometimes 
 do) from one state to another are beyond question common 
 carriers engaged in interstate commerce. The Federal Em- 
 ployers' Liability Act clearly applies to them; and the em- 
 ployes of such street railways while engaged in the trans- 
 porting of such passengers (and freight), if injured, can in- 
 voke the provision of this statute in securing redress for 
 their injuries.^" It should not be forgotten that street rail- 
 way companies are not within the provisions of the Inter- 
 state Commerce Act as enacted in 1887.^°* 
 
 §34. "While engaging in interstate commerce between 
 
 the states." — More than fifty years ago the Supreme Court 
 decided a case involving interstate commerce which is in- 
 structive in this connection, and which was relied upon in the 
 Colorado decision.^^ "We make the following quotation from 
 the earlier case in this connection : " In this case it is admitted 
 that the steamer was engaged in shipping and transport- 
 ing down Grand River goods destined and marked for other 
 states than Michigan, and in receiving and transporting up 
 the river goods brought within the state from without its 
 limits but inasmuch as her agency in the transportation was 
 entirely within the limits of the state, and she did not run 
 in connection with, or in continuation of, any line of vessels 
 porting goods destined for other states, or goods brought 
 was engaged entirely in domestic commerce. But this con- 
 
 lOThe question as to street rail- Ry. Co. (Ky.); 155S. W. 742. Soelec- 
 
 ways has been settled in accordance trie interurban lines running across 
 
 with the text, in a case where, under state lines are within the Federal Act. 
 
 the same management cars ran from McAdow v. Kansas City Western Ry. 
 
 South Covington, Ky., over an inter- Co. (Mo. App.) 164 S. W. 188. 
 state bridge (previously so held, Cov- It has been held that the Federal 
 
 ington & C. Bridge Co. v. Kentucky, Safety Appliance Act does not apply 
 
 154 U. S. 204; 14 Sup. Ct. 1087; 38 to the equipment of an interstate 
 
 L. Ed. 902; 4 Interstate Commerce electric railroad, so as to require 
 
 Rep. 049) to Cinciimati, only a automatic couplers on the cars where 
 
 single fare being charged for the trip. such cars are not used in trains. 
 
 South Covington & C. St. Ry. Co. Campbell v. Spokane & I. E. R. Co. 
 
 V. Covington, (U. S.); :i5 Sup. Ct. 188 Fed. 510. 
 
 158; 58 L. Ed., revormng HO Ky. •»* Omaha St. Ry. Co. v. Interstate 
 
 592; 143 S. W. 78, but not on this Commerce Commission, 230 U. S. 
 
 point. See also Caus v. Railway Co. 324; 33 Sup. Ct. 890; 57 L. Ed. 1501; 
 
 174 Mo. 53; 73 S. W. 080; 01 L. R. A. 46 L. R. A. (N. S.) 385. 
 475, and South Covington & C. St. "See Sees. 244, 259.
 
 TO WHAT HAILROADS STATUTE APPLIES. 
 
 55 
 
 elusion does not follow. So far as she was employed in trans- 
 portings goods destined for other states, or goods brought 
 from without the limits of INIichigan and destined to places 
 within that state, she was engaged in commerce between 
 the states, and however limited that commerce may have 
 been, she was, so far as it went, subject to the legislation of 
 Congress. She was employed as an instrument of that com- 
 merce, for whenever a commodity has begun to move as an 
 article of trade from one state to another, commerce in that 
 commodity between the states has commenced. The fact that 
 several different and independent agencies are employed in 
 transporting the commodity, some acting entirely in one 
 state, and some acting through two or more states, does in no 
 respect affect the character of the transaction. To the ex- 
 tent in which each agency acts in that transportation, it is 
 subject to the regulation of Congress. It is said that if the 
 position here asserted be sustained, there is no such thing 
 as the domestic trade of a state; that Congress may take the 
 entire control of the commerce of the country, and extend 
 its regulations to the railroads within a state on which grain 
 or fruit is transported to a distant market. We answer that 
 the present case relates to transportaion on the navigable 
 waters of the United States, and we are not called upon to 
 express an opinion upon the power of Congress over inter- 
 state commerce when carried on by land transportation. And 
 we answer further, that we are unable to draw any clear and 
 distinct line between the authority of Congress to regulate 
 an agency employed in commerce between the states, when 
 that agency extends through two or more states, and when 
 it is confined in its action entirely within the limits of a 
 single state. If its authority does not extend to an agency 
 in such commerce, when that agency is confined within the 
 limits of a state, its entire authority over interstate com- 
 merce may be defeated. Several agencies combining, each 
 taking up the commodity transported at the boundary line 
 at one end of a state, and leaving it at the boundary line 
 at the other end. the Federal jurisdiction would be entirely
 
 56 
 
 FEDERAL EMPLOYERS LIABILITY ACT, 
 
 ousted, and the constitutional provision would become a dead 
 letter."^' Where a railroad wholly within the State of 
 Georgia transported freight originating in Cincinnati, Ohio, 
 over line to its destination, upon through bills of lading, a 
 through charge and assignment of the entire charge among 
 the roads contributing to the movement having been entered 
 into, the Georgia railroad, was held to be engaged in inter- 
 state commerce.^-* 
 
 1= The Daniel Ball, 10 Wall. 567 ; 
 19 L. Ed. 999, reversing Brown, 
 Admr, Cas. 193; Fed. Cas. No. 
 3,564. 
 
 ^^* Cincinnati, etc., R. Co. v. 
 Interstate Commerce Commission, 
 162 U. S. 184. For an illustration 
 where, the facts being very simi- 
 lar, the state road was held not to 
 be engaged in interstate commerce, 
 see Gulf, etc., R. Co. v. Texas, 
 204 U. S. 403; 24 Sup. Ct. Rep. 
 360; 51 L. Ed. 540; affirming 97 
 Tex. 274. 
 
 An employee engaged in taking 
 goods, shipped from another state, 
 from the ear, in which they were 
 transported, across the station 
 platform to the freight depot, is 
 engaged in interstate commerce 
 transportation. Rhodes v. Iowa, 
 170 U. S. 412. Coal brought from 
 beyond the state does not cease 
 to be interstate transportation 
 until actually delivered to the con- 
 signee. McNeill V. Southern Rv. 
 Co. 202 U. S. 543; 26 Sup. Ct. 
 Rep. 722; 50 L. Ed. 1142. 
 
 But a cab owned by a railroad 
 and used to carry pasengers frf)m 
 a ferry to its hotel is not used 
 in interstate commerce. Pennsyl- 
 vania Ry. Co. V. Knight, 192 U. 
 S. 21, the court saying: "If a 
 cab which carries passengers from 
 the hotel to the ferry binding is 
 ^■ngaged in interstate transporta- 
 tion, why is not the porter who 
 
 carries the traveler's trunk from 
 his room to the carriage also en- 
 gaged? If the cab service is in- 
 terstate transportation, are the 
 drivers of the cabs and the deal- 
 ers who supply hay and grain 
 for the horses, also engaged in in- 
 terstate commerce, and where will 
 the limit be placed? We are of 
 the opinion that the cab service 
 is an independent local service, 
 preliminary or subsequent to any 
 interstate transportation." Per- 
 haps the gathering of freight from 
 the place of business of shippers 
 and distributing freight to such 
 places of business by vehicles em- 
 ployed by a railroad does not 
 make the carriage between such 
 place of business and the freight 
 station of the carrier a part of 
 an interstate journey. Inters/tate 
 Commei'ce Commission v. Detroit, 
 etc., R. Co. 167 U. S. 633; affirm- 
 ing 74 Fed. Rep. 833; reversing 
 57 Fed. Rep. 1005. 
 
 Judge Oooley, in an address 
 before the First General Confer- 
 ence of Railroad Commissioners, 
 at Washington, D. C, March, 
 18S9, said: "F5ut there is scarcely 
 a line of railroad in the country 
 so sihort or so insignificant that 
 the metliod in which its operations 
 sliall be conducted is not of some- 
 thing more than local importance, 
 or the character of its regulation 
 of some concern to business in-
 
 TO WHAT RAILROADS STATUTE APPLIES. 
 
 57 
 
 § 35. Illustrations on Interstate Commerce Transactions. 
 — A company eng:aged in the business of imparting instruc- 
 tion ''by means of correspondence through the mails be- 
 tween the company at its office * * * and the applicant at 
 his residence in another state" is engaged in interstate com- 
 merce. ^-^ So the transmission of intelligence from state to 
 state by the telegraph is interstate eommerce.^^'' To con- 
 stitute interstate commerce it is not necessary that the carry- 
 ing company should own the products or materials it carries ; 
 and the fact that it does not does not change the rule ; "° 
 and it is immaterial that the shipment is interrupted in 
 transit at the state line.^-<^ A railroad is engaged in inter- 
 state commerce the instant it begins the carriage of an 
 article from one state to another; and the character of the 
 commerce continues without cessation until it reaches its 
 destination. ^2® Participation by a carrier in the transporta- 
 tion of goods destined from a place in one state to another 
 
 terests beyond the state limits. 
 It may be a link in a long line 
 extending through two or more 
 states. It may be the principal 
 or perhaps the sole means of trans- 
 portation for the products of a 
 mine or other important industry 
 which supplies many states, but 
 whether of greater or less impor- 
 tance, it has relations to other 
 roads which are not and can not 
 be wholly limited within any polit- 
 ical divison of the countiy, how- 
 ever extensive it may be ; even the 
 little Catskill Mountain Railroad, 
 by the issue of coupon tickets to 
 San Francisco, may^ in a sense, 
 become a part of a transcontinental 
 highway, and the citizen from the 
 Pacific Coast who applies for one 
 of the tickets has an interest in 
 the treatment he shall receive in 
 respect to it, which is precisely 
 the same that it would be if all 
 the roads of the country were one 
 in ownership and in management." 
 
 12a International Text Book Co. 
 V. Pigg. 217 U. S. 91 ; 30 Sup. Ct. 
 481: 54 L. Ed. 678. 
 
 12b Pensacola Tel. lOo. v. Western, 
 96 U. S. 1 ; 24 L. Ed. 708 ; West- 
 ern Union Tel. Co. v. Pendleton, 
 122 U. S. 347; 7 Sup. Ct. 1126; 
 30 L. Ed. 1187: reversing 95 Ind. 
 12; Butler Bros. Shoe Co. v. 
 United States Rubber Co. 156 
 Fed. 1. 
 
 12C United States v. Chicago, M. 
 & St. P. Rv. Co. 149 Fed. 486. 
 
 i2dGulf C. & S. F. R. Co. V. 
 Fort Grain Co. (Tex. Civ. App.) : 73 
 S. W. 845: U-ited States v. Colo- 
 rado & X. W. R. Co. 157 Fed. 
 321: United States v. Chicago, 
 M. & St. P. Ry. Co. 149 Fed. 480. 
 
 iseJfcXeil v. Southern Ry. Co. 
 202 U. S. 543; 26 Sup. Ct." 722; 
 50 L. Ed. 1142; In re Greene, 62 
 Fed. 104; Cliicago, M. & St. P. 
 Ry. Co. V. Voelker. 129 Fed. 522; 
 United States v. Central of Georgia 
 Ry. Co. 157 Fed. 893; Belt Ry. Co.
 
 58 
 
 FEDERAL EMPLOYERS LIABILITY ACT. 
 
 place in another state, brings such carrier within the regu- 
 lations of the Federal Government, whether the participa- 
 tion consists in a division tinder a joint rate of transporta- 
 tion, or such carrier merely constitutes a link in the through 
 route for such transportation.^-^ So the carriage of goods 
 from one point in a state to another point in the same state, 
 bnt through a portion of another state in the route, is inter- 
 state commerce.^^^ To make the carriage of traffic an en- 
 gagement in interstate commerce it is not necessary that the 
 ear bearing it shall cross a state line, if such traffic is 
 destined to a point beyond the line of such state ; nor when 
 the line of the railroad carrying it extends beyond such 
 border line.^^^ To switch interstate cars is to engage in 
 
 V. United States, 168 Fed. 542; 
 United States v. Boyer, S5 Fed. 
 425. 
 
 i2f United States v. Standard 
 Oil Oo., 155 Fed. 305; Parsons v. 
 Ohieago & K W. Ry. Co. 167 
 U. S. 447; 17 Sup. Ct. 887; 42 
 L. Ed. 231; Cincinnati, N. O. & 
 T. P. Ry. Co. V. Interstate Com- 
 merce Commission, 162 U. S. 184; 
 16 Sup. Ct. 700; 40 L. Ed. 935; 
 Chicago & N. W. Ry. Co. v. Os- 
 born, 52 Fed. 912; Norfolk and W. 
 R. V. Pennsylvania. 136 U. S. 114; 
 10 Sup. Ct. 958; 34 L. Ed. 394; 
 reversimr 114 Pa. 256; 6 Atl. 45; 
 Belt Line Ry. Co. v. United States, 
 168 Fed. 542. 
 
 »2g Louisville & N. R. Co. v. Allen, 
 152 Kv. 145; 153 S. W. 198; 152 Ky. 
 837; 154 S. W. 371; Cincinnati, N. O. 
 & T. P. Ry. Co. V. Goode, 155 Ky. 
 153; 159 S. W. 695, modifying 153 S. 
 W. 247 and 154 S. W. 911; Peery v. 
 Illinois Central R. Co. 123 Minn. 
 264; 143 N. W. 724; Hanlcy v. Kan- 
 sas City So. Ry. Co. 187 U. S. G17; 
 23 Sup. Ct. 214; 47 L. Ed. 333; 
 affirming 106 Fed. 353; New Orleans 
 Cotton Excliange v. Cincinnati, N. 
 O. & T. l\ R. Co. 2 Interstate Corn. 
 Rep. 2S9; Sternberger v. Cape Fear & 
 S. V. R. Co. 29 S. C. 510; 7 S. E. 836; 
 Mires v. St. Louis A; S. F. Ry. Co. 
 134 Mo. App. 379; 114 S. W. 1052; St. 
 Louis & S. F. n. Co. v. State, 113 S. 
 W. 203; Davis v. Southern Ry. Co. 147 
 
 N. O. 68; 60 S. E. 722; Shelby 
 Ice & Fuel Oo, v. Southern Rv. 
 Co., 147 N. C. 61; 60 S. E. 721; 
 United States v. Erie R. Oo. 166 
 Fed. 352; Kansas City So. Ry. Co. 
 v. Railroad Commission, 106 Fed. 
 350; State v. Chicago, St. P., M. <& 
 O. R. Co. 40 IVIiinn. 267 ; 41 N. W. 
 1047. But see, Seawell v. Kansas 
 City F. & S. & M. R. Co. 119 Mo. 
 222; 24 iS. W. 1002; Campbell v. 
 Chicago, M. & St. P. Ry. Co. S6 
 Iowa, 563; 53 N. W. 323; United 
 States V. Lehigh Valley R. Co. 115 
 Fed. 373; Lehigh Valley R. Co. v. 
 
 Commonwealth (Pa.), , — ; 
 
 IS Atl. 125; Commonwealth v. 
 Lehigli Valley R, Oo. (Pa.) 17 
 Atl. 179; Tranham v. Charleston 
 & W. C. Rv. Co. (S. C.) 75 S. E. 
 331. 
 
 i-'h Ex parte Koehler, 30 Fed. 
 867; United States v. Colorado & 
 N. W. R. Co. 157 Fed. 321; 
 United States v. Pacific Coast Ry. 
 Co. 173 Fed. 443; Covington & 
 C. Bridge Co. v. Kentuckv, 154 
 U. S. 204; 14 Sup. Ct. 1087; 38 
 L. Ed. 952; reversing 15 Ky. L. 
 Rep. 320: 22 S. W. S51; Texas & 
 N. O. R. Co. v. Sabine Transporta- 
 tion Co. 121 S. W. 256. Between 
 points in a city. Vandalia R. Co. v. 
 Holland (Ind.) 108 N. E. .580; .\ugusta 
 S. R. Co. V. Wrightsville & T. R.
 
 TO WHAT RAILROADS STATUTE APPLIES. 59 
 
 interstate commerce. ^^ But if goods be shipped into a state 
 and then delivered to the consignee ; and he then ships them 
 to a point within such state, this is not a shipment in inter- 
 state commerce.^* The hauling of empty cars alone from 
 one state to another is interstate commerce. ^^ Coal moved 
 from one state to another for a railroad's own use is the sub- 
 ject of interstate commerce;^® but coal hauled from one 
 point in a state to another point in the same state and there 
 unloaded (or the train broken up), and then afterwards 
 used as fuel on engines running into other states, is not in- 
 terstate traffic while being transported in the train. ^'^ 
 
 § 36. Two companies operating over same railroad. — The 
 Canadian Northern Railway Company operated a railroad 
 in Canada, southerly to the international line of that country 
 and the United States, connecting there with the Northern 
 Pacific Railway Company, the tvN^o companies having a traffic 
 arrangement whereby each delivered its ears to the other 
 with its own crews. An engineer of the Canadian railway 
 company, under its orders and pursuant to this traffic ar- 
 rangement, was taking a train from its tracks in Canada to 
 these of the Northern Pacific in North Dakota, his duties re- 
 quiring him to leave it on the latter 's passing track, with 
 which its roundhouse track connected, and was injured by 
 his engine being derailed at the junction of these two tracks 
 because of an open switch left open by the Northern Pacific 
 Company's servants. He sued both companies under the 
 Federal Act and successfully recovered judgment against 
 them, which was affirmed on appeal, notwithstanding the 
 
 Co. 74 Fed. 522; United States v. R. Co. v. United States, 165 Fed. 423; 
 
 Delaware, L. & W. R. Co. 152 Fed. United States v. Northern Pacific 
 
 269; Interstate Commerce Com- Terminal Co. 144 Fed. 861; Belt 
 
 mission v. Bellaire, Q. & C. Ry. Co. Ry. Co. v. United States, 168 Fed. 
 
 77 Fed. 942; Interstate Commerce 542; Wabash R. Co. v. United States, 
 
 Commission v. Seaboard A. L. Ry. 168 Fed. 1; Rosney v. Erie R. Co. 
 
 Co. 82 Fed. 563; Missouri, R. & T. 135 Fed. 311; Barlow v. Lehigh Val- 
 
 Ry. Co. V. New Era MilHng Co. 80 ley R. Co. (N. Y.) 107 N. E. 814; 
 
 Kan. 141; 101 Pac. 1011; Rhodes v. Otos v. Great Northern Ry. Co.. 
 
 Iowa, 170 U. S. 412; 18 Sup. Ct. 664; (Minn.) 150 N. W. 922. 
 42 L. Ed. — . "Coe v. Erroll, 116 U. S. 517; 6 
 
 "Johnson v. Southern Pacific R. Sup. Ct. 475; 29 L. Ed. 715, affirming 
 
 Co. 196 U. S. 1; 25 Sup. Ct. 158; 62 N. H. 303; Interstate Commerce 
 
 49 L. Ed. 363, reversing 117 Fed. 462; Commission v. Detroit, G. H. & M. 
 
 54 C. C. A. 508; Crawford v. New R. Co. 167 U. S. 633; 17 Sup. Ct. 986; 
 
 York, C. & H. R. R. Co. 10 Amer. 42 L. Ed. 306, affirming 74 Fed. 803; 
 
 Neg. Rep. 166; United States v. 21 C. C. A. 103. 
 Pittsburg, C, C. & St. I;. Ry. Co. is North Carolina R. Co. v. Zack- 
 
 143 Fed. 360; Mobile, J. & K. C. R. ary, 232 U. S. 248; 34 Sup. Ct. 305; 
 
 Co. V. Bromberg, 37 So. 395; Union 58 L. Ed. 591, reversing 156 N. C. 
 
 Stock Yards Co. v. United States, 496; 72 S. E. 858; Thompson v. 
 
 169 Fed. 404; Chicago, M. & St. P. Wabash Ry. Co. (Mo.) 171 S. W. 364. 
 
 1^ Barker v. Kansas City, M. & O. 
 
 Ry. Co. 88 Kas. 767; 129 Pac. 1151. 
 ^' Barker v. Kansas City, M. & O. 
 
 Ry. Co. (Kas.) 146 Pac. 358.
 
 60 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 Canadian road insisted that the Act did not apply to it, it 
 not being liable for the negligent act of the Northern Pacific 
 in leaving the switch open. The court said that the "pass- 
 ing" track was the Canadian railroad's track "the same as 
 if it were operating that part of the road under a lease. "'^ 
 In another case a servant was injured while retimbering 
 a railroad tunnel. In the complaint it was alleged that the 
 C company was operating the line of railroad; that the 
 defendant K company was a subsidiary company of the rail- 
 road company, and that the latter in operating its road did 
 so partly through the K company as its agent. The evidence 
 sustained these allegations, and both companies were held 
 to be common carriers within the meaning of the Federal 
 Act, and were liable to the injured servant.^^ 
 
 § 37. Lessor and lessee. — The lessor of an interstate rail- 
 way which its lessee uses in connection with its interstate 
 business is engaged in interstate commerce. This was said 
 of a domestic railway corporation laying its road and per- 
 mitting a physical connection at both ends with other tracks 
 laid by its lessee, and both were held jointly responsible 
 under the Federal Act, there being a joint act of negli- 
 gence.^" 
 
 But of course, a sevant of the lessee can not sue the lessor, 
 for he is not its servant.^^ The lessor of an intrastate rail- 
 way to an interstate railway carrier is, through its lessee, a 
 "common carrier by railroad engaging in commerce between 
 the states" within the meaning of the Federal Act, where 
 under the local law the lessor is responsible for all acts of 
 negligence of its lessee occurring in the conduct of the 
 business upon the lessor's road.^- 
 
 '* Campbell v. Canadian Northern and also another jointly. With his 
 
 Ry. Co. 124 Minn. 245; 144 N. W. own company he had entered into 
 
 772, following Flood v. Chicago, etc., a contract waiving all claims for 
 
 R. Co. 109 Minn. 228; 123 N. W. damages by reason of having joined 
 
 815; 134 Am. St. 771; 18 Ann. Cas. a relief department maintained by 
 
 274. tlie company, and this release was 
 
 " Copper River & N. W. Ry. Co. held not only invalid as to his own 
 
 V. Ileney, 211 Fed. 459. company, but also as to the other 
 
 2° Lloyd V. Soiith(!rn Ry. Co. 166 company, the latter being held liable, 
 
 N. C. 24; 81 S. E. 1(K)3. but not under the Federal Act. 
 
 " Wagner v Chicago & A. R. Co. " ^orth Carolina R. Co. v. Zack- 
 
 265 111. 245; 106 N. K. 809. ary, 232 U. S. 248; 34 Sup. Ct. 305; 
 
 In this case the servant sued his 58 L. Ed. 591, reversing 156 N. C. 
 
 own company under the Federal Act, 496; 72 S. E. 858.
 
 CHAPTER IV. 
 TO WHAT EMPLOYEES STATUTE APPLIES. 
 
 SECTION 
 
 38. Only liable to its own employees. 
 
 39. What employee may bring his 
 
 action upon the statute. 
 
 40. Test of employee's right to 
 
 recover. 
 
 41. Effect on the course and current 
 
 of interstate commerce — In- 
 strumentaHties of interstate 
 commerce. 
 
 42. Work must be so closely con- 
 
 nected with interstate com- 
 merce as to be a part of it. 
 
 43. Intent to engage in interstate 
 
 commerce in the future. 
 
 44. Incidental absence from scene 
 
 of work. 
 
 45. Repairing instrumentalities of 
 
 interstate commerce. 
 
 46. Original construction of inter- 
 
 state commerce instrumen- 
 talities. 
 
 47. Impeding the progress of inter- 
 
 state commerce. 
 
 48. Track repairer. 
 
 49. Statute includes ever>'body Con- 
 
 gress could include— Same per- 
 son in different capacities — 
 Track repairer — Telegraph op- 
 erator. 
 
 50. Car repairer in switching yard. 
 
 51. Laying additional track on 
 
 bridge — Injury by interstate 
 train. 
 
 52. Loading railroad iron rails; 
 
 burden. 
 
 53. "While" railroad was "engaging 
 
 in" interstate commerce. 
 
 54. When employee enters on his 
 
 work or is entitled to the pro- 
 tection of the statute. 
 
 55. When an employee enters on 
 
 interstate work. 
 
 SECTION 
 
 56. Injured servant employed in 
 both interstate and intra- 
 state commerce. 
 
 Employees covered by statute. 
 
 Other employments incidentally 
 coimected with interstate 
 transportation. 
 
 Working on bridge — Repairing 
 telegraph lines — Installing 
 block system. 
 
 Employees repairing interstate 
 instrumentalities are covered 
 by statute. 
 
 Going to and returning from 
 work. 
 
 Pullman car employees — E.xpress 
 agent — Railroad surgeon's 
 malpractice. 
 
 Cases holding employee not 
 engaged in interstate com- 
 merce when injured. 
 
 Switching crew moving inter- 
 state commerce — Intention to 
 immediately move interstate 
 commerce. 
 
 57. 
 
 58. 
 
 59. 
 
 60 
 
 61. 
 62. 
 
 63. 
 
 64. 
 
 65. 
 66. 
 67. 
 
 68. 
 69. 
 
 70. 
 
 Relation between the employ- 
 ment and the accident. 
 
 Who must inflict injury to ren- 
 der railway company liable. 
 
 Interstate employee injured by 
 negligence of interstate em- 
 ploj^ee. 
 
 The Nebraska statute. 
 
 V:.lidity of statute allowing a 
 recovery for an injury oc- 
 casioned by an interstate em- 
 ployee. 
 
 Interstate engineer of interstate 
 railroad hauling intrastate 
 train — Going to work. 
 
 § 38. Only liable to its own employees. — It is clear that a 
 common carrier by railroad is not liable under the statute 
 to any one except its own employees.^ 
 
 (a) Robinson v. Baltimore & Ohio 
 R. Co. (U. S.) 35 Sup. Ct. 491; 58 
 L. Ed. — ; Wagner v. Chicago & A. R. 
 
 Co. 265 111. 245; 106 N. E. 809; Ft. 
 Worth Belt Ry. Co. v. Ferryman (Te.x. 
 Civ. App.) 158 S. W. 1181. 
 61
 
 02 FEDERAL, EMPLOYERS' LIABILITY ACT. 
 
 § 39. What employee may bring his action upon the 
 statute. — It is an interesting question, concerning what em- 
 ployee may bring his action upon the statute, or claim a right 
 to recover damages thereupon for his injuries. It is tau- 
 tology to say that he must have been an employee of the 
 defendant at the time of the injury and be injured in the 
 line of his duty. That is elementary and need not be dis- 
 cussed. In fact, it is here assumed. The statute in part 
 answers the question when it provides that "every common 
 carrier by railroad while engaging in commerce between 
 any of the several states," "shall be liable in damages to 
 any person suffering injury while he is employed by such 
 carrier in such commerce." This last quoted clause desig- 
 nates the employe who can recover for his injuries; for he 
 must be injured "while he is employed by such carrier in" 
 commerce between the states or between the states and ter- 
 ritories. Of course, if he is injured in a territory or the 
 District of Columbia, or in the Panama Canal Zone, "or 
 other possessions of the United States," while in the employ 
 of a common carrier by railroad, it is immaterial whether 
 he was engaged "in such commerce" or not; because the pro- 
 visions of the statute with reference to the territories and 
 such district, zone and "other possessions," are broader than 
 those relating strictly to interstate commerce carriers, and 
 necessarily so; for in the latter instance a constitutional 
 question is involved that is not involved in the former in- 
 stance. The word "while" is significant; for by its terms 
 the employe must be engaged in interstate commerce in order 
 to enable him to recover under the statute. If he be an em- 
 ploye of the railroad company and at the time of his injury 
 be not engaged in interstate commerce, he cannot recover 
 under the provisions of the statute. Of course, all trainmen 
 while actually at work in train work would be engaged in 
 interstate commerc; and perhai)s telegraph operators en- 
 gaged in telegraphing train orders.^ 
 
 ' Carr v. New York Cent. & H. Ry. be used in their ordinary sense and be 
 Co. 136 N. Y. Supp. 501. The words interpreted according to their usage in 
 "employec"and "employment" should the law of master and servant. Louis-
 
 TO "WHAT EMPLOYEES STATUTE APPLIES. 
 
 63 
 
 ville & N. R. Co. v. Walker (Ky.) 172 
 S. W. 517. In the debate upon this 
 proposition there was some difference 
 of opinion as to the scope of the 
 statute and the employees of an inter- 
 state commerce railroad who came 
 within its provisions. Senator Bever- 
 idge, of Indiana, thought an employee 
 of a railroad company 100 miles away 
 from its line of road felling trees for 
 its use would come within its pro- 
 visions; but Senator Dolliver, of Iowa, 
 called his attention to the clause of 
 the proposed statute, and asked: "But 
 are they employed in such commerce, 
 in interstate commerce?" and added 
 that he considered the statute clear 
 as it stands now. 60 Cong. Record, 
 1st Sess., p. 4542. 
 
 In discussing the Act of 1900, 
 which contained a similar provi- 
 sion. Justice White said: "Thus, 
 the liability of a common carrier 
 is declared to be in favor of 'any 
 of its employees.' As the w'ord 
 'any' is unqualified, it follows that 
 liability to the servant is co-ex- 
 tensive with the business done by 
 the employers whom the statute 
 embraces; that is, it is in favor 
 of any of the employees of all 
 carriers who engage in interstate 
 commerce. This also is the rule 
 as to the one who otherwise would 
 be a fellow servant by whose neg- 
 ligence the injury or death may 
 have been occasioned, since it is 
 provided that the right to recover 
 on the part of any servant will 
 exist, although the injury for 
 which the carrier is to be held 
 resulted from the negligence of 
 any of its officers, agents or eir>- 
 
 ployees." Employers' Liability 
 Cases, supra. 
 
 The following extract is made 
 from tlie report of counsel for 
 railroad companies held July 13, 
 14 and 15, 1908, at Atlantic City, 
 upon the question under discus- 
 sion: 
 
 "A most important and difficult 
 question is presented when we 
 come to inquire when an employee 
 is 'employed in such commerce.' 
 There are engaged by railroad 
 companies various classes of em- 
 ployees. There are those engaged 
 in the operation of trains. There 
 are those engaged in switching 
 service in yards. There are those 
 engaged in round houses, who re- 
 ceive engines coming olf the road 
 and make light repairs upon them 
 and send them out. There are 
 those engaged in maintenance of 
 the depots, tracks and bridges. 
 There are the freight handlers, 
 loading and unloading freight. 
 There are clerks in freight offices 
 and in the general offices of the 
 railroad. Does this Act apply to 
 all of these employees? 
 
 "On a railroad engaging in in- 
 terstate commerce it would be 
 difficult to say that any one of 
 these employees is not at some 
 time performing some service 
 having a direct relation to inter- 
 state commerce. The Supreme 
 Court of the United States has 
 laid down the proposition in more 
 than one case that a thing may 
 be within the letter of the statute 
 and not within its meaning, and 
 within its meaning though not
 
 64 
 
 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 As the employe must be engaged in the interstate com- 
 merce of his employer, from the very nature of the ques- 
 
 within its letter; that the inten- 
 tion of the law maker is the law, 
 that a thing which is within the 
 intention of the makers of a stat- 
 ute is as much within the statute 
 as if it were Avitliin the letter, 
 and a thing which is within the 
 letter of a statute is not within 
 the statute unless it be within the 
 intention of the makers. T hese 
 cases are gathered in Hawaii v. 
 Manchiki, 190 U. S. 197; 23 Sup. 
 Ct. Rep. 787; 47 L. Ed. 1016. We 
 are, then, to ascertain what is the 
 purpose of this Act. 
 
 "We suppose it can be fairly 
 said that its purpose is to render 
 the transportation of persons and 
 property safe and to protect em- 
 ployees engaged in such transpor- 
 tation; in other words, that this 
 Act is similar in its purposes to 
 the Acts requiring safety appli- 
 ances and fixing the hours of 
 service of telegraph operators and 
 persons emjjloyed in transporta- 
 tion. Probably this can be broad- 
 ened so as to include within the 
 intention of the Act all persons 
 whose hours of service and whose 
 protection Congress could legiti- 
 mately consider as necessary to se- 
 curing the safety of passengers and 
 freight moving in interstate com- 
 merce. And we tliink that in this 
 view a sensible construction of the 
 Act would eliminate those persons 
 whose service so remotely relates 
 to such safety as not to Ix? fairly 
 within the regulating power of 
 Congress. 
 
 "In another j>art of this report 
 tlie question is discussed as to 
 wliat are the classes of employees 
 wlio can be fairly selected as hav- 
 ing an cinployinciit iinolving a 
 
 hazard not considered in ordinary 
 employment. It is there pointed 
 out that various statutes have 
 been passed from time to time 
 abolishing or limiting the rule of 
 fellow servant, some of these stat- 
 utes in terms applying only to 
 those engaged in the operation of 
 a railroad, and others being con- 
 strued as limited in this respect, 
 although the statutes are not in 
 terms so limited. Some illustra- 
 tions may be drawn from these 
 cases. 
 
 "Thus the Supreme Court of 
 Iowa held that the statute of that 
 state applied only to those dan- 
 gers which were peculiar to rail- 
 road o]jeration. 
 
 "In Luce v. R. Co. 67 Iowa, 75, 
 24 N. W. 600, the plaintiff was 
 employed in a coal house of a 
 railroad company and while hoist- 
 ing coaf for the purpose of coal- 
 ing an engine was struck by a 
 crane by which the coal was 
 hoisted, due to the negligence of 
 a fellow servant. It was held 
 that the statute did not apply. 
 
 "In Foley v. R. R. Co. 64 Iowa, 
 644, 21 N. W. 124, a recovery was 
 denied to a car repairer for in- 
 juries he received while repairing 
 a car on a side track, by reason 
 of the alleged negligence of a co- 
 employee in failing to block the 
 wheels of tlie car. 
 
 "In Stroble v. R. R. Co. 71 
 Iowa, 555, 31 N. W. 63, a recovery 
 was denied to an employee of a 
 railroad comi)any who was injured 
 by tlie giving way of certain steps 
 leading up to a platform for load- 
 ing coal. 
 
 "In Malone v. R. Co. 65 Iowa, 
 417, it was lirld lliat an employee
 
 TO WHAT EMPLOYEES STATUTE APPLIES. 
 
 65 
 
 tion, his employer at the moment of the injury must be 
 engaged in interstate commerce, not generally but in that 
 
 of a railroad comi)any employed 
 in wiping ofl" engines, opening and 
 closing the doors of the engine 
 house, removing snow from the 
 turntable and tracks and turning 
 the turntable when engines were 
 being run between the main track 
 and the engine house, was not en- 
 gaged in the operation of a rail- 
 road within the statute. 
 
 "In Eeddington v. R. R. Co. 108 
 Iowa, 96, 78 X. W. 800, it was 
 held that the railroad company 
 was not liable to a brakeman for 
 injuries received while he was as- 
 sisting in coaling an engine, 
 through the negligence of a co- 
 employee in operating the hoisting 
 crane so as to knock him from 
 the platform, such movement not 
 being necessary in order to permit 
 the train to start. 
 
 "The Supreme Court of Minne- 
 sota has construed its Employers' 
 Liability Act as applying only to 
 those employees of railroads en- 
 gaged in the operation of rail- 
 roads. 
 
 ''In Johnson v. R. Co. 43 Minn. 
 222, 45 N. W. 15G, 8 L. R. A. 
 419, a crew of men, of whom the 
 plaintiff was one, were engaged in 
 repairing a bridge on defendant's 
 railroad. In performing the "'ork 
 it was necessary to leave the draw 
 partly open. Through the negli- 
 gence of one of the crew the draw 
 was left unfastened. It was 
 blown part shut by the wind and 
 injured plaintiff while he was at 
 work between the stationary part 
 of the bridge and the draw. It 
 was held that the statute did not 
 apply. 
 
 "In Minnesota Iron Co. v. Kline, 
 199 U. S. 593, 26 Sup. Ct. Rep. 
 
 159, 50 L. Ed. 322, affirming Qli 
 Minn. 63, 100 N. W. Rep. 681, the 
 judgment of the Supreme Court 
 of Minnesota reported in 93 Minn. 
 63, was affirmed. It apeared in 
 that case that the court had al- 
 lowed a recovery for the loss of 
 an arm by the plaintiff, whilo re- 
 jiairing an engine of the defendant, 
 through the negligence of a fel- 
 low servant. 
 
 "In Jemmin^» v. R. R. Co. 96 
 Minn. 302, 104 N. W. 1079, the 
 plaintiff was injured while em- 
 ployed by the railroad company 
 as a pitman. He was one of a 
 crew of nine men operating a 
 steam shovel in a gravel pit, and 
 was injured through the negli- 
 gence of a fellow servant. It was 
 held that the statute did not ap- 
 ply for the reason that plaintiff 
 and his fellow servants by whose 
 negligence he was injured, were 
 not engaged in operating a rail- 
 road at the time of the accident. 
 
 "The Kansas statute is given in 
 Missouri Ry. v. Mackey, 127 U. 
 S. 206; 8 Sup. Ct. Rep. 1161; 32 
 L. Ed. 107; affirming 33 Kan. 298; 
 6 Pac. Rep. 291. It was there 
 held, affirming the judgment of 
 the Supreme Court of Kansas, 
 that a fireman on an engine em- 
 ployed in transferring cars from 
 one point to another in a yard 
 when it was run into by another 
 engine owing to the negligence of 
 the engineer oi the latter, could 
 recover. 
 
 "But in Missouri, K. & T. R. 
 Co. V. Medaris, 60 Kan. 151, 55 
 Pac. 875, it was held that Me- 
 daris, who was employed in setting 
 a curbing around an office build- 
 ing and depot of the railroad com-
 
 66 
 
 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 specific instance, and in that identical commerce he must 
 be injured if he recovers under the statute.* 
 
 pany at Parsons, Kansas, could 
 not recover. 
 
 "In Chicago, etc., E. E. Co. v. 
 Pontius, 154 U. S. 209; 15 Sup. 
 Ct. Eep. 585, 39 L. Ed. 675, 
 affirming o2 Kan. 264, 34 Pac. 
 Eep. 739, a judgment was sus- 
 tained n favor of Pontius, who 
 was a bridge builder, the Supreme 
 Court saying: ' He was engaged 
 at the time the accident occurred 
 not in building a bridge but in 
 loading timbers on a car for 
 transportation over the line of de- 
 fendant's road.' 
 
 "In Chicago, E. I. & P. E. E. v. 
 Stahley, 62 F. E. 363, Mr. Jus- 
 tice Brewer, in an opinion written 
 by him for the Circuit Court of 
 Appeals for the English Circuit, 
 held that the statute applied to a 
 workman in a round house who 
 was injured while getting a loco- 
 motive ready for immediate use, 
 and that he could recover for his 
 injury notwithstanding it was oc- 
 casioned by the negligence of a 
 follow servant. Mr. Justice 
 Brewer said : 
 
 " 'He was not engaged in repair- 
 ing an old engine or constructing 
 a new one, but in putting that 
 engine, which had recently arrived, 
 in condition for immediate use. 
 He was * * * not engaged in any 
 outside work remotely related to 
 the business of the company; he 
 was not cutting ties on some dis- 
 tant tract to be used by the com- 
 pany in preparing its roadbed, 
 nor in mining coal for consump- 
 tion by the engines, nor even in 
 the machine shops of the company, 
 constructing or repairing its roll- 
 ing sU>ck ; but the work which lie 
 was doing was work directly re- 
 
 lated to the movement of trains — 
 as much so as that of repairing 
 the track.' 
 
 "In Indianapolis U. Ey. Co. v. 
 Houlihan, 157 Ind. 494, 60 N. E. 
 943, the court held that the stat- 
 ute applied to a telegraph oper- 
 ator stationed at a track junction 
 and whose duties required him to 
 cross the railroad tracks, and who, 
 while so doing, was struck by a 
 train running twenty miles an 
 .hour but which gave no warning 
 of its approach. 
 
 "In Pittsburgh, etc., E. Co. v. 
 Lightheiser, 168 Ind. 438, 78 N. 
 E. 1033^ the plaintiff was a pas- 
 senger train engineer and was 
 standing between two railroad 
 tracks where he had gone to take 
 cliarge of his engine, when he was 
 knocked down and injured by an- 
 other train of the railroad com- 
 pany, in- the city of Logansport, 
 Indiana. It was held that the 
 statute applied and that he could 
 recover. 
 
 "In Southern Ind. E. E. Co. v, 
 Harrell, 161 Ind. 262, 68 N. E. 
 262, the railway company was en- 
 gaged in the construction of a 
 railroad bridge over White Eiver. 
 A heavy stone was being lifted 
 by a derrick. One of the em- 
 ployees was injured by the negli- 
 gent handling of this apparatus, 
 It was held that he could not 
 recover under the statute. 
 
 "In Indianapolis & G. E. Co. 
 V. Foreman. 162 Ind. 85, 69 N. E. 
 669, the plaintiff, an employee of 
 the railroad company engaged in 
 the construction of a track, was 
 injured while l)eing transported to 
 his home in the work car of the 
 company, by reason of the negli- 
 
 •Hammill v. Pennsylvania E. Co. (N. J.) 94 Atl. 313.
 
 TO WHAT EMPLOYEES STATUTE APPLIES. 
 
 67 
 
 gence of the employees of another 
 train. It was held that he could 
 not recover. 
 
 "In Pittsburg R. R. Co. v. Ross, 
 169 Ind. 3, 80 N. E. 845, a switch- 
 man injured by the movements of 
 cars in a switch yard was held 
 entitled to recover. 
 
 "In Indianapolis T. & T. Co. v. 
 Kinney, by etc., 171 Ind. 619, 85 
 N. E. 954, the Supreme Court of 
 Indiana held that a member of a 
 section gang who was injured by 
 the negligence of a fellow laborer 
 while unloading steel rails fi-om a 
 car could! not recover. 
 
 "It is^ however, to be stated 
 tliat the courts in certain other 
 states have been much more lib- 
 eral in the construction of em- 
 ployers' liability acts than some 
 of the northwestern states whose 
 opinions we have cited. 
 
 "Thus, in Callahan v. St. L. 
 Mer. B. Co. 170 Mo. 473, 60 L. 
 R. A. 249, 71 S. W. 208, affirmed 
 in 194 U. S. 628, it was held that 
 where certain workmen were on a 
 railroad trestle which crossed a 
 street in St. Louis and were 
 throwing timbers down into the 
 street, an employee of the com- 
 pany whose duty it was to warn 
 pedestrians was entitled to re- 
 cover for an injury received 
 through the negligence of the 
 workmen on the trestle, it being 
 held that he was engaged in the 
 operation of the road. 
 
 "In Texas & P. R. R. Co. v. 
 Carlin, 111 F. R. 777. 189 U. S. 
 354, 23 Sup. Ct. Rep. 585, 47 L. 
 
 Ed. 849, it was held that an em- 
 ployee could recover who was re- 
 pairing a bridge while trains 
 were using it and was injured by 
 being struck with a spike maul 
 which had negligently been left on 
 the bridge track by the bridge 
 foreman. 
 
 "In Georgia, etc., R. Co. v. 
 Miller, 90 Ga. 571, a brakeman 
 was injured while under a disabled 
 engine out on the road. It was 
 held that he could recover notwith- 
 standing his injury was caused by 
 tlie negligence of a fellow servant. 
 
 "In Hancock v. Norfolk, etc., R. 
 R. Co. 124 N. C. 222, 32 S. E. 679, 
 it was held that a section hand 
 who was injured by reason of the 
 handcar on which he was riding 
 running into an open switch, neg- 
 ligently so left by a train brake- 
 man, could recover. 
 
 "See also Chesapeake & 0. Ry. 
 Co. v. Hoffman, 63 S. E. 432, con- 
 struing Section 163, Va. Const., 
 1902. 
 
 "That a car may be in use in 
 interstate commerce although at 
 the time empty, or about to start 
 on a journey, or designed for com- 
 pany use and not for traffic, would 
 seem to be held in such cases as 
 Voelker v. Railway Co. 116 F. R. 
 867, affirmed 129 F. R. 522. See 
 U. S. V. I. C. R. R. Co. 156 F. R. 
 183; Johnson v. S. P. Co. 196 U. 
 S. 1 ; Schlemmers v. V. R. Co. 205 
 U. S. 1; 27 Sup. Ct. Rep. 407; 
 51 L. Ed. 681; reversing 207 Pa. 
 St. 198; 5G Atl. Rep. 417; U. S. 
 V. C. M. & St. P. R. Co., 149 F. 
 R. 486, 490.
 
 68 
 
 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 "But according to Luiton, J., in 
 St. L. & S. F. Co. V. Delk, 158 F. R. 
 939, a car set on a dead track for 
 repair is not within the Safety Ap- 
 pHance Act (used in interstate com- 
 merce), 'any more than a car in a 
 shop awaiting repairs.' 
 
 "If a train is engaged in interstate 
 commerce, any employee employed on 
 such train is employed in such com- 
 merce, and hence, if injured, is with- 
 in the act. This would embrace all 
 trainmen. 
 
 "Again, if switching interstate cars 
 in a yard or delivering interstate 
 cars by a terminal company is en- 
 gaging in interstate commerce, all 
 switchmen so employed are within 
 the act. 
 
 "In this connection attention will 
 be called to what is said by the Dela- 
 ware Court in the case of Winkler v. 
 Philadelphia Railway, 4 Penn. (Del.) 
 SO; 53 Atl. 90. This was an action for 
 damages. Winkler is described aa 
 head brakeman of a shifting crew 
 which was using shifting engine Num- 
 ber 1242, and its tender in moving 
 and delivering interstate commerce 
 cars at the siding on the south side of 
 Wilmington, the railroad, defendant, 
 then and there being a common carrier 
 of passengers and freight. In charg- 
 ing the jury the court said: 
 
 " 'If the tender and car were then 
 in use in moving local traffic only, 
 from point to point within the Hmits 
 of this state, they could not be en- 
 gaged in interstate commerce. If, 
 however, the car being moved had 
 come from a point out of the state 
 with freight to be here delivered it 
 would be moving interstate com- 
 merce. This would be so even though 
 the ear to which the tender was being 
 coupled was not the car used in inter- 
 state traffic, if the removal of such a 
 car was a necessary step in getting 
 out and moving said interstate car.' 
 
 "In this connection attention may 
 
 also be called to the case of Kansas 
 City Ry. v. Flippo, 138 Ala. 487; 
 S. C. 35 Sou. 457. 
 
 "If Justice Brewer is right in his 
 opinion in Chicago, R. I. & P. R. R. 
 v. Stahley, 62 F. R. 363, it would 
 seem that all persons employed in 
 round houses, and all persons em- 
 ployed in maintaining the track, and, 
 it would follow, bridges, would be 
 within the act. On the other hand, 
 persons employed in the machine 
 shops of the company, constructing 
 or repairing its rolling stock, would 
 not be within the act. And in this 
 connection, as to car repairers, at- 
 tention is called to what was said by 
 Judge Lurton, as given above, in 
 St. Louis & S. F. Co. v. Delk, 158 
 F. R. 939. 
 
 "As for car builders and repairers, 
 clerks in freight offices and in general 
 offices, we believe that they will not 
 be held to be within the reason of the 
 act, and, therefore, not entitled to its 
 benefits. We beheve that the same 
 principle will be applied to freight 
 handlers. We believe, however, that 
 the act will be held to apply to all 
 persons engaged in the operation and 
 physical maintenance of the road." 
 
 An interstate carrier may through 
 the same employee or employees 
 engage at the same time in inter- 
 state commerce and at another time 
 in intrastate commerce. Connole v. 
 Norfolk & W. Ry. Co. 216 Fed. 823. 
 
 Both employer and employee must 
 be engaged at the same time and place 
 when and where the injury is sus- 
 tained. Cole v. Atchison & S. F. 
 Ry. Co. 92 Kan. 132; 139 Pac. 1177; 
 Patry v. Chicago & W. I. R. Co. 265 
 111. 310; 106 N. E. 843; Myers v. 
 Norfolk & W. Ry. Co. 162 N. C. 343; 
 78 S. E. 280; Atlantic Coast Line 
 R. Co. (Ala.); 60 So. 693; Atlantic 
 Coast Line R. Co. v. Jones, 9 Ala. 
 App. 499; 63 So. 693; Illinois Central 
 R. Co. V. Rogers, 221 Fed. 52.
 
 TO WHAT EMPLOYEES STATUTE APPLIES. g9 
 
 § 40. Test of employee's right to recover. — While the 
 statute, if both the employer and employee were engaged in 
 interstate commerce when he was injured, applies to every 
 act of negligence by the employer ;^ yet it was not the intent 
 of the act to apply to every negligent injury any servant 
 of the interstate carrier might receive. It applies in certain 
 cases only, leaving some cases without its provisions.^ In 
 discussing the application of this act the Supreme Court of 
 the United States has said that "There can be no doubt that 
 a right of recovery thereunder arises only where the injury 
 is suffered while the carrier is engaged in interstate com- 
 merce and while the employee is employed by the carrier 
 in such commerce;" and it declares that "The true test al- 
 ways is: Is the work in question a part of the interstate 
 commerce in which the carrier is engaged?"^ 
 
 A Georgia case has stated the case tersely: "1. The rail- 
 road company in question must be engaged in interstate 
 commerce. 2. It must be at the time of the injury in ques- 
 tion be engaged in that character of commerce, as contra- 
 distinguished from such purely local matters as it may also 
 engage in. 3. The injured servant must also at the time of 
 receiving his injury be engaged in interstate commerce."* 
 Those three conditions are necessary in order to recover.^ 
 The test is the "nature of the work being done at the time 
 of the injury, "° "not what the employee expects to do after 
 the completion of his task."'^ 
 
 » DeAtley v. Chesapeake & O. R. Ry. v. Duvall, 225 U. S. 477; 32 Sup. 
 
 Co. 201 Fed. 591; Cincinnati, N. O. Ct.790; 56 L. Ed. 1171; Erie R.Co.v. 
 
 & T. P. Ry. Co. V. Swann, 150 Ky. Jacobus, 221 Fed. 335; St. Louis, S. 
 
 4.58; 169 S. W. 886; Baltimore & Ohio F. & T. Ry. Co. v. Scale, 229 U. S. 
 
 Ry. Co. V. Whitacre (Md.) 92 Atl. 156; 33 Sup. Ct. 651; 57 L. Ed. 1129, 
 
 1060. reversing (Tex. Civ. App.) 148 S. W. 
 
 2 Baltimore & 0. R. Co. v. Whit- 1099; Shade v. Northern Pac. Ry. Co. 
 
 acre (Md.) 92 Atl. 1060. 206 Fed. 353. 
 
 ' Pedersen v. Delaware, L. & W. ■• Charleston & W. C. Ry. Co. v. 
 
 R. Co. 229 U. S. 146; 33 Sup. Ct. 648; Anchors, 10 Ga. App. 322; 73 S. E. 
 
 57 L. Ed. 1125; 3 N. C. C. 779; 551. 
 
 Illinois Cent. R. Co. v. Behrens, 233 * Piersen v. N. Y. S. & W. R. Co. 
 
 U. S. 473; 34 Sup. Ct. 646; 58 L. Ed. 83 N. J. L. 661; 85 Atl. 233; Louisville 
 
 1051; North CaroHna R. Co. v. Zack- & N. R. Co. v. Walker, 162 Ky. 209; 
 
 ary, 232 U. S. 248; 34 Sup. Ct. 305; 58 172 S. W. 517. 
 
 L. Ed. 591; Kelly v. Chesapeake & O. « IHinois Cent. R. Co. v. Behrens, 
 
 Ry. Co. 201 Fed. 602; Grand Trunk 233 U. S. 473; 34 Sup. Ct. 696; 58 
 
 Western Ry. Co. v. Lindsay, 201 Fed. L. Ed. 1051. 
 
 836, affirmed 233 U. S. 42; 34 Sup. 'Shanks v. Delaware, L. & W. R. 
 
 Ct. 581; 58 L.Ed. 828; Atlantic Coast Co. 163 App. Div. 565; 148 N. Y. 
 
 Line R. Co. v. Reaves, 208 Fed. 141; Supp. 1034. 
 125 C. C. A. 599; Seaboard Air Line
 
 70 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 § 41. Effect on the course and current of interstate com- 
 merce — Instrumentalities of interstate commerce. — "A test 
 to decide if an injury to a railroad employee is within the 
 protection of the act," declared a New York court, "is its 
 effect on the course and current of interstate commerce. Was 
 the employee's relation to traffic so close and direct that his 
 injury tended to stop or delay the movement of a train en- 
 gaged in interstate commerce?^ It is on this principle that 
 not only the train crew, but an employee repairing its track 
 or switch, is under the protection of the act. And as a 
 bridge, if not kept in a suitable condition, may by its defects 
 interrupt commerce, the duty to repair such an instrumen- 
 tality carries with it the protection of employees so en- 
 gaged.^ And one working to repair a refrigerator car,^*^ or 
 at a shop rei^airing a locomotive that has been in interstate 
 commerce, is held within the statute. ^^ But work of mill- 
 wrights, installing machine tools in a general repair shop, 
 is not interstate commerce, even if such tools are capable of 
 use in repair of engines and cars. Many incidents of rail- 
 roading cannot in any real or substantial sense be inter- 
 state commerce. For greater facility to expedite repairs, a 
 carrier may operate its own foundry and forges, with ware- 
 houses to store axles and car wheels. But the labor in set- 
 ting up and maintaining such a plant is not thereby made 
 commerce. It a car comes to a shop, those who work on the 
 car may be engaged upon an instrumentality of transporta- 
 tion. The shop machines, however, like the supplies within 
 the paint shop, have not reached the connection with the 
 movement of trains reciuired to bring those so engaged un- 
 der the act. To hold otherwise would extend the purview 
 of the statute beyond its construction of the federal 
 courts. "^^ So cleaning stencils used in marking interstate 
 cars is not engaging in interstate commerce. ^^ 
 
 * Citing Lamphere v. Oregon, R. ^' Citing Law v. Illinois Cent. R. 
 
 & Nav. Co. 196 Fed. 336; 116 C. C. A. Co. 208 Fed. 860; 126 Fed. 27. 
 
 156; 47 L. R. A. (N. S.) 1. '^ Shanks v. Delaware, L. & W. R. 
 
 •Citing Pedersen v. Delaware, L. Co. 163 App. Div. 565; 148 N. Y. 
 
 A W. It. Co. 220 U. S. 146; 33 Sup. Supp. 1034. See also Northern Pac. 
 
 Ct. 648; 57 L. Ed. 1125; 3 N. C. C. Ry. Co. v. Maerkl, 108 Fed. 1; 117 
 
 770. C. C. A. 237. 
 
 '" Citing Northern Pac. R. Co. v. "Illinois Central R. Co. v. Rogers, 
 
 Maerkl, 108 Fed. 1; 117 C. C. A. 237. 221 Fed. 52.
 
 TO WHAT EMPLOYEES STATUTE APPLIES. 7]_ 
 
 § 42. Work must be so closely connected with interstate 
 commerce as to be a part of it. — The work in which the ser- 
 vant is engaged at the time of his injury must be so closely 
 connected with interstate commerce as to be a part of it. 
 The question is "Was that work being done independently 
 of the interstate commerce in which the defendant w^as en- 
 gaged, or was it so closely connected therewith as to be a 
 part of it ? Was its performance a matter of indifference so 
 far as that commerce was concerned, or was it in the nature 
 of a duty resting upon the carrier?"^* In another case it 
 was said that the application of the act should be confined 
 to cases where "the particular service in which the employee 
 is engaged is a part of interstate commerce. "^^ "All work 
 so closely related to interstate commerce business as to be 
 practically inseparable from it, though it permeates at the 
 same intrastate business, is in reality and legal eft'ect a part 
 of the former."^*' 
 
 § 43. Intent to engage in interstate commerce in the fu- 
 ture. — It is not sufficient for the injured employee to bring 
 himself within the Federal Act, to show that he would 
 shortly have been engaged in interstate commerce and that 
 his injury was immediately before the point of time such 
 engagement would have taken place. Thus where a yard 
 conductor shortly before he received his injury was assisting 
 in shifting a car containing interstate traffic, but after that 
 service had been performed he had handled a caboose of 
 which there was no evidence tending to show that it was en- 
 gaged in interstate commerce ; and there was evidence 
 that the next service he would have been required to perform 
 would be in relation to cars engaged in interstate commerce; 
 and when injured he was proceeding to his master's office 
 in the yard for further orders and directions as to his ser- 
 vice, it was held "that he was not then and there employed 
 in moving or handling cars engaged in interstate commerce. 
 That service had been fully completed and ended, and he 
 had not reengaged in similar employment, so there is no 
 evidence in this record," the court said, "tending to prove 
 
 i^Pedersen v. Delaware, L. & W. 233 U. S. 473; 34 Sup. Ct. 646; 58 
 
 R. Co. 229 U. S. 146; 33 Sup. Ct. 648; L. Ed. 1051. 
 57 L. Ed. 1125; 3 N. C. C. 779. '« Gaber v. Duluth, S. S. & A. Ry. 
 
 '5 Illinois Cent. R. Co. v. Behrens, Co. (Wis.) 150 N. W. 489.
 
 72 FEDERAL, EMPLOYERS' LIABILITY ACT. 
 
 that, at the time the accident actually happened, this plain- 
 tiff was then and there engaged in interstate commerce, and 
 the mere fact that shortly before that time he had been so 
 engaged, or that the next service his master would require 
 would be of interstate character, cannot and does not estab- 
 lish the fact that at the time of the injury he was so en- 
 gaged."^" We do not believe that this is a correct interpre- 
 tation of the statute as applied to the concrete case before 
 the court, and think the better interpretation is that out- 
 lined in the Wisconsin case noted in the next section. 
 
 § 44. Incidental absence from scene of work. — ' ' Any brief 
 incidental absence from the scene of work or instrumentality 
 with therein, which is not inconsistent with the employee's 
 duty to his employer, does not, necessarily, preclude his 
 efficiently claiming to be still on duty and engaged in inter- 
 state commerce. Neither the period or nature or continuity 
 of service is changed by such brief stepping aside from a 
 cessation of activity as that of customarily visiting a way- 
 side place for a lunch, or other legitimate or common means 
 of refreshment, or waiting after one task shall have been 
 done for orders as to the next movement — the employee all 
 the time being within customary reach for continuance of 
 the day's service and holding himself in readiness to imme- 
 diate response."^® 
 
 § 45. Repairing instrumentalities of interstate commerce. 
 — Employees repairing instrumentalities of interstate com- 
 merce, even they also be used in intrastate commerce, are 
 within the provisions of the Federal Statute. As we shall 
 hereafter see, a bridge devoted to interstate commerce,^^ a 
 switch, even in terminal yards,^° cars being repaired in re- 
 
 "Erie R. Co. V. Welsh (Ohio) v. Atlanta & C. A. L. Ry. Co. (S. C); 
 
 105 N. E. 189. 84 S. E. 825. 
 
 '« Gaber v. Duluth, S. S. & A. Ry. =« Central R. Co. v. Colasurdo, 
 
 Co. (Wis.) irjO N. W. 4S9. See also 192 Fed. 901; 113 C. C. A. 379, 
 
 Baltimore & Ohio R. Co. v. Whitacre affirming 180 Fed. 832 (cited with 
 
 (Md.) 92 Atl. \0C)O; IMcNamara v. approval in Northern Pac. R. Co. v. 
 
 Washington Terminal Co. 37 Wash. IVIaerkl, 198 Fed. 1; Lamphere v. 
 
 D. C. 384; New York Cent. & H. Oregon, etc., R. Co. 19G Fed. 336; 
 
 R. R. Co. V. Carr, 35 Sup. Ct. 7S0, 116 C. C. A. 156, and Carr v. New 
 
 affirming 157 N. V. App. Div. 941; York, etc., R. Co. 77 N. Y. Misc. 346; 
 
 142 X. Y. Supp. nil. 136 N. Y. Supp. 501) Jones v. Chesa- 
 
 I" IVdcrsen v. Delaware, L. <fe W. peake ct O. R. Co. 149 Ky. 566; 149 
 
 R. Co. 229 r. S. 146; 33 Sup. Ct. 648; S. W. 951. 
 57 L. K(l. 64S; 3 IT. C. C. 779, revers- 
 ing 197 Fed. 537; 117 C. C. A. 33 
 (which affirmed 184 Fed. 737; Camp
 
 TO WHAT EMPLOYEES STATUTE APPLIES. 73 
 
 pair shops, though used in both intrastate and interstate 
 commerce,-^ cars being repaired in the car yards or on a 
 switch."- In the Pedersen case the Supreme Court used this 
 language: "Tracks and bridges are as indispensable to in- 
 terstate commerce by railroads as are engines and cars ; and 
 sound economic reasons unite with settled rules of law in 
 demanding that all of these instrumentalities be kept in 
 repair. The security, expedition, and efficiency of the com- 
 merce depends in large measures upon this being done. 
 Indeed, the statute now before us proceeds upon the theory 
 that the carrier is charged with the duty of exercising ap- 
 propriate care to prevent or correct 'any defect or insuffi- 
 ciency * * * in its cars, engines, appliances, machinery, 
 tracks, roadbed, works, boats, wharves, or other ecjuipment' 
 used in interstate commerce. But independently of the stat- 
 ute, we are of the opinion that the work of keeping such 
 instrumentalities in a proper state of repair while thus used 
 is so closely related to such commerce as to be in practice and 
 in legal contemplation a part of it. The contention to the 
 contrary proceeds upon the assumption that interstate com- 
 merce by railroad can be separated into its several elements, 
 and the nature of each determined regardless of its relation 
 to others or to the business as a whole. But this is an er- 
 roneous assumption. The true test always is: Is the work 
 in question a part of the interstate commerce in which the 
 carrier is engaged?"-^ The court again declares: "True, 
 a track or bridge may be used in both interstate and intra- 
 state commerce, but when it is so used it is none the less an 
 instrumentality of the former; nor does its double use pre- 
 vent the employment of those who are engaged in its repair 
 or in keeping it in suitable condition for use from being an 
 employment in interstate commerce." In this case the em- 
 ployee was carrying, when injured, some bolts or rivets to 
 
 " Northern Pac. R. Co. v. Maerkl, by the judgment in that decision. 
 
 198 Fed. 1; Law v. Illinois Central The injured employee was replacing a 
 
 R. Co. 208 Fed. 869; Missouri, K. & drawbar and was injured through the 
 
 T. Ry. Co. V. Denahy (Tex.) 165 negligence of his fellow servants in 
 
 S. W. 529. charge of the train. 
 
 " Second Employers' Liability ^^ Pedersen v. Delaware, L. & W. 
 Case, 223 U. S. 1; 33 Sup. Ct. 169; R. Co. 229 U. S. 146; 33 Sup. Ct. 648; 
 56 L. Ed. 327. This differs from the 57 L. Ed. 1125; 3 N. C. C. 779, re- 
 case of Walsh V. New York, N. H. & versing 197 Fed. 537; 117 C. C. A. 33, 
 H. R. R. Co., one of the cases affirmed which affirmed 184 Fed. 737.
 
 74 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 an interstate railroad bridge to be used the next morning 
 in repairing it, this repairing to consist in taking out an 
 existing girder and inserting a new one. It was insisted 
 that at the time of his injury he was not engaged in remov- 
 ing the old girder and inserting the new one, but only carry- 
 ing to the place where that work was to be done the next 
 day some bolts or rivets to be used therein, but the court did 
 not consider this contention sound, saying : ' ' We think there 
 is no merit in this. It was necessary to the repair of the 
 bridge that the materials be at hand, and the act of taking 
 them there was a part of that work. In other words, it was 
 a minor task which was essentially a part of the larger one, 
 as is the case when an engineer takes his engine from the 
 roundhouse to the track on which are the cars he is to haul 
 in interstate commerce."-^ An employee operating a steam 
 shovel on the roadbed of an interstate railroad is within the 
 Federal Act.-^ 
 
 § 46. Original construction of interstate commerce instru- 
 mentalities. — The courts show a distinction between instru- 
 mentalities devoted to use in interstate commerce and in- 
 strumentalities that are designed to be devoted to that use, 
 and properly so. Thus in a leading case this language was 
 used: "Of course, we are not here concerned with the con- 
 struction of tracks, bridges, engines, or cars which have 
 not as yet become instrumentalities in such commerce, but 
 only with the work of maintaining them in proper condition 
 after they have become such instrumentalities and during 
 their use as such."-*^ And in a case in one of the Cirouit 
 Court of Appeals, Judge Sanborn, after declaring that the 
 act protects only those employed in interstate commerce, 
 said: "Those employed in the preparation or construction 
 
 ^* Since this decision was rendered, used for interstate business." Eng 
 
 the case of Taylor v. Southern R. Co. v. Southern Pac. Co. 210 Fed. 92. 
 
 178 Fed. 380, cannot be regarded as " Tralich v. Chicago, M. & St. P. 
 
 an authority. Ry. Co. 217 Fed. 675; Lombardo v. 
 
 "The principle seems to be that Boston & M. R. Co. 223 Fed. 427. 
 
 one employed at the time of his "" Pedersen v. Delaware, L. & W. 
 
 injury in the u.se of or maintaining R. Co. 229 U. S. 140; 33 Sup. Ct. 
 
 in proper condition any instrumen- 648; 57 L. Ed. 1125; 3 N. C. C. 779, 
 
 tahty or appliance u.sed by the carrier reversing 107 Fed. .537; 113 C. C. A. 
 
 in interstate commerce comes within 33, which affirmed 184 Fed. 737; Wa- 
 
 this statute, although such instru- bash R. R. Co. v. Hayes, 2.34 U. S. 
 
 mentality or appliance may also be 8(); 34 Sup. Ct. 729; 58 L. Ed. 1226; 
 
 .Jackson v. Chicago, M. St. P. Ry. Co. 
 210 Fed. 495.
 
 TO WHAT EMPLOYEES STATUTE APPLIES. 75 
 
 of roadbeds, rails, ties, cars, engines, and other instrumen- 
 talities which are intended for use in interstate commerce, 
 but have never been and are not in use therein, are not 
 employed in interstate commerce, and are not protected by 
 that act." And so it was held that an employee engaged 
 in the construction of a bridge, on a cut-off more than a mile 
 in length, which had never been provided with rails, or 
 used as a railroad, was not employed in interstate commerce, 
 although his employer was so engaged and intended to use 
 the cut-off therein when completed.-' So where a laborer on 
 a construction train was injured a similar ruling was made. 
 In that case the railway company was constructing another 
 track so that, when completed, it would have a double in- 
 stead of a single track railway. He was one of a train crew 
 employed on a work train engaged in hauling ties for dis- 
 tribution along the right of way, which ties were intended to 
 be used in the new track. The grade for this new track was 
 not yet finished. The work train moved along the rails of 
 the existing track, which was then used in interstate com- 
 merce, and the ties were thrown to the side along the line 
 of the new grade. The operation of the work train was 
 wholly within the state, and no part of the proposed track 
 had been used for any purpose, but when completed it was 
 intended to be used in the transportation of interstate traf- 
 fic. It was held that the injured employee did not come 
 within the Federal Act.-* 
 
 § 47. Impeding the progress of interstate commerce. — 
 
 Many statements are made in the decisions that anything 
 which tends to impede, hinder or delay the transportation 
 of interstate commerce falls within the Federal Liability 
 Act, and they construe that an injury to an employee who 
 
 -' Bravis v. Chicago, M. & St. P. upon an instrumentality during the 
 
 Ry. Co. 217 Fed. 234. But not after day that had already been devoted to 
 
 the track is used by interstate trains. and was then in use in interstate 
 
 Clark V. Chicago G. W. R. Co. commerce. 
 
 (Iowa) 152 N. W. 635. -" Chicago & E. R. Co. v. Steele 
 
 In this case Bravis was injured (Ind.) 108 N. E. 4. In Grow v. 
 
 while going to his work on a hand Oregon Short Line R. Co. (Utah) 
 
 car, and the court distinguished it 138 Pac. 398, is an inferential state- 
 
 from San Pedro v. L. A. & S. L. R. ment contrary to the holding in the 
 
 Co. 210 Fed. 870; 127 C. C. A. 454, Indiana case. Tearing down old 
 
 where the employee was injured roundhouse to build a new one. 
 
 while also going to his work on a Thomas v. Boston & M. R. R. 218 
 
 hand car, by calling attention to the Fed. 113. 
 fact that he was engaged in working
 
 76 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 sustains such a relation to that commerce that his injury 
 will or even may have a tendency to impede, hinder or delay 
 it is entitled to bring his action under that statute. Thus in 
 a New York court it was said: "A test to decide if an injury 
 to a railroad employee is within the protection of the act 
 is its effect on the course and current of interstate commerce, 
 "Was the employee's relation to traffic so close and direct 
 that his injury tended to stop or delay the movement of a 
 train engaged in interstate commerce?-" It is on this prin- 
 ciple that not only the train crew, but an employee repairing 
 its track or switch, is under the protection of the act. And 
 as a bridge, if not kept in suitable condition, may by its de- 
 fects interrupt commerce, the duty to repair such instru- 
 mentalities carries with it the protection of employees so 
 engaged.^" And one working on a refrigerator car,^^ or at 
 a shop repairing a locomotive that has been in interstate 
 commerce, is held to be within the statute.^- 
 
 § 48. Track repairer. — A track repairer engaged in re- 
 pairing a track over which both interstate and intrastate 
 trains move is embraced within the provisions of this statute. 
 "The track of a railroad company engaged both in interstate 
 and intrastate commerce is, while essential to the latter, in- 
 dispensable to the former. It is equally important that it 
 be kept in repair. When the traffic itself is not in fact 
 interstate, although upon a railroad engaged in commerce 
 between the states, such as trains devoted entirely to local 
 
 " Citing Lamphere v. Oregon R. v. Illinois C. R. Co. (III.) 109 N. E. 
 
 & Nav. Co. 196 Fed. 33G; 116 C. C. 342. 
 
 A. 156; 47 L. R. A. (N. S.) 1. "The effect of a personal injury to 
 
 *" Citing Pedersen V. D. L. & W. R. plaintiff, incapacitating him for the 
 
 Co. 229 U. S. 146; 33 Sup. Ct. 648; duties of his employment, tended to 
 
 57 L. Ed. 1125; 3 N. C. C. 779. hinder the movement or impede the 
 
 ^' Citing Northern Pac. R. Co. v. progress or safety of a train engaged 
 
 Maerkl, 198 Fed. 1; 117 C. C. A. 237. in interstate commerce, and would 
 
 '^ Shanks v. Delaware, L. & W. R. come under the purview of the Federal 
 
 Co. 163 App. Div. 565; 148 N. Y. Employers' Act." Atlantic Coast 
 
 Supp. 1034; citing Law v. Illinois Line R. Co. v. Jones, 9 Ala. App. 499; 
 
 Central R. Co. 208 Fed. 869; 112 63 So. 693. 
 C. C. A. 27. Car iu the yard, Staley
 
 TO WHAT EMPLOYEES STATUTE APPLIES. 77 
 
 business and wholly within the borders of a state, a different 
 case is presented. There it is possible to identify what is 
 and what is not interstate ; but when, as in this case, a road 
 is admittedly engaged in both, it becomes impossible to say 
 that particular work done results directly for the benefit of 
 one more than the other. Manifestly it is for the accommo- 
 dation of both, to hold, then, that a workman engaged in 
 repairs upon the track of such a carrier is not furthering 
 interstate commerce or would be to deny the power to 
 control and is a desirable instrument for commercial inter- 
 course between the states — to deny the power of Congress 
 over interstate commerce — but that the power extends to 
 the control of their instrumentalities through which such 
 commerce is carried on is not an open question." ^ 
 
 "No doubt there may be situations, indeed we have the 
 highest authority for it ^ when instrumentalities that may 
 be used for interstate or intrastate traffic, or both, but which 
 at the time are not being used for either, as the engines or 
 cars are undergoing repair, or in cases of clerical work or 
 when the acts or things done are not physically or otherwise 
 directly connected with the moving of traffic, where there 
 could be no ground for claiming liability under the Act of 
 Congress, even though the carrier, in fact be engaged in 
 interstate as well as local traffic. But where the employment 
 necessarily and directly contributes to the more extended 
 use and without which interstate traffic could not be carried 
 on at all, no reason appears for denying the power over the 
 one, although it may indirectly contribute to the other. The 
 particular question is an apt illustration of the intricacies 
 to which our dual system of government often leads; but 
 the intricacy is but an incident, and it can neither defeat 
 nor impair the power of Congress over interstate commerce. 
 
 2 Citing and quoting from Inter- 826; 29 L. Ed. 158; Weldon v. 
 
 state Oommerce Oommission v. Wisconsin, 91 U. S. 275 1 23 L. E4. 
 
 Illinois Central R. Co, 215 U. ,S. 347. 
 
 4.-52; 30 Sup. Ct. 1<55; 54 L. Ed. 3 Citing Employers' Liability 
 
 280; Gloucester Ferry Co. v. Penn- Cases, 207 U. S. 495; 28 ,Sup. Ct 
 
 sylvania, 114 U. S. 19G; 5 Sup. Ot. 141; 52 L. Ed. 297.
 
 yg FEDERAL, EMPLOYERS' LIABILITY ACT. 
 
 Since the track, in the nature of things, must be maintained 
 for commerce between the states, the work bestowed upon it 
 inures to the benefit of such commerce. It is therefore 
 subject to the Federal control, even though it may con- 
 tribute to carriage wholly within the state. Being insepar- 
 able, yet interstate commerce inherently abiding in the 
 thing to be regulated, as to the track, the state jurisdiction 
 must give way, or at least it can not defeat the superior 
 power of Congress over the subject-matter, whenever a 
 carrier is using the track for the double purpose."* 
 
 § 49., Statute includes everybody Congress could include; 
 same persons in different capacities; track repairer; tele- 
 graph operator. — It has been held that a track repairer on 
 an interstate railroad was within the provisions of this 
 statute. So much of the opinion of the court as relates to 
 the subject is as follows: **The present act * * * I think 
 should therefore be construed ^ as intending to include 
 within the term 'person employed in such commerce' all 
 those persons who could be so included within the consti- 
 tutal power of Congress, that is to say, the act meant to 
 include everybody Congress could include. Under this con- 
 struction the inquiry becomes whether Congress could con- 
 stitutionally have passed a statute regulating the relation 
 
 *Zikos V. Oregon R. & N. Co. 179 Co. v. Kemp, 140 Ga. 657; 79 S. E. 
 
 Fed. 893, citing In re Debs, 158 Fed. 558; Clark v. Chicago G. W. R. Co. 
 
 564; 15 Sup. Ct. 500; 39 L. Ed. 1092 (Iowa) 152 N. W. 635. Wiring rails 
 
 and£x/>or/eSiebold,100U.S.371;25 together. Glunt v. Pennsylvania R. 
 
 L. Ed. 717. A track laborer injured. Co. (Pa.) 95 Atl. 109; Texas & P. Ry. 
 
 Grow V. Oregon Short Line R. Co. 44 Co. v. White (Tex. Civ. App.) 177 
 
 Utah 591; 138 Pac. 398, operating S. W. 1185; Willever v. Delaware, L. 
 
 Bteam shovel on road bed. Tralich & W. R. Co. (N. J.) 94 Atl. 595; 
 
 v. Chicago, M. & St. P. Ry. Co. 217 Glunt v. Pennsylvania R. Co. (Pa.) 
 
 Fed. 675. The same result has been 95 Atl. 109. Lifting a car. Texas & 
 
 reached in a number of cases. Char- P. Ry. Co. v. White (Tex. Civ. App.) 
 
 peski v. Great Northern Ry. Co. 177 S. W. 1185. 
 
 (Minn.) 1.50 N. W. 1091; Sanders The same result was reached in the 
 
 V. Charleston & W. C. Ry. Co. 97 case of an employee injured by a 
 
 S. C. 50; 81 S. E. 283; Tralich v. local train while repairing a switch. 
 
 Chicago, M. & St. P. Ry. Co. 217 Colasurdo v. Central Railroad of 
 
 Vad. ()75; Norfolk & W. Ry. Co. v. New Jersey, 180 P'ed. 832, affirmed 
 
 Holbrook, 215 Fed. 687; Truosdell v. 192 Fed. 901; 113 C. C. A. 379. 
 
 Chesapeake <t O. R. Co. 159 Ky. 718; <■ This said in view of the fact that 
 
 169 S. W. 471 (repairing switch); the statute was enacted to escape the 
 
 Jones v. Chesapeake & (). Hy. Co. invalidity of the Act of 1906 as pointed 
 
 149 Ky. .566; 149 S. W. 9.')1 (repairing out in the Employers' Liabihty Cases, 
 
 switch); Stafford v. Norfolk A: \V. Ry. 207 U. S. 463; 28 Sup. Ct. 141; 52 
 
 Co. 202 Fed. 605; Louisville & N. R. L. Ed. 297.
 
 TO WHAT EMPLOYEKS' STATUTE APPLIES. 79 
 
 between a carrier-master and a servant who was engaged 
 in the repair of a track used for both interstate and intra- 
 state commerce. Preliminarily the distinction should be 
 noted that the act will not necessarily apply to the same 
 person in all details of his employment. One man might 
 have duties including both interstate and intrastate com- 
 merce, and he would be subject to the act while engaged in 
 one and not the other. This being so, the question is 
 whether his repairing of a switch is such employment, when 
 the switch is used indifferently in both kinds of commerce. 
 Suppose the track had crossed a comer of a state, and there 
 was only one station within that state so that all trains 
 crossing over that track must necessarily be engaged in 
 interstate commerce. Would not a track worker engaged in 
 the repair of such a track be engaged in interstate commerce ? 
 I do not think that he "would be any the less so engaged than 
 the engineer on the locomotive or the train dispatcher who 
 kept the trains at proper intervals for safety. Of course, it 
 is not necessary that the man must personally cross a state 
 line. If the repair of such a track be interstate commerce, 
 does it cease to be such because there are two stations 
 within the state and some of the trains start at one and 
 stop at the other? I cannot think that this is true, although 
 counsel have referred me to no case upon the subject and I 
 have found none. The track is none the less used for inter- 
 state commerce, because it is • also used for intrastate 
 commerce, and the person who repairs it is, I think, 
 employed in each kind of commerce at the same time. 
 
 Despite the earlier ruling in Gibbons v. Ogden,^ it has in 
 recent times been stated several times by the Supreme Court 
 that state statutes may indirectly regulate interstate 
 ■commerce, even though Congress may at any time itself 
 under its proper constitutional powers, enact a provision of 
 'directly opposite tenor.'^ If, as was held in those cases, a 
 state has the power to regulate such commerce until Con- 
 gress intervenes, because it is as well within the state's 
 proper powers, must not the corollary be true as well, that 
 Congress may intervene, even when the effect of that inter- 
 vention be incidentally the regulation of intrastate commerce 
 as well? Could not Congress, for example, provide that all 
 
 6 9 Wheat. 1; 6 L. Ed. 23. v. Colorado, 187 U. S. 137; 23 
 
 7 Citing Sherlock \. Ailing, 93 Sup. Ct. 92; 47 L. Ed. 108. 
 U. S. 99; 23 L. Ed. 819; Keid
 
 gQ FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 tracks used in interstate eonmieree must be of a standard 
 width and weight? Would that not affect all tracks used 
 in such commerce, although they likewise were used for 
 intrastate commerce ? Of course, anyone could use any other 
 tracks he chose for intrastate commerce ; but it can surely 
 not be a ground to limit Congress's proper powers that the 
 track has a joint use. If so, the repair of such tracks must 
 be a part of interstate commerce, and under the Employers' 
 Liability Cases,® the relations of master and servant arising 
 between the railroad and its employees engaged in repairing 
 the track are similarly within the power of Congress. 
 
 I am therefore of opinion that the plaintiff was at the time 
 engaged in interstate commerce and entitled to the rights 
 secured bj^ this act. That being so, it is a matter of no icon- 
 sequence whether the train that struck him was engaged in 
 that commerce or not. It is true that the act is applicable 
 to carriers only ''while engaged" in interstate commerce, 
 but that includes their activity when they are engaging in 
 such commerce by their own employees. In short, if the 
 emploj^ee was engaged in such commerce, so was the road, 
 for the road was the master, and the servant's act is its act. 
 The statute does not say that the injury must arise from an 
 act itself done in interstate commerce, nor can I see any 
 reason for such an implied construction. ' ' ^ 
 
 § 50. Car repairer in switching yard. — In a ease brought 
 to recover damages it was shown that the plaintiff' had been 
 sent "to one of the different railroad's yards and assigned 
 to the work of coupling up air hose, looking over brakes to 
 see if they were all right, and to shop-mark any brake that 
 was found broken." On the date of the injury an employee 
 of the railroad, whose work was to couple up the air hose 
 and make such light repairs as could be done upon the 
 switching track, was unable to perform his duty that day, 
 and the plaintiff was assigned and directed to do his work. 
 
 8 207 U. S. 463; 28 Sup. Ct. 141; Southern Pac. Co. 64 Ore. 597; 131 
 
 52 L. Ed. 297. Pac. 507. 
 
 • Colasurdo v. Central R. P.. of The hability of the carrier for in • 
 
 N. J. ISO Fed. 832, affirrruid 192 Fed. juries suffered by a member of the 
 
 901; ll'i C. C. A. 379. The words crew in the course of the general 
 
 "any pc^rson" used in the first section work was subject to regulation by 
 
 of th«! stjitute Hlu)uld i)e construed to Congress, whether the particular 
 
 indufje everj' person who can be so in- service being performed at the time 
 
 eluded within the purview of the con- of the injury, i.solatedly considered, 
 
 Btitutifinal power of the Federal was in interstate or intrastate com- 
 
 Governrnent. Ilorton v. Oregon, men^e. Illinois Cent. R. Co. v. 
 
 Washington R. & Nav. Co. 72 Wash. Behrens, 233 U. S. 473; 33 Sup. Ct. 
 
 503; 130 Pac. 897; Montgomery v. 648; 57 L. Ed. 1125.
 
 TO WHAT EMPLOYEES STATUTE APPLIES. 3^ 
 
 The tracks upon which this work was done were not repair 
 tracks, but were switching tracks ; and the ear which caused 
 his injury was on a track upon which was run cars to be 
 delivered to another railroad. In coupling- up the air hose 
 of the cars on this track he found one car with a defective 
 coupler which he attempted to remedy so as to couple the 
 cars and the air hose, but was injured while between it and 
 the next car by some cars "kicked" on to the track which 
 suddenly caused the defective car to move and injure him. 
 This car was not equipped as the Safety Appliance Act 
 required. It was held that the plaintiff was entitled to 
 recover because this car was not equipped as the Safety 
 Appliance Act required whereby the plaintiff was injured; 
 and also that the Employers' Liability Act applied to him. 
 "In moving the car in question," it was said the plaintiff 
 *'was engaged in interstate commerce," and he was em- 
 ployed by the company ' ' in said commerce. " " It is argued, ' ' 
 said the court, "that the Employers' Liability Act can have 
 no application to the case, as plaintiff was not an employee 
 engaged in interstate commerce. A part of his employment 
 was to see to the coupling of the car and the air hose upon 
 the 'Cars which were placed upon the transfer tracks. Some 
 of the cars, among them the one in question, were engaged 
 in interstate commerce. It is difficult to see why he was not 
 an employee engaged in the movement of interstate com- 
 merce to as full an extent as a switchman engaged in the 
 making up of trains in the railroad yards, or in the case 
 of Chicago Junction Railroad Company v. King}'^ From a 
 consideration of the whole case, we think the defendant or 
 railroad company was engaged in interstate commerce ; that 
 the car in question had upon it a coupler which was defec- 
 tive and did not comply with the Act of Congress ; that at 
 the time plaintiff was injured the movement of the car was a 
 movement by defendant in interstate commerce ; that plain- 
 tiff was injured while a servant of defendant and in the 
 performance of his duty, aiding in the movement of inter- 
 
 10 169 Fed. 372; 94 C. C. A. 652, affirmed 32 Sup. Ct. 79.
 
 82 FEDERAL EMPLOYERS' LIABILITY ACT, 
 
 state commerce ; that the movement of the car with the 
 defective coupler was the proximate cause of plaintiff's in- 
 juries; that plaintiff did not assume the risk of injury inci- 
 dent to the employment. "^^ 
 
 § 51. Laying additional track on bridge; injury by inter- 
 state train. — A railway company was engaged in both inter- 
 state and intrastate traffic at the time its employee was 
 injured. At the time of the injury the company was building 
 an additional track on the line, part of which was laid on a 
 bridge. The employee was engaged in the bridge construc- 
 tion, and he was injured while carrying material from one 
 part of the work to another by a local train running between 
 two points within the same state. This train was engaged 
 wholly in intrastate business. It was held that he could 
 recover under this statute, and that he came within its pro- 
 visions. The lower court declined to follow the Zikos case^^ 
 and the Colasurdo case,^^ and considered that the plaintiff 
 was "injured by an act of the defendant done in the per- 
 formance of purely intrastate business," and for that reason 
 entered judgment in favor of the defendant, but its decision 
 was reversed.^* 
 
 § 52. Loading railroad iron rails ; burden. — "Whether or 
 not an employee injured while loading rails for an interstate 
 railroad is engaged in interstate commerce has not been de- 
 cided, but it would seem that he is. A case somewhat of 
 this character was decided in the Supreme Court of the 
 State of Washington, but the question whether or not such 
 an employee came within the provisions of this statute was 
 
 " Johnson v. Great Northern Ry. '^ Colasurdo v. Central R. R. of 
 
 Co. 178 Fed. 643. "Whether plain- N. J. 180 Fed. 832. 
 tiff was guilty of any negligence '^ Pedersen v. Delaware, L. & W. 
 
 which contributed to the injury was, R. Co. 229 U. S. 146; 37 Sup. Ct. 648; 
 
 if applicable, a question for the jury." 57 L. Ed. 1125; reversing 197 Fed. 
 
 Machinist going through yard to 537; 117 C. C. A. 33, which affirmed 
 
 repair an interstate locomotive. Staley 184 Fed. 737. 
 
 V. Illinois Cent. II. Co. (111.) 109 N. E. Relaying rails on a track used for 
 342, reversing 186 111. App. 593. interstate traffic is engaging in inter- 
 In the case of Chicago Junction Ry. state commerce. Sanders v. Charles- 
 Co. V. King, 169 Fed. 372, 94 CCA. ton & W. C Ry. Co. 97 S. C 50; 81 
 652, affirmed 32 Sup. Ct. 79, the per- S. E. 283; Tralick v. Chicago, M. & 
 son injured was a switchman em- St. P. Ry. Co. 217 Fed. 675; Jackson 
 ployed in the Union Stock Yards of v- Railway Co. 210 Fed. 495; Char- 
 Chicago whenr the injury was in- pcski v. Great Northern Ry. Co- 
 flicted upon him while he was between (Minn.) 150 N. W. 1091. 
 two cars trying to replace the broken 
 part of a coupler. 
 
 '^ZikoH v. Oregon R. & N. Co. 
 179 Fed. 893.
 
 TO WHAT EMPLOYEES STATUTE APPLIES. g3 
 
 not decided ; although, a recovery having been had upon this 
 statute, the case was reversed because it was "not shown 
 whether the rails were old or new, where they came from, 
 where they were to be taken, or where the car was to go 
 when loaded. The respondent's theory sems to be that," con- 
 tinued the court, "because the appellant was authorized to, 
 and did at times, engage in interstate commerce, and because 
 the respondent was employed in loading a fiat car with rails 
 which had been used or were to be used in the repair of its 
 roadbed in the State of Montana, he was necessarily engaged 
 in interstate commerce within the meaning of the act. We 
 can not assume that every employee of appellant, by reason 
 of his employment, is so engaged. Appellant may have thou- 
 sands of employees whose duties do not partake of that 
 character. If the act in question is constitutional, it is so 
 because it applies only to servants engaged in interstate com- 
 merce. If it is broad enough to include this case in its pro- 
 visions, it is, in our opinion, open to the same objections 
 which rendered the earlier act unconstitutional. If re- 
 spondent is to avail himself of the benefits, the burden de- 
 volves upon him to show that the duties which he was per- 
 forming while an employee of the appellant were of a char- 
 acter that directly pertained to and were a part of interstate 
 commerce. No such showing was made, and appellant's mo- 
 tion for a directed verdict should have been sustained. "^^ 
 
 §53. "While" railroad was "engaging in" interstate 
 commerce. — Divergent views have prevailed over the phrase 
 "while engaging" in interstate commerce as applied to the 
 railroad company. Thus an employee was injured while re- 
 
 " Tsmura v. Great Northern Ry. an interstate track was not within 
 
 Co. 58 Wash. 318; 108 Pac. 774. the statute; but that decision, was 
 
 See Van Vrimmer v. Texas & P. Ry. rendered before the decision in the 
 
 Co. 190 Fed. 394; Ingle v. Southern Pedersen case and cannot now be 
 
 Ry. Co. (N. C.) 83 S. E. 744. regarded as sound. Pedersen v. 
 
 The case of Pierson v. New York, Delaware, L. & W. R. Co. 229 U. S. 
 
 etc.R.Co. 83N.J. L.661;85Atl.233, 146; 33 Sup. Ct. 648; 57 L. Ed. 1125, 
 
 goes a step farther and holds that reversing 192 Fed. 537; 117 C. C. A. 
 
 an employee engaged in unloading 33, which affirmed 184 Fed. 737. 
 rails that were to be used in repairing
 
 g4 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 pairing a switch in the yards of an interstate railroad by a 
 local train running between two points within the state, and 
 it was held that the company was liable under the statute. 
 The repair of tlie switch was held to be interstate business, 
 because the switch was used indifferently'' in both kinds of 
 commerce. The court held that it was no matter of concern 
 whether or not the train that struck him was at the time 
 engaged in interstate commerce, giving as a reason: ''It is 
 true that the act is applicable to carriers only 'while en- 
 gaged' in interstate commerce, but that includes their 
 activity w^hen they are engaging in such commerce by their 
 own employees. In short, if the employee was engaged in 
 such commerce, so was the road, for the road w^as the master 
 and the servant's act its act. The statute does not say that 
 the injury must arise from an act itself done in interstate 
 commerce, nor can I see any reason for such an implied 
 construction. ' ' ^''' 
 
 "Colasurdo v. Central R. R. of Where a switchman just prior to 
 New Jersey, 180 Fed. 832. Where his death had been handling cars con- 
 an employee was struck by an intra- taining both interstate and intra- 
 state car on a track used for inter- state freight, it v-^as held that the 
 state trains, while working on a switch jury was authorized to find that he 
 mechanism which he had just oiled, was employed in interstate com- 
 it was held that he was not within merce. Pittsburg, C. C. & St. L. 
 the Federal Act. Granger v. Penn- Ry. Co. v. Glinn, 219 Fed. 148. 
 sylvania R. Co. 84 N. J. L. 338; 86 
 Atl. 2&4: Illinois Central R. Co. v. 
 Rogers, 221 Fed. 52.
 
 TO WHAT EMPLOYEES STATUTE APPLIES. 85 
 
 § 54. When an employee enters on his work or is entitled 
 to the protection of the statute. — A case arose in Montana 
 that is instructive on the question when a workman is en- 
 gaged in the service of a railway company and consequently 
 when he was entitled to the protection of the Federal statute 
 extending to interstate employees. One Moyse was a con- 
 ductor on the railroad of the defendant. He brought his 
 train to a freight yard, and having registered his arrival, 
 in the evening of the day of his arrival, he was noti- 
 fied that he would not be required to go on duty 
 again until the morning of the second day thereafter. 
 He, with the brakeman of his train, spent the day in the 
 city v/^here the yard was situated, returning at night to the 
 freight yard to sleep in the caboose, as was the fixed custom 
 of the employees of the company. The caboose was placed 
 on a spur track ending at an excavation, with no protection 
 to prevent its running into it. There was a slope towards 
 the excavation, but with the brakes set, barring accidents, 
 it was considered reasonably safe to occupy the caboose 
 for sleeping purposes. After the men had returned, the yard 
 crew ran other cars upon the spur on which the caboose 
 stood and left them standing, apparently held securely by 
 their own brakes. During their brief absence these cars 
 and the caboose disappeared, having been released in some 
 manner and running together into the excavation. It was 
 contended that the conductor who was asleep in the caboose, 
 when it was thrust into this excavation, and who was in- 
 jured, could not be regarded as, at that time, in the service 
 of the defendant railroad, but the court held that he was, 
 saying :
 
 86 FEDERAL EMPLOYERS* LIABILITY ACT. 
 
 ''The complaint is framed upon the theory that the 
 defendant company is liable to the plaintiff, as one of its 
 employees, for injuries received while engaged in the dis- 
 charge of his duties, through the negligence of other em- 
 ployees, and that the other defendants are liable because 
 they were personally guilty of the acts of negligence which 
 caused the injury. It declares upon the statute which 
 abolishes the fellow-servant rule. (Rev. Codes, sec. 5251.) 
 The acts charged as negligence are the handling of the cars 
 by the yard crew in making up the train in such mann&v 
 as to permit them to escape and collide with the 'caboose, 
 driving it into the excavation, and the omission by de- 
 fendants to provide some device, at the brink of the excava- 
 tion, to prevent the caboose from being precipitated therein, 
 if from any cause it escaped. The first contention made by 
 the counsel is that the evidence is insufficient to justify the 
 verdict, for that it appears that at the time the plaintiff 
 was injured he was not engaged actively in the discharge 
 of duties for which he was employed by the company, but 
 was a mere licensee upon its property, to whom it and its 
 employees owed no duty other than to refrain from doing 
 him a willful or wanton injury ; and hence that no liability 
 can be predicated upon the statute. In support of this con- 
 tention counsel argue that, while one is in the employ of 
 another under a contract, he is, in a popular sense, an em- 
 ployee during the entire period covered by the contract; 
 yet the rights and duties incident to the relation of master 
 and servant, in a legal sense, do not subsist, except during 
 the time which, under his contract, he must actively devote 
 to the duties of his employment. To make the statement 
 in another way : Unless the servant is at a particular time 
 under the control of the master, giving his time and atten- 
 tion to the particular duties he is employed to do, he is pro 
 hac vice a stranger to whom the master, as such, owes no 
 duty whatever, except such as he must observe toward any 
 other stranger under the social compact. While the statute 
 has to do exclusively with those persons who sustain toward
 
 TO WHAT EMPLOYEES STATUTE APPLIES. 87 
 
 each other the relation of master and servant, it does not 
 undertake to define who those persons are, but merely 
 imposes certain rights and liabilities upon them, leaving it 
 to the courts to determine when persons have assumed the 
 relation. The facts and circumstances which appear from 
 the statement of the evidence before us furnish support for 
 the inference that, during the entire time when the plaintiff 
 was away from his home terminal, he was, except when 
 notified that his services were not wanted, subject to be 
 called on duty. He was required to be within call, and, as 
 he understood the rules, was subject to discipline if he was 
 not. It is also a fair inference that though he was not under 
 his contract required to occupy the caboose at night, he 
 was nevertheless expected to do so, and not only this, but 
 that he had a right to do so, because it was under all the cir- 
 cumstances a su'bstantial privilege accorded to him under 
 the contract, which the company was not at liberty to with- 
 draw at will. If these inferences are permissible, and we 
 think they are, then the conclusion seems inevitable that he 
 was in the caboose in the course of his employment, and that 
 the mem'bers of the yard crew were his fellow-servants, for 
 whose negligence the "company is lia'ble under the statute." 
 "The conclusion we have reached, that the plaintiff was in 
 the caboose for the purpose of being within call by the 
 defendant company to go on duty, and was therefore in the 
 discharge of his duties, involves the conclusion, also, that 
 he was not there as a mere licensee, and that the rule of 
 liability declared by the statute applies to the case made by 
 the evidence. It is not at all conclusive that the pay of the 
 plaintiff ceased when he registered on his arrival at Butte 
 [the city where the accident happened] . In the light of the 
 evidence, under the contract of employment it was within 
 the contemplation of both parties that he should hold him- 
 self subject to the order of the company after his pay had 
 ceased; and it seems clear that a contract including a stipu- 
 lation of this kind, express or implied, is not open to any 
 legal objection. Under the circumstances disclosed, the
 
 gg FEDERAL, EMPLOYERS' LIABILITY ACT. 
 
 obligation was upon the company to use ordinary care to 
 provide a reasonably safe place for the use of plaintiff, and 
 to maintain it in that condition. "^^ So where an employee 
 was engaged in relaying rails on the main track, forming 
 one of a repairing crew, was injured while asleep at night 
 in a shanty car in a train on a side track, a car provided by 
 the railway company for the crew, it was held that he came 
 within the Federal Act.^^* 
 
 § 55. When employee enters on interstate work.— It is 
 
 very difficult to lay down any rule that will be definite 
 enough to afford any aid in determining just when an 
 employee begins work that is covered by the statute. This 
 may or may not involve the question just when the relation 
 of master and servant begins ; but usually a determination 
 of that point of time will be of assistance in this connec- 
 tion. Take the case of an engineer whose run is from one 
 state to another, and who is injured by a fellow servant 
 before he has mounted his engine or even reached it. Can 
 the circumstances be such that he comes within the provi- 
 sions of this statute? One court has in a measure answered 
 this question. "When Tucker was killed," said the court, 
 "he was upon the premises of the defendant in response to 
 its call, to assume the duties he had been engaged by the 
 defendant to assume, and for their mutual interest and 
 advantage. Can it be that under such circumstances the 
 relation which the decedent sustained to the defendant was 
 that of a mere stranger? Is it possible that the Act under 
 consideration warrants a distinction so fine as to permit a 
 master to escape liability for negligence resulting in the 
 inquiry of one hired to perform servi-ce, because the injury 
 occurs before the service is actually undertaken, notwith- 
 standing that at the time of the injurj^ the servant is prop- 
 erly and necessarily upon the premises of the master for the 
 sole purpose of his employment? We think not. Such a 
 rule, in our view, would bo as technical and artificial as it 
 would be unjust. We think the ])etter rule, ihe one founded 
 in reason and supported liy authority, is that the relation 
 of master and servant, in so far as the obligation of the 
 master to protect his servant is concerned, commences when 
 
 isMoysc V. NortlKirn i'acilic Uy. Co. 41 Mont. 272; 108 Titc. 1062. 
 "»* Sanders v. Charleston & W. C. Ry. Co. 97 S. C. 50; 81 S. E. 283.
 
 TO WHAT EMPLOYEES STATUTE APPLIES. 8iJ 
 
 the servant, in piirsnamce of hi-s contract with the master, 
 is rightfully and necessarily upon the premises of the master. 
 The servant in such situation is not a mere trespasser nor a 
 mere licensee. He is there because of his employment, and 
 we see no reason why the master does not then owe him as 
 much protection as it does the moment he enters upon the 
 actual performance of his task. * * * In Packet Company 
 V. McCue,^^ a bystander was hired on a wharf to assist in 
 loading a boat which was soon to sail. This man had been 
 occasionally employed in such work. His services occupied 
 about two and one-half hours, when he was directed to go 
 to 'the office,' which was on the boat, and get his pay. This 
 he did and then attempted to go ashore. While on the gang- 
 plank the plank was recklessly pulled from under his feet, 
 and he was thrown against the dock, receiving injuries from 
 which he died. Owing to the somewhat peculiar nature of 
 the ease it was held that it was for the jury to say, although 
 the facts were undisputed, whether the relationship of 
 master and servant existed until the man got completely 
 ashore. Tke >concluding sentence of the opinion of Mr. 
 Justice Davis was as follows: 'The defense at best was a 
 narrow one and, in our view, more technical than just.' In 
 Ewald V. Chicago & Northwestern Railroad Company,^'^ it 
 was held that an engine wiper employed in the defendant's 
 roundhouse, while going to his work along a pathway cross- 
 ing the defendant's yard and tracks was an employee of 
 the defendant, hence could not recover for injury resulting 
 from the negligence of a fellow-servant on the freight train 
 causing the injury. The court in its opinion said: 'The 
 peculiar facts of this case which make him such, appear to 
 involve precisely the same principles as that class of cases 
 where the plaintiff was being carried on his way from and 
 to his place of labor by the railroad company, by consent, 
 custom, or contract, and was injured by the negligence of 
 other employees of the company. This carriage of the plain- 
 tiff was the means, facility, and advantage to which he was 
 
 19 17 Wall. 508; 21 L. Ed. 705. 20 70 Wis. 420; 36 N. W. 12, 591.
 
 90 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 entitled by reason of his being an employee or servant, 
 which entered into and became a part of his contract of 
 employment or were incidental and necessary to jt. * * * 
 Again, it may be said that the plaintiff was still an employee, 
 because he was attempting to use the pathway between the 
 car as the only customary and convenient means of access 
 to and exit from the roundhouse which the company had 
 provided, and was under obligation to keep open and safe 
 for him and his fellow-workmen when he was injured.' In 
 Boldt V. Nciv York Central Railroad Company, ^'^ plaintiff 
 was injured while walking on a new track from his house 
 to his Avork. The court said: 'But he was in defendant's 
 employment and doing that which was essential to enable 
 him to discharge his particular duty, viz., going to the spot 
 where it was to be performed, and he was, moreover, going 
 on the track where, except as the servant of the company, 
 he had no right to be. He was there as the employee of the 
 company, and because he was suoh employee.' But it is 
 urged that Fletcher v. Baltimore & Potomac Railroad Com- 
 pany,^- sustains the view of the defendant on this question. 
 "We do not so read the case. There the plaintiff at the time 
 of the accident had ended his work for the day, and had 
 left the workshop and grounds of the defendant, and was 
 moving along a public highway in the city with the same 
 rights as any other citizen would have, when he was struck 
 by the rebounding of a stick of timber thrown from a train 
 of the defendant by one of its employees, a practice per- 
 mitted by the company, and injured. It was held that 'the 
 liability of the defendant to the plaintiff for the act in 
 question is not to be gauged by the law applicable to fellow- 
 servants, where the negligence of one fellow-servant 'by 
 which another is injured imposes no liability upon the 
 common employees.' Manifestly that case and this are ma- 
 terially different. There the plaintiff was not on the prem- 
 ises of the defendant, but upon a public highway where his 
 
 21 18 N. Y. 432. 35: 42 L. Ed. 411; reversing 6 
 
 22 1«8 U. S. 135; 18 Sup. Ct. App. D. C. 3S5.
 
 TO WHAT EMPLOYEES STATUTE APPLIES. Q\ 
 
 relations to the defendant were precisely those of the general 
 public to it. Its relation to him, therefore, in such a situa- 
 tion was precisely what it would have been to any other 
 pedestrian. Here, however, the plaintiff was upon the prem- 
 ises of the defendant, upon its invitation, in the line of his 
 employment, and solely because of such employment. We 
 hold, therefore, that at the time of his death, Tucker was 
 within the protection of said [Federal] Act."-^ But where 
 a fireman whose run was wholly within the state, having 
 oiled and prepared his locomotive, which was not then at- 
 tached to a train of cars, was killed while crossing the tracks 
 to his boarding-house for a personal purpose ; and his loco- 
 motive was to have hauled some interstate freight, but the 
 road upon which it was run was not an interstate carrier, 
 though the lessee was engaged in such commerce, it was held 
 by the state court that the Federal statute did not apply to 
 him, because at the time of his injury he was not engaged in 
 interstate commerce,-^* but the Federal Supreme Court re- 
 versed the case, holding that he was.-^^ 
 
 § 56. Injured servant employed in both interstate and 
 intrastate commerce. — Few servants of an interstate railroad 
 are employed wholly in intrastate commerce, and so few 
 are employed wholly in interstate commerce. The fact is 
 that all servants connected with the traffic operations of 
 such a railroad are engaged both in inter and intrastate com- 
 merce during their employment. If such a servant be in- 
 jured while engaged in intrastate commerce, then he cannot 
 invoke the aid of this statute to enable him to recover dam- 
 ages ; but if he be injured while engaged in interstate com- 
 
 ^^ Philadelphia, B. & W. R. Co. sells a ticket to a traveler going beyond 
 
 V. Tucker, 35 App. D. C. 123; Lam- the state, the car cleaner who cleans 
 
 phere v. Oregon R. & N. Co. 196 Fed. the car he is to travel in, the man who 
 
 337; 116 C. C. A. 156; reversing 193 loads the engine tender with coal 
 
 Fed. 248. which is to pull him, and the gate- 
 
 ^^* Zachary v. North Carolina R. keeper who examines his ticket and 
 
 Co. 156 N. C. 496; 72 S. E. 858. "If passes him into the car, are all em- 
 
 the contention of the defendant ployed in interstate commerce." 
 
 [plaintiff] can be maintained, then Neil v. Idaho & W. N. R. Co. 23 
 
 it follows that all employees of rail- Idaho 74; 125 Pac. 331. 
 
 ways that do an interstate business -" 232 U. S. 248; 34 Sup. Ct. 305; 
 
 are necessarily employed in interstate 57 L. Ed. 591. 
 commerce. The ticket seller, who
 
 92 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 meree, he may. The fact that he is sometimes engaged in 
 intrastate commerce in no way prevents his resorting to 
 the statute when injured while engaged in interstate com- 
 merce. "The distinction should be noted that the act will 
 not necessarily apply to the same persons in all details of 
 his employment. One man might have duties including both 
 interstate and intrastate commerce, and he would not be 
 subject to the act while engaged in one and not the other." ^* 
 "Any" employee "while" engaged in interstate commerce 
 is embraced within the terms of the statute. He can invoke 
 the sta'tutB for an injury received "while" he is engaged 
 in interstate commerce. It is not enough for him to show 
 that he was engaged generally by an interstate railroad 
 company. ^'^ He must go further and show that he received 
 his injury "while" engaged in interstate commerce for the 
 company. Thus an engineer hauling an intrastate train 
 loaded entirely with intrastate traffic is not within the terms 
 of the statute if he be injured, for he is not injured "while" 
 engaged in interstate commerce, though he would be if 
 there was any interstate traffic aboard the train. In one case 
 the plaintiff was a brakeman on a train loaded both with 
 interstate and intrastate traffic. The train as such was 
 made up to run from one point within a state to another 
 within it. On reaching a station midway a car loaded 
 wholly with intrastate commerce was to be left. That 
 part of the train back of it was cut loose; and it was 
 then hauled up the track past a switch and then that part 
 of the train in front of it was backed rapidly so as to make 
 a "running switch." In so doing he fell off the rapidly 
 moving car and was injured. It was held that he was in- 
 jured while engaged in intrastate commerce and not inter- 
 state commerce.^^* 
 
 ** Colasurdo v. Central R. R. of 26* Van Brimmer v. Texas & P. Ry. 
 
 N. J. 180 Fed. 832; Zikos v. Oregon Co. 190 Fed. 391; Atlantic Coast Line 
 
 R. & N. Co. 179 Fed. 893; Ilorton v. R. Co. v. Jones, 9 Ala. App. 499; 
 
 Seaboard Air Line R. Co. 157 N. C. (13 So. 093; Myers v. Norfolk & W. 
 
 146; 72 S. E. 958. Ry. Co. 162 N. C. 343; 78 S. E. 280. 
 
 "Tsmura v. Great Northern Ry. New York Cent. & H. R. R. Co. v. 
 
 Co. 58 Wash. 310; 108 Pac. 774; Carr, 35 Sup. Ct. 780, affirming 157 
 
 Cannole v. Norfolk & W. Ry. Co. App. Div. 941; 142 N. Y. Supp. 1111. 
 216 Fed. 823.
 
 TO WHAT EMPLOYEES STATUTE APPLIES. 93 
 
 § 57. Employees covered by statute. — It is beyond de- 
 bate that the statute embraces all engineers, firemen, brake- 
 men and conductors employed at the time of their injuries 
 upon an interstate train. In one case it is said that the 
 statute covers a telegraph operator dispatching trains,^** 
 and in that same case it is said that Congress meant to in- 
 clude everybody whom it could include. As we have seen, 
 it has been held that a section hand or track repairer on 
 an interstate railroad track, or over which interstate traffic 
 passes, is embraced within the statute,-^ although that deci- 
 sion has been declared unsound.-^ It includes a car re- 
 pairer in a switching yard repairing interstate cars.^^ Since 
 ears upon the terminal tracks of interstate railroads are 
 regarded as within the Safety Appliance Act of 1893, it is 
 a legitimate conclusion that all employees handling therein 
 cars upon such tracks used as interstate cars are embraced 
 by this statute of 1908.^'' No doubt, it is believed, but what 
 a freight handler of interstate freight in loading and un- 
 loading cars in which it is to be or has been carried is 
 covered by the terms of the statute. So are mechanics or 
 repairmen, while engaged upon interstate cars, engines or 
 other interstate instrumentalities, and even while passing 
 over the railroad for the purpose of repairing such cars, 
 engines or instrumentalities. Likewise the members of an 
 emergency crew while at work upon any interstate train 
 or any railroad track that is a highwaj'' of interstate com- 
 merce. Linemen fall within its terms. Not only are track 
 repairers within its terms, but also those who construct or 
 repair the signal wires used by an interstate railroad, even 
 though they be used without discrimination between the 
 
 The statute applies to the em- that he came within the Federal Act. 
 ployees of a railroad company em- Erie R. Co. v. Kennedy, 191 Fed. 
 ployed on a ferry boat, owned and 332; 112 C. C. A. 76. 
 operated by the company in inter- -^ Colasurdo v. Central R. R. of 
 state commerce in connection with New Jersey, 180 Fed. 832. Signal- 
 its railroad, and supersedes a state man, Cincinnati, N. O. & T. P. Ry. 
 statute on the subject. The Passaic, Co. v. Bonham (Tenn.) 171 S. W. 79. 
 190 Fed. 644. But see Jenson v. 27 ggc. 48 and Sec. 49. 
 Southern P. Co. 215 N. Y. 514; ^s Sec. 51. 
 109 N. E. 600. " Sec. 50. 
 
 Where an employee was injured ^° See Johnson v. Great Northern 
 
 while unloading coal through a device Ry. Co. 178 Fed. 643; Chicago 
 
 of an unloading machine, being ship- Junction Ry. Co. v. King, 109 
 
 ped from one state to another distant Fed. 372. 
 one, onto a vessel, it was assumed
 
 94 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 local or interstate character of its traffic. In the case of 
 clerks in the accounting department, although they be en- 
 gaged in keeping the accounts of interstate shipments, it is 
 difficult to see how they are engaged in interstate commerce 
 as used in this statute ; for their work is not of a hazardous 
 character, such as it seems that Congress had in mind when 
 it enacted this statute. And this is also true of ticket 
 sellers; but not station agents when handling interstate 
 traffic. 
 
 § 58. Other employments incidentally connected with in- 
 terstate transportation. — In the following instances it has 
 been held that the employee at the time of his injury was 
 so engaged in interstate commerce as entitled him to claim 
 the benefits of the Federal Liability Act : A seal clerk in a 
 division yard inspecting and listing seals on an interstate 
 train, preparatory to the distribution of its cars to other 
 trains.^ -^ employee oiling an engine which was to go on 
 an interstate trip and which was hauling two empty freight 
 cars that had come from without the state.- An engineer 
 operating an engine on a trial trip after it had come from 
 the repair shop, preparatory to an interstate journey.^ A 
 section hand sweeping snow from switches used by trains 
 
 ^ St. Louis, S. F. & T. R. Co. v. the train be broken up and the cars 
 Scale, 229 U. S. 156; 33 Sup. Ct. 651; taken to the appropriate tracks for 
 57 L. Ed. 1129, reversing (Tex. Civ. making up outgoing trains, or for 
 App.) 148 S. W. 1099. The court unloading or delivering freight, and 
 eaid: "In our opinion the evidence this was as much a part of the inter- 
 does not admit of any other view state cars" protection as was the 
 than that the case made by it was movement acrcss the state line." 
 within the Federal Statute. The "Spotting cars." Montgomery v. 
 train from Oklahoma was not only an Southern Pac. Co. 64 Ore. 597; 131 
 interstate train, but was one engaged Pac. 507; Great Northern Ry. Co. v. 
 in the movement of intenstate freight, Alustell, 222 Fed. 879; Southern Ry. 
 and the duty which the deceased Co. v. Puckett (Ga. App.) 85 S. E. 
 was performing was connected with 809; Pittsburgh, C. C. & St. L. Ry. 
 that movement, not directly or re- <-o- v. Farmers' A. S. Co. (Ind.) 108 
 motely, but directly and immediately. ^- E. 108. 
 
 The interstate transportation was * North Carolina R. Co. v. Zachary, 
 
 not ended merely because that yard 232 U. S. 248; 34 Sup. Ct. 305; 58 
 waa a terminal for that train, nor L. Ed. 571. 
 
 even if the cars were not going to The engine had not yet been 
 
 points beyond. Wlicther they were coupled to the train, but his act was 
 going further or were to stop at "performed as a part of interstate 
 that station, it still was necessary that commerce, and the circumstance 
 
 that the interstate freight cars had 
 
 not as yet been coupled up is legally 
 
 insignificant." 
 
 3 Llovd V. Southern Ry. Co. 166 
 
 N. C. 24; 81 S. E. 1003.
 
 TO WHAT EMPLOYEES STATUTE APPLIES. 95 
 
 engaged in interstate and intrastate commerce.* A brake- 
 man engaged in switching cars destined to another state, 
 even though the train on which he was engaged made only 
 an interstate journey.^ A brakeman employed on a train 
 made up largely of interstate cars which at the time of the 
 injury was engaged in switching an intrastate ear, prepara- 
 tory to putting it into the train." A switchman in a yard 
 making up an interstate trainj A switchman injured by a 
 freight car diverted from its route fourteen miles to a point 
 within the state for necessary repairs.^ A switching crew 
 engaged in switching and spotting cars loaded and to be 
 loaded with interstate commodities, and in hauling cars up 
 the mountains to a station from which they conveniently 
 could be taken by a regular interstate train passing over an 
 interstate railroad.^ Switching interstate coal cars and 
 dumping thera.^*' A switchman assigned to a switch loco- 
 motive killed on his way while crossing defendant's tracks.'^ 
 An interstate engineer switching his ears at the end of his 
 run.*- A fireman engaged in shifting intrastate cars to be 
 piTt in a train made up partly of interstate cars.*^ A section 
 hand asleep at night in a car on a side track provided by the 
 railroad company for his use.^* An engineer at station for 
 
 « Hardwick V. Wabash R. Co. (Mo.) « St. Louis & S. F. R. Co. v. 
 
 168 S. W. .328. Conarty, 106 Ark. 421; 155 S. W. 93. 
 
 ^Nashville, C. & St. L. R. Co. » Montgomery v. Southern Pac. 
 
 V. Banks, 156 Ky. 609; 161 S. W. 554; Co. 64 Ore. 507; 131 Pac. 507. 
 
 Rich V. St. Louis & S. F. R. Co. 166 '° Barlow v. Lehigh Valley R. Co. 
 
 Mo. App. 379; 148 S. W. 1011. 158 App. Div. 768; 143 N. Y. Supp. 
 
 Contra, Farrell v. Pennsylvania R. 1053. The coal was for the defendant's 
 
 Co. (N. J.) 93 Atl. 682, following own engines, and was dumped into 
 
 Erie R. Co. V. United States, 197 bunkers until there was use for it on 
 
 Fed. 287; 116 C. C. A. 649. its engines. Kamboris v. Oregon & 
 
 «Thornbro v. Kansas Citv, M. & Wash. R. & Nav. Co. (Ore.) 146 
 
 O. Ry. Co. 91 Kan. 684; 139 Pac. 410, Pac. 1097; Southern Ry. Co. v. Peters 
 
 or rehearing 92 Kan. 681; 142 Pac. (Ala.) 69 So. 611. 
 
 250; Sears v. Atlantic C. L. R. Co. " Knowles v. New York, N. H. & 
 
 (N. C.) 86 S. E. 176. H. R. Co. (App. Div.) 150 N. Y. Supp. 
 
 ' Louisville & N. R. Co. v. Lank- 99. 
 
 ford, 211 Fed. 321; Bramlett v. '^ Kansas Citv, M. & O. Ry. Co. v. 
 
 Southern Rv. Co. 98 S. C. 319; 82 Pope (Tex. Civ. App.) 152 S. W. 185. 
 
 S. E. 501; St. Louis, S. W. Ry. Co. v. " Southern Ry. Co. v. Jacobs (Va.) 
 
 Andersen (Ark.) 173 S. W. 834; Rich §1 fe- ^- 99; Pennsylvania Co. v. 
 
 v. St. Louis & S. F. R. Co. 166 Mo. Sheely, 221 Fed. 901. 
 
 App. 379; 148 S. W. 1011; Southern '* Sanders v. Charleston & W. C. 
 
 Ry. Co. V. Smith, 205 Fed. 360; 123 %• Co. 97 S. C. 50; 81 S. E. 283. 
 C. C. A. 488.
 
 96 FEDERAL, EMPLOYERS' LIABILITY ACT. 
 
 pumping water to be used by engines engaged in interstate 
 commerce. ^^ A member of a switching crew unloading from 
 a car oil to be used as fuel for engines regularly engaged in 
 interstate commerce. ^"^ An employee assisting in the move- 
 ment of water or coal to be consumed by engines used in 
 interstate commerce. ^^ A brakeman getting ice to cool a 
 hot box on an interstate train. ^^ A porter preparing ice for 
 a water cooler on a car carrying interstate passengers. ^^ An 
 employee engaged in loading tobacco on a car to be trans- 
 ported in interstate commerce.-" A brakeman on a passen- 
 ger train running from one state to another.-^ So a car 
 porter.^- Servant cooling engine in an interstate train.-^ 
 A brakeman obeying his conductor who was running the 
 train engine while the engineer and fireman were eating 
 dinner in the caboose, to act as fireman.-* Brakeman help- 
 ing to move interstate train.-^ A student brakeman in inter- 
 state commerce.-** Wheeling coal to that shop in which other 
 employees were engaged in making repairs to cars that had 
 been and were to be used in interstate commerce.-^ A 
 weigher of interstate commerce cars.-^ A brakeman running 
 between points within a state, his cars being both intrastate 
 and interstate injured in cutting out cars shipped from and 
 billed to points within the state.-^ A brakeman who, after 
 finishing his regular duties, after a run between two state 
 
 *^ Horton v. Oregon-Washington ^"^ Missouri, K. & T. Ry. Co. v. 
 
 R. & Nav. Co. 72 Wash. 503; 130 Bemklcy (Tex. Civ. App.) 153 S. W. 
 
 Pac. 897; Knapp v. Great Northern 937. 
 
 Ry. Co. (Minn.) 153 N. W. 848. " Armbruster v. Chicago, R. I. & 
 
 '« Montgomery v. Southern Pac. P. Ry. Co. (Iowa) 147 N. W. 337. 
 
 Co. 64 Ore. 597; 131 Pac. 507. ^4 Martin v. Atchison, T. & S. F. 
 
 " Barker v. Kansas City, M. & O. Ry. Co. (Kan.) 145 Pac. 849. 
 
 Ry. Co. 88 Kan. 767; 129 Pac. 1151; « Vaughan v. St. Louis & S. F. R. 
 
 43 L. R. A. (N. S.) 1121; Kamboris v. Co. 177 Mo. App. 155; 164 S. W. 144. 
 
 Oregon & Wash. R. & Nav. Co. (Ore.) "« Riof v. Great Northern, 126 
 
 146 Pac. 1097. Minn. 4.30; 148 N. W. 309. 
 
 '" Illinois Central R. Co. v. Nelson, " Cousins v. Illinois Central R. Co. 
 
 203 Fed. 956. 126 Minn. 172; 148 N. V/. 58, relying 
 
 " Freeman v. Powell (Tex. Civ. on Pedersen v. Delaware, L. & W. 
 
 App.) 144 S. W. 1033; Powell v. R. Co. 229 U. S. 146; 33 Sup. Ct. 
 
 Freeman, 105 Tex. 317; 148 S.W. 290. 648; 57 L. Ed. 1125. Putting on 
 
 ^° Illinois Central R. Co. v. Porter, engine a barrel of oil. Tonselleto v. 
 
 207 Fed. 311; 125 C. C. A. 55. N. Y. Cent. & H. R. R. Co. (N. Y.) 
 
 =' Cincinnati, N. O. & T. P. Rv. Co. 94 Atl. 804. 
 
 y. Goode. 155Kv. 153; l.'")9S. W\695; « Wheeling Terminal Ry. Co. v. 
 
 153 Ky. 247; 154 S. W. 941. Or haul- Russell, 209 Fed. 795; 126 C. C. A. 
 
 ing empty freight cars. St. Louis 519. 
 
 S. W. Co. v. Anderson (Ark.) 173 ^i. Carr v. New York Central & H. 
 S. W. 834.
 
 TO WHAT EMPLOYEES STATUTE APPLIES. 
 
 97 
 
 points on a train which had some interstate cars on it, went 
 to a nearby saloon, and from there started to cross over a 
 train to go to the station to ascertain if the conductor had 
 any further orders for him, who was injured while crossing 
 the train.^° A caretaker of interstate engines in a round- 
 house.^^ Employed in making up a train with interstate 
 traffic aboard some of the cars."- Switching car placed on 
 side track for repairs when loaded with interstate traffic.^^ 
 A train servant riding on an empty train from one state to 
 another.^* A boilermaker's helper falling into an unguarded 
 pit in a shop.^^ An engineer inspecting his engine.^*' An 
 engineer while inspecting his engine under the company's 
 rules injured by a roundhouse engineer hostler.^" A switch 
 engineer switching interstate coal cars so they could be 
 dumped into the company's coal bunkers from which inter- 
 
 R. R. Co. 77 N. Y. Misc. 346; 136 
 N. Y. Supp. 501. "Assuming they 
 were doing intrastate commerce duties 
 while placing the two cars in question, 
 they still remained all the time in the 
 employ of the defendant, and in 
 charge of the operation of the inter- 
 state commerce train from which the 
 two cars in question were taken. 
 While cutting out the cars in question 
 at Tonawanda, they still continued 
 their relationship to the rest of the 
 train as interstate commerce agents. 
 Placing the cars upon the siding was 
 but incidental to their main employ- 
 ment. Any accident or injury to 
 one or more of the crew to that 
 extent tended to unman the train 
 about to proceed in interstate com- 
 merce, and to disable one or more 
 of such a crew might impede and delay 
 the progress of the train on its way, 
 and effect its safety and dispatch." 
 Affirmed 35 Sup. Ct. 780, which dis- 
 tinguishes Illinois Cent. R. Co. v. 
 Behrens, 233 U. S. 473; 34 Sup. Ct. 
 646; 58 L. Ed. 1051; Ann. Cas. 1914 C, 
 163. 
 
 An almost identical case is Thorn- 
 bro V. Kansas City, M. & O. Ry. Co. 
 31 Kas. 684; 39 Pac. 410. 
 
 3" Gaber v. Duluth, S. S. & A. Ry. 
 Co. (Wis.) 150 N. W. 489. 
 
 51 Guana v. Southern Pac. Co. 15 
 Ariz. 413; 139 Pac. 782. No question 
 ever raised, however, on this point. 
 
 32 Neil V. Idaho R. Co. 22 Idaho 74; 
 125 Pac. 331. This would be true 
 even though the injury was oc- 
 casioned by an intrastate car in the 
 train. "It seems to us that prepara- 
 tion was being made to have his 
 train leave Spirit Lake, and that he 
 was engaged in getting his train 
 ready for the transportation of freight 
 both within the state and beyond its 
 boundaries, and that he was engaged 
 in interstate commerce within the 
 meaning of that term as used in said 
 act of Congress." See also Willever 
 V. Delaware, L. & W. R. Co. (N. J.) 
 94 Atl. 595. 
 
 "Delk V. St. Louis, etc., R. Co. 
 220 U. S. 580; 55 L. Ed. 590; 31 Sup. 
 Ct. 617. 
 
 5* Kansas, etc., R. Co. v. Cook, 
 100 Ark. 467; 140 S. W. 579. 
 
 3^ Glenn v. Cincinnati, N. O. & 
 T. P. R. Co. 157 Ky. 453; 163 S. W. 
 461. It is to be noted, however, 
 no question of nonliability under the 
 Federal Act was discussed in the 
 opinion. 
 
 36 Lloyd V. Southern Ry. Co. 166 
 N. C. 24; 81 S. E. 1003. 
 
 " Taylor v. Southern Ry. Co. (Ind. 
 App.) 101 N. E. 506. 
 
 A watchman removing trespassers 
 is engaged in interstate commerce. 
 Smith v. Industrial A. C. (Cal.) 147 
 Pac. 600.
 
 98 
 
 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 state engines and local engines got their coal.^^ A switching 
 crew making up a train of both intrastate and interstate 
 cars, the latter destined for another state.^^ Employee de- 
 taching a steam pipe on an interstate train to couple to an- 
 other in order to continue the run.^" An engine wiper in 
 a roundhouse.*"* 
 
 § 59. Working' on bridge — Repairing telegraph lines — 
 Installing block system. — An employe carrying bolts to be 
 used in repairing a railroad bridge over which interstate 
 traffic is carried is within the Federal Statute if injured, 
 even though injured by an intrastate train on an intrastate 
 track.*^ So a laborer putting down guard rails on such a 
 bridge is within the meaning of the Federal Act.*^ So bridge 
 carpenters working on such a bridge ;*^ and a borer on a 
 trestle ;^* and an employee repairing a telegraph line f^ or 
 installing along interstate commerce tracks a block system.*® 
 
 ^^ Barlow v. Lehigh Valley E. Co. 
 158 App. Div. 76S; 143 N. Y. Supp. 
 1053. Working at coal chute. South- 
 ern Ry. Co. V. Peters (Ala.) 69 So. 
 611. 
 
 An employee cleaning stencils used 
 to mark interstate cars is not within 
 the provisions of the Act. Illinois 
 Central R. Co. v. Rogers, 221 Fed. 
 52. 
 
 3« Vandalia R. Co. v. Holland (Ind.) 
 108 N. E. 580. 
 
 " Kansas City Southern Ry. Co. v. 
 Miller (Ark.) 175 S. \V. 1164. 
 
 "• Cross V. Chicago, B. & Q. R. Co. 
 (Mo. App.) 177 S. W. 1127. Coupling 
 private car to train. Oberlin v. 
 Oregon-W. R. & N. Co. (Ore.) 142 
 Pac. 554. Cutting out cars. New 
 York C. R. R. Co. v. Carr, 238 U. S. 
 260. 
 
 ^' Pedersen v. Delaware, L. & W. 
 R. Co. 229 U. S. 146; 33 Sup. Ct. 648; 
 57 L. Ed. 1125, reversing 197 Fed. 
 537; 117 C. C. A. 33, which affirmed 
 184 Fed. 737; Spinden v. Atchison, 
 T. & S. F. Ry. Co. (Kas.) 148 Pac. 
 747. 
 
 « Norfolk & W. Ry. Co. v. Hol- 
 brook, 215 Fed. 687; Smith v. North- 
 ern Pac. Ry. Co. 79 Wash. 448; 140 
 Pac. 685. 
 
 *' Pedersen v. Delaware, L. & W. 
 R. Co., Hupra; Thomson v. Columhia 
 & P. S. S. Co. 205 Fed. 203; Coluriihia 
 &. P. S. R. Co. v. Sauter, 223 Fed. 604. 
 
 " Lfniisvillc & N. R. Co. v. Walker, 
 162 Ky. 2(X); 172 Fed. 517; Camp 
 V. Atlanta & C. A. L. Ry. Co. (S. C.) 
 84 S. E. 825. 
 
 "Deal v. Coal &. Coke Ry. Co. 
 215 Fed. 285. 
 
 *° Grow V. Oregon Short Line R. 
 Co. 44 Utah 160; 138 Pac. 398; 
 Saunders v. Southern Ry. Co. (N. C.) 
 83 S. E. 573. 
 
 In the Block System case it was 
 said: "We think the rule announced 
 in the Pedersen case is decisive of the 
 question here. If, as there announced, 
 an employee engaged in repairing a 
 car, engine, or track, or constructing 
 or repairing a switch or bridge along 
 a track used in interstate commerce is, 
 within the meaning of the Act. em- 
 ployed in such commerce, then, do 
 we think, was the deceased here also 
 employed in such commerce. The 
 defendant company was engaged in 
 interstate commerce. In carrying 
 on such commerce it had been, and 
 then was, using its track and line 
 of railway for such purpose from Salt 
 Lake to Huntington. For the better 
 conduct of such commerce and the 
 moving of such traffic, and to pro- 
 mote the safety of employees in 
 operating interstate trains and of 
 passengers transported from state to 
 state, it was necessary, or, at least, 
 desirable, to equip its line of rail- 
 way with block signals. For that 
 purpose were they installed. They 
 are not separate and apart from the 
 track, something operated independ- 
 ently of it, or independently of the 
 interstate commerce in which the 
 defendant was engaged, but are, 
 in a sense, a part and parcel of the 
 
 A like decision. Saunders v. South- 
 ern Ry. Co. (N. C.) 83 S. E. 573.
 
 TO WHAT EMPLOYEES STATUTE APPLIES. 
 
 99 
 
 track itself, something attached to, 
 and operated in connection with, it 
 in carrying on such commerce. Now, 
 should it be said than an employee 
 repairing a car which had been, and 
 was intended to be, used in interstate 
 commerce is employed in such com- 
 merce, but if he be engaged in attach- 
 ing to such car a new appliance, or 
 equipment, something not theretofore 
 used on such car, or by the carrier, 
 he is not engaged in such commerce? 
 or, if the employee is engaged in 
 repairing a bridge along a track used 
 in interstate commerce, he is en- 
 gaged in such commerce, but if he, 
 along such track, is engaged in put- 
 ting in a new bridge or conduit where 
 theretofore there was none, he is not 
 engaged in interstate commerce? 
 or, if one along such a track — one 
 used in interstate commerce — is en- 
 gaged in taking up an old or defective 
 rail and inserting a new one, he is 
 engaged in such commerce, but if he, 
 for the better operation of trains 
 along such a track and to promote 
 the safety of pas.sengers carried on and 
 employees operating interstate trains, 
 is engaged in attaching to such a 
 track some new appliance or equip- 
 ment, he is not engaged in such com- 
 merce? Suppose that in pursuance of 
 its business of interstate commerce, 
 and to better carry it on, the de- 
 fendant had been engaged in putting 
 in a switch along its track used in 
 such commerce or in constructing a 
 double track over a part or all of the 
 way. Is there any good reason for 
 holding that an employee, who is 
 engaged in repairing the track or 
 switch theretofore constructed and 
 used, is employed in such commerce, 
 but that one engaged in putting in the 
 new switch, or the additional track, 
 is not employed in such commerce? 
 Or, suppose an employee had been 
 engaged several blocks to the west 
 from where the plaintiff was at work, 
 say at Nampa, where the blocks were 
 completed and in use, in repairing 
 one of those blocks. Admittedly, 
 such an employee would have been 
 employed in interstate commerce, for 
 such a block was then in use, but 
 
 since the plaintiff was at work on an 
 uncompleted or unfinished block, 
 which was not yet in use, he was not 
 engaged in such commerce. Or, 
 lastly, if an employee is employed in 
 repairing a water tank along a track, 
 one used to supply interstate trains, 
 operated over interstate tracks, with 
 water, he is employed in interstate 
 commerce, but if he engaged in con- 
 structing along such track a new 
 tank, which, because of its incom- 
 pleteness, has not yet been used by 
 the carrier, he is not employed in 
 such commerce. We see no good 
 reason for such artificial distinctions, 
 for the use as directly relates to the 
 interstate commerce in which the 
 carrier is engaged as does the other. 
 
 Here the remarks of Mr. Justice 
 Van Devanter are pertinent, when 
 he said that it is an erroneous as- 
 sumption 'that the interstate com- 
 merce by railroad can be separated 
 into its several elements, and the 
 nature of each determined regardless 
 of its relation to others, or to the 
 business as a whole", and 'that the 
 true fact always is: Is the work in 
 question a part of the interstate com- 
 merce in which the carrier is engaged?' 
 Viewed from that standpoint, we 
 think it clear that one employed in 
 installing and equipping the road with 
 the block signals was engaged in 
 doing something which was a part of 
 the interstate commerce in which 
 the defendant was engaged, to the 
 same extent as one engaged in re- 
 pairing a bridge or a track used in 
 such commerce." 
 
 Several cases based upon the Peder- 
 sen Case before it reached the Su- 
 preme Court of the United States 
 cannot be regarded as authoritative. 
 They are Pierson v. New York, etc., 
 R. Co. 83 N. J. L. 661; 85 Atl. 233; 
 Heimbach v. Lehigh Valley R. Co. 
 197 Fed. 579; Foster v. Philadelphia, 
 etc., R. Co. 197 Fed. 580. 
 
 A person engaged in putting in a 
 new bridge in place of an old inter- 
 state one is engaged in interstate 
 commerce. Arguendo, Grow v. Ore- 
 gon Short Line R. Co. 44 Utah 160; 
 138 Pac. 398.
 
 100 
 
 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 § 60. Employees repairing interstate instrumentalities are 
 
 covered by statute.— Somewhat at the risk of duplication, 
 we here enumerate some of the employees w4io have been 
 held to be within the provisions of the Federal Act : Those en- 
 gaged in repairing switches and side tracks over which both 
 interstate and intrastate traffic is carried are such ;*' so a 
 carpenter working on a roundhouse which had been pre- 
 viously used to house engines used in interstate commerce -^^ 
 so repairing in roundhouse a shop engine used in such com- 
 merce ;'*^ so a section hand injured while putting in a rail 
 by an iron splinter flying from the rail when struck, and 
 hitting him in the eye.^*' So a brakeman looking about the 
 
 " Jones V. Chesapeake & 0. Ry. 
 Co. 149 Ky. 566; 149 S. W. 951; 
 Truesdell v. Chesapeake & O. Ry. 
 Co. 159 Ky. 718; 169 S. W. 471. 
 
 « Thomas v. Boston, 219 Fed. 180, 
 reversing 218 Fed. 143. Thompson 
 V. Cincinnati, N. O. & T. P. Ry. Co. 
 165 Ky. 256; 176 S. W. 1006. 
 
 *^ Winters v. Minneapolis & St. 
 L. Ry. Co. 126 Minn. 260; 148 N. W. 
 106; Daer v. Baltimore & O. R. Co. 
 197 Fed. 665, affirmed 204 Fed. 751 
 (on fire track ready to return). 
 
 In Law V. Illinois Cent. R. Co. 
 208 Fed. 869; 126 C. C. A. 27, an 
 interstate engine had been in the 
 shop for 21 days, and was returned to 
 use on the 23d day. In making 
 repairs on it a boiler helper was hurt; 
 and it was held that he was within 
 the Federal Act, the length of time 
 the engine had been out of use not 
 changing the result. "Under the 
 existing facts, can the length of time 
 required for the repairs change the 
 legal situation? If so, where is the 
 line to be drawn? How many days 
 temporary withdrawal would suffice 
 to take it out of the purview of the 
 act? And is it material whether the 
 repairs take place in a roundhouse 
 or in general shops? Is not the t(;st 
 whether the withdrawal is merely 
 temporary in character? As held 
 in the Pederscn Case (229 U. S. 151; 
 33 Sup. Ct. 648; 57 L. Ed. 1125) 
 the work of keeping the instru- 
 mentalities used in interstate com- 
 rnorce (which would include engines) 
 in a proper state of repair, while 
 
 this work is 'so clearly related to such 
 commerce as to be in practice and 
 legal contemplation a part of it.' 
 In Northern Pacific R. Co. v. Maerkl, 
 198 Fed. 1; 117 C. C. A. 237, the 
 Circuit Court of Appeals of Ninth 
 Circuit held that an employee en- 
 gaged at the railway shops in making 
 repairs upon a refrigerator car there- 
 tofore used in interstate commerce, 
 and intended to be again so used 
 when repaired, was within the pro- 
 tection of the Employers' Liabihty 
 Act. The repairs there in question 
 were substantial in their nature, re- 
 quiring at least a partial dismantling 
 of the car, which had been in the 
 shop two days when the accident 
 occurred. The rule announced by 
 this decision commends itself to our 
 judgment. We find nothing in the 
 decisions of the Supreme Court op- 
 posed to the conclusion so reached. 
 On the contrary, it may be noted that 
 the Maerkl case is cited (with appar- 
 ent approval) in the opinion in the 
 Pedersen case upon the subject of the 
 test to be applied in determining 
 whether the work is a part of the 
 interstate commerce in which the 
 carrier is engaged." 
 
 "^^ Charleston & W. C. Ry. Co. v. 
 Anchors, 10 Ga. App. 322; 73 S. E. 
 551. See page 107, note 87. Louis- 
 ville & N. R. Co. V. Kemp, 140 Ga. 
 657; 79 S. E. 558. 
 
 See, also, a very similar case de- 
 cided by the Texas Court of Appeals. 
 K. & T. Ry. Co. V. Denahy (Tex.
 
 TO WHAT EMPLOYEES STATUTE APPLIES. JQl 
 
 switch yards for a tool boy to get a tin cup for use of the 
 train crew of which the brakeinan was a member, the train 
 being about to be used in interstate commerce.^^ So in re- 
 pairing cars in a shop used indiscriminately in interstate 
 and intrastate commerce.^- So in building a new office in an 
 old freight shed.^^ 
 
 § 61. Going to and returning from work. — Where an en- 
 gineer was ordered to report at a station to be transported 
 with others to another station to relieve the crew of an in- 
 terstate train, and who, when approaching the station over a 
 crossing, was struck and killed througli the negligence of 
 the servants of the company, also operating an interstate 
 train, it was held that an action for his death was rightly 
 brought under the Federal Statute.^* So where a bridge 
 carpenter was injured on his way to work on a hand car, 
 the case was treated as one lying under the statute.^^ And 
 where a pumper at a pumping station for locomotives en- 
 gaged in both intrastate and interstate commerce was fur- 
 nished by the railroad company with a small hand car for 
 going two or three miles from his home to the station, and 
 on the way was struck by an interstate train, it was held 
 that his employment had a substantial connection with in- 
 terstate commerce, so much so that an action lay under the 
 
 Civ. App.) 165 S. "W. 529, holding repairing a freight car, and there was 
 
 the company liable is a correct de- nothing to show whether it had been 
 
 cision. used in interstate commerce, either 
 
 A defective tool is covered by the before or after the injury, it was held 
 
 Federal Act. Gekas v. Oregon-Wash. that there could be no recovery under 
 
 R. & Nav. Co. (Ore.) 146 Pac. 970. the Federal Act. Louisville & N. R. 
 
 " Baltimore & Ohio R. Co. v. Co. v. Moore, 156 Ky. 708; 161 S. W. 
 
 Whitacre, 124 Md. — ; 92 Atl. 1060. 1129. 
 
 '- Northern Pac. Ry. Co. v. Maerkl, One putting a new device on an 
 
 198 Fed. 1; 117 C. C. A. 237; Missouri, interstate car is engaged in interstate 
 
 K. & T. Ry. Co. V. Denahy (Tex. Civ. commerce. Arguendo in Grow v. 
 
 App.) 165 S. W. 529; Evans v. Detroit, Oregon Short Line R. Co. 44 Utah 
 
 G. H. & M. Ry. Co. (Mich.) 148 160; 138 Pac. 398. 
 
 N. W. 490; St. Louis & S. F. Ry. Co. " Lamphere v. Oregon R. & Nav. 
 
 V. Conarty, 103 Ark. 421; 155 S. W. Co. 196 Fed. 336; 116 C. C. A. 156, 
 
 93; Pedersen v. Delaware, L. & W. reversing 193 Fed. 248; St. Bernard 
 
 Ry. Co., supra. Switch engine. Cypres Co. v. Johnson, 222 Fed. 246. 
 
 Southern Pac. Co. v. Pillsbury, 151 " Kern v. Chicago, M. & P. S 
 
 Pac. 277. Ry. Co. 201 Fed. 404; Knowles v. 
 
 "Eng V. Southern Pac. Co. 210 New York, N. H. & H. R. R. Co. 
 
 Fed. 92. (N. Y. App.) 150 N. Y. Supp. 99. 
 
 Where a carpenter was injured in
 
 102 FEDERAL EMPLOYERS' LLXBILITY ACT. 
 
 Federal Act. "The pumper's relation to actual transporta- 
 tion of interstate freight and passengers is much more 
 direct and intimate than that of a car repairer or repairer 
 of an engine tender, who bestows his labor on instrumen- 
 talities while they are, so to speak, temporarily out of com- 
 mission. To allow a recovery to these and not to the pumper 
 supplying the water for motive power in actual transporta- 
 tion, would smack of caprice."^" So an employee going 
 home from his work, on a push car, was held to be within 
 the act.^^ So an extra brakeman returning home on a pass,^^ 
 and a conductor returning on an intrastate trip on an intra- 
 state shuttle train which had transported interstate com- 
 merce on its outward trip.^^ So a section hand riding to his 
 camp after work.*^" An engineer struck by a train while 
 going through the yards to his work is employed in inter- 
 state commerce.®^ So a machinist going through a switching 
 yard to repair an interstate locomotive.^'^* 
 
 After having given his engineer at the engine a clearance 
 card, a conductor walked back to the caboose, inspecting the 
 cars, some of which were loaded with interstate traffic, as he 
 returned. In doing so he walked on a "scale track," or 
 place of danger, and was injured. It was not necessary for 
 him to walk on this track, and it was contended that when 
 he was \valking on it he was not engaged within the scope 
 of his employment, there being nothing in his employment 
 requiring him to do so; but the court said: "While it may 
 not have been his duty and was carelessness on his part, un- 
 der the facts of this case, to walk upon the 'scale track,' 
 still we think he was engaged in interstate commerce to the 
 extent of getting his train ready for that purpose."**^ So 
 
 '' Horton v. Oregon-Washington R. Willever v. Delaware, L. & W. R. Co. 
 
 & Nav. Co. 72 Wash. 503; 130 Pac. (N. J.) 94 Atl. 595. 
 
 897. "' ]Mi.s.souri, K. & T. Ry. Co. v. 
 
 " Louisville & N. R. Co. v. Walker, Rentz (Tex. Civ. App.) 162 S. W. 
 
 102 Ky. 209; 172 S. W. 517; Texas 959; McNamara v. Washington Ter- 
 
 & P. R. Co. v. White (Te.x.) 177 minal Co. 37 Wash. D. C. 384. 
 
 S. W. 1185. ""Staley v. Illinois Cent. R. Co. 
 
 ''St. Louis, S. W. Ry. Co. v. (111.) 109 N. E. 342, reversing 186 
 
 Urothers (Tex. Civ. App.) 165 S. W. 111. App. 593; New York Central & 
 
 4S8. See also Mis.souri, K. & T. Ry. II. R. K. Co. v. Carr, 35 Sup. Ct. 
 
 Co. (Tex. Civ. App.) 162 S. W. 959. 780, afllrming 157 App. Div. 941; 
 
 " Peery v. Illinois Central R. Co. 142 N. Y. Siipp. 1111. 
 
 123 Minn. 2(^1; 143 X. W. 724. "■' Neil v. Idaho R. Co. 22 Idaho J4; 
 
 •» San Pe<lr(), L. A. <t S. L. R. Co. v. 125 Pac. 331. 
 David, 210 Fed. 870; 127 C. C. A. 454.
 
 TO WHAT EMPLOYEES STATUTE APPLIES. 
 
 103 
 
 going to a nearby saloon during the period of employment, 
 and on returning receiving an injury does not bar a recov- 
 ery under the statute."*' But where an employee on a work 
 train was going for the erevv-'s mail when he was injured, 
 it was held he could not recover under the statute."' So a 
 servant of a railroad company acting as a watchman or care- 
 taker of a dead engine which was being hauled by an inter- 
 state train from one state to another."^ This question, how- 
 ever, is not so much one under the Federal Act as it is one 
 
 «8 Gaber v. Duluth, S. S. & A. Ry. 
 Co. (Wis.) 150 N. W. 489. 
 
 «^ Myers v. Norfolk & W. Ry. Co. 
 162 N. C. 343; 78 S. E. 280. 
 
 So where an employee was riding 
 home, by permission, on one of the 
 company's trains, it was held that 
 he was not within the provisions of 
 the statute. Bennett v. Lehigh 
 Valley R. Co. 197 Fed. 578. This is 
 a doubtful case because it was based 
 on the decision in the Pedersen Case 
 before it was reversed. 
 
 ^* "Clearly the defendant was en- 
 gaged in interstate commerce, and 
 the dead engine was one of the in- 
 strumentalities ordinarily used by 
 the defendant in carrying on its 
 business, and the fact that this in- 
 strumentality was not being put to 
 the precise use for which it was de- 
 signed at the particular time when 
 the injury occurred to the plaintiff 
 does not alter the fact that the de- 
 fendant was engaged in an act of 
 interstate commerce at the time the 
 plaintiff was injured, and that the 
 plaintiff was in the performance of 
 his duties in the line of his employ- 
 ment and was injured by the de- 
 fective condition (as he claims) of 
 one of the instrumentalities ordinarily 
 used in that business by the defend- 
 ant, but at that time temporarily re- 
 moved from service. Suppose there 
 had been an empty freight car unfit 
 for the service of hauling freight being 
 carried in this train engaged in inter- 
 state commerce between the States 
 
 of Georgia and Alabama, and the 
 plaintiff had gone upon this car and 
 been injured as a proximate con- 
 sequence of a defect in the car while 
 in the performance of the duties of 
 his employment on the train, as, say, 
 a brakeman, while enroute between 
 these two points in the different 
 states. Could it be said in such a 
 case that, because the freight car at 
 the time of the injury was unfit for 
 use and was not being used at that 
 particular time as an instrumentality 
 of interstate commerce or traffic, 
 the plaintiff was not performing any 
 act for the defendant with respect to 
 its engagement in interstate com- 
 merce, and that the plaintiff was not 
 injured 'while' engaged or employed 
 by defendant in such commerce, and 
 therefore not under the protection 
 and influence of rights secured to 
 employees under the Federal Em- 
 ployers' Liability Act? We think 
 not. Nor do we think it could fairly 
 be said that the plaintiff in the in- 
 stant case was not injured while 
 engaged or employed by the defend- 
 ant in interstate commerce. It is 
 the substance of things that should 
 be looked to in dealing with rights 
 created and conserved under the 
 authority of the Federal Constitution 
 and the act under consideration should 
 be as broadly and liberally construed 
 as possible." Atlantic Coast Line 
 R. Co. V. Jones, 9 Ala. App. 499; 
 63 So. 693.
 
 204 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 under the general law, and in the note below are a number 
 of eases cited on this subject.*'^ 
 
 § 62. Pullman car employees — Express agent — ^Railroad 
 surgeon's malpractice. — A porter on a Pullman car was in- 
 jured while in transit. The car was owned jointly by the 
 defendant railroad and the Pullman Car Company, and was 
 operated by them as an association under a contract giving 
 the Pullman company the management of the car, all obli- 
 gations with reference to operations of cars to be borne by 
 the association, which should furnish each car one or more 
 employees, who should be subject at all times to railroad 
 rules governing its own employees, the earnings of th? cars 
 to be divided between the two companies in a certain propor- 
 tion. In the event of a liability arising against the railroad 
 company for personal injuries to an employee of the asso- 
 ciation, the railroad company was to be liable only to the 
 same extent it would be if the person injured were an em- 
 ployee in fact of the railroad company, and for all excess 
 liability the railroad company was to be indemnified and to 
 be paid by the owners of the car. It was held that the porter 
 was an employee of the railroad company within the mean- 
 ing of the Federal Act, so that the railroad was not released 
 by a provision in his contract of employment purporting to 
 release both the Pullman company and the railroad company 
 from liability for an injury he might receive or for an injury 
 received in such employment.''" But an agent of an express 
 company can not recover, where he rides on trains of the 
 
 « Harris v. City & E. G. R. Co. 33 Ohio St. 150; Vick v. N. Y. Cent., 
 
 69 W. Va. 65; 70 S. E. 859; Dodge v. etc, R. Co. 95 N. Y. 267; 47 Am. 
 
 Chicago, G. W. R. Co. (la.) 146 Rep. 36; O'Brien v. Boston, etc., R. 
 
 N. W. 14; Louisville & N. R. Co. v. Co. 138 Mass. 387; 52 Am. Rep. 279; 
 
 Scott, 108 Ky. 382; 56 S. W. 674; O'Donnel v. Allegheny R. Co. 59 
 
 50 L. R. A. .381; Baird v. Northern Pa. St. 239; 98 Am. Dec. 336; Shan- 
 
 Pac. R. Co. 78 Wash. 67; 138 Pac. non v. Union R. Co. 27 R. I. 475; 
 
 .325; Kindcllen v. Mt. Wash. R. Co. 63 Atl. 488. 
 
 76 N. II. .54; 79 Atl. 691; lannone v. "^ Oliver v. Northern Pac. Ry. Co. 
 
 New York, etc., R. Co. 21 R. I. 452; 216 Fed. 432; Oliver v. Northern Pac. 
 
 44 Atl. .592; 46 L. R. A. 730; 79 Am. Ry. Co. 196 Fed. 432. 
 St. 812; Kumler v. Junction R. Co.
 
 TO WHAT EMPLOYEES STATUTE APPLIES. JQS 
 
 railroad company and has charge of express matter thereon 
 shipped by the express company. He is, in fact, a passenger 
 entitled to the same protection as any other passenger. In 
 such a case the burden is on the railroad company to show 
 that the injured agent was in its employ also, if it desires 
 to bring itself within the provisions of the Federal Act.*'^ 
 If an employee be injured while engaged in the interstate 
 commerce of his employer, and the surgeon of the employer 
 is guilty of malpractice in treating his injuries, the employer- 
 carrier is liable under the Federal Act for injuries thus in- 
 flicted.^* 
 
 § 63. Cases holding employee not engaged in interstate 
 commerce when injured. — In the following cases it was held 
 that the injured employee was not engaged in interstate 
 commerce when injured : A carpenter repairing a freight 
 car where no facts were shown in regard to the prior or sub- 
 sequent use of the car.^° A roundhouse employee cleaning 
 an engine which had just completed an intrastate trip.''^ 
 An employee repairing the boiler of the engine of a wreck 
 train while the boiler was detached from the engine."- A 
 hostler preparing an engine which might or might not go on 
 an interstate journey.''^ An employee unloading new rails 
 with which the track was to be repaired.^* So an employee 
 engaged in building a tunnel.'^^ A crew on a train made up 
 partly of cars which had come from another state after leav- 
 ing a distribution point within the state on separate orders 
 
 But the ordinary Pullman porter 151 Pac. 277; Cross v. Chicago, B. 
 
 has no claim on the railroad company & Q. R. Co. (Mo.) 177 S. W. 1127. 
 as an employee. Robinson v. Balti- " Ruck v. Chicago, M. & St. P. Ry. 
 
 more & Ohio R. Co. 237 U. S. 84; Co. 153 Wis. 158; 140 N. W. 1074. 
 35 Sup. Ct. 491. "Gray v. Chicago & N. W. Ry. 
 
 " Missouri, etc., R. Co. v. Blalock Co. 153 Wis. 637; 142 N. W. 505. 
 (Tex. Civ. App.) 147 S. W. 559. '* Pierson v. New York, S. & W. 
 
 «* Atlantic Coast Line R. Co. v. R. Co. 83 N. J. L. 661; 85 Atl. 233. 
 
 Whitney, 63 Fla. 124; 56 So. 937. But this case is no longer an authority 
 
 '" Louisville & N. R. Co. v. Moore, since the decision in the Pedersen 
 
 156 Ky. 708; 161 S. W. 1129. case. 
 
 " La Casse v. New Orleans, T. & " Jackson v. Chicago, M. & St. 
 
 M. R. Co. 135 La. 129; 64 So. 1012; P. Ry. Co. 210 Fed. 495. 
 Southern P. Co. v. Pillsbury (Cal.)
 
 106 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 for a point within the state."*' An employee working when 
 injured on a switch engine hauling cars loaded with intra- 
 state commerce, but preparing to move other cars loaded 
 with interstate commerce.^' A gardener engaged by an in- 
 terstate carrier to care for the depot premises and cultivate 
 the yards. '^ An engineer running between points within the 
 state a detached engine which was ultimately destined for a 
 point without the state. "'^ A street car conductor on an 
 intrastate car, whose duty it was to keep a lookout for in- 
 terstate cars in order to let them pass in safety and without 
 delay, and who was injured by an interstate car.*'^ Remov- 
 ing a shaft hanger in a machine house bolted to a steel girder 
 or truss to reset on same girder about two feet from its 
 original position.^^ A yard switchman injured by a fast 
 moving train containing no interstate commerce.*- A brake- 
 man coupling an intrastate car to an engine which was im- 
 mediately thereafter put into an intrastate freight train.*^ 
 Employee struck by intrastate train while oiling a switch.** 
 A seal clerk inspecting the cars of a train who was killed 
 just after inspecting the cars, and while the train was being 
 pulled out of the yards and he was crossing another track, 
 by a switch engine, his purpose in crossing the track not 
 being shown. *^ An employee hauling water to be used in 
 interstate engines, but which had to be pumped after reach- 
 
 " Louisville & N. R. Co. V. Strange, 180 Mo. App. 501; 168 S. W. 336; 
 
 156 Ky. 439; 101 S. W. 239. Repair- Kiser v. Metropolitan St. Ry. Co. 
 
 ing such a car. Parsons v. Delaware (Mo.) 175 S. W. 98. 
 
 & II. Co. 153 N. Y. Supp. 179. " Shanks v. Delaware, L. & W. R. 
 
 " Illinois Central R. Co. v. Behrens, Co. 103 App. Div. 565; 148 N. Y. 
 
 233 U. S. 473; 34 Sup. Ct. 640; 58 L. Supp. 1034. 
 
 Ed. 1051; Ivouisville & N. R. Co. v. "Norton v. Erie R. Co. 163 App. 
 
 Parker, 165 Ky. 658; 117 S. W. 46,3; Div. 408; 148 N. Y. Supp. 709. 
 
 Atchison, T. & S. F. Ry. Co. v. Pitts " Atchison, T. & S. F. Ry. Co. v. 
 
 (Okla.) 145 Pac. 1148. Pitts (Okla.) 145 Pac. 1148. 
 
 "* Galveston, H. & S. A. Ry. Co. ■** Granger v. Pennsylvania R. Co. 
 
 V. Chojnacky (Tex. Civ. App.) 163 S. 84 N. J. L. 338; 86 Atl. 204. 
 
 W. 1011. If this switch was a part of an 
 
 " Wright V. Chicago, R. I. & P. interstate railroad and used in trans- 
 
 R. Co. 91 Neb. 317; 143 N. W. 220. portation of interstate commerce, the 
 
 Contra, Killed, in a collision. Hearst decision is erroneous. 
 
 V. St. Iy)ui8, I. M. & S. R. Co. (Mo.) " Pecos & N. T. Ily. Co. v. Roscn- 
 
 173 S. \V. 86. bloom (Tex. Civ. App.) 141 S. W. 
 
 "o MUlcr v. Kansas City W. R. Co. 175.
 
 TO WHAT EMPLOYEES STATUTE APPLIES. 207 
 
 ing its destination.^*' An employee injured by an iron 
 splinter flying from a railroad rail being laid in an interstate 
 road.**^ A carpenter building a coal chute for an interstate 
 carrier.®^ An engine hostler injured in yards dispatching 
 engines engaged in both intrastate and interstate com- 
 merce.^" An employee steaming up a locomotive in an en- 
 gine house, the last trip of which was in intrastate com- 
 merce.'-"' An engineer fell into a roundhouse pit. It was 
 held that he could not recover if he went into the round- 
 house for his own purpose, or if it can not be determined 
 from the evidence that he went there for purposes of em- 
 ployment.''^ An employee engaged in mining coal in one of 
 the mines of the railroad w^as held not to be engaged in 
 interstate commerce.''- A laborer working on a train injured 
 while endeavoring to board a freight train on Sunday to get 
 mail for his camp, in compliance Avith the directions of his 
 assistant foreman."^ An employee working as a mechanic 
 principally in running a machine where he shaped parts to 
 be used in the repair of locomotives in immediate need of 
 repair, and generally, but not exclusively, in the repair of 
 locomotives, used in interstate commerce, injured while an- 
 
 sa Missouri, K. & T. Ry. Co. V. '"La Casse v. New Orleans, T. & 
 
 Fesimire (Tex. Civ. App.) 150 S. W. M. R. Co. 1.35 La. 129; 64 So. 1012. 
 
 201. The soundness of this decision "A locomotive or empty car which has 
 
 is doubtful. completed an intrastate run, and 
 
 8^ Charieston & W. C. Ry. Co. v. may on its next run be used in like 
 
 Anchors, 10 Ga. App. 322; 73 S. E. manner in intrastate commerce, can- 
 
 551. not be said to be actually engaged in 
 
 "We think this decision is not sound. interstate commerce. The most that 
 
 See to the contrary, Missouri, K. & can be said is that it has been so 
 
 T. Ry. Co. V. Denahy (Tex. Civ. used, if such be the fact, and that it 
 
 App.) 165 S. W. 529. may on the next run be so used." 
 
 88 Voris V. Chicago, M. & St. P. Ry. Contra, Tonseliito v. N. Y. Cent. 
 
 Co. 172 Mo. App. 125; 157 S. W. & H. R. R. Co. (N. J.) 94 Atl. 804. 
 
 835 s' Padgett v. Seaboard Air Line 
 
 8« Gray v. Chicago & N. W. Ry. Ry. Co. 98 S. C. 244; 83 S. E. 633. 
 
 Co. 153 Wis. 637; 142 N. W. 505. "^ Delaware, L. & W. R. Co. v. 
 
 The case of Atlantic Coast Line Yurkonis, 220 Fed. 429, affirming 213 
 
 R. Co. V. Whitney (Fla.); 56 So. Fed. 537; affirmed 2.38 U. S. 439. 
 
 937, seems in part to be to recover ^' Myers v. Norfolk & W. Ry. Co. 
 
 damages for malpractice of a rail- 162 N. C. 343; 78 S. E. 280 
 road's surgeon.
 
 108 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 gaged in moving the countershaft which supplied power 
 to the shaping machine by the wheels of a traveling crane.^* 
 Inspecting trains which ran on a division of an interstate 
 railroad wholly within the state, when he was struck and 
 killed by another train of the same division, where no evi- 
 dence was given to show that any passenger or baggage on 
 either train was destined for a point in another state, though 
 the time tables of the company expressed a readiness to 
 transport interstate passengers over that division and trans- 
 fer them to interstate trains.^^ A coal miner mining coal 
 in the mine of an interstate railroad company is not en- 
 gaged in interstate commerce though some of the coal may 
 be used on interstate locomotives.^^* ^ flagman at a street 
 crossing.^^ 
 
 § 64. Switching crew moving' interstate commerce — In- 
 tention to immediately move interstate commerce. — In a 
 
 leading case the facts were these : "The intestate was in the 
 service of a railroad company as a member of a crew at- 
 tached to a switch engine operated exclusively within the 
 city of New Orleans. He was the fireman, and came to his 
 death while at his post of duty through a headon collision. 
 The general work of the crew consisted in moving cars from 
 one point to another within the city over the company's 
 tracks and other connecting tracks. Sometimes the ears 
 were loaded, at other times empty, and at still other times, 
 some were loaded and others empty. When loaded the 
 freight in them was at times destined from within to with- 
 out the state or vice versa; at other times was moving only 
 between points within the state, and at still other times was 
 of both classes. "When the cars were empty the purpose 
 was usually to take them where they were to be loaded or 
 away from where they had been unloaded. And oftentimes 
 following the movement of cars, loaded or empty, to a given 
 point, other cars were gathered up and taken or started 
 elsewhere. In short, the crew handled interstate and intra- 
 
 " Shanks v. Delaware, L. & W. 221 Fed. 453; Barker v. Kansas City 
 
 R. Co. (N. Y.) 108 N. E. 644. M. & O. R. Co. (Kan.) 146 Pac. 358. 
 
 »" Louisville & N. R. Co. V. Barrett "'Delaware, L. & W. R. Co. v. 
 
 85 S. E. 923. Yurkonis, 35 Sup. Ct. 902; case 
 
 •* Boyle V. Pennsylvania R. Co. below 220 Fed. 429.
 
 TO WHAT I5MPLOYEES STATUTE APPLTES. 109 
 
 state traffic indiscriminately, frequently moving both at 
 once and at times turning directly from one to the other. 
 At the time of the collision the crew was moving several 
 cars loaded with freight which was wholly intrastate, and 
 upon completing that movement was to have gathered up 
 and taken to other points several other cars as a step or 
 link in their transportation to various destinations within 
 and without the state." Upon those facts it was held that 
 the deceased fireman was not engaged in interstate com- 
 merce when injured. "Here at the time of the fatal in- 
 jury," said the court, "the intestate was engaged in moving 
 several cars, all loaded with intrastate freight from one 
 part of the city to another. That was not a service in inter- 
 state commerce, and so the injury and resulting death were 
 not within the statute. That he was expected, upon the 
 completion of that task, to engage in another which would 
 have been a part of interstate commerce, is immaterial un- 
 der the statute, for by its terms the true test is the nature 
 of the work being done at the time of the injury. "^"^ 
 
 § 65. Relation between the emplojrment and the accident. 
 
 — The statute expressly limits the right of recovery to a 
 "person suffering injury while he is employed by such carrier 
 in such commerce," namely, in interstate commerce in the 
 states or general commerce in the territories. If the injury 
 arises from a cause in no manner connected with or arising 
 
 98 Illinois Central R. Co. v. Behrens, M. & 0. Ry. Co. (Kan.) 146 Pac. 358; 
 233 U. S. 473; 34 Sup. Ct. 646; 58 L. McAuliffe v. New York, C. & H. R. R. 
 Ed. 1051; Barker v. Kansas City, Co. 150 N. Y. Supp. 512.
 
 210 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 out of his employment, then he cannot recover damages 
 under this statute. This is emphasized, as it were, by the 
 title of the Act, which is "An Act relating to the liability 
 of common carriers by railroads to their employees in cer- 
 tain cases." The accident must occur or the injury be 
 received from a cause which arises out of or is incidental to 
 railway employment. As was said in an English case, on 
 an analogous question, there must be "some casual rela- 
 tion between the employment and the accident. "^^ Thus 
 where a workman A maliciously threw a piece of iron at 
 workman B, which struck the eye of workman C who was 
 at work, it was decided that a workman who was injured 
 through the tortious act of a fellow-workman, which had 
 no relation whatever to their employment, had no claim 
 against his employer, on the ground that the injury did not 
 arise out of the employment. "It seems to me," said the 
 court, "that in such a case the accident would not arise 'out 
 of or in the course of the employment.' It would not be 
 an accident of the employment at all. It would be entirely 
 outside the scope of the employment of the doer of the act 
 and of the injured workman. * * * It seems to me, as a 
 matter of law, that we cannot say that the injury caused 
 by a missile thrown by another workman entirely outside 
 the scope of his employment was caused by an accident 
 which arose out of his employment. " ^- " The test, ' ' said 
 an American judge, "of the employer's liability is not the 
 fact that the negligent act of the servant was during the 
 existence of his employment ; nor is the fact that his act was 
 done during the time he was doing some act for his em- 
 ployer. But the test is: was the act causing the injury 
 done in the prosecution of the master's business?"^-* In 
 
 3' O'Brien v. Star Line Limited, P. Ry. Co. 178 Fed. 432, citing 
 
 1 Butterworth's Workmen's Com- Chicago v. Barker, 131 Fed. 161; 
 
 pensation Cases, 177, 181; St. Louis Bowen v. Illinois Central R. Co. 
 
 & S. F. R. R. V. Conerty, 238 U. S. 130 Fed. 306; St. Louis S. W. Ry. 
 
 243; Bjorn8(!n v. Northern P. Ry. Co. Co. v. Harvey, 144 Fed. 806; 
 
 (Wash.) 140 Pac. 575. Morier v. St. Paul, M. & M. R. 
 
 '^Armitage v. Lancashire & G. Co. 31 Minn. 351; 17 N. W. 952, 
 
 Ng. Co. 4 Minton-Senhose Work- and Hudson v. Missouri, K. & T. 
 
 men's Compensation Cases, 5. R. Co. 16 Kan. 470. 
 
 '2* Jackson v. Chicago, R. I. &
 
 TO WHAT EMPLOYEES STATUTE APPLIES. JH 
 
 another English case it was said: "But where the servant, 
 instead of doing that which he was employed to do, does 
 something which he was not employed to do at all, the 
 master cannot be said to do it by his servant, ' ' ^^ and in 
 another case, "but if he was going on a frolic of his own, 
 without being at all on his master's business, the master 
 will not be liable."^* 
 
 § 66. Who must inflict injury to render railway com- 
 pany liable. — In the first section of the statute the railway 
 company is rendered liable only where the injury or the 
 death results in whole or in part from "the negligence of 
 any of the officers, agents, or employees" of the carrier 
 company. This is aside from defective or insufficient appli- 
 ances, cars, engines, machinery, track, roadbed, works, 
 boats, wharves, or other equipment. It necessarily follows 
 where the injury is inflicted by one of the persons enumer- 
 ated that the negligence to be actionable must be that of 
 such persons in the capacity of officers, agents, or em- 
 ployees as such. This negligence must be incidental and 
 relate to the company's business — having some natural rela- 
 tion to the employment or to its business. If the injury or 
 death is received from a cause entirely disconnected from 
 the employment, or at a time and place disconnected from 
 it, there is no liability on the part of the company.^** 
 
 § 67. Interstate employee injured by negligence of intra- 
 state employee. — The statute wipes out the rule of fellow- 
 servant. Then, if an employee is injured while engaged 
 in interstate commerce by the negligent act of an intra- 
 
 '3 Mitchell V. Crassweller, 13 C. B. "• Cincinnati, N. O. & T. P. Ry. 
 
 235. Co. V. Swann, 160 Ky. 458; 169 S. 
 
 3< Joel V. Morrison. 6 C. & P. 501. W. 886; Padgett v. Seaboard A. L. 
 
 Ry. 98 S. C. 244; 83 S. E. 633.
 
 ]^22 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 state commerce servant, can lie recover? Unquestionably 
 he can. The test is, ''was the servant injured while engaged 
 in interstate commerce by the negligence of his employer?" 
 If he was, he may recover, and it matters not that the ser- 
 vant inflicting the injury was engaged only in intrastate 
 commerce. It would be just as logical to claim that the 
 company was not liable because he was injured by an 
 instrument not used in interstate commerce, for which 
 no one would seriously contend. Such an instance would be 
 where an employe is injured by the collision of his train 
 with an intrastate train. A rule that there could be no 
 recovery in such instances would to a great extent nullify the 
 usefulness and object of the statute. Whenever it is a nec- 
 essary incident to the regulation of interstate commerce, 
 Congress can control, to that extent, intrastate commerce. 
 Unquestionably Congress can, if necessary to protect in- 
 terstate employes, treat interstate employes simply as 
 employes of the company and impute their negligence 
 to the company. Nor can it be claimed that the act is 
 void because it invades, on this point, the police power of 
 the state and because the United States has no police 
 power; for, although the police power of the state is os- 
 tensibly exclusive to it, and the Federal Government has 
 no police power in itself, yet Congress may, under the 
 constitution, pass all laws which are essential to make ef- 
 fective the powders belonging to it. If it, therefore, becomes 
 essential for Congress to exercise powers that invade police 
 regulations of a state, for the purpose of making effective its 
 powers, it may do so.^^ ''The effect of the statute is to 
 abolish, to the limited extent indicated [therein], the com- 
 mon law doctrine which forbade the recovery of damages 
 for injuries to employees sustained by the negligence of 
 fellow-servants. The act also, in other provisions not under 
 
 ^'- Watson V. St. Louis, I. M. & that the injury must be inflicted by 
 
 S. Ry. Co. 1G9 Fed. 942. an interstate employee, although 
 
 In Zikos V. Oregon R. & N. Co. that was a mere expression not 
 
 17'J Fed. 893, there is an intimation amounting even to a dictum.
 
 TO WHAT EMPLOYEES STATUTE APPLIES. ^13 
 
 consideration here, modifies the rule of contributory negli- 
 gence and the doctrine of assumption of risk. 
 
 " It is the relation only between the carrier and the employee 
 who is injured while he is engaged in interstate or foreign 
 commerce that is regulated by the imposition of the liabil- 
 ity mentioned. The fallacy of the contention that the act 
 seeks to regulate the relations between the carrier and its 
 employees who are not engaged in interstate commerce, is 
 shown by the fact that no change whatever is made by 
 the statute in their relations, no liability being imposed 
 upon the carrier for injuries suffered by an employee when 
 not engaged in interstate commerce by reason of the neg- 
 ligence of a fellow-servant. 
 
 "It is manifest that the primary object of the statute in 
 question was not simply to give a right of action where 
 none before had existed, but, by imposing a liability upon 
 the carrier for injury suffered by an employee while en- 
 gaged in interstate commerce through the negligence of a 
 fellow-servant, or by reason of any defect due to its neg- 
 ligence in its cars, engines, appliances, etc., to insure a 
 greater degree of care on the part of the carrier for the 
 protection of the employee while engaged in interstate or 
 foreign commerce, and of the persons and property whose 
 safety might be dependent upon the safety of such em- 
 ployee. The statute is founded on a different view as to 
 the requirements of public policy in respect to matters of 
 this kind from that anciently entertained by the courts 
 who formulated the common law doctrine. In this aspect 
 of the case, it is immaterial what may be the nature of the 
 agency, whether animate or inanimate, that causes such 
 injury, provided it may be something for the negligent 
 conduct or existence of which the carrier may properly be 
 made responsible. 
 
 "Take the subject of inanimate things, for instance. Sup- 
 pose a railroad company engaged in interstate commerce 
 so negligently constructs a bridge across its road that an 
 employee while engaged in such commerce is injured
 
 114 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 thereby, the bridge being used for the convenience of local 
 traffic only. Will it be said that Congress could not impose 
 a liability upon the railroad company for its negligence in 
 that regard, and that if it did so it would be regulating 
 intrastate commerce? "What difference in principle is there 
 between the case suggested and that of a railroad engaged 
 in interstate commerce which, through the negligence of its 
 officers, agents and employees, so negligently runs a local 
 train upon its interstate lines as to injure an employee 
 upon an interstate train while he is engaged in such com- 
 merce ? In applying the rule of respondeat supenor to such 
 cases Congress has only undertaken to impose a liability upon 
 the carrier to the extent necessary for the proper protec- 
 tion of interstate commerce. 
 
 "If Congress cannot make the carrier liable for injuries 
 suffered by an employee while he is employed in interstate 
 commerce, caused by the negligence of any of the other 
 employees of the carrier, irrespective of the nature of the 
 business in which the latter may at the time be employed, 
 manifestly it cannot protect such employee, and through 
 him the interstate commerce in which he is employed, 
 against a very large percentage of the injuries which are 
 likely to occur to him and for which the carrier should 
 properly be held responsible. 
 
 "It is further to be observed that, although the agency 
 of the carrier, animate or inanimate, which may occasion 
 injury to an employee while he is engaged in interstate com- 
 merce, may not itself be engaged or employed in such com- 
 merce, yet, necessarily, in order to come within the scope of the 
 act, it enters the domain of interstate commerce, else no 
 injury would be suffered by the employee engaged in such 
 commerce. In other words, in every such case the master, 
 through his agents, negligently, and hence unlawfully, al- 
 lows an obstruction to be placed in the way of the safe 
 conduct of interstate commerce, by which the employee 
 engaged therein is injured.
 
 TO WHAT KMin.OYEKS STATUTK APrT.TT-:S. 215 
 
 "It is suggestive of the weakness of the present con- 
 tention that no such objection was ever made with regard 
 to the original act in the Employers' Liability Cases. In 
 fact, it was practically conceded in those cases that if the 
 statute could be construed to limit the liability of the carrier 
 to its emplo3''ees when or while such employee was engaged 
 in interstate commerce it would be constitutional, so far 
 as any objection of this kind was concerned. In the present 
 statute Congress has imposed that limitation. The act does 
 not undertake to regulate the relations between the carrier 
 and its employees who are not engaged in interstate com- 
 merce. The relations between the carrier and such em- 
 ployees remain precisely the same as if the statute had not 
 been passed. No relief whatever is afforded them by the 
 act. They only enter into consideration, as the agents of 
 the carrier, in determining the liability between the carrier 
 and its employees who suffer injury while employed in 
 interstate commerce. 
 
 "As stated, the fallacy of the contention that the act is 
 unconstitutional lies in the assumption that the Congress 
 has in some way regulated the relationship between the 
 carrier and its employees who are not engaged in inter- 
 state commerce at the time of an injury coming within the 
 terms of the act. If the relations between the carrier and 
 such employees are changed in the slightest degree by the 
 act, it should be a simple matter to point out the change. 
 If they are not changed, the contention made is untenable. 
 
 "It is true the act imposes a liability upon the carrier 
 for the negligence of its employees who may not be em- 
 ployed at the time in interstate commerce. But the liability 
 imposed is to its employees who suffer injury by reason of 
 such negligence at a time when they are employed in inter- 
 state commerce. No duty, no liability, no responsibility is 
 imposed upon the carrier with respect to its employees who 
 may occasion such injury. 
 
 "It seems unnecessary to carry this discussion further. 
 If Congress cannot protect an employee while he is en-
 
 216 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 gaged in interstate commerce from the negligence of the 
 railroad carrier to the extent provided in this act, it is shorn 
 of the plenary power to regulate commerce that has heen 
 so often asserted."^® 
 
 § 68. The Nebraska statute. — Some little light may be 
 thrown upon this point by a decision of the Supreme Court 
 of Nebraska in construing a statute of that state. An em- 
 ployee of a railroad company was a helper in a blacksmith- 
 shop of the company, and at the time of his injury was 
 assisting in flattening iron washers at a steam hammer. 
 He charged that his injuries were caused by the careless- 
 ness of the employee operating this hammer. These washers 
 were used for repairs to cars and engines. The action was 
 brought upon a statute of the state which provided "that 
 every railway company operating a railway engine, ear, or 
 train in the state of Nebraska shall be liable to any of its 
 employees, who at the time of injury are engaged in con- 
 struction or repair work, or in the use and operation of 
 any engine, car, or train for said company." The railroad 
 company contended that the employee plaintiff was not 
 within the class protected by the statute, because he was 
 not injured through a risk or hazard incident and peculiar 
 to the business of constructing, repairing and operating 
 railroads ; but the court pointed out the clause "or in the 
 use and operation of any engine, car or train for said com- 
 pany," as applicable to the case and covering it, saying: 
 
 "It is clear from this wording of the statute that the 
 legislature intended that the fellow-servant rule (not law) 
 should not apply to any of the employees of any railroad 
 in the state who were either engaged in the operation of 
 engines, cars, or trains, or were engaged in construction or 
 repair work. Substantially the same reason sustains the 
 entire classification; that is to say, there are dangers in- 
 herent in and peculiar to all the vocations described in the 
 
 "Quotation from briof of the At- IcSO Fed. S32; Zikos v. Oregon R., 
 
 torney-Goncral of the United States etc., Co. 179 Fed. 893. 
 
 in Watson v. St. Louis, I. M. & So. Where an employee was struck by 
 
 Ry. Co. 169 Fed. 942. an intrastate car or truck used for 
 
 The question liaa now been do- interstate commerce, while working 
 
 cided as in the text stated. Pedersen on a switch mechanism he had just 
 
 V. Delaware, L. & W. K. Co. 229 U. oiled, it was held he was not within 
 
 S. 14G; 33 Sup. Ct. 048; .')7 L. Ed. the Fedenil Act. Granger v. Pcnn- 
 
 1125, reversing 107 Fed. r).37; 117 C. sylvania R. Co. 84 N. J. L. 338; 
 
 C. A. .33, which afTirrn.'d 184 Fed. 737. 86 Atl. 264. See also Illinois Cent. 
 
 Second Empiovcrs' Liability Cases, Ry. Co. v. Rogers, 221 Fed. 52; 
 
 223 U. S. 1 ; 32 Sup. Ct. 169; 56 L. Ed. Shanley v. Philadelphia & R. R. Co. 
 
 .327; Central R. Co. v. Colasurdo, 192 221 Fed. 1012; Barker v. Kansas 
 
 Fed. 901; 113 C. C. A. 379, affirming City, M. & O. Ry. Co. (Kan.) 146 
 
 Pac. 358.
 
 TO WHAT EMPLOYEES STATUTE APPLIES. HJ 
 
 statute, which are rarely, if ever, encountered by employees 
 working for a master not engaged in the operation of a 
 railway. The legislature well knew that substantially all 
 railway construction or repair work is dangerous, per- 
 formed either in the immediate vicinity of tracks upon 
 which trains are passing or by the use of dangerous ma- 
 chinery, as in the case at bar. Classifications should receive 
 a practical construction, and we are of opinion that a rea- 
 sonable application of the law to the facts in the case before 
 us not only brings the plaintiff within its purview, but for- 
 bids a holding that the law itself is obnoxious to the Con- 
 stitution of the United States or to the Constitution of the 
 state of Nebraska. We must not be understood as deciding 
 that all work of construction or repair of any article or 
 structure performed in the service of a railroad company 
 comes within the purview of the statute. The work of a 
 railroad company is divided into many departments. The 
 duties and hazards of employees in one department may be 
 as dissimilar from those in other departments as are those 
 of a clerk or bookkeeper in the uptown headquarters from 
 those of an engineer or brakeman on a train ; and questions 
 may hereafter arise as to the scope of the act under con- 
 sideration, which we do not now decide. But, where the 
 work of construction or repair is as closely connected with 
 the actual operation and use of the railroad as the work 
 of the present plaintiff, it seems clear that it is within the 
 class of hazards covered by the act. "^^ 
 
 § 69. Validity of statute allowing a recovery for an in- 
 jury occasioned by an intrastate employee. — The validity 
 of this Act has been vigorously attacked in so far as it 
 allows a recov^ery for an injury inflicted upon an interstate 
 employee by the negligent act of an intrastate employee, 
 but so far without avail. "As the powers of Congress," 
 said Justice Trieber, "are limited to those granted by the 
 
 ^" Swoboda v. Union Pacific R. Crandall v. Chicago G. W. R. Co. 
 Co. 87 Neb. 200; 127 N. W. 215; (Minn.) 150 N. W. 165.
 
 118 
 
 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 Constitution, and the only provisions of that instrument 
 authorizing such legislation is the commerce clause, and 
 that is limited to ' commerce with foreign nations and among 
 the several states and Indian tribes,' it can, of course, only 
 legislate for the safety of those employed in those branches 
 of commerce, and not in intrastate carriage. That is all 
 the act under consideration attempts to do. It is limited 
 to those who are in the employment of railroads engaged 
 in commerce between the state, and while they are actually 
 engaged in such employment. What difference does it 
 make what the employment of the fellow-servant is — 
 whether interstate or intrastate? The safety of the em- 
 ployees of an interstate train, as well as of the passengers 
 entrusted to their care, can in no wise be affected by that. 
 Congress having the exclusive power to regulate interstate 
 commerce, that power necessarily includes the right to 
 regulate the relation of master and servant operating such 
 trains and legislate for the safety of the employees.^® If 
 the contention of defendant is sustained, the effect would 
 be that although the emploj^ee of a carrier by rail engaged 
 in interstate transportation is injured while engaged on an 
 interstate train, if the cause of the injury was the negli- 
 gence of a fellow-servant not engaged at the time in inter- 
 state work. Congress is powerless to provide for a recovery 
 of compensation for the injuries suffered. Therefore, if an 
 engineer or fireman on an interstate train is injured by 
 reason of the negligence of a switchman or other employee 
 of a train operated on a branch line, which is used exclu- 
 sively for intrastate business, the failure of Congress to 
 except such accidents from the provisions of the statute 
 makes it unconstitutional as being in excess of its powers 
 under the Constitution. The same result would follow if a 
 telegraph operator on such a branch line fails to transmit 
 
 •"'8 Citing Johnson v. Southern Co. 205 U. S. 1; 27 Sup. Ct. 407; 
 
 Pacific Ry. Co. 1% U. S. 1; 25 51 L. Ed. 681 ; a.nd Employers' Lia- 
 
 Sup. Ct. 158; 49 L. Ed. 3C3; bility Cases, 207 V. S.'4n8; 28 
 
 Sohlemmer v. Buffalo, etc., Ry. Sup. Ct. 145; 52 L. Ed. 297.
 
 TO WHAT EMPLOYEES STATUTE APPLIES. HQ 
 
 or deliver a message from the train dispatcher directing 
 the conductor of the interstate train to go on a siding for 
 the purpose of letting an intrastate train pass on the main 
 line, and by reason of such negligence there is a collision. 
 In State v. Chicago, Milwaukee & St. Paul R. Co.,^^ the 
 court, speaking of a similar question, said: 'The direction 
 and dispatching of every train on an interstate railway 
 necessarily involves knowledge in the train dispatcher of 
 all other trains which are in the same vicinity at the same 
 time, and also an ability to control such other trains. An 
 interstate train from Milwaukee to Chicago cannot be safely 
 forwarded if, under the direction of a separate employee, a 
 local train may be moving between Milwaukee and Racine 
 over the same track at the same time, or nearly so. The 
 very switching at local stations must be within the knowl- 
 edge and under the control of him who is to decide upon 
 and direct the most important of interstate transportation. 
 Obviously division of authority over these subjects would 
 be fraught with great perils and delays to both kinds of 
 transportation. Hardly any act of a train dispatcher on a 
 busy railroad can be conceived which does not affect both 
 interstate and domestic commerce. He cannot move or 
 stop the most distinctively local train without affecting the 
 interstate train, or vice versa. No extra or special can be 
 put on the division without adjustment of other trains. Of 
 course, also, every interstate train carries some purely intra- 
 state freight or passengers. I\Iany purely domestic trains 
 carry some freight or passengers in transit to extrastate 
 destination. It would seem that any severance of control 
 over state from interstate trains involved so much of con- 
 fusion and probability of danger, and its possibility even is 
 so doubtful and experimental that no legislature would 
 absolutely precipitate it without careful consideration, nor 
 without providing in the act for the event of failure of such 
 experiments.' There is nothing in the Employers' Liability 
 Cases to warrant the construction claimed on behalf of de- 
 
 39 136 Wis. 407; 117 X. W. 686.
 
 120 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 f endant. What the court did decide in that case was that as 
 the act under consideration included all employees of an 
 interstate carrier, even if they (the employees) were en- 
 gaged in an employment wholly disconnected from the 
 interstate business, citing 'employees of a purely local 
 branch operated wholly within a state, employees in repair 
 shops, construction work, accounting and clerical work, 
 storage elevators and warehouses, not to suggest, besides, 
 the possibility of it being engaged in other independent 
 enterprise,' and then held that: 'As the act thus includes 
 many subjects wholly beyond the power to regulate com- 
 merce and depends for its sanction upon that authority, 
 it results that the act is repugnant to the Constitution.' 
 No doubt Congress, had it seen proper to do so, could have 
 limited it to certain fellow-servants, such as are employed 
 only in interstate service or in the same or different depart- 
 ments of the common employment, as has been done by 
 some of the states. See acts of Arkansas, Indiana, Massa- 
 chusetts, Mississippi, Missouri, Montana, Ohio, Oregon, 
 South Carolina, Texas, Utah, and Virginia. But the failure 
 to do so cannot invalidate the act." 
 
 The court then reviews many cases under like statutes 
 and concludes that "the act in controversy is a valid exer- 
 cise of the power granted to Congress by the Constitu- 
 tion. '"'^ 
 
 40 Watson v. St. Tjoiiis. I. !M. & no such a proposition as therein 
 
 S. Ry. Co. 169 Fed. 942. laid down having been argued in 
 
 In this the court makes the the briefs: 
 follo\ving quotation from the opin- "Thus, the liability of a common 
 
 ion of Justice White in the Era- carrier is declared to be in favor 
 
 ployers' Liability Cases, 207 U. S. of 'any of its employees.' As the 
 
 498; 28 Sup. Ct. 145; 52 L. Ed. word 'any' is unqualified, it follows 
 
 297, and says that the italicized that liability to the servant is co- 
 
 fKjrtion does not appear in the extensive with the business done 
 
 opinion. It certainly appears in l)y the employers whom the statute 
 
 the official report of the opinion. embraces: that is, it is in favor 
 
 The court examined the record of of any of the employees of all 
 
 the case in which this opinion was carriers who engacrpd in interstate 
 
 rendered and held that the words commerce. This also is the rule as 
 
 in italics was a mere obiter dictum, to the one who otherimsc would he
 
 TO WHAT EMPLOYEES STATUTE APPLIES. 
 
 121 
 
 a felloio scrvunt, hy whose negli- 
 gence the injury or death may have 
 been occasioned, since it is pro- 
 vided tJuit the right to recover on 
 the part of any servant will exist, 
 although the injury for which the 
 carrier is to be held resulted from 
 negligence of any of its officers, 
 agents or employees.'" 
 
 The validity of this act in this 
 particular respect has been prac- 
 tically upheld in Zikos v. Oregon 
 K. & K Co. 179 Fed. S93. 
 
 "Xo doubt is suggested that the 
 requirement of safety appliances on 
 cars that are actually laden with 
 interstate traffic isj a regulation of 
 interstate commerce. Now, if the 
 same interstate carrier may haul 
 on the same interstate highway, 
 cars that need not be equipped be- 
 cause, though regularly used in 
 interstate traffic, they are empty 
 at the time (Wabash Ry. Com- 
 pany), and also cars that need not 
 be equipped because they are laden 
 with intrastate traffic exclusively 
 (Elgin R. Company), the purpose 
 of equipping the oars that are 
 carrying interstate traffic would 
 manifestly be largely impaired or 
 destroyed, for in switching move- 
 ments, in derailments, and in colli- 
 sions, disasters would come to the 
 interstate car quite irrespective of 
 the character of the other cars in- 
 volved. Therefore, Congress, under 
 the power 'to make all laws which 
 shall be necessary and proper for 
 carrying into execution the fore- 
 going powers of regulating inter- 
 state commerce, had the right to 
 make the laws in question; and 
 they are paramount, of course, to '11 
 laws of the state. This result, 
 which we deem soimd in reason, 
 is indirectly sustained, we believe, 
 by the Employers' Liability Cases, 
 for there the statute was over- 
 throA^Ti only because an inseparable 
 part of it was found to have no 
 
 necessary relation to the security 
 of interstate transportation." Wa- 
 bash R. Co. V. United States, 168 
 Fed. 1. 
 
 "Is the act in excess of the power 
 of Congress in that it regulates 
 such relation as to intrastate em- 
 ployees by making the carrier 
 liable for their negligence to inter- 
 state employees?" 
 
 Having determined that the reg- 
 ulation of the relation of master 
 and servant as between an inter- 
 state carrier and its interstate 
 employee is a regulation of com- 
 merce, we must answer the ques- 
 tion as to whether or not the rule 
 established by the act goes beyond 
 the power of Congress in that it 
 regulates such relation as to intra- 
 state employees by making the 
 carrier liable for their negligence 
 to interstate employees. 
 
 This act, properly construed, in- 
 cludes injuries suffered by a servant 
 while he is employed in interstate 
 commerce through the negligence 
 of any of the officers, agents, or 
 employees of the carrier, whether 
 or not the latter were employed in 
 such commerce. 
 
 All that the act does in this 
 particular is to regulate the rela- 
 tion of a common carrier engaged 
 in interstate commerce to its em- 
 ployee while engaged in such com- 
 merce. In order to protect the 
 interstate employee it imposes a 
 liability on the interstate carrier. 
 
 It abolishes the common law 
 doctrine which forbade the re- 
 covery of damages for injuries t-o 
 employees sustained by the negli- 
 gence of fellow servants. This it 
 does only as to employees engaged 
 in interstate commerce. No change 
 is made with respect to the rights 
 of an intrastate employee or the 
 duties of a carrier to such servant. 
 It is submitted that under the com- 
 merce clause, wherever it is a
 
 122 
 
 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 necessary incident to regulation of 
 interstate commerce, Oongi-ess can 
 control intrastate commerce. 
 
 There is only one sovereign 
 power over interstate commerce — 
 the power of Federal government. 
 
 In the exercise of this sovereign 
 power, to regulate interstate oom- 
 merce. Congress is absolutely un- 
 trammeled by any rights of the 
 states, or by any rights of corpora- 
 tions derived from states. Anything 
 conflicting with tlie Federal sov- 
 ereignty over interstate commerce 
 must give way to the ample and 
 conclusive power over this subject 
 conferred upon the national gov- 
 ernment. No authority derived 
 from the states can be permitted 
 to conflict with the Federal power. 
 When Congress acts upon any sub- 
 ject relating to interstate com- 
 merce, all state regulation of the 
 same subject is suspended This 
 is true to the same extent that 
 state insolvency laws are sus- 
 pended while a national bank- 
 ruptcy act is in force. 
 
 It will be conceded that the 
 Federal power is ample in bank- 
 ruptcy cases to affect purely local 
 transactions of merchants, where 
 the rights of creditors generally 
 may be affected. Where such 
 rights of general creditors are in- 
 volved the Federal power assumes 
 the adjustment of relations arising 
 out of rights otherwise controlled 
 exclusively by local law. 
 
 The same is true when rights 
 otherwise exclusively local come 
 into conflict with rights founded 
 on Federal laws regulating inter- 
 state commerce. In such cases it 
 is essential that sucli local rights 
 be regulated in order that inter- 
 state regulation may be made rea- 
 sonably effective. Inherent in the 
 Federal sovereignty over the whole 
 subjeet of interstate commerce, and 
 essential to its maintenance, is the 
 
 power to make any incidental rega- 
 lation of commerce within the 
 states, in cases in which such in- 
 trastate regulation is necessary to 
 the complete, uniform, and orderly 
 regulation of interstate commerce. 
 
 This Federal power to regulate 
 local affairs exists, however, only 
 when incidental and only so far 
 as reasonably necessary to the 
 regulation of interstate commerce. 
 This power, it must be understood, 
 does not extend to the regulation 
 of intrastate commerce, as such, 
 but merely to such intrastate com- 
 merce as is so intimately related 
 to interstate commerce, or so com- 
 mingled with it, that the latter 
 cannot be regulated without 
 affecting the former. Intrastate 
 commerce may be affected by Fed- 
 eral laws relating to interstate 
 commerce where the latter power 
 could not be reasonably and effec- 
 tively exercised -vvithout so affect- 
 ing the domestic power of the 
 state. 
 
 In protecting interstate em- 
 ployees. Congress can fix upon a 
 carrier liability for the negligence 
 of any of its servants. Such negli- 
 gence tlien becomes the negligence 
 of the carrier, and it is immate- 
 rial whether the employee causing 
 such injury is engaged in intra- 
 state or interstate commerce. His 
 negligence is imputed to the com- 
 pany. 
 
 If Congress has the power to 
 create certain rights in favor of 
 interstate employees, it can by 
 appropriate legislation make those 
 rights effective. It may if neces- 
 sary invade the police power of 
 the state. 
 
 Although it is often said that 
 the Federal government has no 
 police power in itself, yet Congress 
 may exercise police regulation ff/r 
 the purpose of effecting powers 
 that belong to it. If in regulating
 
 TO WHAT EMPLOYEES STATUTE APPLIES. 
 
 123 
 
 commerce it becomes necossaiy to 
 pass a law similar to one passed 
 by a state under its police powers, 
 Congress may do so. 
 
 In regulating this relation be- 
 tween the interstate employee and 
 his emiployer, it is immaterial 
 whether the injury is caused by a 
 defective machine, another inter- 
 state employee, or an intrastate 
 workman. The liability is from 
 the interstate employer to the in- 
 terstate emiployee. Congress may 
 so far as the question of power is 
 concerned ignore H\e cause of the 
 injury. 
 
 Power over railroads is identical 
 with power over maritime com- 
 merce. The latter power has been 
 held to extend to a law limiting 
 the liability of ship owners. The 
 power to limit is no greater than 
 the power to extend. If Congress 
 may, therefore, increase the liabil- 
 ity of ship OAvners for tlie perils 
 of the sea, why may not legisla- 
 tion be just asj constitutionally 
 enacted extending the liability of 
 railroads for similarly hazardous 
 perils? 
 
 The imposition of this liability 
 upon a carrier has a direct ten- 
 dency to promote greater care and 
 diligence on the part of the carrier 
 in complying with statutory as 
 well as the common law obliga- 
 tions for safety. The expression 
 of Judge Taft in Narramore v. 
 Cleveland, C, C. & St. L. Ry. Co. 
 (96 Fed. 2'98, 300), is in "point. 
 He said, speaking of a statute of 
 Ohio requiring railroad companies 
 to block the frogs, switches, and 
 guard rails on their tracks, under 
 penalty of a fine (our italics) : 
 "* * * Tlie expression of one 
 mode of enforcing* it did not ex- 
 clude the operation of another, and 
 in many respects more efficacious, 
 means of compelling compliance 
 with its terms, to-wit, the right 
 
 of civil action against a delinquent 
 railway company by one of the 
 class sought to l>e protected by the 
 statute for injury caused by a fail- 
 ure to comply with its require- 
 ments. * * *." 
 
 Congress has here thrown the 
 cloak of protection over interstat^e 
 em4)loyees. It has given to those 
 employees certain rights not pos- 
 sessed by others not so employed. 
 It affords this protection that they 
 may be more diligent in trans- 
 acting the bulsdness committed to 
 them; that their duties may be 
 performed more thoroughly and 
 commerce thereby made more safe. 
 
 It is the man that is i>rotected 
 in order that commerce may be 
 protected. This man is the agent 
 by which commerce is transported. 
 And commerce is by this legisla- 
 tion regulated. 
 
 It matters riot whether the cause 
 of the injury was animate or in- 
 animate, provided it be of a nature 
 for which the carrier may fairly 
 be made responsible. Can it be 
 said that Congress has the power 
 to make the carrier liable for a 
 defective track, bridge, or car and 
 yet not for its animate agent? 
 To state the proposition is only to 
 demonstrate its unsoundness. Con- 
 gress has said that if the master 
 allows any agency which enters 
 the domain of interstate commerce 
 to become an obstacle to the safety 
 of interstate employees, he cannot 
 plead as a defense the fellow serv- 
 ant doctrine. 
 
 While a servant of an interstate 
 road is about his master's business 
 and engaged in interstate com- 
 merce, he is entitled to and within 
 the protection of the congressional 
 power. Tliis power reaches out to 
 him in his every act while per- 
 forming his duty to his employer 
 in the line of interstate commerce, 
 and Congress has placed upon the
 
 124 
 
 FEDERAL, EMPLOYERS' LIABILITY ACT. 
 
 railroad the obligation to protect 
 Mm wliiie so engaged. If he is 
 injured by the railroad, by any of 
 its agents or instrumentalities 
 while in the performance of inter- 
 state duty, that injury is the act 
 of his interstate employer, for 
 which such employer may, accord- 
 ing to every principle of legal 
 responsibility, be made ang\verable. 
 The injury to him constitutes an 
 interference with interstate com- 
 merce, and Congress has the power 
 to fix the liability of the carrier 
 therefor. 
 
 If an act of an intrastate serv- 
 ant is so directly connected with 
 interstate commerce that it injures 
 one who is engaged in interstate 
 commerce, the relation of the in- 
 trastate servant to interstate com- 
 merce is) so proximate as to bring 
 such act within the power of Con- 
 gress upon the subject. 
 
 If the servant of an interstate 
 railroad, though engaged in intra- 
 state commerce, comes into such 
 intimate relation with interstate 
 commerce that his negligence causes 
 injury to a servant of the same 
 master, wlio was actually engaged 
 at the time in interstate commerce, 
 his connection with interstate com- 
 merce is fixed by this act, and the 
 power of Congress attaches and is 
 enforced by this statute in favor 
 of the employee who meets with 
 such injury. 
 
 There can be no objection to the 
 application by Congress of the rule 
 of respondeat superior in making 
 an interstate railroad liable t« the 
 interstate servant for an injury 
 caused by a local servant. 
 
 The power which regulates in- 
 terstate traffic extends to the fixing 
 of the liability of the carrier to 
 the men who move such traffic. 
 If the power exists in Congress to 
 refrulate the obligations of the 
 carrier for damage to interstate 
 
 freight, it ought not to be mini- 
 mized in aff'ording a remedy for 
 injury to men engaged in moving 
 interstate traffiic. 
 
 Any employee engaged in con- 
 nection with interstate commerce 
 is subject to Federal control. His 
 duties may be prescribed. His 
 qualifications may be fixed. His 
 liabilities and those of his master 
 may be determined by Congress. 
 
 That is all that is sought to be 
 accomplished by this act. 
 
 When a railroad is engaged in 
 interstate traffic its employees are 
 subject to Federal control, and 
 such regulation is necessary. This 
 is obvious when the facts as to 
 operation of interstate railroads 
 are carefully examined. 
 
 Interstate railroads are run as 
 a unit. All the departments and 
 diivisions of such railroads are 
 closely correlated and intermingled, 
 and it would be unwise for the 
 court to assume a segregation 
 where, in fact, none exists. It 
 would be a matter of extreme diffi- 
 culty in an interstate railroad to 
 point out any distinct line of 
 demarcation between interstate and 
 intrastate business. The financial! 
 aff'airs of the road are managed 
 as a whole. The direction and 
 control of trains are under one 
 head. The general orders covering 
 alJ operations of the road come 
 from tlie same general manager. 
 Particular orders as to the dis- 
 patch of trains originate with 
 interstate train dispatchers. The 
 same engines, cars, and other in- 
 strumejitalitios are indiscriminately 
 used in interstate and intrastate 
 business. The same tracks are 
 used for both interstate and intra- 
 state traffic. The most distinctively 
 local branches have physical con- 
 nection with the interstate tracks, 
 and foreign cars, loaded with in- 
 terstate tralBc, and trainsi of the
 
 TO WHAT EMPLOYEES STATUTE APPLIES. 
 
 125 
 
 §70. Interstate engineer of interstate railroad hauling- 
 intrastate train — Going to work. — In a case that arose in 
 the United States Court for the Eastern District of Louis- 
 iana, an extreme (|uestion was presented in the instance 
 of an injured engineer, who was a member of a switching 
 crew. The crew moved both intrastate and interstate com- 
 merce cars. At the time he was injured the train he was 
 hauling was composed of thirteen cars, all of which had 
 originated in Louisiana, destined for a point within the 
 state, and, so far as the freight was concerned, constituted 
 intrastate commerce. The railroad company contended that 
 
 road itself containing cars loaded 
 in whole or in part with inter- 
 state traffic, pass indiscriminately 
 over these local divisions. 
 
 At the ticket offices of every 
 local branch of such a railroad 
 tickets are sold over the entire 
 interstate railroad, and also over 
 extra -state connecting lines. Inas- 
 much as interstate passengers are 
 thus solicited and afterwards car- 
 ried over such seenningly local 
 branches, all engaged in their 
 transportation, and all oo-operating 
 in the maintenance of the track 
 for their transportation, are en- 
 gaged in interstate commerce. 
 
 Every local freight station on 
 the line receives and transmits 
 freight for all other stations on 
 the line, and for points beyond 
 the state, and thus all who co- 
 operate in any of the work of the 
 receipt or transmission of such 
 freight are engaged in interstate 
 commerce. All who participate in 
 the maintenance of the instrumen- 
 talities for the general use of the 
 road, even in the maintenance of 
 such instrumentalities as are used 
 on purely local branches, neces- 
 sarily participate in the work of 
 interstate commerce, because in- 
 terstate commerce is carried on 
 
 over every part, branch, section, 
 and division of the entire system 
 of such interstate road. 
 
 This intermingling of both kinds 
 of traffic makes necessary the adop- 
 tion of some uniform system of 
 regulation, and the Supreme Court 
 of the United States has repeatedly 
 held that subjects of the commerce 
 power which are in their nature 
 national or admit only of one 
 imiform system of regulation are 
 exclusively within the legislative 
 power of Congress. Cooley v. Tlie 
 Board of Wardens, etc., 12 How. 
 299, 319; 13 L. Ed. 996; Casie of 
 the State Freight Tax, 15 Wall. 
 232, 279; 21 L. Ed. 146; reversing 
 62 Pa. 286; 1 Am. Rep. 399; 
 Welton V. The State of Missouri, 
 91 U. S. 275, 280; 23 L. Ed. 347; 
 reversing 55 INIo. 288; Cardwell v. 
 American Bridge Co., 113 U. S. 
 205, 210; 5 Sup. Ct. 423; 28 L. 
 Ed. ^Sg; affirming 19 Fed. 562: 
 9 iSawy. 662; Bobbins v. Shelby 
 County Taxing District, 120 U. S. 
 489, 492; 7 Sup. Ct. 592; 30 L. 
 Eed. 694; reversing 13 L. Ed. 303. 
 (From brief of the Attorney- 
 General of the United States Jn 
 Central of Georgia By. Co. v. 
 Waldo, 6 Ga. App. 840; 05 S. E. 
 1098. 
 
 That an interstate employee may 
 recover for an injury inflicted by an 
 intrastate emplovee, .see Louisville 
 & N. R. Co. V. Walker, 162 Ky. 209; 
 172 S. W. 517.
 
 ]Og FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 neither it nor its deceased employee were, at the time, en- 
 gaged in interstate commerce, and that there could be no 
 recovery as against it in the action. But the court ruled 
 otherwise, saying : 
 
 "In my opinion, the construction sought to be secured by 
 the defendant is entirely too narrow and restricted. Un- 
 doubtedly the act of Congress is in derogation of the 
 common law ; but certainly the elimination of the doctrine 
 of fellow-servant, and the modification of the doctrine of 
 contributory negligence, and assumed I'isk, makes for the 
 betterment of human rights, as opposed to those of prop- 
 erty, and I consider that, in the light of modern thought 
 and opinion, the law should be as broadly and as literally 
 construed as possible. In this view of the case, I consider 
 that the usual and ordinary employment of the defendant 
 in interstate commerce, mingled though it may be with 
 employment in commerce which is wholly intrastate, fixes 
 his status, and fixes the status of the railroad, and the 
 mere fact that the accident occurred while he was at work 
 on an intrastate train, rather than a few minutes earlier 
 or later, when he might have been employed on an inter- 
 state train, is immaterial. If he was engaged in two occu- 
 pations that are so blended as to be inseparable, and where 
 the employee has no control over his own actions, and 
 cannot elect as to his employment, the court should not 
 attempt to separate and distinguish between them. "^ 
 
 The holding in this case has been referred to with ap- 
 proval by a United States Circuit Court of Appeals, and a 
 quotation made therefrom with commendation, in an in- 
 stance of a fireman on an interstate railway company, going 
 under orders to report at a station, to be transported with 
 others to another station, to relieve the crew of an inter- 
 state train, and who, when approaching the station over a 
 crossing, was struck and killed, through the negligence of 
 
 ' Hdirens v. Illiiioi.s Central R. Co. Sep Illinois Central E. Co. v. Behrens, 
 102 p-ed. .581; Carr v. New York 233 U. S. 473; 34 Sup. Ct. G46; 58 
 Cent. R. Co. 13G N. Y. Supp. 501. L. Ed. 1051.
 
 TO WHAT EMrLOYEKS STATUTE APPLIES. 
 
 127 
 
 other servants of the company, also operating on an inter- 
 state train, who was held to be engaged in ■ interstate 
 commerce, when injured.^ 
 
 2 Laniphere v. Oregon R. & N. 
 Co. I'JO Fed. 330, reversing 193 
 Fed. 248. 
 
 Tlie court denied the soundness 
 of Pedersen v. Delaware, L. & 
 W, R. Co. 184 Fed. 737. 
 
 A Pullman porter is, as to the 
 railroad, engaged in interstate 
 commerce. Oliver v. Northern 
 Pac. Ry. Co. IOC Fed. 432. 
 
 A clerk in the switching yard, 
 taking the numbers of the cars of 
 a freight train just arrived, is not 
 engaged in interstate commerce. 
 
 St. Louis, S. F. & T. Rv. Co. v. 
 I^ale (Tex. Civ. App.), 148 S. W. 
 1099. 
 
 An employee of an intrastate 
 railway company, engaged in the 
 preparation of ice for use in pas- 
 senger cars carrying interstate pas- 
 sengers, is engaged in interstate 
 commerce, and hence the com- 
 pany's liability to him for per- 
 sonal injuries, received while in 
 the work, is governed by the Fed- 
 eral statute. Freeman v. Powell 
 (Tex. Civ. App.), 144 S. W. 10.33.
 
 CHAPTER V 
 
 CONTRIBUTORY AND COMPARATIVE NEGLIGENCE. 
 
 SECTION 
 
 71. Contributory negligence — Stat- 
 ute. 
 
 Contributory negligence as a 
 defense. 
 
 Contributory negligence de- 
 fined. 
 
 Common law rule of contrib- 
 utory negligence preventing 
 a recovery. 
 
 Definitions of degrees of neg- 
 ligence. 
 
 Comparative negligence. 
 
 Origin of rule of comparative 
 negligence. 
 
 Georgia statutes. 
 
 Differs from Federal statute. 
 
 Georgia statutes construed. 
 
 Contributory negligence of plain- 
 tiff before defendant's neg- 
 ligence began. 
 
 Burden on plaintiff to show free- 
 dom from his own fault. 
 
 Charge to ]\iry under Georgia 
 Code. 
 
 Recovery by a railway employee. 
 
 Widow recovering for death of 
 her husband — Georgia statute 
 — Contributory negligence of 
 deceased. 
 
 Apportionment of damages. 
 
 An epitome of Georgia cases. 
 
 Comparative negligence in Illi- 
 nois. 
 
 Negligence a relative term. 
 
 Illinois rule extended. 
 
 Ordinary care wanting — Plain- 
 tiff's negligence slight. 
 
 72. 
 73. 
 
 74. 
 
 75. 
 
 76. 
 
 78. 
 79. 
 80. 
 81. 
 
 82. 
 
 83. 
 
 84. 
 85. 
 
 86. 
 87. 
 88. 
 
 89. 
 90. 
 91. 
 
 SECTION 
 
 92. Want of ordinary care defeats 
 a recover}'. 
 Failure to exercise ordinary' care 
 more than slight negligence. 
 Ordinary and slight negligence 
 
 in their popular sense. 
 Mere preponderance of de- 
 fendant's negligence not suf- 
 ficient — Defendant's clearly 
 exceeding plaintiff's negli- 
 gence. 
 Gross and slight negligence 
 
 distinguished. 
 Plaintiff's neghgence must be 
 compared with that of de- 
 fendant. 
 Plaintiff's negligence compared 
 
 with defendant's. 
 Willful injury by defendant — 
 Slight negligence of plaintiff. 
 Mere preponderance of negli- 
 gence against defendant not 
 sufficient. 
 Jury must compare the negli- 
 gence of the defendant with 
 that of the plaintiff. 
 Instructions must require com- 
 parison. 
 Illustration — Engine striking 
 
 hand car — Unlawful speed. 
 Illustration — Mail crane strik- 
 ing fireman. 
 Admiralty suits — Apportion- 
 ment of damages. 
 Origin of admiralty rule. 
 Rule in admiralty commended. 
 Difficulty of apportioning dam- 
 ages. 
 
 93. 
 94. 
 
 95. 
 
 98. 
 99. 
 100. 
 
 101. 
 
 102. 
 
 103. 
 
 104. 
 
 105. 
 
 106. 
 107. 
 108. 
 
 128
 
 CONTRIBUTORY AND COMPARATIVE NEGLIGENCE. ^29 
 
 109. Assumption of risk. 115. Court telling jury particular 
 
 110. Contributory negligence does acts constitute contributory 
 
 not prevent a recovery — negligence. 
 
 How damages are appor- 116. Rules of contributory negli- 
 
 tioned. gence must be considered. 
 
 111. Negligence of plaintiff neces- 117. Injury occasioned by defendant 
 
 sary to concur with defend- having violated a safety device 
 
 ant's to produce the injury. statute. 
 
 112. Court cannot lay down exact 118. Presenting the defense of con- 
 
 rules for apportionment of tributory negligence — Burden, 
 
 damages. 119. When contributory negligence 
 
 113. Statute does not adopt the does not diminish damages. 
 
 theory of slight, ordinary and 120. Examples under Wisconsin 
 
 gross negligence. statute. 
 
 114. Directing the verdict — Due 121. Practice under Wisconsin stat- 
 
 care. ute. 
 
 § 71. Contributory negligence — Statute. — Section 3, of 
 the statute provides as follows: "That in all actions here- 
 after brought against any such common carrier by railroad 
 under or by virtue of any of the provisions of this act to 
 recover damages for personal injuries to an employe, or 
 where such injuries have resulted in his death, the fact that 
 the employe may have been guilty of contributory negligence 
 shall not bar a recovery, but the damages shall be diminished 
 by the jury in proportion to the amount of negligence at- 
 tributable to such employe : Provided, That no such employe 
 who may be injured or killed shall be held to have been 
 guilty of contributory negligence in any case where the 
 violation by such common carrier of any statute enacted for 
 the safety of employes contributed to the injury or death of 
 such employe." ^ 
 
 1 Section 3 of statute. St. Louis lating the relations of master and 
 
 S. W. Ry. Co. V. Anderson (Ark.) 173 servant. It is pretty well con- 
 
 S.W.834 Sections 3 and 4 fall within ceded that those sections are con- 
 
 a class of legislation findmg Its au- constitutional. Kelly v. Great 
 
 tnority m the exercise of a reasonable >' .i t> r^ i^;^ t-. i ^,i 
 
 police power by the legislature in regu- ^«rthern Ry. Co. 152 Fed. 211.
 
 130 
 
 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 § 72. Contributory negligence as a defense. — A careful 
 reading of this section will show that contributorv" negli- 
 gence is no longer a complete defense as it was at the com- 
 mon law, but is still a partial defense. As a complete de- 
 fense all the rules of the common law are erased at one 
 sweep of the legislative pen; and although an employe is 
 guilty of contributory negligence he may still recover. But 
 those rules are still in force for the purpose of determining 
 the quantum of damages the employe may recover ; for what- 
 ever at common law was contributory negligence is stiil to 
 be considered in determining the relative amount of the 
 employe 's negligence as compared with that of the employer.* 
 
 The statute does not change the nor is such a recoven- barred, even 
 law as to what is contributory negli- though the injured one contributed 
 gence, but merely changes its legal by his own negligence to his injury, 
 effect upon the issue as to damages. The amount of the recovery, how- 
 Rains V. Southern Ry. Co. (N. C.) ever, is diminished in the same degree 
 85 S. E. 294. that the neghgence of the injured 
 
 * The statute "permits a recovery one contributed to the injury. It 
 
 by an employee for an injury caused makes each party responsible for 
 
 by the neghgence of a coemployee; his own negligence, and requires
 
 CONTRIBUTORY AND COMPARATlVii: NEGLIGENCE. l^l 
 
 ^ 73. Contributory neglig-ence defined. — Iii South Caro- 
 lina the following definition of contributory negligence has 
 been given: "Contributory negligence is the want of ordi- 
 nary care on the part of the person injured by the action- 
 able negligence of another, combining and concurring with 
 that negligence, and contributing to the injury as a proxi- 
 mate cause thereof, without which the injury would not 
 have occurred." ^ 
 
 § 74. Common law rule of contributory negligence pre- 
 venting a recovery, — The common law rule of contributory 
 negligence which prevents plaintiff recovering damages has 
 been very succinctly stated by the New Jersey Supreme 
 Court as follows : "In this state the established rule is that 
 if the plaintiff's negligence contributed to the injury, so 
 that, if he had not been negligent, he would have received 
 no injury from the defendant's negligence — the plaintiff's 
 negligence being proximately a cause of the injury — he is 
 without redress, unless the defendant's act was a willful 
 
 each to beat- the burden thereof." lous situation that a passenger 
 
 60 Cong. Rec, 1st Sess., p. 4434. pays his fare, and if he contrib- 
 
 See Appendix B. utes to his own injury, he cannot 
 
 "It appears to me that two em- recover, while two employees paid 
 
 ployees, by slight negligence, to conduct him safely may by 
 
 might bring on an accident that their negligence cause an ac- 
 
 would kill 50 or 100 passengers; cident and kill many persons, and 
 
 that they would contribute the yet they can recover." Senator 
 
 negligence that produced the ac- Smith, of Michigan. Ibid, p. 4535. 
 
 cident, and they would recover for 'Cooper v. Ry. Co. 5G S. C. 91; 
 
 their own negligence. That is ab- 34 S. E. 16: approved in Webster 
 
 solutely true, if I understand the v. Atlantic, etc., R. Co. 81 S. C. 
 
 bill, and we do not want to pass 46; 61 S. E. 1080; Charleston & W. C. 
 
 such a bill. It almost puts a pre- %• Co. v. Sylvester (Ga. App.) 80 
 
 mium upon a conspiracy among f; ^,- P,^/ ^^^*^J Y,- Virginian Ry. 
 
 , , , -ij. e T ^o. (W. Va.) 8b b. 111. o7. 
 
 employees to be guilty of negli- ^his statute cannot be so turned 
 
 gence that they can take ad van- around as to give an employee a 
 
 tage of their own negligence and right of action because of his own 
 
 kill a hundred people besides. contributory negligence, on the theory 
 
 That is the effect of the bill." that his own negligence, resulting 
 
 Senator Elkins, of West Virginia. ^^..^'^ '"JU^y- '« ^^^ negligence of the 
 
 .„ „ „ T i. o ^coA railroad company. Such a construe- 
 
 60 Cong. Rec, 1st Sess., p. 4534. ^-^^ ^^^^^ ^^ J absurdity. 
 "It suggests the very anoma-
 
 132 FEDERAL EMPLOYERS' LLVBILITY ACT. 
 
 trespass, or amounted to an intentional wrong, and in such 
 a ease the comparative degree of negligence of the parties 
 will not be considered.*' In the trial of cases of this kind/ 
 where it appears that both parties were in fault, the primary 
 consideration is that whether the faulty act of the plaintiff 
 was so remote from the injury as not to be regarded, in a 
 large sense, as a cause of the accident, or whether the injury 
 was proximately due to the plaintiff's negligence, as well as 
 to the negligence of the defendant. If the faulty act of the 
 plaintiff simply presents the condition under which the in- 
 jury was received, and was not, in a legal sense, a con- 
 tributory cause thereof, then the sole question will be whether, 
 under the circumstances, and in the situation in which the 
 injury was received, it was due to the defendant's negligence. 
 But if the plaintiff's negligence proximately — that is, di- 
 rectly — contributed to the injury, it will disentitle him to a 
 recovery, unless the defendant's wrongful act was willful, or 
 amounted to an intentional \vrong. A court of law cannot 
 undertake to apportion the damages arising from an injury 
 caused by the co-operating negligence of both parties, or to 
 determine the comparative negligence of each. ' ' "^ 
 
 § 75. Definitions of degrees of negligence.— In an early 
 day the Supreme Court of Kansas adopted the rule of com- 
 parative negligence, and in discussing the law of negligence 
 the court gave the following definitions and made the fol- 
 lowing observations: "There may be a high degree of dili- 
 gence, a common degree of diligence, and a slight degree of 
 diligence, with their corresponding degrees of negligence, 
 and these can be clearly enough defined for all practical pur- 
 poses, and, with a view to the business of life, seems to be 
 all that are really necessary. Common or ordinary diligence 
 
 • Citing New .Jersey Exp. Co. v. earelessly into a transit or sur- 
 
 Nichols, 33 N. J. L. 435; Penn- veyor's compass standing in the 
 
 sylvania R. Co. v. Righter, 42 N. liighway. 
 
 J. L 180. " State v. Lauer, 55 N. J. L. 
 
 'Driving a team and wagon 205; 2G Atl. 180; 20 L. R. A. 61.
 
 CONTRIBUTORY AND COMPARATIVE NEGLIGENCE. ^^33 
 
 is that degree of diligence which men in general exercise in 
 respect to their own concerns; high or great diligence is, of 
 course, extraordinary diligence, or that which very prudent 
 persons take of their own concerns; and low or slight dili- 
 gence is that which persons of less than common prudence, 
 or, indeed, of any prudence at all, take of their own con- 
 cerns. Ordinary negligence is the want of ordinary dili- 
 gence ; slight, or less than ordinary negligence, is the want 
 of great diligence; and gross or more than ordinary negli- 
 gence is the want of slight diligence. * * * Whoever 
 exercises slight care, and no more, is guilty of ordinary 
 negligence; whoever exercises less than slight care is guilty 
 of gross negligence, and may be guilty of willful and wanton 
 wrongs. Whoever exercises great care is guilty of less than 
 slight negligence, and may not be guilty of any negligence 
 at all."« 
 
 § 76. Comparative negligence. — The provisions of sec- 
 tion 3 radically change the common law rule, and it is 
 said to have introduced the rule of comparative negligence, 
 especially as administered in the state of Georgia. That is 
 true in a measure. If the employee has been guilty of negli- 
 gence in contributing to his injuries, then, under this Fed- 
 eral statute, his negligence must be compared with that 
 of his employer in determining the measure of his damages, 
 and to that extent the statute has introduced the rule of 
 comparative negligence, but in a modified condition as will 
 appear in subsequent sections. 
 
 § 77. Origin of rule of comparative negligence. — In Illi- 
 nois comparative negligence was first announced in 1858 by 
 Justice Breese after a careful consideration of several Eng- 
 lish cases.^° The rule of comparative negligence was enforced 
 
 Union Pacific Ry. Co. v. Rol- Atchison, etc.. R. Co. v. Henry, 57 
 
 lins, 5 Kan. 167; Sawver v. Saner, Kan. 154; Neil v. Idaho & W. N. R. 
 
 10 Kan. 4<i6; Kansas Pacific Ry. Co. 22 Idaho 74; 125 Pac. 331. 
 
 Co. V. Pointer, 14 Kan. 37: Kansas >» Galena, etc., R. Co. v. Jacobs, 
 
 E. Co. V. Plovey, 29 Kan. 169; 20 111.478.
 
 134 FEDERAL EMPLOYERS' LLVBILITY ACT. 
 
 in that state, with many vicissitudes, until the common law 
 rule of contributory negligence was finally adopted, thereby 
 overruling a long line of cases, establishing a doctrine with 
 many refinements, and which, judging from the many errors 
 pointed out in the supreme and appellate courts of that 
 state, were never fully understood by all the nisi prius 
 judges and members of the bar of that state/^ In the early 
 decisions of Kansas the rule also prevailed where the negli- 
 gence of the injured person was slight and that of the cul- 
 pable individual gross in comparison.^- In that state, how- 
 ever, the rule has been abrogated.^" In Georgia the rule 
 was adopted at an early day, perhaps not in the same sense 
 as the Illinois rule, but with so slight a distinction as to 
 result in practice to little difference." In one case it is said 
 that the rule adopted in that state is the rule that prevails 
 in admiralty.^^ The several decisions of the Georgia Su- 
 preme Court resulted in the productions of three sections 
 of the code of that state, varying in their terms as applied 
 to different conditions under which the injuries were in- 
 flicted. 
 
 § 78. Georgia statutes.— The following are the sections 
 of the Georgia code from which some of the provisions of 
 
 "Tliat tlio rule nf comparative 1!)1; Union Pac. Ry. Co. v. Rol- 
 
 negligencc is no longer in force, lins, 5 Kan. 167; Sawyer v. Sauer, 
 
 see Pennsylvania Coal Co. v. 10 Kan. 466. 
 
 Kelly, 15G 111. 9; 40 N. E. Rep. "Atchison, etc., R. Co. v. 
 
 938; City of Lanark v. Dougli- Henry, 57 Kan. 154; 45 Pac. Rep. 
 
 erty, 153 111. 163; 38 N. E. Rep. 576. 
 
 892 ; Cicero, etc., St. Ry. Co. v. '* For origin of rule, see Macon, 
 
 Meixner, 160 111. 320; 43 N. E. etc., R. Co. v. Denis, 18 Ga. 684; 
 
 823; 31 L. R. A. 331; Cleveland, Central, etc., R. Co. v. Denis, 19 
 
 etc., Ry. Co. v. Maxwell, 59 111. Ga. 437; Macon, etc., R. Co. v. 
 
 App. 673; Atchison, etc., Ry. Co. Davis, 28 Ga. Ill; Macon, etc., R. 
 
 V. Feehan, 149 111. 202; 36 N. E. Co. v. .Johnson, 38 Ga. 409, 431; 
 
 Rep. 1030; Illinois, etc., R. Co. Central R. Co. v. Brinson, 70 Ga. 
 
 V. Ashline, 56 111. App. 475; Calu- 207. 
 
 met, etc., Co. v. Nolan, 69 111. "^IMacon, e-tc, R. Co. v. Winn, 
 
 App. 104. 20 Ga. 250; see Macon, etc., R. 
 
 "Caullrins v. Mathews, 5 Kan. Co. v. Johnson, 38 Ga. 409, 432.
 
 CONTRIBUTORY AND COMPARATIVE NEGLIGENCE. ^^35 
 
 the Federal Employers' Liability Act were drawn: "No 
 person shall recover damages from a railroad company for 
 injury to himself or his property where the same is done 
 by his consent, or is caused by his own negligence. If the 
 complainant and the agents of the company are both at fault, 
 the former may recover, but the damages shall be diminished 
 by the jury in proportion to the amount of default at- 
 tributable to him. "^" "If the person injured is himself an 
 employe of the railroad company, and the damage was 
 caused by another employe, and without fault or negligence 
 on the part of the person injured, his employment by the 
 company shall be no bar to the recovery. "^^ "If the plain- 
 tiff by ordinary care could have avoided the consequences 
 to himself caused by the defendant's negligence, he is not 
 entitled to recover. But in other cases the defendant is not 
 relieved, although the plaintiff may in some way have con- 
 tributed to the injury sustained." ^^ 
 
 § 79. Differs from Federal statute. — Read together these 
 three sections of the Georgia Code differ to some extent in the 
 rule they set forth from that adopted in the Federal stat- 
 ute. Thus, the latter statute does not require in any of 
 its provisions that the plaintiff must have been in the 
 exercise of due care or any care, but in Section 3830 of the 
 former if he "by ordinary care could have avoided the con- 
 sequences to himself caused by the defendant's negligence, 
 he is not entitled to recover. But in other eases the defend- 
 ant is not relieved, although the plaintiff may in some way 
 
 "Georgia Code, 1895, Sec. 2322. abrogated; but tbe injured em- 
 It will be noted that by this sec- ployee must be free from negli- 
 tion negligence of the injured per- gence contributing to his injury, 
 son contributing to the injury Under this section if the ser- 
 will not bar a recovery, but will vant injured was himself at fault, 
 reduce the amount he would oth- he cannot recover ; nor can the 
 erwise be entitled to recover. damages under this section be ap- 
 
 " Georgia Code, 1895, Sec. 2323. portioned. East Tennessee, etc.. 
 
 In this section it will be noted R. Co. v. Maloy, 77 Ga. 237. 
 
 that the comnicn law rule of the « Georgia Code, 1895, Sec. 3830. 
 negligence of a fellow servant is
 
 136 FEDERAL EMPLOYERS' LLVBILITY ACT. 
 
 have contributed to the injury sustained." Section 2322 de- 
 clares that the plaintiff shall not recover when the injury to 
 himself "is caused by his own negligence," and then adds 
 that if he and the agents of the railway company be both at 
 fault, he may recover, the damages to be diminished by the 
 jury "in proportion to the amount of default attributable 
 to him." In the section abrogating the fellow servant rule 
 (Section 2323) where he is injured by a fellow servant, he 
 must be "without fault or negligence." It may be well to 
 consider the construction the Georgia Supreme Court has 
 put upon these three sections when taken together.^^* 
 
 § 80. Georgia statutes construed. — After quoting the 
 three sections of the Georgia code, the Supreme Court of 
 that state put this construction upon them: "It will be 
 seen that, although the presumption is always against the 
 [railroad] company, yet it may rebut that presumption and 
 relieve itself of damages by showing that [1] its agents have 
 exercised all ordinary and reasonable care and diligence to 
 avoid the injury, or [2] it may show that the damage was 
 caused by the plaintiff's own negligence; or [3] it may show 
 that the plaintiff by ordinary care, could have avoided the 
 injury to himself, although caused by the defendant's negli- 
 gence. Upon either of these grounds the defendant may 
 rest his defense. But these rules of law will not cover the 
 facts of every case, for it may be that both the plaintiff and 
 the agents of defendant are at fault, and when they are, 
 then, whilst damages may be recovered, they are to be dimin- 
 ished by the jury in proportion to the default of the plaintiff 
 for his want of ordinary care in avoiding the injury to 
 himself." ^® In this same case, in a concurring opinion, it is 
 said: "Where one causes the injurj' by going where he had 
 no excuse to go, as one of ordinary sense, as under a car 
 in motion, or consents to it by lying down deliberately on 
 
 I ft* It should bo. olj!«rv(Hl tliat ("nasi Line 11. Co. 57 Fla. 143: 49 
 
 the (doctrine of comparative nogii- .So. 745. 
 
 gen<;f! dofs not apply in (Joorgia ^^ Central R. Co. v. Brinson, CA 
 
 as betwof-n a railway company and Ga. 47!l; approved, Savannah, etc., 
 
 its ciiployop. Thin is clearly E. Co. v. Stewart, 71 Ga. 427; 
 
 p<jinted out in a Florida decision, Ge<^>rgia, etc., R. Oo. v. Thomas, 
 
 Duval V. Hunt, 34 Fla. 85: 15 C8 (;a. 744. 
 So. 876, and Ryland v. Atlantic
 
 CONTRIBUTORY AND COMPARATIVE NEGLIGENCE. ^37 
 
 the track and being nm over, and in such cases as these, 
 Section 3034 -" applies, because his consent or his own negli- 
 gence was the sole cause of the injury to his person. But 
 where one is on a track, walking along, though a trespasser 
 in one sense of* the word, yet entitled to protection as a 
 human being, and a train of cars comes rushing on toward 
 him, and the danger is impending, but by ordinary care he 
 can step off and save himself from the consequences of the 
 negligence of the conductor in running out of time, then Sec- 
 tion 2972 ^^ applies ; and if he does not step off, he cannot 
 recover. It must be borne in mind that both the principles 
 of defense in Section 2972 and in 3034 are qualified in [these] 
 sections respectively. The qualification in Section 2972 is this : 
 'But in other cases the defendant is not relieved, although 
 the plaintiff may in some way have contributed to the in- 
 jury sustained ' ; and the qualification in Section 3034 is : 'If 
 the complainant and the agents of the company are both at 
 fault, the former may recover, but the damages shall be 
 diminished by the jury in proportion to the amount of the de- 
 fault attributable to him.' Both contain the doctrine of 
 contributory negligence and the effect of it. That effect is 
 more plainly marked in Section 3034 than in Section 2972. 
 yet is seen in each. In Section 3034 the meaning is that 
 where the negligence of the complainant is the sole cause, 
 he cannot recover at all; if it be in part the cause and negli- 
 gence of the company in part the cause, then he may recover 
 in part. In Section 2972 the meaning is substantially the 
 same, as applicable to the danger impending. Though the 
 plaintiff may have contributed in some way to the peril 
 impending — 'the injury sustained' by him in consequence 
 of it — yet he may recover, if he could not, by ordinary 
 
 * "No person shall recover dam- ^ "If tlie plaintiff, by ordinary- 
 ages from a railroad company for care, could have avoided tlie con- 
 injury to himself or property sequences to himself caused by the 
 where the same is done by his con- defendant's negligence, he is not 
 sent or is caused by his own neg- entitled to recover." Sec. 2972 is 
 ligence:" Sec. 3034 is now Sec. now Sec. 3830. 
 2322.
 
 138 FEDERAL EMPLOYERS' LLVBILITY ACT. 
 
 care, have got out of the peril and escaped the injury. 
 Recover what? And the company 'relieved to what extent?' 
 Certainly to the extent of plainiff's contributory blame the 
 company is relieved, and the plaintiff may recover damages 
 less the just apportionment or proportionment of his own 
 contributory fault."-- "Construing those three sections in 
 pari materia, as one law, relating to injuries done to per- 
 sons b}^ railroads, the obvious meaning is that the company 
 shall be liable for injuries done by their agents, in running 
 trains or otherwise, in their service and employment, but 
 when the person injured is wholly at fault, even if not 
 himself an employe, he shall recover nothing; if partly 
 at fault, he shall recover less than full damages, to 
 be fixed by a jury; if an employe, he must be blameless to 
 recover at all, but if blameless, the fact that he is a servant 
 of the company shall not bar his recovery."-'^ 
 
 § 81. Contributory negligence of plaintiff before defend- 
 ant's negligence began.— In Georgia, under the Code, the 
 plaintiff's negligence which contributes to the injury and 
 which bars a recovery must be such negligence of his as 
 arises after the negligence of the defendant began or was 
 existing, to the plaintiff's knowledge. "A party cannot be 
 charged with the duty of using any degree of care or dili- 
 gence to avoid the negligence of a wrongdoer until he has 
 reason to apprehend the existence of such negligence. No 
 one can be expected to guard against what he does not see 
 and cannot foretell. The rule, therefore, which requires one 
 to exercise care and diligence to avoid the consequences of 
 another's negligence, necessarily applies to a case where there 
 is opportunity of exercising this diligence after the negli- 
 gence has begun and has become apparent."-* The rule 
 
 "=■ Savannah, etc., R. Co. v. '-^ Macon, etc., Ry. Co. v. Holmes, 
 
 Stewart, 71 Ca. 427. 103 Ua. 658; 30 S. E. 563; Co- 
 
 ==' Thompson v. Central R. Co. mer v. Barfield, 102 Ga. 489; 34 
 
 54 Ga. 501); Central Ry. Co. v. S. E. 90; Savannah, etc., Ry. Co. 
 
 Brinson, 70 Ga. 207; Savannah, v. Day, 91 Ga. 076; 17 S. E. 
 
 etc., R. Co. V. Stewart, 71 Gu. 427. 959; Central, etc., R. Co. v. At-
 
 CONTRIBUTORY AND COMPARATIVE NEGLIGENCE. ][39 
 
 has thus been stated: "The duty imposed by law upon all 
 persons to exercise ordinary care to avoid the consequences 
 of another's negligence does not arise until the negligence 
 of such other is existing, and is either apparent, or the cir- 
 cumstances are such that an ordinarily prudent person would 
 have reason to apprehend its existence. In such cases, and 
 in such cases only, does the failure to exercise ordinary care 
 to escape the consequences of negligence entirely defeat a 
 recovery. In other cases (that is, where the person injured 
 by the negligence of another is at fault himself, in that he 
 did not, before the negligence of the other became apparent, 
 or before the time arrived when, as an ordinarily prudent per- 
 son, it should have appeared to him that there was reason to 
 apprehend its existence, observe that amount of care and 
 diligence which would be necessary under like circumstances 
 by an ordinarily prudent person), such fault or failure to 
 exercise due care or diligence at such time would not entirely 
 preclude a recovery, but would authorize the jury to diminish 
 the damages 'in proportion to the amount of default at- 
 tributable' to the person injured. "This rule [of compara- 
 tive negligence] authorizes a recovery by the plaintiff, 
 although he was at fault, provided he was injured under 
 circumstances where, by the exercise of care on his part, 
 he could not have avoided the consequences of the defend- 
 ant's negligence. If the plaintiff knows of the defendant's 
 negligence, and fails to exercise that care and caution which 
 an ordinarily prudent man w^ould exercise under similar cir- 
 cumstances to prevent an injury which will result from such 
 negligence, it is well settled he cannot recover. If the negli- 
 gence of the defendant was existing at the time that plaintiff 
 was hurt, and he, in the exercise of that degree of care and 
 caution which an ordinarily prudent person would exercise 
 under similar circumstances, could have discovered the de- 
 
 taway, 90 Ga. 661; 16 S. E. 956; wick, etc., R. Co. v. Gibson, 97 Ga. 
 Americus, etc., Ry. Co. v. Luckie, 497; 25 S. E. 484. 
 87 Ga. 6; 13 S. E. 105; Bruns-
 
 140 FEDERAL EMPLOYERS' LLVBILITY ACT, 
 
 fendant's negligence, and when discovered could, by the 
 exercise of a like degree of care, have avoided the same, then 
 he cannot recover. If at the time of the injury an ordinarily 
 prudent person, in the exercise of that degree of care and 
 caution which such a person generally uses, would rea- 
 sonably have apprehended that the defendant might be negli- 
 gence at the time when, and place where the injury occurred, 
 and, so apprehending the probability of the existence of 
 such negligence, could have taken steps to have prevented the 
 injury, then the person injured cannot recover, if he failed 
 to exercise that degree of care and caution usually exercised 
 by an ordinarily prudent person to ascertain whether the 
 negligence which might have been reasonably apprehended 
 really existed. If there is anything present at the time 
 and place which would cause an ordinarily prudent person 
 to reasonably' apprehend the probability, even if not the pos- 
 sibility, of danger to him in doing an act which he is about 
 to perform, then he must take such steps as an ordinarily 
 prudent person would take to ascertain whether such danger 
 exists, as well as to avoid the consequences of the same after 
 its existence is ascertained; and if he fails to do this, and is 
 injured,'^ he will not be allowed to recover, if by taking 
 proper precautions he could have avoided the consequences 
 of the negligence of the person inflicting the injury."^" 
 
 § 82. Burden on plcintii- to show freedom from his own 
 fault. — In all the Illinois cases, the burden is upon the plain- 
 tiff to show his freedom from fault contributing to the in- 
 
 =» Because of such failure. jf tlie plaintiff fails to observe 
 =* Western, etc., Ry. Co. v. Fer- ordinary care after discovering his 
 guson, 113 Ga. 708; 30 S. E. 306; d;in<:er and the negligence of the 
 Freeman v. Nashville, etc., Ry. defendant, the doctrine of compara- 
 Co. 120 Ga. 469; 47 S. E. 931; tive negligence is said not to apply. 
 Western, etc., Ry. Co. v. York, Moore v. Gainsvillc Midland Ry. 
 128 Ga. 687; 58 S. E. Rep. 183; Co. 9 Ga. App. 490; 71 S. E. 808; 
 Athinta, etc., Ry. Co. v. Gardner, Atlanta. K. & N. Ky. Co. v. Gard- 
 122 Ga 82; 49 S. E. Rep. H18. m>r, 1L>2 Chi. S2; 49 S. E. 818; War- 
 In ease of a want<;n injury, con- field v. Hiinburn, 9 Ga. App. 321; 
 
 tributory negligence is no defense ' ^'r'.. i. x ^ r w- ^u • • a 
 
 .,,•'. ^.° ,, „ /• If "somewhat at fault the injured 
 
 m Ge<.rgia. b<jutl.ern Ry Co. v. ^^.^^^^^ ^^^^^ ^^^^^^.^^ j^^^ ^^^ if ^^ 
 
 Wiley, 9 Ga. App. 249; 71 h. h. II; f,^i,,.,j ^^ ^^^ ordinarv care. Wrip;hts- 
 Central of GcorKia Uy. Co. v. Moore, ^.j,,^. ^^ ^ ^^ (.^^ v. Tompkins, 9 Ga. 
 r, Ga. App. 502; O.'i S^ 1'.. (.12; A\ ar- ^ ^^.j -y g ^ y^^ 
 field v. Sanhurn, 9 Ga. App. 321; " 
 
 71 S. E. 703.
 
 CONTRIBUTORY AND COMPARATIVE NEGLIGENCE. ]^4]^ 
 
 jury, although some negligence on his part will not defeat him. 
 "In all those eases, "'^ says the Supreme Court of that state, 
 "this court held, in Jacob's case,^* that two things must con- 
 cur to support this action, negligence on the part of the 
 defendant, and no want of ordinary care on the part of the 
 plaintiff, and the question of liability does not absolutely 
 depend on the absence of all negligence on the j)art of the 
 plaintiff, but upon the relative degree or want of care as 
 manifested by both parties. ' ' -^ 
 
 § 83. Charge to jury under Georgia Code. — The follow- 
 ing instruction to the jury was held to be erroneous: "If, 
 by the exercise of ordinary care and diligence, the plaintiff 
 could have avoided the consequences to herself of the de- 
 fendant's negligence, she cannot recover; but if both parties 
 were at fault, and the alleged injury was the result of the 
 fault of both, then, notwithstanding the plaintiff's negli- 
 gence, she would be entitled to recover, but the amount of 
 the recovery would be abated in proportion to the amount 
 of the default on her part." The error consisted in stating, 
 without proper explanation and in immediate connection with 
 each other, two distinct rules of law, and thus qualifying the 
 former by the latter, contrary to the purpose of the Georgia 
 code. But the Supreme Court said that the following in- 
 struction would be correct: "If, by the exercise of ordinary 
 care and diligence, the plaintiff could have avoided the con- 
 sequences to herself of the defendant's negligence, she cannot 
 recover; but if both parties were at fault, and the alleged 
 injury was the result of the fault of both, and you find from 
 the evidence that the plaintiff could not by ordinary care 
 have avoided the alleged injury to herself, occasioned by 
 defendant's negligence, then, notwithstanding she may have 
 been to some extent negligent, she would be entitled to re- 
 cover. But the amount of damages should be apportioned to 
 the amount of the default on her part. "^'^ 
 
 27 Galena, etc., R. Co. v. Yor- "Chicago, etc., R. Co. v, Haz- 
 
 wood, 15 111. 469; Galena, etc., Jc. zard, 26 111. 373. 
 
 Co. V. Fay, 16 111. 567; Galena., s" Americus, etc., R. v. Luckie, 
 
 etc., R. Co. V. Jacobs, 20 111. 485. 87 Ga. 6; 13 S. E. 105; Bruns- 
 
 * Galena, etc., R. Co. v. Jacobs, wick, etc., R. Co. v. Gibson, 97 
 
 20 111. 478. Ga. 489; 25 S. E. 484; Cain v.
 
 142 FEDERAL EMPLOYERS' LLVBILITY ACT. 
 
 § 84. Recovery by a railway employe.— Speaking of the 
 deceased's acts for whose death an action had been brought 
 to recover damages, the Supreme Court of Georgia said: 
 "He was an employe of the road. It is to be presumed, 
 therefore, that he well knew that the platform on which he 
 was, when killed, was a place of extra danger. In addition 
 to this he was told by the conductor that the place was one 
 of danger, that he w^as violating a rule of the road, and that 
 he must come inside. This he disregarded and was killed, 
 whilst another young man, who was with him, heeded it, 
 went inside the car, and escaped unhurt. Ought he, or those 
 standing in his right, under such circumstances, to recover 
 full damages, to recover as much as if he had been guilty 
 of no negligence himself? We think not. We will not under- 
 take to say how much such conduct as this ought to reduce 
 the recovery, but we will say that it ought to reduce it 
 much. ""^ 
 
 § 85. Widow recovering for death of her husband- 
 Georgia statute — Contributory negligence of deceased. — In 
 
 Georgia a statute allows a recovery by a widow for the death 
 of her husband if the death was caused by the negligence of 
 the defendant, and the injury was occasioned "without fault 
 or negligence on the part of the person injured."^- In con- 
 struing this clause the Supreme Court of that state says: 
 "If the deceased immediately or remotely, directly or indi- 
 rectly, caused the injury, or any part of it, or contributed to 
 it at all, his wife could not recover." ^^ 
 
 Macon, etc., R. Co. 97 Ga. 298; «= Georgia Civil Code, Sec. 2323. 
 
 22 S. E. 918; Macon, etc., Ry. Co. ^ Praither v. Richmond, etc., R. 
 
 V. Holmes, 103 Ga. G55; 30 S. E. Co. 80 Ga. 427; 9 S. E. 530; 12 
 
 563. Am. St. Rep. 2G3; approved in 
 
 *^Youge V. Kinney, 28 Ga. Ill; Western, etc., R. Co. v. Herndon, 
 
 Macon, etc., R. Co. v. Johnson, 38 114 Ga. 168; 39 S. E. 911; Black- 
 
 Ga. 409; Hendricks v. Western, stone v. Central Ry. Co. 102 Ga. 
 
 etc., R. Co. 52 Ga. 467; Soutli- 489; 31 S. E. 90; Chattanooga S. 
 
 western R. Co. v. Johnson, CO Ga. R. Co. v. Myers, 112 Ga. 237; 37 
 
 667. Ga. 439; Walker v. Atlanta, etc.,
 
 CONTRIBUTORY AND COMPARATIVE NEGLIGENCE. ][43 
 
 § 86. Apportionment of damages.— In commenting upon 
 the apportionment of damages according to the fault of the 
 parties, the Supreme Court of Georgia said: "If the plain- 
 tiff neither consented to, nor caused the injury, care and 
 diligence of the company's agents must be shown to have 
 been ordinary and reasonable. No less degree will suffice for 
 complete exoneration. If that degree cannot be established, 
 the plaintiff must recover something, and the question will be 
 whether his recovery can be reduced to partial compensation 
 only. But one thing will so reduce it, and that is proof of 
 contributory negligence on his part. For the same reason 
 that recovery is wholly defeated when his negligence is shown 
 to have been the sole cause of the injury, it will be defeated 
 in part when his negligence is shown to have been part of 
 the cause. However slight it will count against him, and 
 though the company be chargeable with something, he, on 
 the other hand, must lose something. For the apportionment 
 of damages according to the relative fault of the parties, 
 there seems to be no standard more definite than the en- 
 lightened opinion of the jury. But it should not be over- 
 looked that the defendant is not to be deemed in .fault at 
 all, unless there was a failure to exercise ordinary care or 
 reasonable diligence. For simply falling short of extreme 
 and ordinary care and diligence, the defendant is not liable, 
 even to contribute."^* But "for simply falling short of 
 
 R. Co. 103 Ga. 826; 30 S. E. 503; plaintiff. Central R. Co. v. 3rin- 
 
 Georgia, etc., R. Co. v. Hicks, 95 son, 64 Ga. 475; Atlanta, etc., R. 
 
 Ga. 301; 22 S. E. 613; Georgia, Co. v. Wyly, 65 Ga. 120; Georgia 
 
 etc., R. Co. V. Hallman, 97 Ga. R. v. Pittman, 73 Ga. 325; Bruns- 
 
 317; 23 S. E. 73; G€orgia, etc., R. wick, etc., R. Co. v. Hoover, 74 
 
 Co. V. Hicks, 95 Ga. 302 ; 22 S. E. Ga. 426 : Augusta, etc., R. Co. v. 
 
 613. Killian, 79 Ga. 236; 4 S. E. 164; 
 
 ** Georgia, etc., Co. v. NeeW. 5tj Southern Cotton Oil Co. v. Skip- 
 
 Ga. 580: Atlanta, etc., R. Co. v. per, 125 Ga. 368; 54 S. E. Rep. 
 
 Ayers. 53 Ga. 12. 110; Hill v. Callahan, 82 Ga. 113; 
 
 If both plaintiff and defendant 8 S. E. Rep. 730; Pierce v. At- 
 
 are at fault, the damages are to lanta Cotton Mills, 79 Ga. 782; 
 
 be diminished in proportion to 4 S. E. Rep. 381; Ingraham v. 
 
 the fault attributable to the Hilton, etc., Co. 108 Ga. 194; 33
 
 144 
 
 FEDERAL EMPLOYERS LLVBILITY ACT. 
 
 extreme and extraordinary care and diligence, the defendant 
 is not liable even to contribute. " ^^ "If the plaintiff, by the 
 exercise of ordinary care, could have avoided the conse- 
 quences to himself of the defendant's negligence, he cannot 
 recover at all. But in other cases (that is, in cases where, 
 by ordinary care, he could not have avoided the consequences 
 of defendant's negligence), the circumstances that the plain- 
 tiff may have, in some way, contributed to the injury, shall 
 not entirely relieve the defendant, but the damages shall be 
 apportioned according to the amount of the default at- 
 tributable to each. "2*^ 
 
 § 87. An epitome of the Georgia cases. — The following is 
 an epitome of the Georgia cases : The plaintiff must have 
 used ordinary care to avoid the injury;"" the burden is upon 
 
 S. E. Rep. 961; Glaze v. Jose- 
 phine Mills, 119 Ga. 261; 46 
 S. E. Rep. 99; Wrightsville, etc., 
 Co. V. Gornite, 129 Ga. 204; 58 
 S. E. Rep. 769. 
 
 "For the apportionment of dam- 
 ages according to the relative 
 fault of the parties, there seems 
 to be no standard more definite 
 than the enlightened opinion of 
 the jury." Georgia, etc., Co. v. 
 Neely, 56 Ga. 540. 
 
 "Georgia, etc., Co. v. Neely, 56 
 Ga. 540. 
 
 ^ Macon, otc, R. Co. v. .John- 
 son, 38 Ga. 409; Youge v. Kinney, 
 28 Ga. 111. Alabama, etc., R. Co. 
 V. Coggins, 88 Fed. Rep. 455; 32 
 C. C. A. 1. 
 
 ■"Branan v. May, 17 Ga. 136; 
 Macon, etc., Ry. Co. v. Winn, 19 
 Ga. 440; Macon, etc., R. Co. v. 
 Johnson, 38 Ga. 409, 431; Mayor, 
 etc., V. Dodd, 58 Ga. 238; Georgia 
 R. Co. V. Thomas, 68 Ga. 744; 
 Augusta, etc., R. Co. v. Killian, 
 79 Ga. 236; 4 S. E. 164; Ameri- 
 
 cus, etc., R. Co. V. Luckie, 87 Ga. 
 7; 13 S. E. 105; Central R. Co. 
 V. Attaway, 90 Ga. 65; 16 S. E. 
 Rep. 956; Brunswick, etc., R. Co. 
 V. Gibson, 97 Ga. 497; 25 S. E. 
 Rep. 484; Central R. Co. v. Atta- 
 way, 90 Ga. 661; 16 S. E. 958; 
 Comer v. Barfield, 102 Ga. 489; 
 31 S. E. Rep. 90; Georgia, etc., 
 R. Co. V. Nilus, 83 Ga. 70; 9 
 S. E. Rep. 1049; Macon, etc., R. 
 Co. V. Holmes, 103 Ga. 658; 30 
 S. E. Rep. 565; Jenkins v. Cen- 
 tral R. Co. 89 Ga. 756; 15 S. E. 
 Rep. 655; Atlanta, etc., R. Co. v. 
 Loftin, 86 Ga. 43; 12 S. E. Rep. 
 186; Western, etc., R. Co. v. 
 Bloomingdale, 74 Ga. 604; Lovier 
 V. Central, etc., R. Co. 71 Ga. 
 222; Higgins v. Cherokee R. Co. 
 73 Ga. 149; Tift v. .Tones, 78 Ga. 
 700; 3 S. E. Rep. 399; Richmond, 
 etc., R. Co. V. Howard. 79 Ga. 44; 
 3 S. E. Rep. 426; Comer v. Shaw, 
 98 Ga. 545; 25 S. E. Rep. 733; 
 Briscoe v. Southern Ry. Co. 103 
 Ga. 224; 28 S. E. Rep. 638; Cen-
 
 CONTRIBUTORY AND COMPARATIVE NEGLIGENCE. 3^45 
 
 him to show that fact.^* The duty to use ordinary care 
 does not arise until the negligence of the defendant is ex- 
 
 tral Ry. Co. v. Dorscy, 10(5 Ga. 
 826; 32 S. E. Rep. 873; Hopkins 
 V. Southern Ry. Co. 110 Ga. 167; 
 35 S. E. Rep. 170; Western, etc., 
 R. Co. V. Bradford, 113 Ga. 276; 
 
 38 S. E. Rep. 823; Georgia Cot- 
 ton Oil Co. V. Jackson, 112 Ga. 
 620; 37 S. E. Rep. 873; Western, 
 etc., R. Co. V. Ferguson, 113 Ga. 
 708; 39 S. E. Rep. 306; Porter 
 V. Ocean S. S. Co. 113 Ga. 1007; 
 
 39 S. E. Rep. 470; Louisville, etc., 
 R. Co. V. Thompson, 113 Ga. 983; 
 39 S. E. Rep. 483; Western, etc., 
 R. Co. V. Herndon, 114 Ga. 168; 
 
 39 S. E. Rep. 911; Roberts v. Al- 
 bany, etc., R. Co. 114 Ga. 678; 
 
 40 S. E. Rep. 698; Mansfield v. 
 Richardson, 118 Ga. 250; 45 S. E. 
 269; Savannah, etc., Ry. Co. v. 
 Hatcher, 118 Ga. 273; 45 S. E. 
 Rep. 239; Central Ry. Co. v. Mc- 
 Kinney, 118 Ga. 535; 45 S. E. 
 Rep. 430; Wilkins v. Grant, 118 
 Ga. 522; 45 S. E. Rep. 415; 
 Wrightsville, etc., R. Co. v. Latti- 
 more, 118 Ga. 581; 45 S. E. 453; 
 Ludd v. Wilkins, 118 Ga. 525; 45 
 S. E. Rep. 429; Edwards v. Cen- 
 tral, etc., R. Co. 118 Ga. 678; 45 
 S. E. Rep. 462: Southern Ry. Co. 
 V. Gore. 128 Ga. 627; 58 S. E. 
 Rep. 180; Central Ry. v. McClif- 
 ford, 120 Ga. 90; 47 S. E. Rep. 
 590; Little v. Southern Ry. Co. 
 120 Ga. 347; 47 S. E. Rep. 953; 
 Griffith v. Lexington, etc.. Ry. Co. 
 124 Ga. 553: 53 S. E. Rep. 97; 
 Moore v. C. L. King ]\Ifg. Co. 124 
 Ga. 570: 53 S. E. Rep. 107; Col- 
 lins V. Southern Ry. Co. 124 Ga. 
 853; 53 S. E. Rep. 388: Central 
 Ry. Co. V. Harper, 124 Ga. 836; 
 53 S. E. Rep. 391; Southern Ry. 
 
 Co. V. Brown, 126 Ga. 1; 54 S. E. 
 Rep. 911; Cawood v. Chattahoo- 
 chee, 126 Ga. 159; 54 S. E. Rep. 
 944; Wrightsville, etc., R. Co. v. 
 Gornto, 129 Ga. 204; 58 S. E. 
 769; City of Americus v. John- 
 son, 2 Ga. App. 378; 58 S. E. 
 Rep. 518; Southern Ry. Co. v. 
 Gladner (Ga. App.), 58 S. E. 
 Rep. 249; Vinson v. Willingham 
 Cotton Mills, 2 Ga. App. 53; 58 
 S. E. Rep. 413; Southern Ry. Co. 
 v. Rowe, 2 Ga. App. 557 ; 59 S. E. 
 Rep. 462; Rollestone v. T. Gassier 
 & Co., 3 Ga. App. 161; 59 S. E. 
 Rep. 442; Central Georgia Ry. 
 Co. v. Clay, 3 Ga. App. 286; 59 
 S. E. Rep. 843; Southern Ry. Co. 
 v. Monchett, 3 Ga. App. 266; 59 
 S. E. Rep. 710; Sanders v. Cen- 
 tral Ry. Co. 123 Ga. 763; 50 S. 
 E. Rep. 728. 
 
 ^Denol V. Central Ry. Co. 119 
 Ga. 246 ; 46 S. E. Rep. 107 ; Eagle, 
 etc., Mills V. Herron, 119 Ga. 
 389; 46 S. E. Rep. 405; Macon, 
 etc., Ry. Co. v. McLendon, 119 Ga. 
 297; 46 S. E. Rep. 106; Russell 
 v. Central Ry. 119 Ga. 705; 46 
 S. E. Rep. 858; Columbus R. Co. 
 V. Dorsey, 119 Ga. 363; 46 S. E. 
 Rep. 635; Simmons v. Seaboard, 
 etc., R. Co. 120 Ga. 225; 47 S. E. 
 Rep. 570; Christian v. Macon, etc., 
 Co. 120 Ga. 314; 47 S. E. Rep. 
 23; Southern Ry. Co. v. Bandy. 
 120 Ga. 403; 47 S. E. Rep. 923; 
 Banks v. J. S. Schofield Sons' Co. 
 126 Ga. 667; 55 S. E. Rep. 39; 
 Atlanta, etc.. R. Co. v. O'Neil. 127 
 Ga. 085: 56 S. E. Rep. 986: Tur- 
 ley v. Atlanta, etc., R. Co. 127 Ga. 
 594; 56 S. E. Rep. 748; Roque- 
 more v. Albany, etc., R. Co. 127
 
 146 
 
 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 isting or is apparent, or circumstances are such that an 
 ordinarily prudent person would have reason to apprehend 
 its existence.2^ And in case of negligence on the part of 
 both parties, the plaintiff may still recover if the defend- 
 ant's was great.-"' If the defendant has been grossly negligent, 
 the statute does not apply .^' If both parties had equal oppor- 
 tunity to avoid the injury, no question of apportionment of 
 
 Ga. 330; 56 S. E. Rep. 424; Moore 
 V. Dublin Cotton Mills, 127 Ga. 
 609; 56 S. B. Rep. 839; Southern 
 Ry. Co. V. Dean (Ga.), 57 S. E. 
 Rep. 702; Brown Store Co. v. 
 Chattahoochee, 1 Ga. App. 609; 
 57 S. E. Rep. 1043; Sanders v. 
 Central Ry. Co. 123 Ga. 763; 50 
 S. E. Rep.' 728; Richmond R. Co. 
 V. Mitchell, 92 Ga. 77; 18 S. E. 
 Rep. 290; Savannah, etc., Co. v. 
 Bell, 124 Ga. 663; 53 S. E. Rep. 
 109; City of Atlanta v. Harper, 
 129 Ga. 415; 59 S. E. Rep. 230. 
 
 ** Freeman v. Nashville, etc., 
 Ry. Co. 120 Ga. 469; 47 S. E. 
 Rep. 931; Western, etc., Ry. Co. 
 V. York, 128 Ga. 687; 58 S. E. 
 Rep. 183. 
 
 The following instruction has 
 been approved by the Georgia 
 court. "If the plaintiff, by ordi- 
 nary care, could have avoided the 
 consequence to himself caused by 
 the defendant's negligence (if the 
 evidence shows negligence on the 
 part of the dofendant), the plain- 
 tiff will not be entitled to recover. 
 But if the plaintiff did use ordi- 
 nary care, and if wliile in the use 
 thereof, by reason of the defend- 
 ant's negligence, he sustained in- 
 jury, the defendant will not lie 
 relieved, although the plaintiff 
 in Home way may have contrib- 
 uted to the injury sustained." 
 
 Mayor, etc., v. Dodd, 58 Ga. 238; 
 Macon, etc., R. Co. v. Davis, 18 
 Ga. 679. 
 
 ■^ Younge v. Kenney, 28 Ga. 111. 
 In this case it was said: "The de- 
 ceased may have been guilty of 
 some negligence; this does not ex- 
 cuse the railroad, if they [the 
 jury] believe the officers were 
 greatly more at fault than the de- 
 ceased." 
 
 ''Although the plaintiff be some- 
 what in fault, yet if the defendant 
 be grossly negligent, and thereby 
 occasioned or did not prevent the 
 mischief, the action may be main- 
 tained." Augusta, etc., R. Co. v. 
 McElmurry, 24 Ga. 75; Macon, 
 etc., Ry. Co. v. Davis, 18 Ga. 679; 
 Brannan v. May, 17 Ga. 136; Ma- 
 con, etc., R. Co. V. Winn, 19 Ga. 
 440. 
 
 "Central, etc., R. Co. v. Smith, 
 78 Ga. 694 ; 3 S. E. Rep. 397 ; Cen- 
 tral R. Co. V. Dixon, 42 Ga. 327; 
 Southwestern R. Co. v. Johnson, 
 60 Ga. 667: Atlanta, etc., Ry. Co. 
 V. Avers, 53 Ga. 12. It defeats 
 the action only when it amounts 
 to a failure to use ordinary care. 
 Rolleston v. T. Gassier & Co. 3 
 Ga. App. 161: 59 S. E. Rep. 442; 
 Sims V. ]\Iacon. etc., Ry. Co. 28 
 Ga. 93. See Brown Store Co. v. 
 Chattahoochee Lumber Co. 121 Ga. 
 809; 49 S. E. Rep. 839.
 
 CONTRIBUTORY AND COMPARATIVE NEGLIGENCE. 1^'J 
 
 damages arises/- "For simply falling short of extreme and 
 extraordinary care and diligence, the defendant is not liable 
 even to contribute."*^ 
 
 " Stewart v. Seaboard Air Line 
 Ry. 115 Ga. 624; 41 S. E. Rep. 
 981 ; Wriglitsville, etc., R. Co. v. 
 Gornton, 129 Ga. 204; 58 S. E. 
 Rep. 709; Central Ry. Co. v. Mc- 
 Kinney, IIG Ga. 13; 42 S. E. Rep. 
 229; Hobbs v. Bowie, 121 Ga. 421; 
 49 S. E. Rep. 285. 
 
 If the injury is occasioned by 
 the injured servant violating his 
 master's orders, he cannot recover. 
 Binion v. Georgia, etc., R. Co. 
 118 Ga. 282; 45 S. E. Rep. 276. 
 
 That there can be no recovery 
 where the plaintiff is guilty of 
 contributory negligence, see Louis- 
 ville, etc., R. Co. V. Edmondson, 
 128 Ga. 478; 57 S. E. Rep. 877; 
 Southern Ry. Co. v. Barfield, 115 
 Ga. 724; 42 S. E. Rep. 95; Nich- 
 ols V. Tanner, 117 Ga. 489; 43 
 S. E. Rep. 489; Georgia, etc., Co. 
 V. Henderson, 117 Ga. 480; 43 
 S. E. Rep. 698; NorfolI<, etc., Ry. 
 Co. V. Perrow, 101 Va. 345; 43 
 S. E. Rep. 614; Chenoll v. Palmer 
 Brick Co. 117 Ga. 106; 43 S. E. 
 Rep. 443 ; Steinhouser v. Savan- 
 nah, etc., R. Co. 118 Ga. 195; 44 
 S. E. Rep. 800; McDonnell v. 
 Central R. Co. 118 Ga. 195; 44 
 S. E. Rep. 800; McDonnell v. Cen- 
 tral R. Co. 118 Ga. 86; 44 S. E. 
 Rep. 840; Augusta, etc., R. Co. v. 
 Snider, 118 Ga. 146; 44 S. E. 
 1005 ; Randolph v. Brunswick, etc., 
 Ry. Co. 120 Ga. 969; 48 S. E. Rep. 
 396; Macon, etc., Ry. Co. v. An- 
 derson, 121 Ga. 666; 49 S. E. Rep. 
 791; Macon, etc., Ry. Co. v. 
 Barnes. 121 Ga. 443; 49 S. E. 
 Rep. 282: Central Ry. Co. v. Price, 
 121 Ga. 651; 49 S. E. Rep. 683; 
 
 Atlanta, etc., Ry. Co. v. Weaver, 
 
 121 Ga. 466; 49 S. E. Rep. 291; 
 Meeks v. Atlanta, etc., Ry. Co. 
 
 122 Ga. 266; 50 S. E. Rep. 99; 
 Walker v. Georgia, etc., Co. 122 
 Ga. 368; 50 S. E. Rep. 121; Tuck- 
 er V. Central Ry. Co. 122 Ga. 387; 
 50 S. E. Rep. 128; Southern Ry. 
 Co. V. Cunningham, 123 Ga. 90; 
 50 S. E. Rep. 979; Nix v. South- 
 em Ry. Co. 4 Ga. App. 331; 61 
 S. E. Rep. 292; Georgia, etc., Ry. 
 Co. V. Sasser, 4 Ga App. 276; 61 
 ■S. E. Rep. 998. 
 
 43 Georgia, etc., Co. v. Neely, 56 
 Ga. 540. 
 
 In Tennessee comparative negli- 
 gence is not the accepted rule, tho 
 courts holding that when the plain- 
 tiff's owTi negligence is the proxi- 
 mate cause of his injury he cannot 
 recover. But if his negligence hi 
 slight, or if he has not exercised a 
 superior d^ree of care or dili- 
 gence, he may recover, his conduct 
 being considered, in mitigation oC 
 his damages, "The principal dif- 
 ference between our rule and the 
 English rule, as modified by the 
 more recent decisions, is in allow- 
 ing the damages to be mitigated 
 by the cond,uct of the injured 
 party." Railroad Co. v. Fain, 12 
 Lea, 35 ; Jackson v. Nashville, etc., 
 R. Co. 13 Lea, 491; 49 Am. Rep. 
 663; Nashville, etc., R. Co. v. Whe- 
 less, 10 Lea,, 741; 43 Am. Rep. 
 317; Whirley v. Whiteman, 1 
 Head, 610; Duch v. Fitzhugh, 2 
 Lea, 307; Hill v. Nashville, etc., 
 R. Co. 9 Hsisk. 823; Nashville, 
 etc., R. Co. V. Carroll, 6 Heisk. 
 347; Smith v. Nashville, etc., R. 
 Co. 6 Heisk. 174.
 
 148 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 § 88. Comparative negligence in Illinois. — In Illinois, 
 after a long review of many cases in that state, as well as in 
 other states and in England, in 1858, Justice Breese, as a 
 deduction of the cases, lays down this rule : "It will be 
 seen, from these cases, that the question of liability does 
 not depend absolutely on the absence of all negligence on the 
 part of the plaintiff, but upon the relative degree of care 
 or want of care, as manifested by both parties, for all care 
 or negligence is at best but relative, the absence of the high- 
 est possible degree of care showing the presence of some negli- 
 gence, slight as it may be. The true doctrine, therefore, we 
 think is, that in proportion to the negligence of the defend- 
 ant, should be measured the degree of care required of the 
 plaintiff; that is to say, the more gross the negligence mani- 
 fested by the defendant, the less degree of care will be re- 
 quired of the plaintiff to enable him to recover. Although 
 these cases do not distinctly avow this doctrine in terms, 
 there is a vein of it perceptible, running through very many 
 of them, as, where there are faults on both sides, the plaintiff 
 shall recover, his fault being measured by the defendant's 
 negligence, the plaintiff need not be wholly without fault, as 
 in Raisin v. Mitchell ■** and Lynch v. Nurdin.*'^ We say, then, 
 that in this, as in all like cases, the degrees of negligence 
 must be measured and considered, and whenever it shall 
 appear that the plaintiff's negligence is comparatively slight, 
 
 The rule of comparative negli- ages shaill be increased or dimin- 
 
 gence does not prevail in Ken- ished by the jury in proportion to 
 
 tucky, as some supjwse. Louis- the amount of default attributable 
 
 ville^ etc., R. Co. v. Filbern, G to him." Laws 1901, chap. 4071; 
 
 Bush, 574; City of Covington v. General Statutes 1906, Sec. 3149. 
 
 Bryant, 7 Bush, 248; Louisville, Cited and construed, Louisville & 
 
 etc., R. Co. v. Commonwealth, 80 ^'- R. Oo. v. Yarljorough, 60 Fla, 
 
 Ky. 143; 44 Am. Rep. 468; Lou- — ; 54 So. 462. 
 
 isville etc. R Co. v. Collins, 2 Before the enactment of this 
 
 Duv 114. 'Helm Bruce, Ilsq..' of statute the rule of comparative 
 
 Louisville Bar, in Kentuckv Law ^^'^^ "^'^ m foi-ce. Florida Ry. Co. 
 
 Journal for April, 1882 ; Kentuckv ""' J?"f '^^^'' ff^ ^ht 260 ; 52 iSo. 963. 
 
 Bridges, etc., Co. v. Sydor, 82 S. ^']^''}' ^^'!\ ^^^ "^ damages 
 
 W. Rep. 980; 26 Ky. L. Rep. 951; f,^« dmumshod m pro,>ortion to 
 
 TH T P A 183 amount or defauH attributable ' 
 
 , "^T^, *" . , ' . " i- . , to the plaintiff. Ivouisville & N. 
 
 In Florida, in an action against ,^ ^^ | Yarborough, 01 Fla. 307; 
 
 a railroad company, a statute pro- 54 So. 402. 
 
 vides that "if the complainiint and u q^j.^. y Payne, 252. 
 
 the company ai«' both at fault, the *'■> 4 Eng. C. L. 422. 
 former may recover; but the dam-
 
 CONTRIBUTORY AND COMPARATIVE NEGLIGENCE. ^^49 
 
 and that of the defendant gross, he shall not be deprived of 
 his action." *° In a subsequent Illinois case the court put this 
 interpretation upon the doctrine of comparative negligence as 
 it had been adopted three years before: "We only deem it 
 necessary in this case, to examine the question whether th-^ 
 husband of appellee was guilty of such gross negligence as 
 relieves the company from liability for his death. To au- 
 thorize a recovery, it is not enough to simply show that the 
 company was guilty of negligence, but it should also appear 
 that deceased was not also guilty of negligence in some de- 
 gree comparable to that of the company inflicting the injury. 
 
 ** Galena, etc., R. Co. v. Jacobs 
 (1858), 20 111. 478. 
 
 In Raisin's ease the court 
 summed up to the jury as follows: 
 "The question is, whether the 
 plaintiff has made out a case to 
 entitle him to damages. You 
 must be satisfied that the injury 
 was occasioned by the want of 
 care, or the improper conduct of 
 the defendant, and was not im- 
 putable in any degree to any want 
 of care or any improper conduct 
 on the part of the plaintiff." The 
 jury gave the plaintiff a verdict 
 for two hundred and fifty pounds. 
 Chief Justice Tindall then asked 
 the jury how they had made up 
 their verdict; and the foreman an- 
 swered that there were faults on 
 both sides. "Then," asked the 
 Chief Justice, "you have consid- 
 ered the whole matter?" The fore- 
 man answered that they had. 
 
 Thereupon counsel for the de- 
 fendant submitted to the court 
 that the fact which the foreman 
 had stated entitled the defendant 
 to the verdict; but he was met by 
 the statement of the Chief Jus- 
 tice: "i\o, there may be faults to 
 a certain extent." In a note the 
 reporter of the case says: "The 
 
 verdict in this case, as well as the 
 opinion of the Chief Justice, seem 
 to be quite correct, and sustain- 
 able in point of law, according to 
 the most modern authorities." 
 
 In Lynch v. Nurdin the evi- 
 dence showed that the defendant 
 left his cart and horse unattended 
 in a thronged thoroughfare, and 
 the plaintiff, a child of seven 
 years, got upon the cart in play. 
 Another child incautiously led the 
 horse on, and the plaintiff was 
 thereby thrown down and hurt. 
 Chief Justice Denman held that 
 the plaintiff was liable in an ac- 
 tion on the case, though the 
 child was a trespasser and con- 
 tributed to the injury by his own 
 act; that though he was a co-op- 
 erating cause of his own misfor- 
 tune by doing an unlawful act, he 
 was not deprived of his remedy; 
 and that it was properly left to 
 the jury whether the defendant's 
 conduct was negligent and the in- 
 jury caused by his negligence. 
 
 Chief Justice Denman, in com- 
 menting upon the case, concludes 
 by saying: "His [the child's] mis- 
 conduct bears no proportion to 
 that of the defendant, which pro- 
 duced it."
 
 150 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 Each party is bound, whilst pursuing their legal business, to 
 exercise a due regard for the rights of others. And when 
 each is equally at fault, and both parties negligent, the in- 
 jured party has no right to recover for an injury he has thus 
 contributed to produce. Each party must employ all reason- 
 able means to foresee and prevent injury. Whether the party 
 receiving the injury has acted with even a slight degree of 
 negligence contributing to produce the injury, to recover 
 he must show that the other party has been guilty of gross 
 negligence. Whilst the party upon whom the injury is in- 
 flicted must use all reasonable care, he is not held to the 
 highest degree of precaution of which the human mind is 
 capable. Nor to recover, need he be wholly free from negli- 
 gence, if the other party has been culpable."*^ 
 
 §89. Negligence a relative term.— "In applying the 
 measure of slight and gross negligence to the acts of 
 the respective parties charged to have been negligent," 
 said Justice Scholfield of the Supreme Court of Illi- 
 nois, "it is, of course, always to be held in remembrance 
 that the term 'negligence' is, itself, relative, 'and its appli- 
 cation depends on the situation of the parties, and the degree 
 of care and diligence which the circumstances reasonably im- 
 pose. ' *^ The question, therefore, in the present instance, 
 related to the measure of care, under the circumstances shown 
 by the evidence to have existed, imposed upon the respective 
 parties.*® Whether, therefore, the plaintiff's intestate failed 
 
 *' Chicago, etc., R. C«. v. Dewey was killed. A recovery was de- 
 (1861), 26 111. 255. This was a nied, because the facts showed he 
 case where the deceased attempted was guilty of gross negligence and 
 to pass between two sections of a the defendant was not guilty of 
 freight train, in the night time, in any negligience for its engineer 
 order to reach an ap])roaching had a riglit to presume no one 
 passenger train he d<'sired to would attempt to pass between the 
 board, and was caught between two freight train sections, 
 the bumpers of two freight cars ^* Citing Cooley on Torts, 630. 
 of the twx) sections of the freight *" Chicago, etc., R. Co. v. John- 
 train backing up together, and son, 103 111. 512.
 
 CONTRIBUTORY AND COMPARATIVE NEGLIGENCE. 15^ 
 
 to exercise ordinary care, is to be determined — and there can 
 be no presumption under these circumstances otherwise— 
 with reference to his rights, duties and obligations, and the 
 rights, duties and obligations of the defendant, under the 
 peculiar circumstances here in evidence. Being thus deter- 
 mined that he has failed to exercise ordinary care, the legal 
 conclusion is, he is guilty of negligence."^" 
 
 § 90. Illinois rule extended.— The rule of comparative 
 negligence as first announced in Illinois, namely, "that there 
 must be negligence on the part of the defendant, and no 
 want of ordinary care on the part of the plaintiff, and w^here 
 there has been negligence in both parties, still the plaintiff 
 may recover, where his negligence is slight, and that of the 
 defendant is gross, in comparison with that of the plaintiff," 
 was at a later period ''extended to include cases where the 
 negligence of the plaintiff had contributed in some degree to 
 the injury complained of." This was "upon the principle 
 that, although a party may have himself been guilty of negli- 
 gence, it does not authorize another to recklessly and wan- 
 tonly destroy his property or commit a personal injury. ' ' ^^ 
 
 § 91.— Ordinary care wanting- — Plaintiff's negligence 
 slight. — The fact that the negligence of the plaintiff was 
 slight did not enable him to recover, if he had not observed 
 ordinary care to avoid the injury and an instruction which 
 omitted the statement that the plaintiff must have used ordi- 
 nary care was held erroneous. "The fact that tlie defendant 
 may have been guilty of gross negligence does not authorize a 
 recovery. A duty rests on the injured party to exercise ordi- 
 nary care, and, unless that duty has been observed, a recovery 
 cannot be had. In other words, ordinary care is an essential 
 element on the part of the injured party to authorize a re- 
 
 »» Chicago, etc., R. Co. v. John- R. Co. v. Gretzner, 46 111. 75; 
 
 son, 103 111. 512. Rockford, etc., R. Co. v. Coultas, 
 
 "Chicago, etc., R. Co. v. Van 67 111. 398. 
 Patten, 64 111. 510; Chicago, etc.,
 
 152 
 
 FEDERAL EMPLOYERS LIABILITY ACT. 
 
 covery. But that element was omitted from the instruction 
 [given] ; and the jury was, in substance, told that the plain- 
 tiff, although guilty of some negligence, might recover, if the 
 negligence of the defendant was gross, and the negligence of 
 the plaintiff was slight, in comparison with the negligence of 
 the defendant. We do not regard this as a correct proposi- 
 tion of law, or as a correct enunciation of the doctrine of 
 comparative negligence. The plaintiff may have failed to 
 exercise ordinary care when his acts and conduct are con- 
 sidered in the light of all the evidence, and yet, under the 
 terms of this instruction, he might recover if his negligence 
 was only slight when compared alone with that of defendant. 
 In considering the doctrine of comparative negligence, ex- 
 pressions may be found in several cases which might sustain 
 the instruction, where it has been said, in a general way, that 
 an injured party, guilty of slight negligence, may recover, 
 where the negligence of the defendant was gross, and the 
 negligence of the plaintiff slight, in comparison with the negli- 
 gence of the defendant but it has always been under- 
 stood, and the declaration has always been made with the 
 understanding that in no case can a recovery be had un- 
 less the person injured has exercised ordinary care for his 
 safety."" 
 
 "^Willard v. Swanson, 126 111. 
 381; 18 N. E. 548; affirming 12 
 Bradw. (111.) 631; Fisher v. 
 Cook, 125 111. 280; 17 N. E. 763. 
 
 This instruction was held to be 
 correct: "If the jury believe 'rom 
 the evidence that the plaintiff was 
 injured as charged in the decla- 
 ration, and that he or the person 
 who was driving the buggy in 
 which h^i sat was giiilty of some 
 negligence which contribut.ed to 
 Raid injury, but that said negli- 
 gence of the plaintiff or of said 
 pers<^)n driving the buggy, if any, 
 was sliglit. and that the defend- 
 ant, by his servant, was guilty of 
 
 negligence, as charged in the dec- 
 laration, and that said negligence, 
 if any, of said defendant, caused 
 said injury to the plaintiff, and 
 that said negligence, if any, of 
 the defendant was gross, and the 
 negligence of the said plaintiff, or 
 the person driving said buggy, 
 was slfgfit when compared there- 
 with, then the jury are instructed 
 that such slight negligence on the 
 part of the plairtiff. or the person 
 driving said buggy, if you find 
 from the evidence it was slight, 
 will not prevent the plaintiff from 
 recovering in this case." In an- 
 oither instruction the sentence,
 
 CONTRIBUTORY AND COMPARATIVE NEGLIGENCE. I53 
 
 §92. Want of ordinary care defeats a recovery. — The 
 
 want of ordinary care on the part of the plaintiff could 
 not be construed as "slight negligence" on his part. Speak- 
 ing of erroneous instructions on this point that had been 
 given, Justice Scholfield of Illinois, in a case in the Su- 
 preme Court of that state, said: "The utmost degree of 
 negligence merely — and it is of this only and not of tres- 
 pass or other wrongs that the instructions speak — of which 
 the defendant can be guilty, is gross negligence. The plain- 
 tiff's negligence, then, by the very terms employed, is ordi- 
 nary, and that of the defendant gross, in comparison with 
 each other. The language employed, in effect, says, although, 
 as to this particular act, the plaintiff's intestate was guilty of 
 ordinary negligence, and the defendant guilty of gross negli- 
 gence, still, if the jury believe the plaintiff's intestate's 
 negligence was slight — that is, that it was not what the very 
 terms employed admit it to have been — and that of the de- 
 fendant gross, in comparison with each other, they will find 
 the defendant guilty. Surely it needs no demonstration that 
 if, as to a particular act, the negligence of the plaintiff was 
 ordinary and that of the defendant gross, their relation is 
 
 "If the jury find from the evi Fetsam, 123 III. 518; 15 N. E. 
 
 dence that neither the plaintiff 169; Chicago, etc., R. Co. v. John- 
 
 nor the person who was driving son, 116 111. 206; 4 N. E. 381; 
 
 the buggy in which he sat was Chicago, etc., R. Co. v. Ryan, 70 
 
 guilty of any negligence which Til. 211 ; S. C. 60 111. 172. 
 
 contributed to said injury," was An instruction to the jury that 
 
 sufficient to cover the charge that if they "believe from the evidence 
 
 plaintiff must have exercised or- that the plaintiff was wholly with- 
 
 dinary care to avoid the injury. out negligence, yet, if you further 
 
 Christin v. Erwin, 125 111. 619; 17 believe from the evidence that the 
 
 N. E. 707. defendant was guilty of gross neg- 
 
 An instruction on comparative ligence, while the plaintiff was 
 
 negligence which omitted to state guilty of slight negligence, then 
 
 that the plaintiff must have such slight negligence will not 
 
 been in the exercise of due care prevent a recovery," was erro- 
 
 when injured to avoid the injury neous, because it assumes that the 
 
 was deemed not erroneous if in plaintiff exercised ordinary care, 
 
 another instruction that charge wa=i Toledo, etc., R. Co. v. Cline, 135 
 
 given. Chicago, etc, R. Co. v. HI. 41 ; 25 N, E. 846.
 
 154 
 
 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 not changed by conparing them with each other. The same 
 evidence that determines the one is gross and the other ordi- 
 nary, fixes their relative degrees with reference to each 
 other."" 
 
 =^ Chicago, etc., R. Co. v. John- 
 son, 103 111. 512. 
 
 "It seems to be thought what is 
 said in Stratton v. Central City 
 Horse Ry. Co. 95 111. 25, in criti- 
 cising certain instructions there 
 given, sustains the ruling below 
 in regard to these instructions. 
 This is a misapprehension. In 
 those instructions it was said a 
 failure to exercise ordinary care 
 was gross negligence, and in one 
 it was said no action would He if 
 the plaintiff failed to exercise or- 
 dinary care, unless the defendant 
 inflicted the injury. We have be- 
 fore herein shown both these po- 
 sitions to be inaccurate. The fail- 
 ure to exercise ordinary care is 
 only ordinary negligence, and al- 
 though a plaintiff might not ex- 
 ercise ordinary care, yet the de- 
 fendant would be liable for injur- 
 ing him if his act causing injury 
 was so willfully and wantonly reck- 
 less as to authorize the presump- 
 tion of an intention to injure gen- 
 erally, notwithstanding he might 
 have had no special intention to 
 injure the plaintiff." Chicago, 
 etc., R. Co. V. Johnson, 103 111. 
 512. 
 
 "It must be conceded that the 
 doctrine of comparative negli- 
 gence has no plac^ in a case where 
 the plaintiff has failed to exercise 
 ordinary care." "The failure to 
 ■•xercise ordinary care is more 
 han slight negligence." Toledo, 
 {tc, R. Co. V. Cline, 31 111. App. 
 rff53. 
 
 Ther(! must have b.een "no want 
 
 of ordinary care on the part of 
 the plaintiff." Chicago, etc., R. 
 Co. V. Gretzner, 46 111. 74; Illinois, 
 etc., R. V. Simmons, 36 111. 242; 
 Western U. T. Co. v. Quinn, 56 
 111. 319; Centralia v. Krouse, 64 
 111. 19; Chicago, etc., R. Co. v. 
 Gregory, 58 111. 272; Chicago, etc., 
 Ry. Co. V. Bentz, 38 111. App. 485; 
 Illinois, etc., R. Co. v. Green, 81 
 111. 19; Quincy v. Barker, 81 111. 
 300; Toledo, etc., R. Co. v. Cline, 
 135 111. 41; 25 N. E. Rep. 846. 
 
 Plaintiff had the burden to 
 show that the defendant was neg- 
 ligent and that he himself used 
 due care. Chicago, etc., R. Co. v. 
 Hazzard, 26 111. 373 ; Chicago, etc., 
 R. Co. V. Dewey, 26 111. 255; Chi- 
 cago, etc., R. Co. V. Gretzner, 46 
 111. 74; Chicajo, etc., R. Co. v, 
 Simmons, 38 111. 242 ; Illinois, etc., 
 R. Co. V. Slatton, 54 111. 133; Ohio, 
 etc., R. Co. V. Shonefelt, 47 111. 
 497; Chicago, etc., R. Co. v. Cass, 
 73 111. 394; Kepperlv v. Ramsden, 
 83 111. 354. 
 
 If it was not shown that the 
 plaintiff did not iise ordinary care, 
 or if it was shown that he did not, 
 then the rule of comparative neg- 
 ligence had no place in the case. 
 Garflold IMfg. Co. v, McLean, 18 
 111. App. 447; Chicago, etc., R. 
 Co. V. Thorson, 11 111. App. 631; 
 Chicago, etc., R. Co. v. Rogers, 17 
 111. App. 038; Chicago, etc., R. 
 Co. v. White, 26 111. App. 586; 
 Chicago, etc., R. Co. v. Flint, 22 
 111. App. 5j02; Chicago, etc., R. Co. 
 V. Dougherty, 12 111. App. 181; 
 Union, etc., Co. v. KoUaher. 12
 
 CONTPwIBUTORY AND COMPARATIVE NEGLIGENCE. 3^55 
 
 § 93. Failure to exercise ordinary care more than slight 
 negligence. — "The word 'diligence/ as used in the deiini- 
 tions of the degrees of negligence to which we have referred," 
 said Justice Scholfield of Illinois, "is synonymous with 
 'care.' This is shown by the text in Story immediately fol- 
 lowing the definitions quoted.^* It is there said: 'For he 
 who is only less diligent than very careful men, cannot be 
 said to be more than slightly inattentive ; he who omits ordi- 
 nary care, is a little more negligent than men ordinarily are ; 
 and he who omits even slight diligence, falls in the lowest de- 
 gree of prudence, and is deemed grossly negligent.' It can 
 not, then, be legally true, that where the plaintiff fails to 
 exercise ordinary care, and the defendant is guilty of negli- 
 gence only, the plaintiff's negligence is slight and that of the 
 defendant gross in comparison with each other. "^^ 
 
 § 94. Ordinary and slight negligence in their popular 
 
 sense.— "Giving the words their popular sense, it would 
 rather seem that ordinary negligence would be such negli- 
 gence as men of common prudence indulge in, which betokens 
 only the exercise of ordinary care, and not the want of ordi- 
 nary care, as is suggested. This, where the law requires only 
 
 111. App. 400; Wabash, etc., R. Co. that was stronger than the law 
 
 V. Moran, 13 111. App. 72; Union, justified, being an ignoring of the 
 
 etc., Co. V. Monaghan, 13 111. App. doctrine of comparative negligence. 
 
 148; Toledo, etc., R. Co. v. Cline, Ohio, etc., R. Co. v. Porter, 92 111, 
 
 135 111. 41; 2'5 N. E. Rep. 846. 437. 
 
 But the plaintiff did not have " "The definition of gross negli- 
 
 to exercise the highest degree of gence itself proves that it is not 
 
 care. Chicago, etc., R. Co. v. intended to be the subject of com- 
 
 Payne, 59 111. 534; Terre Haute, parison. It is 'the want of slight 
 
 etc., R. Co. V. Voelker, 31 111. App. diligence.' Slight negligence is 
 
 314. 'the want of great diligence,' and 
 
 It was error to say to the jury intermediate, then, is ordinary 
 
 that the plaintiff could not re- negligence, which is defined to be 
 
 cover unless they "believe from 'the want of ordinary diligence.' " 
 
 the evidence that the injury com- Story on Bailments, Sec. 17. 
 
 plained of was caused by the neg- °^ Chicago, etc., R. Co. v. John- 
 
 ligence of the defendant, and the son, 103 111. 512. 
 plaintiff was without fault," for
 
 156 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 ordinary care, is not negligence at all, for in law negligence 
 is always faulty. It is the failure in some degree to use 
 that care which the law requires under the circumstances. 
 In a case where the law demands only the use of ordinary 
 care, and ordinary care is actually exercised, there is in law 
 no negligence whatever. In such case it is not true that the 
 want of great diligence is in law slight negligence. In the 
 popular sense of the words, slight negligence is a slight want 
 of the care which the circumstances demand. A man ob- 
 viously, therefore, may in such case fail slightly to use ordi- 
 nary care, and in the popular sense of the words he would 
 be guilty of slight negligence, and only slight negligence, and 
 this, although he did not do all that ordinary care required. 
 And so of 'gross negligence.' Its popular meaning is a 
 very great failure to use the care which the law requires. 
 It is not essential to gross negligence that there shall be an 
 utter want of care, or, in the language of Story,^® 'the want 
 of even 'slight diligence.' The exercise of slight diligence, 
 where the highest degree of care is by law required, may still 
 leave the party guilty of gross negligence — that is, guilty of 
 a very great failure to exercise the highest care." ^^ 
 
 § 95. Mere preponderance of defendant's negligence not 
 sufficienl^Defendant's clearly exceeding plaintiff's negli- 
 gence. — The mere fact that the defendant's negligence 
 exceeds that of the plaintiff's did not enable the plaintiff to 
 recover. It was only where his negligence was slight as com- 
 pared with that of the defendant's. "But he cannot recover 
 unless the negligence of the defendant clearly and largely 
 exceeds his." "Under the instruction given," although 
 
 ""Story on P.ailmonts, S<'c. 17, time in qupstion, giiilty of some 
 
 is referred to. slij^lit nofrligonce either in the 
 
 " .Iiistice Dictcey, in his dissent- management of liis team, or in his 
 
 ing opinion, in Chicago, etc., R. efforts to escape contact with the 
 
 Co. V. .Johnson, lO.S Til. 512. engine, still, if they further be- 
 
 "■"'P^ven though the jury sliould lieve, from the evidence, that the 
 
 Ijelieve, from the evidence, tliat negligence of the railway com- 
 
 the said Horace Clarli was, at the pany, at said time, clearly ex-
 
 CONTRIBUTORY AND COMPARATIVE NEGLIGENCE. 3^57 
 
 there may have been but slight negligence on the part of the 
 company, and some negligence on the part of the deceased, 
 still, if the negligence of the company clearly exceeded that 
 of deceased, although in the smallest degree, plaintiff might 
 recover. Or, under a case where there is gross negligence 
 on the part of both plaintiff and defendant, still, if that of 
 the defendant was clearly, though in the slightest degree, 
 the greater, a recovery could be had under such instruction. 
 This has not been announced by this court as the law, in 
 any case, and to do so would be unreasonable, and work 
 great injustice and wrong. It is not the law, and hence 
 cannot be sanctioned as such. * * * "We have no doubt 
 this instruction misled the jury in their finding, and it should 
 not have been given. "^® 
 
 § 96. Gross and slight negligence distinguished.— In 1882 
 
 the Supreme Court undertook to distinguish "gross" and 
 "slight" negligence by instituting a comparison between 
 them. "In holding that the plaintiff may recover," said that 
 court, "in an action for negligence, notwithstanding he has 
 been guilty of contributive negligence, where his negligence 
 is but slight and that of the defendant gross in comparison 
 
 ceeded any negligence, if such neg- train while he was traveling upon 
 ligence has been proven, of said a highway which crossed the de- 
 Clark, and was the immediate fendant's railroad there, although 
 cause of his death, then the jury the jury may believe, from the 
 must find the railway company evidence, that the deceased was 
 guilty." himself guilty of some negligence 
 
 °^ Chicago, etc., E. Co. v. Clark, which may have, in some degree, 
 
 70 111. 276; Illinois Cent. R. Co. contributed to the injury, yet, if 
 
 V. Backus, 55 111. 379; Chicago, the jury further believe, from the 
 
 etc., R. Co. V. Gretzner, 46 111. 83: evidence, that the negligence of 
 
 Illinois, etc., R. Co. v. Tripl<?tt, the defendant was of a higher de- 
 
 38 111. 485. gree, or so much greater than 
 
 This instruction was held erro- that of the deceased that that of 
 
 neous: "The court further in- the latter was slight in compari- 
 
 Btructs the jury that if they be- son. the plaintiff is entitled to 
 
 lieve, from the evidence, that Gil- recover in this action." Chicago, 
 
 bert H. Dimick was killed by the etc., Ry. Co. v. Dimick, 96 111. 42. 
 defendant's locomotive engine and
 
 258 FEDERAL EMPLOYERS LLVBILITY ACT. 
 
 with each other, it must, of course, be understood the terms 
 'slight negligence' and 'gross negligence' are used in their 
 legal sense, as defined by common law judges and text 
 writers, for otherwise the terms would convey no idea of a 
 definite legal rule. As defined by those judges and writers, 
 these terms express the extremes of negligence. Beyond 
 gross and slight there are no degrees of negligence. 'Gross 
 gross,' 'grosser gross,' and 'grossest gross,' and 'slight slight,' 
 'slighter slight.' and 'slightest slight,' are absurd, and, in a 
 legal sense, impossible terms. What is less than slight negli- 
 gence the law takes no cognizance of as a ground of action, 
 and beyond gross negligence the law, while recognizing there 
 may be liability for a trespass because of a particular in- 
 tention to do wrong, or of a degree of willful and wanton 
 recklessness which authorizes the presumption of a general 
 intention to do wrong, recognizes no degree of negligence. 
 The definition of gross negligence itself proves that it is not 
 intended to be the subject of comparison. It is, 'the want of 
 slight diligence.' Slight negligence is, 'the want of great 
 diligence,' and intermediate there is ordinary negligence, 
 which is defined to be 'the want of ordinary diligence.' " "<* 
 
 *" Chicago, etc., E. Co. v. John- naturally be adopted by a jury in 
 
 son, 103 111. 512, citing Story on giving effect to an instruction 
 
 Bailments, Sec. 17; Shearman & given by the court." "Nor do I 
 
 Redfield on Negligence (2d Ed.), concur in the dicta which say 
 
 Sees. 16, 17; Oooley on Torts, 631, tliere are and can be no degrees 
 
 and Central Military Tract. R. Co. in gross negligence, and no de- 
 
 V. Rockafellow, 17 111. 541. grees in slight negligence. The 
 
 The opinion was delivered by adjectives 'slight' and 'gross' seem 
 Justice Scholfield; and while Jus- to me to be capable of compari- 
 tice Dickey concurred tliorein, he son, as most adjectives are. I see 
 did not concur in that part above no absurdity in saying 'gross,' 
 quoted, saying tliat Justice Story 'more gross,' 'most gross,' or 
 in his treatise on Bailments, had 'gross,' 'grosser,' 'grossest,' or 
 not used the terms "gross negli- 'slight,' 'more slight,' 'slightest.' 
 gence" and "slight negligence" in In fact, in the quotation from 
 the sense or in the meaning in Story [Story on Bailments, Sec. 
 which they had Ikcii used in tlie 17] he speaks of 'infinite shades 
 previous Illinois case; "nor does of care,' from the 'slightest' mo- 
 he give tlie meaning which would mentary thouglit to tlie 'most vig-
 
 CONTRIBUTORY AND COMPARATIVE NEGLIGENCE. 
 
 159 
 
 § 97. Plaintiff's negligence compared with defendant's. — 
 
 The quotations made show that in those states the com- 
 parison to be instituted must have been the negligence of the 
 plaintiff compared with that of the defendant; and not a 
 comparison of the plaintiff's negligence with what an ordi- 
 narily prudent and careful man would have done under the 
 particular circumstances; nor could the defendant's conduct 
 be compared with what an ordinarily prudent and careful 
 man would have done under like circumstances. The negli- 
 gence of plaintiff had to be compared with that of the de- 
 fendant; and that was where the name of ''Comparative 
 Negligence ' ' had its origin. If the plaintiff 's negligence con- 
 tributed to the injury, then before he could recover it had 
 to appear that his negligence was slight in comparison with 
 that of the defendant 's, which had to be gross.^^ And an in- 
 
 ilant solicitude.' In fact, the im- 
 perfection of these definitions of 
 Story leads Cooler, in his work 
 on Torts, p. 630, to say of this 
 classification, that it 'only indi- 
 cates that under the special circum- 
 stances great care or caution was 
 required, or only ordinary care, or 
 only slight care,' and to add, 'if 
 the care demanded was not exer- 
 cised, the case is one of negli- 
 gence.' The terms 'slight negli- 
 gence' or 'moderat-e negligence,' 
 or 'gross negligence,' do not indi- 
 cate offenses of a different nature, 
 but different degress in offenses 
 of the same nature. I think, 
 therefore, there may be cases in 
 which it may be legally true that 
 the plaintiff has failed in some 
 degree to exercise ordinary care, 
 and that in the same case the de- 
 fendant has oee ■ guilty ci gross 
 negligence, wherein the plaintiff's 
 negligence may be slight — that is, 
 may consist of a slight failure to 
 use ordinary care — and that of 
 
 the defendant gross in compari- 
 son therewith. To my mind the 
 proposition that a plaintiff's neg- 
 ligence is Slight, IS not compatible 
 with the proposition that he has 
 failed in some degree to use ordi- 
 nary diligence." 
 
 *^ Chicago, etc., R. Co. v. Fiet- 
 sam, 123 111. 518; 15 N. E. Rep. 
 169; Lake Shore, etc., R. Co. v. 
 Johnson, 135 111. 641; 20 N. E. 
 Rep. 510; Willard v. Swanson, 
 
 126 111. 381; 18 N. E. Rep. 548; 
 Village of Jefferson v. Chapman, 
 
 127 111. 438; 20 N. E. Rep. 33; 
 Jacksonville, etc., R. Co. v. South- 
 worth, 135 111. 250; 25 N. E. Rep. 
 1003; Christian v. Erwin, 125 111. 
 619; 17 N. E. Rep. 707; Chicago, 
 etc., R. Co. V. Johnson, 116 III. 
 206; 4 X. E. Rep. 381; Toledo, 
 etc, R. Co. V. Cline, 135 111. 41; 
 25 X. E. Rep. 846; Chicago, etc., 
 Ry. Co. V. Dunleavy, 129 111. 132; 
 22 N. E. Rep. 15 ! Chicago, etc., 
 R. Co V. Longley. 2 111. App. 505; 
 City of Winchester v. Case, 5 III.
 
 160 
 
 FEDERAL EMPLOYERS LIABILITY ACT. 
 
 struction which required the jury to find whether the negli- 
 gence of the plaintiff was slight and that of the defendant 
 was gross, but did not require them to compare the negli- 
 gence of the respective parties, and determine from such 
 comparison whether the one was slight and the other gross, 
 was erroneous.^2 If the plaintiff were guilty of gross negli- 
 gence, then he could not recover,"^ and it was even said that 
 if he were guilty of negligence contributing to the injury, 
 he could not recover.^* If both were equally negligent, there 
 could be no recovery.®^ Nor was there any middle ground 
 between slight and gross negligence, the courts refusing to 
 recognize any degrees of negligence. Comparative negli- 
 gence, it was said, did not authorize the jury to weigh the 
 degrees of negligence and find for the party least in 
 fault."® Of the rule one of the appellate courts of the 
 
 App. 486; Wabash Ry. Co. v. 
 Jones, 5 111. App. 607; North 
 Chicago, etc., R. Co. v. Monka, 4 
 111. App. 664; Illinois Central R. 
 Co. V. Brookshire, 3 111. App. 225 ; 
 Chicago, etc., R. Co. v. Krueger, 
 124 111. 457; 17 N. E. Rep. 52; 
 affirming 23 111. App. 639; Chi- 
 cago, V. Stearns, 105 111. 554; 
 Chicago, etc., R. Co. v. Fears, 53 
 111. 115; Illinois, etc., R. Co. v. 
 Slatton, 54 111. 133. 
 
 "2 Chicago, etc., R. Co. v. Dil- 
 lon, 17 111. App. 355; Moody v. 
 Peterson, 11 111. App. 180; Pitts- 
 burg, etc., Ry. Co. v. Shannon, 
 11 111. App. 222; Union Ry., etc., 
 Co. V. Kollaher, 12 111. App. 400; 
 Chicago, etc., R. Co. v. O'Connor, 
 13 111. App. 62. 
 
 "'Chicago, etc., R. Co. v. Lee, 
 68 111. 576. 
 
 *• Chicago, etc., R. Co. v. Fears, 
 53 Til. 115; Illinois, etc., R. Co. v. 
 Slatton, 54 111. 133. But this is 
 «iualified in a later case. Chicago, 
 etc., R. Co. V. Krueger, 23 111. 
 App. 630; 124 111. 457; 17 N. E. 
 Rep. 52, 
 
 «= Illinois Cent. R. Co. v. Back- 
 us, 55 111. 370 ; Indianapolis, etc., 
 R. Co. V. Stables, 62 111. 313; 
 Chicago, etc., R. Co. v. Murray, 
 62 111. 326; Ohio, etc, R. Co. v. 
 Eaves, 42 111. 288; Chicago, etc., 
 R. Co. V. Lee, 68 111. 576. 
 
 "If both parties are equally in 
 fault, or nearly so, the rule is the 
 same." Chicago, etc., R. Co. v. 
 Van Patten, 64 111. 510. 
 
 '^ Wabash Ry. Co. v. Jones, 5 
 111. App. 606; korth Chicago, etc., 
 Co. V. Monka, 4 111. App. 664; 
 Chicago, etc., R. Co. v. Van Pat- 
 ten, 64 111. 510. 
 
 "It never was the law in this 
 state that the negligence of the 
 parties to a controversy upon that 
 object would bo weighed in a 
 scale, where, if it inclined at all 
 in favor of the plaintiff, he might 
 recover against the defendant. 
 Nor, it is believed, has such a rule 
 over been ostablisliod l)y a court 
 of recognized authority, that if 
 the nogligonco of the plaintiff in 
 a case of this kind [n defective 
 town bridge] is a shade less thaa
 
 CONTRIBUTORY AND COMPARATIVE NEGLIGENCE. ^61 
 
 state said: "The rule of comparative negligence requires 
 and has always required much more than a mere pre- 
 ponderance of negligence on the part of the defendant 
 to authorize a recovery. When the plaintiff is charge- 
 able with contributory negligence, though slight, there 
 must be a wide disparity between 1m^ negligence and that of 
 the defendant before he can recover." '^' Gross negligence on 
 the part of the defendant did not excuse the plaintiff from 
 the use of ordinary care."^ The burden was on the plaintiff 
 to not only show that the defendant's negligent conduct 
 caused the injury, but he had also the burden to show that 
 he was free from" negligence or else that his own negligence 
 was slight in comparison with that of the defendant.*'^ In 
 
 that of the defendant, he may be 
 allowed to recover." Provident, 
 etc., V. Carter, 2 111. App. 34. 
 
 "The doctrine of comparative 
 negligence is founded upon a com- 
 parison or the negligence bf the 
 plaintiff's with that of the defend- 
 ant's. This element of compari- 
 son is of tlfe very essence of the 
 rule. It must not only appear 
 that the negligence of the plain- 
 tiff is slight and that of the de- 
 fendant gross, but also tliat they 
 are so when compared with each 
 other." Moody v. Peterson, 11 
 111. App. 180. 
 
 This instruction has been held 
 to be correct: "If they find, from 
 the evidence, that the plaintiff 
 was guilty of some negligence, but 
 that the defendant was guilty of 
 gross negligence contributing to 
 such injury, and that the plain- 
 tiff's negligence was slight as 
 compared with the negligence of 
 the defendant, still she may be 
 entitled to recover." City of Chi- 
 cago V. Stearns, 105 111. 554. 
 
 See generally on the subject of 
 this section, Chicago, etc., R. Co. 
 
 V. Triplett, 38 III. 482; Illinois, 
 etc., R. Co. V. Hetherington, 83 
 111. 510; Chicago, etc., R Co. v. 
 Lee, 68 111. 576; Terre Haute, ets., 
 R. Co. V. Voelker, 31 111. App. 314; 
 Chicago, etc., R. Co. v. Dewey, 26 
 111. 255; Galena, etc., R. Co. v. 
 Jacobs, 20 111. -iTS; Chicago, etc., 
 R. Co. V. Hogarth, 38 111. 370. 
 
 The capacity of plaintiff had to 
 be considered in determining the 
 degree of his negligence. Kerr v. 
 Forque, 54 111. 482. 
 
 "Parmelee v. Farro^ 22 111. 467; 
 Peoria, etc., Ry. Co. v. Miller, li 
 111. App. 375 ; Springfield, etc., Ry. 
 Co. V. DeCamp, 11 111. App. 475. 
 
 •« Toledo, etc., R. Co. v. Cline, 
 135 111. 41; 25 N. E. Rep. 846; 
 Chicago, fete, Ry. Co. v. Dun- 
 leavy, 129 111. 132; 22 N. E. Rep. 
 15. 
 
 ®' Chicago, etc., R. Co. v. Haz- 
 zard, 26 111. 373; Chicago, etc., R. 
 Co. v. Dewey, 26 111. 255 ; Chicago, 
 etc., R. Co. V. Gretzner, 46 111. 74; 
 Chicago, etc., R. Co. v. Simmons. 
 38 111. 242; Illinois, etc., R. Co. v. 
 Slatton, 54 111. 133; Ohio, etc., R. 
 Co. V. Shonefelt, 47 111. 497; Chi-
 
 162 FEDERAL EMPLOYERS* LL\BILITY ACT. 
 
 view of these distinctions and requirements, one of the appel- 
 late courts was justified in its use of the following statement 
 concerning negligence as administered in the courts of Illi- 
 nois: "The doctrine of comparative negligence, as applied to 
 eases where the injury is ifot willful, seems to be shorn of 
 £fll practical meaning. A plaintiff can in no case recover 
 unless he hfls used ordinary care, no matter how gross the 
 negligence of the defendiant, while if he used ordinary care, 
 his whole duty has been performed, and a comparison of 
 his conduct with that of 'the defendant as to the question 
 of negligence would seem useless. ' ' ''° 
 
 § 98. Plaintiff's negligence compared with defendant's. — 
 
 Slight negligence on the part of the plaintiff, in comparison 
 with that of the defendant's, did* not defeat the plaintiff in 
 his cause of action. In determining whether or not the neg- 
 ligence of the plaintiff had been slight, that of the defendant 
 had first to be ascertained, and then the comparison be made. 
 It is readily seen that the same negligence of the plaintiff 
 
 cago, etc., R. Oo. v. Cass, 73 111. the base of the car window, and 
 
 394; Kepperly v. Ramsden, 83 111. slightly project outside, and 
 
 354. thereby had his arm broken in 
 
 "Illinois Central R. Co. v. passing a freight train on an ad- 
 
 Trowbridge, 31 111. App. 190. joining track, his negligence was 
 
 Referring to an instance where held slight as compared with that 
 
 the deceased's negligence had been of the railroad company in per- 
 
 slight and that of the defendant mitting it freight cars to stand 
 
 reckless, the Supreme Court said so near the track of its passenger 
 
 of such deceased's conduct. "His train, and he could recover for 
 
 carelessness may iiavo been in- his injuries. Chicago, etc., R. Co. 
 
 duced by the presumption that v. Pondrom, 51 111. 333. 
 
 those persons [defendant's em- Slight negligence is not slight 
 
 ployes] would do their duty." want of ordinary care, but merely 
 
 Chicago, etc., R. Co. v. Triplett, want of extraordinary care, and 
 
 38 III. 482; Illinois, etc., R. Oo. did not prevent a recovery. Grif- 
 
 V. Ilftherington, 83 111. 510. fin v. Willow, 43 Wis. 50o"; Dreher 
 
 "CirnsH negligence is the want v. Fitchburg, 22 Wis. 675; Ward 
 
 of slight care." Chicago, etc., R. v. Milwaukee, etc., Ry. Co. 29 
 
 Co. V. Johnson, 103 111. 512. Wis. 144; Hammond v. Mukwa, 
 
 Where a passenger on a railroad 40 Wis, 35. 
 car [)ermittcd his arm to rest on
 
 CONTRIBUTORY AXD COMPARATIVE NEGLIGEXCK. j[63 
 
 in one instance might be slight negligence, while in another 
 it would be more than slight, and defeat him. "Although 
 the plaintiff may be guilty of some degree of negligence, 
 yet if it is but slight as compared with that of the defendant, 
 the plaintiff shall be allowed to recover. " '^^ " This rule ap- 
 plies even where the slight negligence of the plaintiff in some 
 degree contributed to the injury."''^ In a subsequent ease, 
 in reviewing the doctrine as announced in Jacob's case," it 
 was said : ' ' That the question of liability did not depend ab- 
 solutely on the absence of all negligence on the part of the 
 plaintiff, but upon the relative degree of care or want of 
 care as manifested by both parties, for all care or negligence 
 is, at best, but relative, the absence of the highest possible 
 degree of care, showing the presence of some negligence, slight 
 as it may be. The true doctrine, therefore, this court thought 
 was, that in proportion to the negligence of the defendant 
 should be measured the degree of care required of the plain- 
 tiff. The degrees of negligence must be measured and con- 
 sidered, and whenever it shall appear that the plaintiff's 
 negligence is comparatively slight, and that of the defendant 
 gross, the plaintiff shall not be deprived of his action."^* 
 
 "Coursen v. Ely, 37 111. 338. 51 111. 333; Illinois Cent. E. Co. 
 
 "Coursen v. Ely, 37 111. 338. v. Backus, 55 111. 379; Chicago, 
 
 '» Galena, etc., R. Co. v. Jacobs, etc., R. Co. v. Dignan, 56 111. 487; 
 
 20 111. 478. Chicago, etc., R. Co. v. Gravy, 58 
 
 "Chicago, etc., R. Co. v. Swee- 111. 83; Chicago, etc., R. Co. v. 
 
 ney, 52 111. 325. Dunn, 61 111. 384; Indianapolis, 
 
 "No inflexible rule "an be laid etc., R. Co. v. Stables, 62 111. 313; 
 
 down. Each case must depend Chicago, etc., R. Co. v. Still, 19 
 
 upon its own circumstances." 111. 499; Illinois, etc., R. Co. v. 
 
 Chicago, etc., R, Co. v. Sweeney, Middlesworth, 43 111. 64; St. 
 
 52 111. 325; Chicago, etc., R. Oo. v. Louis, etc., R. Co. v. Manly. 58 111. 
 
 Triplett, 38 111 482 ; Chicago, etc., 300: Toledo, etc.. Ry. Co. v Spencer, 
 
 R. Co. V. Gretzner, 46 111. 74; 66 111. 528: Illinois Cent. R. Co. 
 
 Coursen v. Ely, 37 111. 338; Chi- v. Maffit. 67 111. 431; Chicago, 
 
 cago, etc., R. Co. v. Hogarth, 38 etc., R. Co. v. Payne, 59 111. 534; 
 
 111. 370; Illinois Central R. R. Co. Chicago, etc., R. Co. v. Van Pat- 
 
 V. Simmons, 38 111. 242: St. Louis, ten, 64 111. 510; Peoria Bridge, 
 
 etc., R. Co. V. Todd. 36 Til. 409; etc., v. Loomie, 20 111. 236; Ohio, 
 
 Chicago, etc., R. Co. v. Poudrom, etc., R. Co. v, Shonefelt, 47 111.
 
 164 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 § 99. Willful injury by defendant— Slight negligence of 
 plaintiff. — "The rule of this court is, that negligence is rela- 
 tive, and that a plaintiff, although guilty of negligence which 
 may have contributed to the injury, may hold the defendant 
 liable, if he has been guilty of a higher degree of negligence, 
 amounting to willful injury. The fact that a plaintiff is 
 guilty of a slight negligence, does not absolve the defendant 
 from the use of care and all reasonable efforts to avoid the 
 injury. The negligence of the plaintiff does not license the 
 defendant to wantonly or willfully destroy the plaintiff's 
 property. Each party must be held to the use of all reason- 
 able efforts to avoid the injury, and the negligence of one 
 party does not absolve the other from diligence and cau- 
 tion. "^^ 
 
 § 100. Mere preponderance of negligence against defend- 
 ant not sufficient. — Mere preponderance of negligence on the 
 part of the defendant over that of the plaintiff's did not au- 
 thorize the plaintiff to recover ; and to say to the jury that 
 the plaintiff might recover if the plaintiff's negligence were 
 less than that of the defendant was error, for that authorized 
 a recovery even if the defendant's negligence merely pre- 
 ponderated over that of the plaintiff. For the plaintiff 
 could recover only where his negligence was slight in com- 
 parison with that of the defendant's negligence.'^*' 
 
 497; Chicago, etc., R. Co. v. ^Nhir- Chicago, etc., R. Co. 83 111. 405. 
 
 ray, 62 111. 326; Pittsburg, etc., "St. Louis, etc., R. Co. v. Todd, 
 
 R. Co. V. Knut?on, 69 111. 103; 36 111. 400; Peoria, etc., R. Co. v. 
 
 Rockford, etc., R. Co. v. Hillmer, Champ, 75 111. 577. 
 
 72 111. 235: Chicago, etc., R. Co. "Chicago, r -., R. Co. v. Dunn, 
 
 V. Mock, 72 111. 141; Kookuk 61 111. 385; Indianapolis, etc., R. 
 
 Packet Co. v. Henry, 50 111. 264; Co. v. Stables, 62 111. 313; Illinoia 
 
 Illinois Cent. R. Co. v. Cragin, 71 Cent. R. Co. v. MofTit, 67 111. 431; 
 
 HI. 177; Toledo, etc.. Ry. Co. v. Chicago, etc., R. Co. v. Van Pat- 
 
 McGinnis, 71 111. 346; Chicago, ten, 64 111. 510; Chicago, etc., R. 
 
 etc., R. Co. V. Cass, 73 111. 394; Co. v. Lee, 68 111. 576; Chicago, 
 
 Cliicago, etc., R. Co. v. Do^-hue, etc., R. Co. v. Lee, 60 111. 501; 
 
 75 Til. 106; Toledo, etc., Ry. Co. Chicago, etc., R. Co. v. Mock, 72 
 
 V. OT'Dnnor. 77 111. 301; Kcwanee HI. 14L 
 V. Depew, 80 HI. 119; Schmidt v.
 
 CONTRIBUTORY AND COMPARATIVE NKGLIGKNCE, IQ^ 
 
 § 101 — Jury must compare the negligence of the defendant 
 with that of the plaintiff. — It was for the jury to determine 
 whether the plaintiff's negligence was slight in comparison 
 with that of the defendant, or whether it w^as equal or greater. 
 They had to compare the degrees of negligence. And it was 
 proper to instruct the jury that if the plaintiff had been 
 guilty of unreasonable negligence, and the defendant guilty 
 of gross negligence, they should find for the latter." And 
 an instruction limiting a recovery to the negligence of the 
 defendant and freedom of the plaintiff from negligence ma- 
 terially contributing to the injury, was erroneous ; for it kept 
 out of view the rule of comparative negligence.''® "The gross 
 negligence of the defendant is as indispensable an element 
 as the slight negligence of the deceased; and it appearing 
 from the evidence that there is contributive negligence on 
 the part of the plaintiff or the deceased, it is for the jury 
 to determine, from all the evidence, the relative degrees of 
 the negligence of the parties, and unless they be satis- 
 fied that of the plaintiff or deceased is slight and that of the 
 defendant gross in comparison with each other, there can be 
 no recovery. The onus, in establishing the relative degrees 
 of negligence, is not thrown on the defendant.''^ Neither 
 party, in the first instance, is assumed to have been negligent. 
 The negligence must be proved, and unless it appears from 
 the proof that the plaintiff's care, under all the evidence, is 
 proved as alleged, there can be no recovery."®'^ 
 
 § 102. Instructions must require comparison. — Care had to 
 be used instructing the jury that the defendant's negli- 
 
 "" Illinois Central K. Co. v. Mid- ^9 Citing Indianaj-olis, etc., R. 
 
 dlesworth, 43 111. 64. Chicago, Go. v. Evans, 88 111. 63. 
 
 etc., R. Co. V. Payne, 59 111. 534; so Chicago, etc., R. Co. v. Har- 
 
 Chicago, etc., R. Co. v. Lee, 60 wood, 90 111. 425 ; Chicago, etc.. R. 
 
 111. 501; Illinois Central R. Co. v. Co. v. Dimiek, 96 111. 42; Chicago, 
 
 Cragin, 71 111. 177; Schmidt v. etc., R. Co. v. Triplett, 38 111. 482; 
 
 Chicago, etc., R. Co. 83 111. 405. f,f>'.,f ^'""^^^ ^- ^*^™*' ^^^ 
 
 "Gchmidt V. Chicago, etc., R. "^ 
 Co. 83 111. 405; Illinois, etc.. R. 
 Co. V. Hetherington, 83 111. 510.
 
 166 FEDERAL EMPLOYERS' LIABILITY ACT, 
 
 gence must be ''gross" in order to enable the plaintiff to 
 recover whether his negligence was slight. "The jury must 
 be told, to authorize a recovery, it must appear, from the 
 evidence, that the negligence of the plaintiff is slight and 
 that of the defendant's gross, in comparison with each other, 
 and it will not be sufficient simply to say the plaintiff may 
 recover, though negligent, provided his negligence is slight 
 in comoarison with that of the defendant. ' ' ^^ 
 
 § 103. Illustration — Engine striking hand car — Unlawful 
 
 speed. — A case of collision of a hand car and an engine, il- 
 lustrates somewhat the rule of comparative negligence. The 
 collision took place in a city, and at the time the engine was 
 running at a speed prohibited by an ordinance, and no bell 
 was rung or whistle sounded. The laborer was on the hand 
 ear, which those in charge of it had been in the habit of 
 bringing into the city at the hour of the accident. The ap- 
 proach of the engine was concealed from the view of those 
 on the hand car on account of a curve, and trees and build- 
 ings. It was held that the negligence of the railroad com- 
 pany was gross, and that of the deceased, if any, was slight.®^ 
 
 § 104. Illustration — Mail crane striking fireman. — A fire- 
 man on a railroad locomotive while passing a station in the 
 night time was killed by coming in contact with a mail 
 
 ^ Chicago, etc., R. Co. v. Har- was erroneous. Chicago, etc., R. 
 
 wood, 90 111. 42.5; Illinois Cent. Co. v. Dillon, 17 111. App. 355; 
 
 R. Co. V. Hammer, 72 111. .351; Moody v. Peterson, 11 111. App. 
 
 Union, etc., Co. v. Monaghan, 1.3 180; Pittsburg, etc., Ry. Co. v. 
 
 111. App. 148; Christian v. Erwin, Shannon, 11 111. App. 222; Union, 
 
 22 111. App. 534. etc., Ry. Co. v. Kolleher, 12 111. 
 
 An instruction wliich required App. 400; Chicago, etc., R. Co. v. 
 
 the jury to find whetlier the neg- O'Connor, 13 111. App. 02. As to 
 
 ligence of the plaiiitilF was sliglit practice in Illinois in giving in- 
 
 and that of the defendant gross, structicms concerning comparative 
 
 but did not require tliem to com- negligence, see Cliicago, etc., Ry. 
 
 pare the negligence of tlie respect- Co. v. Dimick, 96 111. 42. 
 
 ive parties, and determine from "^Toledo, etc., R. Co. v. O'Con- 
 
 8uch comparison whether the one nor, 77 HI. 391. 
 was slight and the other gross,
 
 CONTRIBUTORY AND COMPARATIVE NEGLIGKNCK. IQ-J 
 
 crane or catcher near the main track. He was looking 
 out for signals when struck. Two other accidents had 
 previously occurred from the same cause, both of which 
 the company had notice. It was held that the company was 
 guilty of gross negligence ; and there might be a recovery 
 even if the fireman had been guilty of negligence in leaning 
 out from the sideway while looking for signals, his negligence 
 in that regard being slight in comparison with that of the 
 company.^^ 
 
 § 105. Admiralty suits— Apportionment of damages. — The 
 
 strict rules of the common law do not apply to suits in admir- 
 alty to recover damages for injuries inflicted. Admiralty 
 courts have alw^ays refused to be bound by the rules of that law 
 with respect to contributory negligence. Where both parties 
 have been guilty of negligence, the damages are apportioned 
 between them, usually divided equally, so that the plaintiff 
 or defendant will recover only one-half the amount of dam- 
 ages he has suffered.^* While the general rule is to give the 
 
 «» Chicago, etc., R. Co. v. Greg- Fed. Rep. 135; The Max Morris, 
 
 ory, 58 111. 272. 24 Fed. Rep. 860 (affirmed, 28 
 
 »*The Schooner Catharine, 17 Fed. Rep. 881); The Daylesford, 
 How. 170; 15 L. Ed. 233; Peters- 30 Fed. Rep. 633; The Joseph 
 field V. The Judith, Abbott on Stickney, 31 Fed. Rep. 156; the 
 Shipping, 231; The Celt, 3 Hagg. Lackawanna, 151 Fed. Rep. 499; 
 328h; The Washington, 5 Jurist, The Max Morris, 137 U. S. 1 ; 11 
 1067; The Fiends, 4 E. F. Moore, Sup. Ct. Rep. 29; Rogers v. 
 314, 322; The Seringa patam, 5 N. Steamer St. Charles, 19 How. 108; 
 of C. 61, 66; Vaux v. Salvador, 4 15 l. Ed. 563; Chamberlain v. 
 Ad. & El. 431; The Monarch, 1 Ward, 21 How. 548; 16 L. Ed. 
 Wm. Rob. 21; The Dr. Cock, 5 oil; affirming Fed. Cas. No. 
 Mon. L. Mag. 303; The Oratava, 5 17.15I; The Washington, 9 Wall. 
 Hon. L. Mag. 45, 362; Atles v. 513. 19 i,. Ed. 787; The Sap- 
 Packet Co. 21 Wall. 389; 22 L. Ed. phire, 11 Wall. 164; 20 L. Ed. 
 619, reversing 2 Dill, 479; Fed. 127; The Ariadne, 13 Wall. 475; 
 Cas. No. 10341; The City of 20 L. Ed. 542 ; reversing 7 Blatchf. 
 Carlisle, 39 Fed. Rep. 807; The 211; Fed. Cas. No. 525; The Con- 
 City of Alexandria, 17 Fed. Rep. tinental. 14 Wall. 345; 20 L. Ed. 
 390; Anderson v. The Ashbrooke, 801; reversing 8 Blatchf. 33; Fed. 
 44 Fed. Rep. 124; The Serapis, 49 Cas. No. 3.141; The Teutonia. 23 
 Fed. Rep. 393; The Wanderer, '^l Wall. 77: 23 L. Ed. 44; The Sun- 
 Fed. Rep. 140; The Explorer, 21 nyside, 91 U. S. 208; 23 L. Ed.
 
 168 
 
 FEDERAL EMPLOYERS LIABILITY ACT. 
 
 plaintiff only half his damages when he contributed to the 
 injury, yet the rule is not an inflexible one as to the amount, 
 and only a third has been allowed, interpreting the rule for 
 a division according to the respective fault of the parties.*" 
 Even gross fault does not change the general rule.*^ This 
 rule has been applied to cases of personal injury of seamen 
 after an exhaustible examination of the question.^^ 
 
 302; reversing Brown, Ad. Cas. 
 227; Fed. Cas. No. 13,620; The 
 America, 92 U. S. 432; The 
 Juniata, 93 U. S. 337; 23 L. Ed. 
 930; The Stephen Morgan, 94 U. 
 S. 599; 23 L. Ed. 930; The 
 Virginia Ehrman, 97 U. S. 309; 
 24 L. Ed. 890; The City of 
 Hartford, 97 U. S. 323; 24 L. Ed. 
 930: 11 Blatchf. 72; Fed. Cas. No. 
 2,752; The Civilta, 103 U. S. 699; 
 26 L. Ed. 599; 6 Ben. 309; Fed. 
 Cas. No. 2,775; The Connecticut, 
 103 U. S. 710; 26 L. Ed. 467; 
 The North Star, 106 U. S. 17; 1 
 Sup. Ct. Rep. 41; affirming 8 
 Blatchf. 209; Fed. Cas. No. 
 10,331; The Sterling, 106 U. S. 
 647; 1 Sup. Ct. Rep. 89; 27 L. 
 Ed. 98; The Manitoba, 122 U. S. 
 97; 7 Sup. Ct. Rep. 1158; 90 L. 
 Ed. 1095; The Columbia, 27 Fed. 
 Rep. 238; The James D. Leacy, 
 110 Fed. Rep. 685 (affirmed, 113 
 Fed. Rep. 1019; 51 C. C. A. 620) ; 
 The Providence, 98 Fed. Rep. 133; 
 38 C. C. A. 070; The New York, 
 175 U. S. 187; 20 Sup. Ct. Rep. 
 67; 44 L. Ed. 126, reversing 27 
 C. C. A. 154; 54 U. S. App. 248; 
 82 Fed. Rep. 819; Steam Dredge 
 No. 1, 134 Fed. Rep. 161; 67 C. 
 C. A. 67; 69 L. R. A. 293 (deny- 
 ing the applicability of the doc- 
 trine of Davies v. Mann,. 10 Mes. 
 & Wils. 546); The William Mur- 
 tagh, 17 Fed. Rep. 259; The 
 Bordentown, 16 Fod. Rep. 270; 
 The .Jeremiah Godfrey, 17 Fed. 
 R<'p. 738; The Monticello, 15 
 
 Fed. Rep. 474; The B. & C, 18 
 Fed. Rep. 543; The M. J. Cum- 
 mings, 18 Fed. Rep. 178; The 
 Syracuse, 18 Fed. Rep. 828; Mem- 
 pliis, etc., Co. V. Yager, etc., Co. 
 10 Fed. Rep. 395; Mason v. Steam 
 Tug, 3 Fed. Rep. 404; The Wil- 
 liam Cox, 9 Fed. Rep. 672; Con- 
 nolly V. Ross, 11 Fed. Rep. 342; 
 The David Dowe, 16 Fed. Rep. 
 154; Christian v. Van Tassel, 12 
 Fed. Rep. 884, 890; The Explorer, 
 20 Fed. Rep. 140; The E. B, 
 Ward, 20 Fed. Rep. 702; The Ma- 
 bel Comeaux, 24 Fed. Rep. 490; 
 The Mystic, 44 Ted. Rep. 399; The 
 Frank and Willi--. 45 Fed. Rep. 
 405; The Nathan Hale, 48 Fed. 
 Rep. 700; The Julia Fowler, 49 
 Fed. Rep. 279; The Serapis, 49 
 Fed. Rep. 396; The J. & J. Mc- 
 Carthy, 55 Fed. Rep. 86; The 
 Cyprus, 65 Fed. Rep. 333; Wm. 
 Johnson & Co. v. Johnson, 86 Fed. 
 Rep. 888; The Lackawanna, 151 
 Fed. Rep. 499. 
 
 "The Mary Ida, 20 Fed. Rep. 
 741. 
 
 ««The Pegasus, 19 Fed. Rep. 
 46; The IMaria Martin, 12 Wall. 
 31; 20 L. Ed. 251; affirming 2 
 Biss. 41; Fed. Cas. No. 9,079. 
 
 " Olson V. Flavel, 34 Fed. Rep. 
 477 (distinguishing The Claren- 
 don, 6 Sawy. 544; 4 Fed. Rep. 
 049. and Holmes v. Railway Co. 
 6 Sawy. 262: 5 Fed. Rep. 523); 
 The Max Morris. 137 U. S. 1; 11 
 Sup. Ct. Rep. 29; 34 L. Ed. 586;
 
 CONTRIBUTORY AND COMPARATIVE NEGLIGENCE. ^QQ 
 
 §106. Origin of admiralty rule. — "The rule of admiralty 
 in collisions," said Judge Wallace, "apportioning the loss in 
 case of mutual fault, is peculiar to the maritime law. It is 
 not derived from the civil law, which agrees with the com- 
 mon law in not allowing a party to recover for the negli- 
 gence of another where his own fault has contributed to the 
 
 affirming 24 Fed. Rep. 860, and 
 28 Fed. Rep. 881. See The 
 Daylesford, 30 Fed. Rep. 633; 
 The Joseph Stickney, 31 Fed. 
 Rep. 156. 
 
 "We think tlie rule dividing the 
 loss, the most just and equitable, 
 and as best tending to induce care 
 and vigilance on both sides in 
 navigation." Schooner Catharine 
 V. Dickinson, 17 How. 170; 15 L. 
 Ed. 233; The Mary Patten, 2 
 Low. 196. 
 
 "As the Saxe thus contributed 
 to the collision, I must hold her 
 also in fault, and order the dam- 
 ages to be divided, and a decree 
 will be entered accordingly." The 
 Ant, 3 Fed. Rep. 294. See Vessel 
 Owners' Towing Co. v. Wilson, 63 
 Fed. Rep. 630; 24 U. S. App. 49; 
 The Edward Luckenbach, 94 Fed. 
 Rep. 545; Belden v. Chase, 150 
 U. S. 691; 14 Sup. Ct. Rep. 269; 
 37 L. Ed. 1218, reversing 117 N. 
 Y. 637; 22 N. E. Rep. 963; 
 The Victory, 68 Fed. Rep. 400; 
 25 U. S. App 271. 
 
 Senator Piles: "The rule of ad- 
 miralty is this, as it has been de- 
 cided by the Supreme Court of 
 the United States: That if an in- 
 jury occurs on board ship, or one 
 wliich has relation to the courts 
 of admiralty, the court divides 
 the damages between the ship and 
 the person who received the in- 
 jury. It is not necessary that 
 the master should have seen the 
 accident; that he should have 
 
 stood there, or that any one rep- 
 resenting the master of the ship 
 was pi-esent. If the hold of the 
 ship is left open, and a seaman 
 on board that ship, through his 
 own negligence, in the absence of 
 the master, carelesslj' passes along 
 the deck and falls into an un- 
 lighted hold or hatchway, he can 
 recover damages against the ship 
 in an action in rem for whatever 
 he may be entitled to, deducting 
 therefrom, as the court will, the 
 amount the court thinks should 
 be deducted by reason of his own 
 negligence. In other words, the 
 court will find in an admiralty 
 case, under the circumstances I 
 have stated, and altogether in the 
 absence of the master, the amount 
 of damages the complainant or 
 libelant is entitled to. If it be 
 $10,000, and the court finds that 
 one-half of that was the result of 
 the libelant's own negligence, and 
 the other half was the result of 
 the negligence of the ship, the 
 master or mate, then, on account 
 of his own contributory negli- 
 gence in the case, the court would 
 deduct $5,000 from the amount 
 which the libelant otherwise 
 would be entitled to recover. It 
 does not necessitate the presence 
 of any one on board the ship 
 representing the ship, directing 
 him to go into it to entitle him 
 to recover." 00 Cong. Record, 
 1st Sess., p. 4536.
 
 170 FEDERAL EMPLOYERS' LLiBlLITY ACT. 
 
 injury. It emanated from the ancient maritime codes and 
 the reasons which are assigned by commentators £3 commend- 
 ing it are various and divergent. According to Clieroe,*' 
 'this rule of division is a rustic sort of determination, and 
 such as arbiters and amicable compromisers of dispute com- 
 monly follow where they cannot discover the motives of the 
 parties, or where they see fault on both sides.' He thought 
 its object was to prevent owners of old and worthless ships 
 from getting them run down on purpose, in order to found a 
 claim for excessive damage. Mr. Bell defends the rule upon 
 expediency, 'because,' he says, 'there appears to be no suffi- 
 cient protection, without some such rule, for weak ships 
 against stronger and larger ships, the masters and crews of 
 which will undoubtedly be more careless when they know that 
 there is little risk of detection and none at all of direct dam- 
 age to their vessel, by which a smaller ship may be run down 
 without any injury to the assailant.' Lord Denman ^® says, 
 'It grows out of an arbitrary provision in the law of nations, 
 from views of general expediency, not as dictated from 
 natural justice, nor, possibly, quite consistent with it.' By 
 the laws of most of the maritime states the rule was applied 
 indiscriminately in collisions where both vessels were to blame, 
 where neither was to blame, and when the blame could not be 
 detected. In a recent article in the Law Quarterly Review,^" 
 Mr. Mersden traces the history of the recognition of the gen- 
 eral maritime law on this subject by the English admiralty 
 courts, and shows that in the earlier cases the rule of division 
 of loss was applied where there was no fault in either ship, 
 and when the cause of collision was uncertain, as well as in 
 cases where both ships were in fault. Since The Woodrop 
 Sims case ®^ the rule has only been applied in the case of both 
 ships in fault; and, as thus applied, is now adopted as a part 
 of the general municipal law of England by the Judicature 
 Act of 1873.'"'- 
 
 •*! P.f'll. Omim. (.5tli Ed.) r^H\. "2 Dods, 83. 
 
 "In Dovaux v. Salvador, 4 »= The Max Morris, 24 Fed. Rep. 
 
 Adal. & El. 420. 800; anirnicd, 28 Fed. Rep. 881; 
 
 •".July, IHHf), Vol. 2, p. 'MV?. and alTirmed on appeal to the Su-
 
 CONTRIBUTORY AND COMPARATIVE NEGLIGENCE. I'JI 
 
 § 107. Rule in admiralty commended.— This rule of the 
 admiralty court has been comnieuded by the Supreme Court 
 of the United States in the following language: "But the 
 plaintiff has elected to bring his suit in an admiralty court, 
 which has jurisdiction of the case, notwithstanding the con- 
 current right to sue at law. In this court the course of 
 proceedings is in many respects different, and the rules of 
 decisions are different. The mode of pleading is different, 
 the proceedings more summary and informal, and neither 
 party has a right to trial by jury. An important difference 
 as regards this case is the rule for estimating the damages. 
 In the common law court the defendant must pay all the 
 damages or none. If there has been, on the part of the 
 plaintiff, such carelessness or want of skilll as the common 
 law would esteem to be contributory negligence, they can 
 recover nothing. By the rule of the admiralty court, where 
 there has been such contributory negligence, or. in other 
 words, where both have been in fault, the entire damages re- 
 sulting from the collision must be equally divided between 
 the parties. This rule of the admiralty commends itself 
 quite as favorably in securing practical justice, as the other; 
 and the plaintiff, who has the selection of the forum in which 
 he will litigate, cannot complain of the rule of that forum. 
 It is not intended to say that the principles which determine 
 the existence of mutual fault, on which the damages are 
 divided in admiralty, are precisely the same as those which 
 establish contributory negligence at law that would defeat 
 the action. Each court has its own set of rules for deter- 
 
 preme Court, 137 U. S. 1; 11 cause or proceeding for damages 
 Sup. Ct. 29; 34 L. Ed. 586; af- arising out of a collision between 
 firming 28 Fed. Rep. 881; The two ships, if both ships shall be 
 Wanderer, 21 Fed. Rep. 140; The found to have been in fault, the 
 Explorer, 21 Fed. Rep. 135. The rule in force in the Courts of Ad- 
 Statute of England referred to is miralty. so far as they have been 
 Sub-div. 9, Sec. 25, Chap. 66 of 36 at variance with the rules in 
 and 37 Vict. (L. R. 8, Stat. 321), force in the Courts of Common 
 and is as follows: "(9) In any Law, shall prevail."
 
 172 
 
 FEDERAL EMPLOYERS LLVBILITY ACT. 
 
 mining these questions, which may be in some respects the 
 same, but in others vary materially."-'^ 
 
 § 108. Difficulty of apportioning damages. — In an early 
 Kansas case Justice Brewer refers to the difficulty of appor- 
 tioning the damages between the parties where both are 
 guilty of negligence contributing to the injury. "Logically," 
 says he, "the wrongdoer should always compensate, and the 
 \\Tong and the injury always entitle to relief. When the 
 wrong of both parties contributes to the injury, the law de- 
 clines to apportion the damages, and so leaves the injured 
 party without any compensation. This is not strictly justice. 
 The wrongdoer causing the injury ought not to be released 
 from making any compensation, simply because the injured 
 
 "Atlee V. Packet Co. 21 Wall. 
 389; 22 L. Ed. 619, reversing 2 
 Dill. 479; Fed. Cas. No. 10,341. 
 
 "In cases of marine torts, courts 
 of admiralty are in the habit of 
 giving or withholding damages 
 upon enlarged principles of jus- 
 tice and equity, and have not cir- 
 cumscribed tliemselves within the 
 positive boundaries of mere mu- 
 nicipal law;" and "they have ex- 
 ercised a conscientious discretion 
 upon the subject." Justice Story 
 in The Marianna Fh)ra. 11 Wheat. 
 1; 6 L. Ed. 405; affirming 3 
 Mason, 116; Ee'*. Cas. No. 9,080. 
 
 "The moiety rule in collision 
 cases was adopted," said Justice 
 Bradley, "for the better distri- 
 bution of justice among mutual 
 wrongdoers." The Alabama, 92 
 U. S. 695; 23 L. Ed. 763; re- 
 versing 11 Hlatchf. 482; Fed. Cas. 
 No. 123. 
 
 "I'ndcr the circumstances at- 
 t*'nding tliese disasters, in case of 
 mutual fault, we think the rule 
 dividing tlie loss the most just 
 and ('(pi liable, and as best tending 
 
 to induce care and vigilance on 
 both sides in navigation." The 
 Catjiarine, 17 How. 170; 15 L. 
 Ed. 233. 
 
 "The more equal distribution 
 of justice, the dictates of human- 
 ity, the safety of life and limb, 
 and the public good will, I think, 
 be clearlj' best promoted by hold- 
 ing vessels liable to bear some 
 part of the actual pecuniary loss, 
 where their fault is clear, pro- 
 vided that the libelant's fault, 
 though evident, is neither willful 
 nor gross, nor inexcusable, and 
 where the other circumstances 
 present a strong case for his re- 
 lief. Such a rule will certainly 
 not diminish the care of laborers 
 for their own safety, while it will 
 surely tend to quicken the atten- 
 tion of the owners and masters 
 of vessels towards providing al 
 needful means for the safety o: 
 life and limb." The Max Morris. 
 24 Fed. Rep. 861; affirmed 137 
 U. S. 1; 11 Sup. Ct. Rep. 29; 35 
 L. Ed. 586; The Scandinavia, 156 
 P^ed. Rep. 403.
 
 CONTRIBUTORY AMD COMPARATIVE NEGLIGENCE. ^73 
 
 party is also a wrongdoer, and helped to produce the injury. 
 But many considerations, especially the difficult}^ of appor- 
 tioning the damages and determining to what extent the 
 wrong of the respective parties was instrumental in causing 
 the injury, uphold the rule so universally recognized, that 
 where the wrong, the negligence of both parties, contributes 
 to the injury, the law will not afford relief. ' ' ^* 
 
 § 109. Assumption of risk. — If the servant has assumed the 
 ris"k in the performance of the act wherein he was injured, 
 and the defendant is not otherwise negligent, then such serv- 
 ant cannot recover; and the doctrine of comparative negli- 
 gence, or a division of damages in admiralty cases, has no 
 place in the case.®^ 
 
 § 110. Contributory negligence does not prevent a recovery 
 — How damages are apportioned.— By examination oi the 
 cases cited in the foregoing sections it will be perceived 
 that while the Georgia and Illinois cases are analogous, they 
 are not strictly in point regarding the recovery of damages 
 under the federal statutes where the plaintiff has been guilty 
 of contributory negligence; for that statute lays down a 
 rule that is broader and more liberal than those announced 
 by either of these state courts or than is laid down by the 
 several sections of the Georgia code when construed together. 
 The federal statute allows a recovery in all cases where the 
 plaintiff has been guilty of negligence and the defendant has 
 likewise been guilty, both of their negligent acts joining and 
 producing the injury. When that fact is ascertained, then 
 the sole question is the proportion of the amount of damages 
 he has suffered that the plaintiff is entitled to recover. It 
 
 "Kansas Pacific Ry. Co. V. Serapis, 51 Fed. Rep. 92, 266; re- 
 Pointer, 14 Kan. 37. versing 49 Fed. Rep. 393; The Ma- 
 
 »=The Scandinavia, 156 Fed. liarajah, 40 Fed. Rep 784; The 
 
 Rep. 403; The Sara-toga, 94 Fed. Henry B. Fiske. 141 Fed. Rep. 188; 
 
 Rep. 221; 36 C. C. A. 208, re- The Carl, 18 Fed. Rep. 655. 
 versing 87 Fed. Rep. 349; The
 
 174 FEDERAL employers' LIABILITY ACT. 
 
 is not a question of slight and gross negligence, as .. was in 
 Illinois; it is not a question of where the plaintiff's negli- 
 gence began in order to constitute it contributory negligence, 
 as in Georgia. The rule in admiralty approaches nearer the 
 rule of this statute than of any of the decisions of the states; 
 for there the damages are apportioned according to the re- 
 spective faults of the two parties. Under the federal statute 
 it becomes the duty of the court, if it is trying the case, or 
 the jury if that is the method (rf trial, according to the Illi- 
 nois rule, to compare the negligence of the plaintiff with 
 that of the defendant, in order to determine the quantum of 
 damages he is entitled to recover ; and the comparison cannot 
 be made with some standard outside the case. Of course, if 
 the defendant has not been guilty of negligence, there can be 
 no rcovery; and that question must always be the most vital 
 and the controlling one in the case. The assumption of the 
 risk is another question to be considered. Neither of these 
 two rules (except the failure to comply with the provision 
 of the statute concerning safe appliances) have been either 
 abrogated or in any wise changed. If the plaintiff's negli- 
 gence was as great as that of the defendant, he recovers 
 one-half of his damages. So he may recover if his negligence 
 was greater than that of the defendant. But if he was not 
 guilty of any negligence contributing to his injuries, then 
 he recovers full damages; and in determining Avhether he 
 was guilty of contributory negligence the entire facts, as 
 disclosed by the evidence, must be considered. The court 
 must apportion the damages, according to the relative amount 
 of the negligence of the parties, or the jury must do like- 
 wise if it tries the case. Necessarily the court can lay down 
 for the guidance of the jury only a general rule upon the 
 subject. "For the apportionment of damages according to 
 the relative fault of the parties," said the Supreme Court 
 of Georgia, "there seems to be no standard more definite 
 than the enlightened opinion of the jury. ""^ 
 
 "fiporpia, etc., Co. v. Neely, Some lijrlit nia." be gleaned 
 
 r)(\ Ha. 580. from some Tennessee cases. See
 
 CJNTRIBUTORY AND COMPARATIVE NEGLIGENCE. 5^75 
 
 § 111. Negligence of plaintiff necessary to concur with 
 defendants to produce the injury. — An interesting question 
 is this : ' ' Suppose the negligence of the plaintiff was neces- 
 sary so that it might concur with that of the defend- 
 ant's negligence in order to occasion the injury; can the 
 plaintiff recover?" It would seem that the statute is broad 
 enough to justify a recovery by the plaintiff of his damages. 
 It is true that the plaintiff must have been guilty of negli- 
 gence, else the injury would not have been occasioned; but 
 it is also true that the defendant must have been guilty of 
 negligence in order to occasion the injury. Plaintiff's negli- 
 gence, therefore, was nothing more than contributory negli- 
 gence of a grave character ; and is such negligence as does not 
 prevent a recovery on his part for some of his damages.'^* 
 
 § 112. Court cannot lay down exact rules for apportion- 
 ment of damages.— It is clear that courts cannot lay down 
 rigid rules for the apportionment of the damages in a par- 
 ticular case. This is a fact that must be left to the jury, 
 practically without directions The remarks of Justice 
 Cooley upon negligence in general throw some light upon 
 
 Nashville, etc., R. Co. v. Carroll, spirit in wkich they were enacted. 
 
 6 Heisk. 347; Duch v. Fitzhugh, It is to be feared they will not-. 
 
 21 Lea (Tenn.) 307; Hill v. Nash- "The reason why, in case of mn- 
 
 ville, etc., R. Co. 9 Heisk. 823; tual, concurring negligence, neither 
 
 Smith V. Nashvine, etc., R. Co. 6 party can maintain an action 
 
 Heisk. 174; Railroad Co. v. Walk- against the other,'" said Justice 
 
 er, 11 Heisk. 383; Jackson v. strong, of Pennsylvania, "is not 
 
 Nashville, etc., R. Co. 13 Lea, 401; ^^^^ ^^^ ^P"g ^^ ^\ «"« '\^^^ 
 
 49 Am. Rep. 663; Nashville etc., off against the wrong of the other; 
 
 R. Co. V. Wheles, 10 Lea, 471; 43 l^ '^' *^^^, ^\^, ^^^ '^""^^ "'^^"""^ 
 
 A T) nT7 TX71 • 1 TT71 -J. "ow mucli thc damages suffered 
 
 Am. Rep. 317; Whirley v. White- . -j. -v . ui x iiT 1 • x-o-. 
 
 , TT , «,/% IS attributable to the plaintiff i 
 
 man, 1 Head, 610. „ , ,,1^ » tt m r<i j- An 
 
 ' ' . own fault. Hell v. Glanding, 42 
 
 Erroneous notions that com- p^^ g^ ^qq 
 
 parative negligence obtained in 96* Under' the Wisconsin statute 
 Kentucky has prevailed; but they (Laws 1907, p. 495, c. 254) the 
 are unfounded. See article of negligence of the defendant rail- 
 Helm Bruce, Esq., in Kentucky road must be greater than that 
 Law Journal for April, 1882, and of the plaintiff in order that there 
 Kentucky, etc., R. Co. v. Thomas, may be a recovery where the plain- 
 79 Ky. 160; 42 Am. Rep. 208. tiff's negligence has contributed to 
 It remains to see whether the the injury. Zeratsky v. Chicago, 
 courts will accept the provisions M. & St. P. Ry. Co. 141 Wis. 423; 
 of the section quoted at the be- 123 N. W. 904. 
 ginning of this ct apter in the
 
 176 FEDERAL EMPLOYERS* LIABILITY ACT. 
 
 the subject: "Negligence, as I understand it," says he, 
 "consists in a want of that reasonable care which would be 
 exercised by a person of ordinary prudence, under all the 
 existing circumstances, in view of the probable danger of 
 injury. The danger is, therefore, one which must take into 
 consideration all these circumstances, and it must measure 
 the prudence of the parties' conduct by a standard of be- 
 havior likely to have been adopted by other persons of 
 common prudence. Moreover, if the danger depends at all 
 upon the action of any other person under a given set of 
 circumstances, the prudence of the party injured must be 
 estimated in view of what he had a right to expect from 
 such other person, and he is not to be considered blamable 
 if the injury has resulted from the action of another which 
 he could not reasonably have anticipated. Thus the problem 
 is complicated by the necessity of taking into account the 
 two sets of circumstances affecting the conduct of different 
 persons; it is only to be satisfactorily solved by the jury 
 placing themselves in the position of the injured person and 
 examining those circumstances as they then presented them- 
 selves to him, and from that standpoint judging whether he 
 was guilty of negligence or not. It is evident that such a 
 problem cannot usually be one upon which the law can 
 pronounce a definite sentence, and that it must be left to the 
 sifting and determinaion of a jury. ' ' '•''' 
 
 " Detroit, etc., R. Co. v. Van more prudent, nor that the adop- 
 Steinhurg, 17 Mich. 99, 118. See tion of the more hazardous was, 
 Briggs V. Taylor, 28 Vt. 183; under all the circumstances, as a 
 North Pennsylvania R. Co. v. matter of law, contributory neg- 
 Heileman, 49 Pa. St. 60; Bolton iigence." Hawkins v. Johnston, 
 V. Frink, 51 Conn. 342; 50 Am. 105 Ind. 29; 4 N. E. Rep. 172; 
 Rep. 24; Isbell v. New York, etc., Brazil, etc., Co. v. Hoodlet, 129 
 R. Co. 27 Conn. 393; Meesel v. Ind. 327; 27 N. E. Rep. 741; 
 Lynn, etc., R. Co. 8 Allen, 234; Cleveland, etc., Ry. Co. v. Patter- 
 Ireland V. Cswego, etc., R. Co. 13 son, 37 Ind. App. 617; 78 N. E, 
 N. Y. 533; Railroad Co. v. Stout, Rep. 681; Stephens v American, 
 17 Wall. 657: 21 L. Ed. 745; etc., Co. 38 Ind. App. 414; 78 N. 
 ifTirming 2 Dill. 294; Fed. Cas. E. Rep. 335; Columbus, etc.. Co. 
 No. 13,504. V. Burke, 37 Ind. App. 518; 77 
 
 "The court could not say that X. E. Rep. 409. 
 one course or the other was the
 
 CONTRIBUTORY AND COMPARATIVE NEGLIGENCE. 5^77 
 
 § 113. Statute does not adopt a theory of slight, ordinary 
 and gross negligence. — Under the Wisconsin statute the de- 
 fendant's negligence must be greater than that of the plain- 
 tiff's before there can be a recovery. If the negligence of 
 both be equal, or that of the plaintiff the greater, there can 
 be no recovery. In this respect it differs from the Federal 
 statute ; for under that statute, as we have observed, the 
 plaintiff may recover although his negligence contributed 
 more to the injury than that of the defendant. In one case 
 it was contended that the Wisconsin statute called for the 
 application of the old and now nearly obsolete rule of 
 slight, ordinary, and gross negligence, and that such degrees 
 of negligence should be observed in comparing as con- 
 tributing causes the negligence of the railroad company 
 and that of the injured person. But the Supreme Court of 
 the state said: "We discover no such intent or provision 
 in the law, nor do we claim it impracticable to have the 
 jury judge whether the negligence of the injured person 
 contributing to the cause of the injury is slighter or greater 
 than that attributable to the company. Applying the statute 
 to the case before us, we cannot accede to the defendant's 
 claim that it would be mere speculation and guesswork for 
 the jury to attempt to determine whether the plaintiff's 
 contributory negligence was slighter or greater as a con- 
 tributing cause than that of the defendant."®^* 
 
 § 114. Directing the verdict — Due care. — The statute in- 
 troduces new rules concerning the directing of the verdict. 
 Even the rule prevailing in Georgia cannot be followed; for 
 as we have seen this federal statute is not complicated with 
 
 97* Zeratsky v. Chicago, M. & the jury to fin i whether the plain- 
 
 St. P. Ry. Co. 141 Wis. 423; 123 tiff's negligence was "less or 
 
 N. W. '904. greater" instead of "slighter or 
 
 Under this statute the jury is re- greater." "The word 'less' as here 
 
 quired to specifically find "whether used conveyed the same idea to the 
 
 the negligence of the party so in jury as the word 'slighter' as used 
 
 jured was slighter or greater than in the statute." Boucher v. Wis- 
 
 that of the company." It was held oonsin Central Ky Co. 141 Wis. 
 
 Qot error to submit a question to 160; 123 N. W. 913.
 
 178 FEDERAL EMPLOYERS LIABILITY ACT. 
 
 what are in a measure antagonistic clauses in different sec- 
 tions. It does not require of the plaintiff the exercise of due 
 care; and if he did not use due care, that fault of his only- 
 goes to the reduction of his damages. There are many in- 
 stances in which courts have laid down rules applicable to 
 them in which it has been held that the plaintiff had been 
 guilty of contributory negligence and so could not recover. 
 In such cases verdicts have been directed. But the sole 
 question there before the court was, "Had the plaintiff been 
 guilty of contributory negligence?" within the rules adopted 
 by the courts in the specific instance; and if his case fell 
 within one of those rules, he must suffer a defeat, and the 
 court could either enter a non-suit or direct a verdict. But 
 these instances are no longer applicable ; for the court cannot 
 weigh the respective negligence of the parties. That is a 
 question for the jury, and it is the jury's sole province to 
 determine. If, however, the evidence clearly shows that the 
 defendant was not guilty of negligence, then, of course, the 
 court may direct the verdict for him, in which event there 
 would be no damages to assess.^^^ 
 
 880 Horton v. Seaboard Air Line R. the employee so injured, and con- 
 Co. 157 N. C. 146; 72 S. E. 958; tributing 'in a greater degree to 
 Baltimore & Ohio R. Co. v. ^Yhitacre such injury, then the plaintifT shall 
 (I\Id.) 92 Atl. 1060. The Wisconsin ^g entitled to recover." In con- 
 statute requires the court to submit to , • .-.• „4. X 4. XI O ™ 
 ,, • ii i- u xu strumg this statute the Supreme 
 the jury the questions whether any _ . r xi. x x -j «t j 
 
 neghgcnce attributable to the rail- ^^"'"^ «^ ^^^ ^^^ ^^^^'- I" *^- 
 
 road defendant "directly contrib- ministering the statute in court 
 
 uted to the injury," and, if such as they actually arise, it devolves 
 
 negligence is found, "whether the on the court to determine whether 
 
 person injured was guilty of any there is any evidence tending to 
 
 negligence which directly contrib- ^how negligence attributable to the 
 
 uted to the injury," and if the [railroad] company, and contribu- 
 
 jury then hnd the injured person . ,. * xu • • j 
 
 guilty of contributory negligence, tory negligence of the injured per- 
 
 the court shall then submit to ^^^ ^"'«^ proximately contributed 
 
 them the inquiry "whether the neg- to the injury complained of. If 
 
 ligencc! of the party so injured the evidence produced tends to 
 
 was slighter or greater as a con- shoAV that the negbgence of both 
 
 tributing cause to the injury than parties! to the action concurred to 
 
 that of the company " It is fur- produce the injury, unless the evi- 
 
 ther provided that in all cases , . i j j- x j 
 
 where the jury shall find that the ''T" '" «?/'^«''- «"^ undisputed 
 
 negligence of the company * • • '^^ ^o permit of only one inference 
 
 was greater than the negligence of »" ^he question, it then becomes a
 
 CONTRIBUTORY AND COMPARATIVE NEGLIGENCE. I79 
 
 § 115. Court telling jury particular acts constitute con- 
 tributory negligence.— But because the court cannot direct 
 the verdict, it does not follow that the court cannot inform 
 the jury that the facts proven show the plaintiff had been 
 guilty of contributory negligence, where the facts and in- 
 ferences to be drawn from them are not conflicting as to 
 the fact that contributory negligence existed, or where 
 courts, by reason of a long line of like repeated facts coming 
 before them have adopted rules that as to the conduct of 
 the plaintiff in such instances the courts will say, as a mat- 
 ter of law. that the plaintiff, in law, had contributed to his 
 own injuries and could not recover. Where the court, how- 
 
 question for the jury to determine 
 whether the negligence of the in- 
 jured party was slighter or greater 
 as a contributing cause to the in- 
 jury than attributable to the com- 
 pany. In case the evidence per- 
 mits of only one inference it 
 devolves on the court to decide 
 the issue as a matter of law. 
 Whether a case is one for a court 
 or jury to determine cannot be 
 settled by any general rule or 
 classification of cases, but must be 
 determined in the light of the facts 
 and circumstances of each partic- 
 ular case. The question is not 
 ascertainable by any rule of abso- 
 lute measurement, and it therefore 
 must be submitted to human judg- 
 ment. Zeratsky v. Chicago, M. 
 & St. P. Ry. Co. 141 Wis. 423; 
 123 N. W. 904; Boucher v. Wiscon- 
 sin Cent. Ry. Co. 141 Wis. IGO; 
 123 N. W. 913; Kiley v. Chicago, 
 M. & St. P. R. Co. 138 Wis. 215; 
 119 N. W. 309: 120 N. W. 75G. 
 
 "The Act of Congress of 1908 
 clearly forbids a nonsuit to be 
 entered in any case where there is 
 evidence of negligence on the part 
 of the defendant. As under this 
 statute the plaintiff can elect to 
 
 sue in the state courts, he has 
 naturally chosen to bring his ac- 
 tion under the provision of the 
 Federal statute. . . . All that 
 is necessary for us to say in this 
 case is that the plaintiff was en- 
 gagetl in interstate commerce at 
 the time of his injury-, that there 
 was evidence of negligence on the 
 part of the defendant; that the 
 plaintiff could elect to sue in the 
 state court, specifying in his com- 
 plaint, as he does, that he invokes 
 the protection of the Federal stat- 
 ute; and that under its terms the 
 court is forbidden to direct a non- 
 suit upon the ground that there 
 is evidence of contributory negli- 
 gence shown by the plaintiff's testi- 
 mony, because tlie statute provides 
 that, though the plaintiff may have 
 been guilty of contributory negli- 
 gence, it shall not bar a recovery. 
 In directing a nonsuit, therefore 
 the judge was guilty of error." 
 Horton v. Seaboard Air Line Ry. 
 Co. (X. C.) 72 S. E. 958. It 
 would be otherwise if the facts did 
 not bring the plaintiff within the 
 terms of the statute. Zachary v. 
 North Carolina R. Co. I06 N.C.496; 
 72 S. E. 858.
 
 180 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 ever, has said this to the jury — not that the plaintiff could 
 not recover, but that he had been guilty of contributory 
 negligence — it can go no further ; for then it becomes the 
 duty of the jury to weigh and determine the relative faults 
 of the party and award or withhold damages accordingly. 
 
 § 116. Rules of contributory neglig-ence must be consid- 
 ered. — The well known rule concerning what is and what is 
 not contributory negligence must be considered, and the law 
 applicable thereto constantly be borne in mind. They cannot 
 be ignored. The statute in no way modifies them, except in 
 the proviso when the defendant has violated a statute 
 "enacted for the safety of employe." If the injury was 
 inflicted by the failure of the defendant to comply with such 
 a statute, then he cannot be held to have been guilty of con- 
 tributory negligence. 
 
 § 117. Injury occasioned by defendant having violated a 
 safety device statute. — The section quoted at the beginning 
 of this chapter expressly provides, "That no employe who 
 may be injured or killed shall be held to have been guilty of 
 contributory negligence in any case where the violation by 
 such common carrier of any statute enacted for the safety 
 of employes contributed to the injury or death of such em- 
 ploye." A subsequent section of this statute provides that 
 the employe cannot be held to have assumed the risk where 
 he is injured or killed by the violation by the defendant of 
 any statute imacted for the safety of employes contributive to 
 such injury or death. 
 
 § 118. Presenting the defense of contributory negligence — 
 Burden. — This Federal statute has not changed the rule 
 with reference to the presentation of contributory negligence 
 as a defense, except it is now only a partial defense. In 
 the federal courts the ])urden of presenting contributory 
 negligence of the plaintiff as a defense has always been upon 
 
 • Raines v. Southern Ry. Co. (N. C.) 85 S. E. 294; Pfeiffer v. Oregon-W. 
 11 & N. Co. (Ore.) 144 Pac. 762.
 
 CONTKlBUTOKi: AND COMPARATIVE NKGLIGEXCE. ^g^ 
 
 the defendant,^^ and this burden still continues in a suit 
 brought under this statute. But where the action is brought 
 in the state court then the practice peculiar to that state 
 need not necessarily prevail, unless the burden to show con- 
 tributory negligence, before the enactment of this statute, has 
 prevailed ; for, while the plaintiff must prove the extent of 
 his injuries and practically the amount of his damages, or 
 furnish a basis from which the jury (or court if trying the 
 case without a jury) can estimate or compute such amount, 
 it does not follow that he must first prove that amount and 
 then show to what extent they have been lessened by his own 
 contributory negligence. Therefore, when he has proven his 
 injury and its extent and other attendant facts, thus show- 
 ing a basis from which the jury can estimate his damages, 
 if the defendant desires to reduce them by showing plain- 
 tiff's contributory negligence he has the burden to do so. 
 It necessarily results that if the action is brought in a state 
 court, the burden is upon the defendant to show plaintiff's 
 contributory negligence, if he desires to reduce what the 
 amount of the damages would otherwise be; and that the 
 rule of a state practice casting a burden upon the plaintiff 
 to show his freedom from fault before he can recover, has 
 
 ** Railroad Co. v. Gladmon, 15 damages, for instance, injured 
 Wall. 401; 21 L. Ed. 114; In- several other persons who recover 
 dianapolis, etc., R. Co. v. Horst, damages from the employer. Can 
 93 U. tt. 291; 23 L. Ed. 898; the latter, when sued by his em- 
 Hough V. Railway Co. 100 U. S. ployee, by counter claim (in those 
 213; 25 L. Ed. 612, reversing Fed. states allowing a counter claim 
 Cas. No. 6,221; Crew v. St. Louis, in actions to recover damages oc- 
 etc, R. Co. 20 Fed. Rep. 87; Hull casioned by negligence) reduce the 
 V. Richmond, 2 Woodb. & M. 337; damages or defeat his action by 
 Dunmead v. American, etc., Co. 4 setting up the damages his con- 
 McCrary, 244; Dillon v. Union tributory negligence has occa- 
 Pacific R. Co. 3 Dill. 325; Morgan sioned? It is thought not; be- 
 V. Bridge Co. 5 Dill. 96; Secord v. cause the statute does not give 
 St. Paul, etc., R. Co. 5 McCrary, the employer a cause of action 
 515; Wabash, etc., R. Co. v. Cen- where his act contributed to the 
 tury Trust Co. 32 Alb. L. Jr. 96; injury, which would be the case 
 Southern Ry. Co. v. Peters (Ala.) if the coimter claim be sustained. 
 69 So. 611. 'Carpenter v. Kansas City S. Ry. 
 
 Suppose the contributory act of Co. (Mo.) 175 S. W. 234. 
 the employee caused the employer
 
 1S2 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 necessarily been changed and does not apply when the action 
 is based upon the Federal Employers' Liability Aet.^^ 
 
 § 119. When contributory negligence does not di- 
 minish daonages. The proviso to section three provides 
 that if the injury or death of the employe was occasioned 
 by the violation by the common carrier of any statute en- 
 acted for the safety of employes, or rather if the violation 
 contributed to it, the employe shall not "be held to have 
 been guilty of contributory negligence" in such case. When 
 such a case is presented the factor of the employer's con- 
 tributory negligence is not to be considered in order to 
 reduce his damages. The statute absolutely prohibits it. 
 But, of course, the violation of the statute must have been 
 the proximate cause of the injury, else the employee would 
 not be guilty of negligence at all ; and if the employe 's act 
 was the proximate cause of the injury, irrespective of the 
 violation of the statute, then he cannot recover; because 
 the employer has been guilty of no actionable negligence. 
 So, in instances of a violation of a (Federal) statute, re- 
 sulting in an injury to the employe, where section four pro- 
 vides it shall not be considered that the employe assumed 
 the risk, the damages cannot be diminished by reason of 
 his negligence contributing to the result. But in all such in- 
 stances the violation of the statute must have caused or pro- 
 duced the injury — must have been the proximate cause of it. 
 
 § 120. Examples under Wisconsin statute. — Under the 
 Wisconsin statute if the negligence of the plaintiff is 
 "slighter" than that of the defendant railroad company he 
 may recover; if their joint negligence be even he may not. 
 
 89 In Wisconsin tlie rule was slig'hter than that of the defend- 
 that the (lofendant had tlie Iturdcn ant, did not chanj^e the rule con- 
 to show that tiie jjlaintill" iiad l>cen corning kind of contributory negU- 
 rpiilty of o<mtril)utory negligence, genca that had tlieretofore existed, 
 in order to defeat the action; and Zeratsky v. Chicago. IM. & St. P. 
 it was lield that the statute of Ky. Co.' 141 Wis. 423; 123 N. W. 
 1007, allowing a recovery where 904. 
 the i>laiiiUir'3 negligence was
 
 CONTHIBUTORY AND COMPARATIVE NEGLIGENCE. ]^g3 
 
 In a ease arising under this statute the facts were substan- 
 tially as follows: The plaintiff was the rear brakeman on 
 the defendant's extra freight train, consisting of fifty-four 
 cars, caboose and an engine, which left Green Bay of that 
 state at 10:10 p. m. bound for Milwaukee. It had a full 
 crew of trainmen, consisting of the engineer, fireman, con- 
 ductor and two brakemen. The train proceeded south 
 through De Pere at 11 :05 p. m., and through Ackerton, and, 
 when about one and one-fourth miles from Hilbert Junction, 
 the engine ran out of water, and was unable to pull the 
 train to Hilbert Junction. ' * The plaintiff was in the caboose 
 when the train stopped. The engineer, fireman, conductor, 
 and the other brakeman, without informing plaintiff of 
 their intention, cut the engine from the train, and pro- 
 ceeded with it to Hilbert Junction to get a supply of water 
 without giving a signal to the plaintiff, as required by the 
 following rule of the company: 'Rule 26. The one long, 
 
 two short, and one long blast of the whistle thus, , 
 
 — , — , , will be given by engineers when they find it 
 
 necessary to stop between stations and to notify con- 
 ductor, thus enabling him to drop off and send back a 
 flagman.' As soon as plaintiff observed that the train had 
 stopped, he left the caboose, and went forward to about the 
 middle of the train to ascertain the cause of the stopping. 
 He there observed that the engine had been cut off, and 
 had left with the rest of the crew, and he then started back. 
 The plaintiff stated that, while going forward and coming 
 back, he observed the odor of a hot box, and he tapped 
 the boxes to find the one, and immediately upon his return 
 he went into the caboose to get his dope bucket to fix it. 
 He testified that he took no more time than was necessary 
 to make this trip. 'Special rules for train and engine 
 men' of the defendant contains the following: 'Rule B4. 
 Conductors and brakeman must examine their trains, when- 
 ever there is an opportunity to do so, looking particularly 
 for hot boxes and defective draft and brake rigging.' 
 Meanwhile the defendant's regular passenger train bound
 
 184 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 for Milwaukee on the same line as that on which the freight 
 was proceeding had arrived at Green Bay at about 12:30 
 a. m., and had left a few minutes later. At De Pere it was 
 permitted to enter the block which was occupied by the 
 freight train. One of the rules of the defendant was as 
 follows: 'Rule 3. Trains must not pass a block signal at 
 danger except under authority of a clearance card form 
 168.' The conductor and engineer were given permissive 
 and clearance cards under the following rules, which train- 
 men are supposed to know and obey : 
 
 'Rule 4. When the block signal stands at danger, the 
 operator issues a clearance card which states that he has 
 no orders or no further orders for the train named. The 
 train receiving clearance card may proceed if its time table 
 rates or special orders permit it to do so.' 
 
 'Rule 5. The permissive card is used when trains are 
 permitted to pass a block signal at danger and enter the 
 section under notice that the preceding train has cleared 
 the same section. This is to be used only by direction of 
 the train dispatcher.' 
 
 'Rule 6. When a train is to proceed under a permissive 
 card, the conductor and engineer must each have a card 
 of the following form properly filled out and signed by 
 the train dispatcher.' 
 
 * Rule 10. Trains running under the authority of a per- 
 missive card or caution signal must run with great care 
 and at reduced speed to ensure against collisions with trains 
 ahead.' 
 
 A special caution order was issued to the conductor and 
 engineer in these words: 'Extra east, Dietzler conductor, 
 left De Pere at 11 :42 p. m. and has not yet arrived at Hil- 
 bert Junction. Proceed cautiously, expecting to find them 
 on main line at any point without flag protection.' The 
 passenger proceeded south — or east as it is called in railroad 
 parlance — and, when running at a speed of about thirty 
 miles per hour, collided with the rear end of the freight 
 train which had stopped on the main track a mile and one-
 
 CONTRIBUTORY AND COMPARATIVE NEGLIGENCE. ^85 
 
 quarter from Ililbert Junction. The freight train crew had 
 not been specifically informed that the passenger train had 
 been permitted to enter the same block or section of track 
 as was occupied by the freight train. The plaintiff, who was 
 in the caboose of the freight train, was seriously injured 
 by the collision. The fireman of the passenger train was 
 killed, and the engineer was injured. There was a straight 
 and unobstructed stretch of track back of the caboose of 
 three thousand feet. Whether or not the red lights were 
 burning on the caboose was a disputed question on the 
 trial. 
 
 The following rules of the defendant regarding the opera- 
 tion of trains were in force at the time of the collision : 
 
 'Rule 62. When a train stops between stations, a flag- 
 man must immediately go back with proper signals to stop 
 any trains that may be following. Not a moment must be 
 lost in inquiry as to the cause of stoppage or its probable 
 duration. The flagman must go back instantly and shall 
 take not less than three torpedoes, also a red flag by day 
 and a red and white light by night, and shall place one 
 torpedo on the rail on the engineer's side when three-fourths 
 of a mile (23 telegraph poles) distant from the rear of 
 train, and at a further distance of one-fourth mile (eight 
 telegraph poles), he shall place two torpedoes on the rail 
 on the engineer's side. He will then, selecting a place where 
 the view is long and clear, remain until the train is stopped 
 or he is recalled. Returning he will leave two torpedoes 
 at the most distant point from his train and take up the 
 rest. Whenever it becomes necessary, the forward end of 
 the train shall be protected in the same manner.' 
 
 'Rule 50. ■ Train and engine men will be held equally 
 responsible for violation of any of the rules governing the 
 safety of trains, and they must take every precaution for 
 the protection of trains, even if not provided for by the 
 rule. ' 
 
 'Rule 26. Conductors will be held responsible for the 
 faithful performance of the duty required on the part of 
 their brakemen.'
 
 186 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 'Rule A58. Trains moving under permissive card will 
 be held responsible for an accident in the nature of colliding 
 with the train occupying the section which required move- 
 ment under the permissive card. Engineers will not be 
 censured for moving at a speed to insure against accident.' 
 
 The defendant alleges that the collision was caused by 
 the failure of the passenger engineer to observe its train 
 orders and the rules and regulations known to him, to- 
 gether with the contributory negligence of the plaintiff and 
 his violation of the defendant's rules and regulations." 
 
 At the close of the testimony, the court, on defendant's 
 motion, directed a verdict for the defendant, and judgment 
 was rendered upon the verdict so rendered. This was held 
 error, on the ground that the facts presented a case for the 
 jury to determine whether the negligence of the plaintiff 
 was not "slighter" than that of the defendant. The statute 
 required the jury to find if the negligence of the defendant 
 "directly contributed to the injury;" and the court con- 
 strued this to merely mean negligence proximately con- 
 tributing to the injury, and that the use of the word 
 "directly" did not operate to modify the law of proximate 
 cause in the law of negligence. "It is alleged," said the 
 court in passing on the evidence, "that the plaintiff was 
 guilty of negligence in omitting to perform his duty as 
 brakeman on the occasion in question, in that he failed to 
 protect the rear of the freight train from the passenger 
 train, and that this failure of duty by him was a proximate 
 cause of the collision and his injuries. The contention is 
 that, but for plaintiff's contributory negligence, the injury 
 would not have been received; and hence that the negli- 
 gence of the plaintiff in its most favorable aspect under the 
 law is equal to the negligence attributable to the defendant 
 as a contributing cause to the injury. In the solution of 
 this question all of the inferences from the evidential facts 
 most favorable in support of the plaintiff's alleged cause of 
 action must be assumed to be the view of the case which 
 may be taken by the jury. The contention that plaintiff's
 
 COxMTKilJUTOKY AND COMPAKATIVK XEGLIGEXCIC IQ-j 
 
 duty did not require him to flag tlie train under rule 62, 
 unless directed so to do by the train conductor or by a 
 signal from the engineer by a blast from the whistle, cannot 
 be sustained. The rule is clear in its provision that, when 
 a train stops between stations, a flagman must go back to 
 stop any train that may be following, give the prescribed 
 signals to it, and remain at the place to which he has gone 
 until the train stops or he is recalled. This duty is further 
 enjoined by rule 50, which informs persons engaged in the 
 train service that: 'Train and engine men will be held 
 equally responsible for a violation of any of the rules gov- 
 erning the safety of trains, and they must take every pre- 
 caution for the protection of trains even if not provided for 
 by the rules.' We find no support for plaintiff's claim 
 that the duty imposed by these regulations was disregarded 
 in practice to such an extent as to abrogate them. Nor is 
 it shown that the plaintiff was informed while in de- 
 fendant's service that these rules and the duties imposed 
 thereby were not obligatory on him. We think that the 
 plaintiff as rear brakeman of this train was required to 
 perform whatever duty these rules imposed on him. 
 
 **The evidence tends to show that the plaintiff was the 
 rear brakeman on a freight train which came to a stop on 
 the main track between stations. He had not been informed 
 by the engineer's signal that the train was to make a stop. 
 So far as he then knew, the train might be stopped only 
 momentarily. In the operation of trains, stops of a mo- 
 mentary character must inevitably occur, and on such 
 occasions it would be both unnecessary and impracticable 
 for the rear brakeman to leave the train at once to signal 
 a train that might be following. It is obvious that, if the 
 brakeman should immediately so leave his train on all such 
 occasions, he would on many occasions be wholly separated 
 from his train. He testifies that he went forward to a 
 point where he observed that the engine had been detached 
 from the train and had departed for Hilbert Junction ; that 
 then he crossed over to the other side of the train; that he
 
 188 
 
 FEDERAL EMPLOYERS LIABILITY ACT. 
 
 observed the odor of a hot box, and that he attempted to 
 locate it while he was returning to the caboose ; that he took 
 no more time than it naturally takes to make such a trip ; 
 that he returned to the caboose without intending to go and 
 signal the coming passenger train; that he at once looked 
 for the dope bucket in the caboose to fix the hot box; and 
 that the collision occurred immediately. It is argued that 
 this amounts to a violation of his duty under the rules and 
 establishes his contributory negligence. Upon learning that 
 the engine had departed for Plilbert Junction, it became 
 the duty of the plaintiff to procure the means and to go 
 back to signal a coming train, and in omitting so to do he 
 was guilty of not exercising that care which the situation 
 and the exigencies of the case demanded, but it is not so 
 clear that it can be held as matter of law in what degree 
 it contributed to produce the injury. The contention that 
 it amounted to the very highest degree of negligence be- 
 cause the accident would not have happened but for the 
 violation of defendant's rules seems necessarily to assume 
 that the plaintiff in making this trip to ascertain whether 
 the train was to stop more than momentarily, and in not 
 instantly, upon the stopping of the freight train, taking steps 
 to signal the coming passenger train, was guilty of such a 
 high degree of negligence as to preclude his recovery. He 
 testifies that he consumed from fifteen to twenty-five min- 
 utes on his trip ; that he relied on the red light signals dis- 
 played on the rear of the caboose to signal the coming 
 passenger train; that he went to the caboose for the dope 
 bucket to fix the hot box, and while in this act the collision 
 occurred. It is not clear from the record that, if on his 
 return to the caboose he had immediately proceeded to 
 procure his lantern and torpedoes to signal the coming 
 train, he would have prevented the collision. The degree 
 of negligence involved in these acts is not so clear that it 
 can be determined as a matter of law. Under the circum- 
 stances, it is a mixed question of law and fact which must 
 be resolved by the jury.
 
 CONTRIBUTORY AND COMPARATIVE NEGLIGENCE. ^89 
 
 "The case also demands of the jury that they determine 
 in what degree the negligence attributable to the company 
 contributed to produce the injury. Among the matters 
 bearing on this question it is alleged that the train dis- 
 patcher was derelict in his duty in permitting the pas- 
 senger train to enter the block as he did ; that the engineer 
 of the passenger train omitted to obey special and express 
 orders in running his train on the block ; and that the con- 
 ductor and the engineer of the freight train were negligent 
 in not signaling or warning this brakeman of the stop, and 
 in failing to ascertain before stopping that the plaintiff as 
 rear brakeman was on duty or capable of protecting the rear 
 of the train. In passing on the question of whether or not 
 the company's negligence caused plaintiff's injuries in 
 greater degree than that of the plaintiff, all of these facts 
 relating to the omission of duty on the part of these servants 
 who occupied positions of great responsibility in the conduct 
 of the defendant's business must be viewed in comparison 
 with the acts of the plaintiff in the light of their respective 
 duties and their responsibility to exercise a degree of care 
 commensurate to the exigencies of the situation. The case 
 is not so plain and clear that but one inference can reason- 
 ably be drawn from the evidence as to the questions, and 
 they therefore should have been submitted to the jury for 
 determination."^'^" Another case may be taken from the 
 Wisconsin Supreme Court decision that will serve to illus- 
 trate the application of the statute of that state and inci- 
 dentally throw light upon the construction of the Federal 
 statute. The following is the statement of the case as made 
 by the court with so much of the opinion of the court as 
 passes upon the question of the contributory negligence of 
 the plaintiff: 
 
 "At North Fond du Lac the defendant had an arrange- 
 ment for handling cinders. The arrangement is the only one 
 
 looZeratskv v. Chicago, IVL & St. P. Ry. Co. 141 Wis. 423; 123 
 N. W. 904.
 
 190 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 of its kind operated by the defendant. Under one of the 
 defendant's tracks is what is known as the 'cinder pit.' 
 On the bottom of the cinder pit, which lies nine or ten feet 
 below the track, are two sets of parallel tracks running 
 east and west. At the north and south of the tracks in the 
 pit are abutments. The east end of the pit is closed. The 
 pit is reached by a curved inclined track about 300 feet 
 long. There is room in the cinder pit for two gondola cars. 
 "When the two cars are in the pit, they came very close to- 
 gether, and are very close to the abutments. In using the 
 pit the cars are at first run partly in, being blocked so that 
 the half farthest in is under the track above. Locomotives 
 on the track above are stopped over the cars in the pit, and 
 the ashes and cinders which are dumped therefrom fall 
 between the rails into the cars below. When the cars are 
 half filled, the block is removed from the wheels, and the 
 cars are allowed to slide down the incline so as to permit 
 the filling of the other half. Owing to the curve and the 
 incline of the track leading into the pit, a chain coupling 
 is used between the cars and the engine when cars are 
 placed in the pit. 
 
 "The plaintiff's intestate had been employed by the de- 
 fendant for about nine months as a brakeman. On August 
 4, 1908, the deceased was assigned to assist, under the 
 switch foreman, at the task of removing the filled cars and 
 of placing empty ones therein. The two loaded cars were 
 removed by the foreman of the regular switch crew with 
 the aid of an engine crew, who had not performed this work 
 before, and an empty car had been placed on the north 
 track. The deceased had meanwhile tended a switch. 
 When the second car was being placed, the deceased as- 
 sisted and did the uncoupling of the engine from the car. 
 The engine had run the empty car too far into the pit, and 
 it was necessary to back out. When the car was in proper 
 position, it was blocked there by Loucks, the foreman of 
 the regular switch crew, who then stepped back to the north 
 of the car, so that he was about 10 feet from the deceased.
 
 CONTRIBUTORY AND COMPARATIVE NEGLIGENCE. 
 
 191 
 
 The engine was still attached to the empty ear by the chain 
 coupling, and it was necessary for the engine to move a 
 little toward the car, so that the pin holding the chain could 
 be pulled out and the engine uncoupled from the car. The 
 space between the drawbars of the car and the engine was 
 about two feet. The deceased stepped from the north be- 
 tween the engine and the car to draw the pin, and was then 
 on that side of the drawbars. He gave by word and sign 
 the signal for 'slack the pin.' The foreman communicated 
 the signal to the fireman, by whom it was, in turn, com- 
 municated to the engineer. Thereupon the engineer re- 
 leased the brake on the engine and it slowly started toward 
 the car. Loucks, the foreman of the switch crew, was the 
 only person who was observing the deceased. He testified 
 that the deceased, whose back was toward him, pulled the 
 pin; that the chain dropped from the car; that just after 
 the deceased pulled the pin he moved forward between the 
 drawbars of the car and the engine ; and that, as he stepped 
 forward, he turned his face toward the engine, and was 
 immediately caught between the drawbars. The engine 
 moved forward, and the deceased was caught and injured 
 and crushed between the drawbars of the car and of the 
 engine. He died almost instantly. Besides the injury to 
 the part of the body caught between the drawbars, the 
 thumb of the right hand of the deceased was injured. The 
 jury found that the negligence of the engineer in slacking 
 the pin was the proximate cause of the death of the de- 
 ceased, and that it was greater as a contributing cause to 
 his death than the negligence of Boucher himself. They 
 also assessed the damages." 
 
 "The appellant,*' said the court, "assails the court's de- 
 cision holding that the evidence in the case required sub- 
 mission of the issues whether the engineer was negligent in 
 conducting the defendant's business at the time Boucher 
 was injured ; if so negligent, whether it was the proximate 
 cause of the injury, and whether such negligence was a 
 greater or less contributing cause in producing Boucher's
 
 192 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 death than his contributory negligence. The facts of the 
 ease controlling these questions are within a narrow com- 
 pass, and are so interrelated that a reference to them will 
 suffice for the consideration of all the questions presented 
 by these contentions. The foregoing statement of them 
 makes clear what were the duties assigned Boucher and 
 the engineer in conducting the defendant's business at the 
 time of the accident. It is argued that the facts wholly 
 fail to show that the engineer was negligent in managing 
 the engine for the purpose of slacking the coupling chain 
 when signaled so to do by Boucher, and that the accident 
 was wholly due to the fact that the decedent deliberately 
 and negligently stepped into a place of obvious and immi- 
 nent danger. It is undisputed that the car had been shoved 
 into the cinder pit; that it had been blocked; that the 
 engine had come to a stop ; that the chain forming the 
 coupling between the car and the engine was taut so that 
 the coupling pin could not be released without slacking ; 
 that the decedent was required in the performance of his 
 duty to step between the car and the engine to do the 
 uncoupling; that it devolved on him to give the signal for 
 slacking the coupling chain to enable him to pull the 
 coupling pin ; and that it was the duty of the engineer to 
 move the engine for this purpose when the signal therefor 
 was communicated to him. There is no dispute but that 
 the signal to this effect was communicated to the engineer 
 for this purpose. The switch foreman testifies that the 
 decedent gave the signal for the 'slack of the pin,' and that 
 he communicated it to the fireman. The fireman testifies 
 that he communicated it to the engineer, and that he there- 
 upon moved the engine forward. The engineer testifies that 
 he received the signal 'to slack ahead,' which implied that 
 he was to proceed until signaled to stop. He states that 
 his recollection of the signal is uncertain. He also testifies 
 that he was fully informed that the car had been blocked, 
 that the engine was required to move forward only a few 
 inches to slack the chain in order to loosen the coupling
 
 CONTRIBUTORY AND COMPARATIVE NEGLIGENCE. ^Q^ 
 
 pin ; that a movement of a few inches would suffice and was 
 the only movement toward the car required of the engine; 
 that the last act before moving the engine away from the 
 ear was the uncoupling; and that he fully understood all 
 the facts and conditions of the service in which they were 
 then engaged. The court submitted to the jury the ques- 
 tion of whether the engineer under the circumstances was 
 negligence in the management of the engine which resulted 
 in a forward movement of several feet and in contact with 
 the car. 
 
 "The point is made that the engineer had a right to 
 move the engine as he did in response to the signal given 
 him. There is dispute, however, as to what signal he re- 
 ceived. The jury evidently found that he received the sig- 
 nal to slack the pin, and that this called on him to move 
 the engine only a few inches. There is evidence of other 
 employees of the defendant in support of this view. Further- 
 more, the engineer was fully informed of the whole situa- 
 tion and the conditions under which he was acting and 
 knew that he was required to move the engine no more than 
 was necessary to slack the pin. In fact, he moved the 
 engine several feet, and thereby brought about the contact 
 between the engine and the car whereby Boucher was in- 
 jured. It is evident that the movement of three or four 
 inches of the engine could have been made readily. 
 
 ''However, it is claimed that the engineer had no reason 
 to anticipate that an injury would result from the movement 
 made by the engine. The situation apprised him that 
 Boucher was then between the car and the engine for the 
 purpose of pulling the coupling pin, and that such a move- 
 ment as was made must result in a collision with the blocked 
 car in the cinder pit. Surely such a movement of the engine 
 was fraught with danger to the decedent, who was in a 
 proper position to perform his service, and the engineer had 
 a reasonable basis for anticipating that an injury might 
 result from such management of the engine. We are led 
 to the conclusion that the facts and circumstances of the
 
 194 FEDERAL EMPLOYERS' LIABILITY ACT, 
 
 case required that the question of the engineer's negligence 
 in the management of the engine should be submitted to the 
 jury as was done in the first question of the special ver- 
 dict. The court informed the jury that this question in- 
 cluded the inquiry as to whether the engineer was negligent 
 in moving the engine forward to remove the strain from the 
 coupling chain, and thus to free the coupling pin so that 
 it could be pulled. The instructions in this respect fully 
 informed the jury of the scope of this issue, and of what it 
 embraced. The court in calling the jurors' attention to the 
 evidence on this subject did not restrict the jury to the 
 portion he alluded to, but instructed them to take into con- 
 sideration all the evidence bearing on the inquiry so sub- 
 mitted to them. The instructions so given were free from 
 undue restrictions on the jury in their deliberations, and in 
 no way misled them. 
 
 *'It is contended that the court erred in refusing to in- 
 struct the jury to the effect that, if the engineer was found 
 guilty of negligence, it was not the proximate cause of 
 Boucher's death, and that his death was proximately caused 
 by his contributory negligence. The court found as matter 
 of law that the decedent was guilty of contributory neg- 
 ligence. The argument is made that the engineer had a 
 right to rely on the fact that Boucher under no circum- 
 stances would occupy a place wherein he might be caught 
 between the drawbars of the car and the moving engine 
 and thus meet certain death, unless he deliberately placed 
 himself in this obviously and imminently dangerous posi- 
 tion. Is this a legitimate deduction from the facts and cir- 
 cumstances of the case? We do not so regard it. Boucher's 
 conduct must be considered in the light of the situation as 
 disclosed by the facts and circumstances under which he 
 performed his duties. It is clear that he took a position 
 between the car and the engine where he could readily 
 grasp and pull the coupling pin from the coupling device 
 of the car, and that he pulled the pin and thereby caused 
 the chain to drop. The jury from the evidence must have
 
 COXTRIBUTOUV AXD COMPARATIVE NEGLIGENCE. ^95 
 
 found that in giving the signal to 'slack the pin' he called 
 for a forward movement of the engine of but a few inches. 
 In his position between the car and the engine his back 
 was turned toward the engine, and there was sufQcient space 
 for him to pass between the drawbars of the car and the 
 engine. Having given the signal to the engineer to come 
 forward with the engine sufficiently to slack the pin, he, in 
 the exercise of reasonable care, might well anticipate that 
 the engine would move no farther than required for this 
 purpose. While he cannot be deemed free from blame in 
 not looking to see if the engine was approaching, it does 
 not appear but that he may have taken the step to complete 
 his duties, and that in the ordinary course of discharging 
 his duties he got into this space through very slight inad- 
 vertence, or that the physical condition of the track may 
 have caused him to take this step. All this refutes the as- 
 sumption that he deliberately placed himself in a place 
 imminently dangerous to his life. From the situation thus 
 presented, it cannot be said that the duty to protect him- 
 self against the hazards incident to the engineer's conduct 
 rested solely on Boucher, and that the engineer was free 
 from legal responsibility as to the result. From the very 
 nature of the situation and corresponding duties of the two 
 men to guard Boucher against injury it may be said that 
 the negligence of the engineer was of a graver and weightier 
 character as a contributing cause to Boucher's death than 
 that of the decedent. After careful examination of the 
 evidence and much reflection, we have become persuaded 
 that the facts of the ease are not so clear upon the issue of 
 the engineer's negligence and its proximate contribution 
 toward causing Boucher's death and upon the question of 
 whether the decedent's contributory negligence was slighter 
 or greater than that attributable to the defendant as to 
 require determination of them by the court as matter of 
 law. The court properly submitted them to the jury. 
 
 "It is strenuously argued that the jury cannot deter- 
 mine from the evidence whether Boucher 's death was caused
 
 196 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 in greater part by the negligence of the defendant as com- 
 pared with his contributory negligence, and hence that the 
 plaintiff has failed to establish her cause of action. In 
 support of this claim, the contention is made that the burden 
 is on the plaintiff to establish a cause of action, and that 
 the evidence fails to show any grounds justifying Boucher's 
 stepping between the drawbars, and he must therefore be 
 held to have taken this step knowing it meant certain 
 death. The facts and circumstances of this situation already 
 adverted to we think negative this claim, and show that the 
 jury could have found that he entered this space through 
 slight inadvertence, and that the conduct of the engineer 
 in comparison therewith may be considered a weightier and 
 graver default. "^°^ 
 
 In another case it appeared that the deceased was a sec- 
 tion foreman. At seven o'clock in the morning he started 
 out on a handcar. It was a very dark and foggy morning. 
 When the car had run about four thousand feet, it was 
 run into and he was killed by a locomotive and caboose. 
 The locomotive and caboose was running as an irregular 
 train, ahead of a passenger train; and the deceased had 
 notice of it before he started. This train was running at 
 the usual speed without the headlight being lighted, it 
 having been extinguished, but the engineer was not aware 
 of that fact and it was not possible to tell from his position 
 on the locomotive at the time whether it was burning or 
 not. The engineer failed to sound his whistle at the first 
 crossing west of the station or at the mile post. It was 
 held that the engineer's negligence was not gross, as com- 
 pared to that of the decedent, so as to entitle the plaintiff 
 to recover, notwithstanding the decedent's contributory 
 negligence, under the provisions of the statute. It was held 
 that there was no evidence from which a court or jury could 
 say that the negligence of the decedent was slighter than 
 that of the engineer."^ 
 
 loi Boucher v. Wisconsin Central ^'^- Dolir v. Wisconsin Central 
 
 T?y. Co. 141 Wis. 160; 123 N. W. Ry. Co. 144 Wis. 545; 129 N. W. 
 913. 252. A different result was
 
 CONTRIBUTORY AND COMPARATIVK NEGLIGENCE. 
 
 197 
 
 § 121. Practice under Wisconsin statute. — Under the Wis- 
 consin statute it is proper to cover the question of the 
 negligence of the defendant and the contributory negligence 
 of the plaintiff by one or more appropriate questions sub- 
 mitted to the jury, each involving a singular issuable idea 
 according to the circumstances, in accordance vv^ith the prac- 
 tice under the special verdict law, for the reason that the 
 answer of "Yes" or '"No" would often not inform the 
 court with reasonable certainty of a unanimous agreement 
 upon either of the several ideas distinctively joined by the 
 statute. The better practice is to use the words "want of 
 ordinary care" rather than the word "negligence" in sub- 
 mitting the questions to the jury; and the words "proxi- 
 mately contributing" should be used instead of the words 
 * ' directly contributing, ' ' since that is the construction given 
 by the Supreme Court to the last two words. The submis- 
 sion of the questions to the jury whether the company or 
 any officer other than the person injured was guilty of a 
 want of ordinary care, and if that be true, whether the 
 person injured was guilty of ordinary care, should only be 
 made in so far as they are warranted by the evidence. The 
 set phrase whether the fault of the injured party "was 
 greater or slighter as a contributing cause" should not be 
 used, but only whether the fault of the defendant was the 
 greater, in order to administer the statute in its spirit.^*^^ 
 
 reached on the facts in Clary v. 082; Schendel v. Chicago & N. W. 
 
 Chicago. M. & St. P. Rv. Co. 141 Rv. Co. (Wis.) 133 N. W. 830; 
 
 Wis. 411; 123 N. W. 649. Ket«hum v. Chicago, St. P., M. & 
 
 103 Jensen v. Wisconsin Central O. Rv. Co. (Wis.) 136 N. W. 634. 
 Ry. Co. 145 Wis. 326; 128 N. W.
 
 CHAPTER VI. 
 
 ASSUMPTION OF EISK. 
 
 SECTION 
 
 122. Federal statute — Assumption of 
 
 risk. 
 
 123. Exceptions — Statute. 
 
 124. Distinction between assumption 
 
 of risk and contributory neg- 
 ligence — Unknown risk. 
 
 125. To what "statute" reference 
 
 is made. 
 
 126. Assumption of risk only abolish- 
 
 ed in part. 
 
 SECTION 
 
 127. The Horton Case as an example 
 
 of assumption of risk — In- 
 structions. 
 
 128. Violation of Federal statute 
 
 enacted for safety of employee. 
 
 129. Negligence of carrier as a 
 
 fellow servant. 
 
 130. Defective cars, engines, tracks 
 
 and appliances. 
 
 131. Question if risk was assumed. 
 
 § 122. Federal statute — Assumption of risk. — ' ' In every 
 action brought against any common carrier under or by 
 virtue of any of the provisions of this act to recover damages 
 for injuries to, or the death of, any of the employees, such 
 employee shall not be held to have assumed the risk of his 
 employment in any case where the violation by such com- 
 mon carrier of any statute for the safety of employees con- 
 tributed to the injury or death of such employee,"^ 
 
 §123. Exceptions — Statute. — "Nothing of this act shall 
 be held to limit the duty or liability of common carriers or 
 to impair the rights of their employees under any other 
 act or acts of Congress, or to affect the prosecution of any 
 pending proceeding or right of action under the act of 
 Congress, entitled 'An act relating to liability of common 
 
 * Section 4 of statute. "Clearly had 
 Section 1 [of the Act of 1900] in terms 
 provided that carrier should install 
 and maintain proper and sufficient 
 cars, etc., and that the failure to do 
 so would render it liable for accidents 
 resulting from such failure and de- 
 prive it of the defense of contributory 
 negligence, the carrier v/ould not 
 be permitted to defeat the law by 
 resorting to the doctrine of a.ssumption 
 of risk." Pfiiiadelphia, B. & W. 11. 
 
 198 
 
 C. v. Tucker, 35 App. D. C. 123, 
 citing Kilpatrick v. Grand Trunk Ry. 
 Co. 72 Vt. 288; 47 Atl. 827. See 
 Neil V. Idaho & W. R. Co. 22 Idaho 
 74: 125 Pac. 331. 
 
 For an article on the "Joker" in the 
 Federal Liability Statute, discussing 
 the assumption of risk, see 80 Central 
 Law Journal 5. Evidently Congress 
 never intended to abolish the assump- 
 tion of risk, as the writer of this ar- 
 ticle thinks it did.
 
 ASSUMPTION OF RISK. 
 
 199 
 
 carriers in the District of Columbia and territories, and to 
 common carriers engaged in commerce between the states 
 and between the states and foreign nations to their em- 
 ployees,' approved June 11, 1906."- 
 
 § 124. Distinction between assumption of risk and con- 
 tributory negligence — Unknown risk. — The distinction be- 
 tween assumption of risk and contributory negligence is a 
 very simple one, and yet it is "sometimes overlooked," said 
 Justice Pitney. "Contributory negligence involves the 
 creation of some fault or breach of duty on the part of the 
 employee ; and since it is ordinarily his duty to take some 
 precautions for his own safety when engaged in a hazard- 
 ous occupation, contributory negligence is sometimes de- 
 fined as a failure to use such care for his safety as ordinarily 
 prudent employees in similar circumstances would use. On 
 the other hand, the assumption of risk, even though the risk 
 be obvious, may be free from any suggestion of fault or 
 negligence on the part of the employee. The risk may be 
 present, notwithstanding the exercise of all reasonable care 
 on his part. Some employments are necessarily fraught 
 with danger to the workman — danger that must be and is 
 confronted in the line of duty. Some dangers as are nor- 
 mally and necessarily incident to the occupation are pre- 
 sumably taken into the account in fixing the rate of wages. 
 And a workman of mature years is taken to assume risks 
 of this sort, whether he is actually aware of them or not. 
 But risks of another sort, not naturally incident to the 
 occupation, may arise out of the failure of the employer to 
 exercise due care with respect to providing a safe place of 
 [to] work and suitable and safe appliances for the work. 
 These the employee is not treated as assuming until he 
 becomes aware of the defect or disrepair and of the risk 
 arising from it, unless defect and risk alike are so obvious 
 
 2 Section 8 of statute. The statute U. S. 1; 25 Sup. Ct. 158; 49 L. Ed. 
 
 referred to in this section is the one 363, reversing 117 Fed. 462; 54 C. C. 
 
 that was declared unconstitutional A. 508. 
 in Johnson v. Southern Pac. Co. 196
 
 200 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 that an ordinarily prudent person under the circumstances 
 would have observed and appreciated them. These distinc- 
 tions have been recognized and applied in numerous cases 
 of this court.^ When the employee does know of the defect, 
 and appreciates the risk that is attributable to it, then if 
 he continues in the employment without objection, or with- 
 out obtaining from the employer or his representatives an 
 assurance that the defect will be remedied, the employee 
 assumes the risk, even though it arises out of the master's 
 breach of duty. If, however, there be a promise of repara- 
 tion, then during such time as may be reasonably required 
 for its performance, or until the particular time specified 
 for its performance, the employee, relying upon the promise, 
 does not assume the risk unless at least the danger be so im- 
 minent that no ordinarily prudent man under the circum- 
 stances would rely upon such promise."* 
 
 § 125. To what "statute" reference is made. — The "stat- 
 ute" referred to in the second section above is a statute of 
 the United States and not a statute of a state, much less an 
 ordinance of a municipality. To construe the word "stat- 
 ute" to mean a state statute would render the Employers' 
 Liability Act of uneven effect throughout the United States 
 and perhaps render it obnoxious to the fifth amendment of 
 the constitution, and also, no doubt in many instances ex- 
 tending the power of Congress over interstate commerce to 
 cases not falling within the scope of interstate commerce. "It 
 
 'Citing Choctaw, O. & G. R. Co. 217; Southwestern Brewery & Ice Co. 
 
 191 U. S. 694; 24 Sup. Ct. 24; 48 L. Ed. v. Schmidt, 226 U. S. 162; 33 Sup. Ct. 
 
 96; 15 Am. Neg. Rep. 230; Schlem- 68; 57 L. Ed. 170. 
 mer v. Buffalo & P. R. Co. 220 U. S. "This branch of the law seems to 
 
 590; 31 Sup. Ct. 561; 55 L. Ed. 596; be traceable to Holmes v. Clarke; 
 
 Texas & P. R. Co. v. Harvey, 228 6 Hurlst. & N. 349; 30 L. J. Exch. 
 
 U. S. 521; 33 Sup. Ct. 518; 57 L. Ed. (N. S.) 135; 7 Jur. (N. S.) 397; 3 
 
 8.52; Gila Valley, G. & N. R. Co. v. L. T. (N. S.) 675; 9 W. R. 419; 
 
 Hall, 232 U. S. 94; 34 Sup. Ct. 229; Clarke v. Holmes, 7 Hurlst. & N. 
 
 58 L. Ed. 521. 937; 9 L. T. (N. S.) 178; 10 W. R. 
 
 * Seaboard Air Line Ry. Co. v. 405," adds the court. Lloyd v. 
 
 Horton, 233 U. S. 492; 34 Sup. Ct. Southern Ry. Co. 166 N. C. 24; 81 
 
 635; .57 L. Ed. 907, reversing 162 S. E. 1003; Wright v. Yazoo & M. V. 
 
 N. C. 424; 78 N. E. 494; Hough -'. R. Co. 197 Fed. 94. 
 T. P. R. Co. 100 U. S. 213; 25 L. Ed.
 
 ASSUMPTION OF RISK. 201 
 
 is not to be conceived that, in enacting a general law for es- 
 tablishing and enforcing the responsibility of common car- 
 riers by railroad to their employees in interstate commerce, 
 Congress intended to permit the legislatures of the several 
 states to determine the effect of contributory negligence and 
 assumption of risk, by enacting statutes for the safety of em- 
 ployees, since this would in effect delegate to the state two of 
 the essential factors that determine the responsibility of the 
 employer."^ But this does not dispose of the railway com- 
 pany's liability to an employee where his injuries were 
 occasioned by the company's violation of a valid state stat- 
 ute. As for instance, the failure of a locomotive engineer 
 to give the required statutory signals at a railway or high- 
 way crossing whereby a collision with another train or a 
 traveler is occasioned, the train derailed and an employee 
 on the train is injured. Other instances might possibly be 
 suggested. In such an instance, no doubt, the state statute 
 could be pleaded to show the statutory negligence of the 
 railway company and thus gives the employee a cause of 
 action which possibly he might not otherwise have had.^ 
 Yet here we are treading on dangerous ground, especially 
 in view of a recent decision of the Federal Supreme Court, 
 where it was claimed that an instrument on a locomotive 
 known as a water gauge was absent, when it should not 
 have been. In that case the trial court recognized that the 
 
 ' Seaboard Air Line R. Co. v. Howard case, cited here in the Em- 
 
 Horton, 233 U. S. 492; 34 Sup. Ct. ployers' Liability Cases, 207 U. S. 
 
 635; 58 L. Ed. 1062, reversing 162 N. 463; 28 Sup. Ct. 143; 56 L. Ed. 327, 
 
 C. 424; 78 S. E. 494; American R. affirming 148 Fed. 997. Some little 
 
 Co. V. Birch, 224 U. S. 547; 32 Sup. analogy can be drawn from the case 
 
 Ct. 603; 57 L. Ed. 879; Gee v. Lehigh of Waymen v. Southard, 10 Wheat. 
 
 Valley R. Co. (App. Div.) 148 N. Y. 1; holding that the Kentucky law of 
 
 Supp. 882; Southern Ry. Co. v. executions, passed subsequent to the 
 
 Howerton (Ind.) 105 N. E. 1025; Federal Process Act, was not applic- 
 
 Lauer v. Northern Pac. Ry. Co. able to execution which issued on 
 
 (Wash.); 145 Pac. 606 (overruling judgments rendered by Federal 
 
 Opsahl V. Northern Pac. Ry. Co. Courts. See also Mutual Life Ins. 
 
 78 Wash. 197; 138 Pac. 681; Kirbo Co. v. Prewitt, 31 Ky. L. Rep. 1319; 
 
 V. Southern Ry. Co. (Ga. App.) 105 S. W. 463. Yet see Michigan 
 
 84 S. E. 491. Central R. Co. v. Vreeland, 227 U. S. 
 
 «See Opsahl v. Northern Pac. Ry. 59; 33 Sup. Ct. 192; 57 L. Ed. 192, 
 
 Co. 78 Wash. 197; 139 Pac. 681; Cin- reversing 189 Fed. 495. 
 cinnati, N. O. & T. P. Ry. Co. v. Violation of Hours of Service Act, 
 
 Swann, 160 Ky. 458; 169 S. W. 886. see Schweig v. Chicago, M. & St. P. 
 
 This is the logical conclusion of the Ry. Co. 216 Fed. 750.
 
 202 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 act of Congress applied as far as its terms extended, and 
 that by its terms the employee is not to be held to have 
 assumed the risk in any case where the violation of a car- 
 rier of a statute enacted for the safety of employees con- 
 tributed to the injury, at the same time held that, since no 
 statute had been enacted covering such an appliance as the 
 glass water gauge, the rights of the plaintiff were such as 
 he would have under the state law, "It is true," said the 
 Federal Supreme Court, "that such an appliance as the 
 water gauge and guard glass in question is not covered by 
 the provisions of the Safety Appliance Act, or any other 
 law passed by Congress for the safety of employees, in force 
 at the time this action arose. But the necessary result of 
 this is not to leave the employer responsible for the conse- 
 quences of any defect in such an appliance, excluding the 
 common law rule as to assumption of risk, but to leave the 
 matter in this respect open to the ordinary application of 
 the common law rule. The adoption of the opposite view 
 would in effect leave the several state laws, and not the act 
 of Congress, to control the subject-matter."" 
 
 § 126. Assumption of risk only abolished in part. — It is 
 only where the injury is contributed to by a violation of a 
 Federal statute, by the common carrier, enacted for the 
 safety of employee, that the rule of assumption of risk is 
 abolished; in all other instances it remains in force.^ "It 
 seems to us that section four, in eliminating the defense of 
 assumption of risk in the cases indicated, quite plainly 
 evidence the legislative intent that in all other cases such 
 assumption shall have its former effect as a complete bar to 
 the action. And taking sections three^ and four together, 
 there is no doubt that Congress recognized the distinction 
 between contributory negligence and assumption of risk; 
 for, while it is declared that neither of these shall avail the 
 
 ^ Seaboard Air Line R. Co. v. ' Section 4 of Federal Act. Kansas 
 
 Ilorton, 228 U. S. 4.33; 34 Sup. Ct. City Southern Ry. Co. v. Loesey 
 
 f).37; 57 L. Ed. 907, roversiii^ 102 N. (Ark.) 177 S. W. 875; Cross v. 
 
 C. 424; 78 S. E. 4!)4; Spindcn v. ChicaRo, B. & Q. R. Co. (Mo. App.) 
 
 Atdii.son, T. & S. F. Hy. Co. (Kaji.) 177 S. W. 1127; Texas & P. Ry. Co. 
 
 148 Pac. 747; Collelli v. Turner v. White (Te.\. Civ. App.) 177 S. W. 
 
 CN. Y.) 109 N. E. 8,3, aflirmiiiK 154 1185. 
 
 App. Div. 218; 138 N. Y. Supp. 900. "The relief benefit section.
 
 ASSUMPTION OF RISK. 
 
 203 
 
 carrier in cases where the violation of a statute has con- 
 tributed to the injury or death of the employee, there is, 
 with respect to cases not in this category, a limitation upon 
 the effect that is to be given to contributory negligence, 
 while no corresponding limitation is imposed upon the de- 
 fense of assumption of risk — perhaps none was deemed 
 feasible."^" Thus an engine repairer working about an open 
 car pit, where he was required to work in the course of his 
 employment, was held to assume the risk of injury by fall- 
 ing into it.^^ And the same ruling was made where a brake- 
 
 " Seaboard Air Line Ry. Co. v. 
 Horton, 228 U. S. 433; 34 Sup. Ct. 
 635; 57 L. Ed. 907; Southern Ry. 
 Co. V. Jacobs (Va.) SI S. E. 99; 
 Freeman v. Powell, 105 Tex. 317; 
 148 S. W. 290; 144 S. W. 1033. 
 
 "When, in Section 3, Congress 
 deals with contributory negUgence, 
 it forbids that defense wholly in 
 cases where the common carrier has 
 violated a statute enacted for the safe- 
 ty of its employees, and such violation 
 contributed to the injury or death 
 of the employee. The same idea 
 runs through Section 4, and the 
 doctrine of assumed risks is wholly 
 excluded where the damages arose 
 from the \iolation by the common 
 carrier of a statute enacted for the 
 safety of the employee. The lan- 
 guage employed is plain and easy 
 to be understood, and leaves, we 
 think, except in the particulars 
 mentioned, the defense of assumption 
 of risks in full force and vigor." 
 Southern Ry. Co. v. Jacobs (Va.) 
 81 S. E. 99; Bowers v. Southern Ry. 
 Co. 10 Ga. App. 367; 73 S. E. 677; 
 Barker v. Kansas City, M. & O. Ry. 
 Co. 88 Kan. 767; 129 Pac. 1151; 43 
 L. R. A. (N. S.) 1121; Central Ver- 
 mont Ry. Co. v. Bethune, 206 Fed. 
 868; 124 C. C. A. 528; Gulf, Colo- 
 rado, etc., Ry. Co. v. McGinnis, 
 228 U. S. 173; 33 Sup. Ct. 426; 57 
 L. Ed. 785; Mondon v. New York 
 N. H. & H. R. R. Co. 223 U. S. 1 
 32 Sup. Ct. 169; 56 L. Ed. 327 
 38 L. R. A. (N. S.) 44; Southern Ry. 
 Co. v. Crockett, 234 U. S. 725; 34 
 
 Sup. Ct. 897; 58 L. Ed. 1564; La Mere 
 V. Railway Transfer Co. 125 Minn. 
 159; 145 N. W. 1068; Galveston, 
 H. & S. Ry. V. Bosher (Tex. Civ. 
 App.) 165 S. W. 93; Baltimore & 
 O. R. Co. V. Whitacre (Md.) 92 Atl. 
 1060; Kirbo v. Southern Ry. Co. 
 (Ga. App.) 84 S. E. 491; Southern 
 Ry. Co. V. Howerton (Ind.) 105 N. 
 E. 1025; Neil v. Idaho & W. N. R. R. 
 22 Idaho 74; 125 Pac. 331; Fish v. 
 Chicago, R. I. & P. Ry. Co. (Mo.) 
 172 S. W. 340; Thornton v. Sea- 
 board Air Line Rv. 98 S. C. 348; 
 82 S. E. 433; Chesapeake & O. Ry. 
 Co. V. DeAtley, 159 Ky. 687; 167 
 S. W. 933; Truesdell v. Chesapeake 
 & O. Ry. Co. (Ky.) 169 S. W. 471; 
 Glenn v. Cincinnati, N. O. & T. P. 
 R. Co. 157 Ky. 453; 163 N. W. 461; 
 Ft. Worth & D. C. Ry. Co. v. Cope- 
 land (Tex. Civ. App.) 164 S. W. 
 857; Farley v. New York, N. H. & 
 H. R. R. Co. (Conn.) 91 Atl. 650; 
 Guana v. Southern Ry. Co. 15 Ariz. 
 413; 139 Pac. 782; New York, N. H. 
 & H. R. R. Co. V. Vizvori, 210 Fed. 
 118; 126 C. C. A. 632; Parker v. 
 Atlantic City R. Co. (N. J. L.) 93 
 Atl. 574; Hawkins v. St. Louis & 
 S. F. R. Co. (Mo. App.) 174 S. W. 
 129; KIcDonald v. Railway Transfer 
 Co. 121 Minn. 273; 141 S. W. 177; 
 Walsh V. Lake Shore & M. S. Ry. 
 Co. (Mich.) 151 N. W. 754; Michigan 
 Central R. Co. v. Schafifer, 220 Fed. 
 809. 
 
 '^ Glenn v. Cincinnati, N. O. & 
 T. P. Ry. Co. 157 Ky. 453; 163 N. W. 
 461.
 
 204 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 man was jarred from his train by an unusual jerk/- Where 
 a train detective went between cars in a switch yard when 
 those in charge of the train did not know of his presence, 
 which he had purposely concealed, it was held that he had 
 assumed the risk of injury by the movement of the train.^^ 
 A section hand assisting in moving rails was held to have 
 assumed the risk of injury from the rebound of a rail as 
 it was dropped into place. ^* So it was held that a switch- 
 man assumed the risk of injury from the shunting of cars 
 on a side track without warning and with no one in charge, 
 when that was the customary way of handling cars in 
 switch yards. ^^ And a like ruling was made where a car 
 inspector familiar with the surroundings was caught be- 
 tween parallel tracks situated so close together that a man 
 could not go between cars on the two tracks in safety.^^ So 
 where the court told the jury that if the plaintiff knew of 
 the pile of cinders along the track and continued to work 
 without complaint he did not assume the risk, it was held 
 that the statement was erroneous.^^ The Federal Act was 
 held not to apply to an instance where a brakeman fell into 
 a cinder pit, his duties bringing him into no intimate con- 
 nection with it.^^ 
 
 12 Chesapeake & 0. Ry. Co. v. Sauter, 223 Fed. 604; and if the 
 
 Walker, 159 Ky. 237; 167 S. W. 128. defense is not presented on the trail, 
 
 Compare Cincinnati, N. 0. & T. P. it cannot be presented on appeal. 
 
 Rv. Co. V. Goldston, 156 Ky. 410; Sweet v. Chicago & N. W. Ry. Co. 
 
 161 S. W. 246. 157 Wis. 400; 147 N. W. 1054. 
 
 '3 Helm V. Cincinnati, N. 0. & T. State courts apply their own rules 
 
 P. Ry. Co. 156 Ky. 240; 160 S. W. of assumption of risk and are not 
 
 945. bound by the decisions of the Federal 
 
 ^* Truesdell v. Chesapeake & O. Courts. Hasket v. Lush (Mo. App.) 
 
 Ry. Co. 159 Ky. 718; 169 S. W. 471. 177 S. W. 712; Hawkins v. St. Louis 
 
 " Ft. Worth & D. C. Ry. Co. v. & S. F. R. Co. (Mo. App.) 174 S. W. 
 
 Copeland (Tex.) 164 S. W. 857. 129; Fish v. Chicago, R. I. & P. Ry. 
 
 »« Central Vermont Rv. Co. v. Co. (Mo.) 172 S. W. 340; Cross v, 
 
 Bethune, 206 Fed. 868; 124 C. C. A. Chicago, B. & Q. R. Co. (Mo. App.) 
 
 528. See also Farley v. New York, 177 S. W. 1127. 
 N. H. & H. R. R. Co. (Conn.) 91 As to review in the Federal Supreme 
 
 Atl. 650. Court where a state court decided 
 
 " Southern Ry. Co. v. Jacobs (Va.) against the plaintiff that the de- 
 
 81 S. E. 99. fendant could not defend if the 
 
 " Baltimore & O. R. Co. v. Whit- assumption of risk at common law 
 acre (.Md.j 92 Atl. 1060. applied. Southern Ry. Co. v. Crock- 
 How the defense of assumed risk ett. 234 U. S. 725; 34 Sup. Ct. 897; 
 must be presentcid depends upon the 58 L. Ed. 1564. 
 
 local practice. In some states it If the complainant does not state 
 
 must be pleaded and proven as a facts showing a violation of the 
 
 defenHC. Illinois Central R. Co. v. Federal Act, it will be construed that 
 
 Dougherty, 153 Ky. 363; 155 S. W. the j)l;iiritifT assumed all common 
 1119; Columbia <fe P. S. R. Co. v.
 
 ASSUMPTION OF RISK. 205 
 
 § 127. The Horton case as an example of assumption of 
 risk — Instructions. — The Hortou case was an instance of a 
 locomotive engineer injured by the bursting of an ordinary 
 glass two or three inches wide, eight or nine inches long, and 
 about half an inch thick, known as a guard glass on a Buck- 
 ner water gauge, a device attached to the engineer's loco- 
 motive boiler for the purpose of showing the level of the 
 water in the boiler. The guard consisted of a brass frame 
 or case inclosing a thin glass tube which communicated with 
 the boiler above and below in such manner that the tube 
 received water and steam direct from the boiler and under 
 the full boiler pressure. In order to shield the engineer 
 from injury in case of the bursting of the tube, this guard 
 glass was used. There were slots for receiving the guard 
 glass and holding it in position in front of the water tube. 
 At each end of the tube valves were provided for the pur- 
 pose of disconnecting it from the boiler. The plaintiff 
 knew full well the importance of this guard glass. On the 
 day he was injured, full well knowing that the guard glass 
 was missing, he took out his locomotive, and in the operation 
 of his engine this guard exploded and injured him. The 
 plaintiff knew that for a week, during which he operated 
 his locomotive, the guard glass was absent. The defendant 
 requested the court to instruct the jury that if it found 
 "by a preponderance of the evidence that the water glass 
 on the engine on which plaintiff was employed was not pro- 
 vided with a guard glass, and the condition of the glass was 
 open and obvious and was fully known to the plaintiff, and 
 he continued to use such water glass with such knowledge 
 and without objection, and that he knew the risk incident 
 thereto, then the court charges you that the plaintiff volun- 
 tarily assumed the risk incident to such use, and you will 
 answer the second issue 'yes.' " The court gave this in- 
 struction as applicable to the issue of contributory negli- 
 
 law risks. Guana v. Southern Pac. City, M. & O. Ry. Co. 88 Kans. 767; 
 
 Co. 15 Ariz. 413; 139 Pac. 782; Free- 129 Pac. 1151; 43 L. R. A. (N. S.) 
 
 man v. Powell, (Tex. Civ. App.) 1121. 
 
 144 S. W. 1033; Barker v. Kansas The law of the assumption of risk, 
 
 where the Federal Statute is involved, 
 is that of the common law as it existed 
 prior to the passage of that statute. 
 St. Louis & S. F. R. Co. v. Snowden 
 (Okla.) 149 Pac. 1083.
 
 206 FEDERAL EMPLOYERS' LIABILITY ACT, 
 
 gence, and instead of the words, ''then the court charges 
 you that the plaintiff voluntarily assumes the risk incident 
 to such use, and you will answer the second issue 'yes,' " 
 used the words, "then the court charges you that the plain- 
 tiff was guilty of contributory negligence, and you will 
 answer the third issue 'No.' " In another instruction the 
 court had told the jury that "a man assumes the risk when 
 he takes employment, incident to the class of work which 
 he is to perform," but "he does not assume the risk inci- 
 dent to the negligence of his employer in providing machin- 
 ery and appliances with which he has to work;" and then 
 the court gave this instruction: "On the other hand, the 
 employer has the right to assume that his employee will go 
 about his work in a reasonably safe way, and give due re- 
 gard to the machinery and appliances which are in his hands 
 and under his control, and if you should find from the evi- 
 dence by its greater weight (because the burden in this in- 
 stance is on the defendant), that the plaintiff knew of the 
 absence of the guard or shield to the water gauge and failed 
 to give notice^^ to the defendant or to the agent whose duty 
 it was to furnish the water gauge and appliances, and he 
 continued to use it without giving that notice, it being fur- 
 nished to him in a safe place, then he assumed the risk inci- 
 dent to his work in the engine with the glass water gauge 
 in that condition, although he might have handled his en- 
 gine in every other respect with perfect care." The court's 
 action in giving the instructions, and in refusing those 
 asked, was held to be error. "By the instructions as given," 
 said Judge Pitney, "the application of the rule of assumed 
 risk was confined to the single hypothesis that the jury 
 should find the guard glass was in position when the engine 
 was delivered to plaintiff on the morning of July 27. This, 
 as already pointed out, was one of the questions in dispute; 
 plaintiff having testified that the guard glass was missing 
 at that time, while his fireman testified (and in this was 
 corroborated by circumstantial evidence) that it was in 
 
 '" On this question there was some conflict of evidence.
 
 ASSUMPTION OF RISK, 207 
 
 place at that time, and was subsequently broken. But by 
 the common law, with respect to the assumption by the em- 
 ployee of the risk of injuries attributable to defects due to 
 the employer's negligence, when known and appreciated by 
 the employee, and not made the subject of objection or 
 complaint by him, it is quite immaterial whether the defect 
 existed when the appliance was first placed in his charge, 
 or subsequently arose. Hence, if the guard glass was miss- 
 ing when plaintiff first took the engine, as he testified, and 
 he, knowing of its absence and the consequent risk to him- 
 self, continued to use the water gauge without giving notice 
 of the defect to the defendant or its representative, he 
 assumed the risk. Defendant was entitled to have the re- 
 quested instruction given respecting assumption of risk, and 
 as the charge actually given did not cover the same ground, 
 there was error. "-° 
 
 § 128. Violation of Federal Statute enacted for safety of 
 employees. — The employee can not be held "to have as- 
 sumed the risk of his employment in any case where the 
 violation by such common carrier of any [Federal] statute 
 enacted for the safety of employees contributed to" his 
 injury or death. -^ As we have seen, the statute violated 
 must be not only a Federal Statute, but it must be one 
 "enacted for the safety of employees" of the carrier. 
 "Congress evidently intended Federal Statutes, such as the 
 Safety Appliance Acts- and the Hours of Service Act."'^ 
 
 *" Seaboard Air Line R. Co. v. "i Section 4 of statute. 
 
 Horton, 228 U. S. 433; 34 Sup. Ct. 2^27 stat. at L. 531, chap. 196; 
 
 635; 57 L. Ed. 907, reversing 162 U. S. Comp. Stat. 1901, p. 3174; 
 
 N. C. 424; 78 S. E. 494. See Bower 32 Stat, at L. 943, chap. 976; U. S. 
 
 V. Chicago & N. W. R. Co. 96 Neb. Comp. Stat. 1911, p. 1314; 36 Stat. 
 
 419; 148 N. W. 145; Gila Valley, at L. 298, chap. 160; U. S. Comp. 
 
 Globe & N. Ry. Co. v. Hall, 232 Stat. Supp. 1911, p. 1327; id. 1913, 
 
 U. S. 101; 34 Sup. Ct. 229; 58 L. Ed. chap. 103; U. S. Comp. Stat. Supp. 
 
 521. 1911, p. 1333. 
 
 The servant does not assume the -^ 34 Stat, at L. 1415, chap. 2939; 
 
 master's negligence. Hawkins v. U. S. Comp. Stat. Supp. 1911, p. 1321. 
 
 St. Louis & S. F. R. Co. (Mo. App.) Seaboard Air Line R. Co. v. Horton, 
 
 174 S. W. 129; nor the negligence 228 U. S. 433; 34 Sup. Ct. 635; 57 
 
 of a fellow servant. Erie R. Co. v. L. Ed. 907. reversing 162 N. C. 424; 
 
 Jacobus, 221 Fed. 335. 78 N. E. 494. Hours of Service Act. 
 
 Schweig V. Chicago, M. & St. P. Ry. 
 Co. 216 Fed. 750.
 
 208 
 
 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 "The rule that an employee was deemed to have assumed 
 the risk of injury, even if due to the employer's negligence, 
 where the employee voluntarily entered or remained in the 
 service with an actual or pr( sumed knowledge of the con- 
 ditions out of which the risk arose, is abrogated in all in- 
 stances where the employer's violation of a statute enacted 
 for the safety of the employees contributed to the injury."-* 
 The doctrine of assumed risk does not apply to defects cov- 
 ered by the Safety Appliance Act.-^ Knowledge of the de- 
 fective condition of an appliance covered by the Federal 
 Safety Appliance Act does not impose upon the employee 
 an assumption of risk of injury from such defect.-*' There 
 is no assumption of risk for an injury occasioned by a de- 
 fective ash pan.-' 
 
 § 129. Negligence of carrier or a fellow servant. — The 
 
 emplo3'ee does not assume the risk of injury arising out of 
 negligence of the employer-^ or a fellow servant.-*^ Thus an 
 
 "Mondon v. New York, N. H. 
 & H. R. R. Co. 223 U. S. 1; 32 Sup. 
 Ct. 169; 56 L. Ed. 327; 38 L. R. A. 
 (N. S.) 44; Bowers v. Southern Ry. 
 Co. 10 Ga. App. 367; 73 S. E. 677; 
 Barker v. Kansas City, M. & O. 
 Ry. Co. 88 Kan. 767; 129 Pac. 1151; 
 43 L. R. A. (N. S.) 1121; Central 
 Vermont R. Co. v. Bethune, 206 
 Fed. 868; 124 C. C. A. 528; Southern 
 Ry. Co. V. Jacobs (Va.) 81 S. E. 99; 
 Parker v. Atlantic City R. Co. 
 (N. J. L.) 93 Atl. 574. 
 
 ''^ Southern Ry. Co. v. Crockett, 
 234 U. S. 725; 34 Sup. Ct. 897; 58 
 L. Ed. 1564; Nashville, C. & St. L. 
 Ry. Co. V. Henry, 158 Ky. 88; 164 
 S. W. 310; Chicago, R. I. & P. R. 
 Co. V. Brown, 229 U. S. 317; 33 Sup. 
 Ct. 840; 57 L. Ed. 1204; St. Louis. 
 I. M. & S. R. Co. V. McWhirter, 
 229 U. S. 265; 33 Sup. Ct. 858; 
 57 L. Ed. 1179; Thornbro v. Kansas 
 City, M. & O. Ry. Co. 91 Kas. 684; 
 139 Pac. 410; Boldt v. Pennsylvania 
 R. Co. 218 Fed. 367; Sears v. Atlantic 
 C. L. R. Co. (N. C.) 86 S. E. 176. 
 
 "Nashville, C. & St. L. Ry. Co. 
 V. Henry, 158 Ky. 88; 164 S. W. 310; 
 Grand Trunk W. Ry. Co. v. Lindsay, 
 233 U. S. 42; 34 Sup. Ct. 581; 58 
 L. Ed. 828, affirming 201 Fed. 836; 
 120 C. C. A. 166. 
 
 "Lloyd V. Southern Ry. Co. 166 
 N. C. 24; 81 S. E. 1003; Gulf, Colo- 
 rado, etc., Ry. Co. v. McGinnis, 
 228 U. S. 173; 33 Sup. Ct. 426; 57 
 L. Ed. 785. 
 
 In Opsahl v. Northern Pac. Ry. 
 Co. 78 Wash. 197; 138 Pac. 681, 
 
 in an action under the Federal statute 
 it was held that a servant did not 
 assume the risk of injury from the 
 use of a grindstone under power 
 which had holes in its surface, and 
 the guard was out of order, even 
 though he had knowledge of the 
 same, a state statute providing 
 that if any machine is in a defective 
 condition, making it extra hazardous, 
 its use is prohibited. 
 
 -* Thornton v. Seaboard Air Line 
 Ry. 98 S. C. 348; 82 S. E. 433; 
 Wright v. Yazoo & M. V. R. Co. 
 197 Fed. 94; Louisville & N. R. Co. 
 V. Fleming (Ala.) 69 So. 125. He does 
 not assume such risk even though he 
 himself be guilty of contributory 
 negligence. Hackney v. Missouri, 
 K. & T. Ry. Co. (Kan.) 149 Pac. 421. 
 
 29 Erie R. Co. v. Jacobus, 221 Fed. 
 335; Pittsburgh, C. C. & St. L. R. 
 Co. v. Farmers' T. & S. Co. (Ind.) 
 108 N. E. 108; Gekas v. Oregon-W. 
 R. & N. Co. (Ore.) 146 Pac. 970; 
 Caverhill v. Boston & M. R. R. 
 77 N. H. 330; 91 Atl. 917; Sweet v. 
 Chicago & N. W. R. Co. 157 Wis. 
 400; 147 N. W. 1054; Devine v. 
 Chicago, R. I. & P. Ry. Co. 185 
 111. App. 488; affirmed 107 N. E. 
 595; Easter v. Virginian Ry. Co. 
 (W. Va.) 86 S. E. 37; Martin v. 
 Atchison, T. & S. F. R. Co. (Kan.) 
 145 Pac. 849; Walsh v. Lake Shore 
 & M. S. Ry. Co. (Mich.) 151 N. W. 
 754; Cincinnati, N. O. & T. P. Ry. 
 Co. V. Wilson, 161 Ky. 640; 171 S. 
 W. 430.
 
 ASSUMPTION OF RISK. 209 
 
 engineer does not assume the risk of being injured by his 
 employer's negligence in leaving cars on a siding within 
 striking distance of the engineer's train.^° This is the logi- 
 cal deduction from that provision of the Federal Statute 
 which provides that an interstate carrier by railroad shall 
 be liable for an injury to or death of its employee "resulting 
 in whole or in part from the negligence of any of the of- 
 ficers, agents or employees of such carrier. "^^ "In view of 
 the first section of the act * * * it is not permissible, in 
 my judgment, to hold that the employee assumes the risk 
 of the officers, agents, or employees of the carrier. It is 
 insisted that since the act provides that he shall not be held 
 to have assumed such risk in cases only where the violation 
 by the common carrier of any statute enacted for the safety 
 of employees contributed to the injury, the maxim 'Ex- 
 pressio unius est exclusio alterius, ' applies. I do not think 
 this insistence is sound. As I construe the act, the risk 
 that the employee now assumes is the ordinary danger in- 
 cident to his employment, which does not include, since the 
 passage of this act, the assumption of risk incident to the 
 negligence of the carrier's officers, agents, or employees, or 
 any defect or insufficiency due to its negligence, in its cars, 
 engines, appliances, machinery, track, roadbed, works, 
 boats, wharves, or other equipment."^- A brakeman on an 
 interstate train, after certain cars had been coupled to other 
 cars on which the air brakes were set, went between the 
 cars to couple the air hose, and, not knowing that the train 
 was on a down grade, opened the angle cock on the cars 
 nearest the engine, and then reached across the buffer or 
 deadwood to open the angle cock on the front end of the 
 rear cars, and as he did this the brakes were suddenly re- 
 leased, due to the fact that the engineer negligently had 
 the air lever in an improper position, and the rear cars 
 
 3" Wright V. Yazoo & M. V. R. Porter, 207 Fed. 311; Northern Pac. 
 
 Co. 197 Fed. 94; Kirbo v. Southern Ry. Co. v. Maerkl, 198 Fed. 1; 117 
 
 Ry. Co. (Ga.) 84 S. E. 491. C. C. A. 237; Missouri, K. & T. Ry. 
 
 3' Section 1 of Act. Co. v. Freeman (Tex.) 168 S. W. 69. 
 
 3- Wright V. Yazoo & M. R. Co. 
 197 Fed. 94; Illinois Central R. Co. v.
 
 210 FEDERAL EMPLQiERS' LIABILITY ACT. 
 
 moved down and crushed him. It was held that the risk of 
 injury as the result of such negligence was not one of the 
 risks of his employment that he had assumed.^^ "Where a 
 switchman jumped at a footboard on the tender of an en- 
 gine, missed his footing because of the defective condition 
 of the board, and was thrown down and injured, it was held 
 it was a question for the jury whether the board was a 
 "running board" within the meaning of the Safety Appli- 
 ance Act ; and if it was, then he was entitled to recover 
 under the Federal Liability Act.^* But a servant may as- 
 sume the risk arising out of the negligent conduct of his 
 fellow; but to make out a defense that he assumed such a 
 risk it must be shown that the negligent conduct of the fel- 
 low servant was in fact known to the plaintiff, or was so 
 customary that he should be charged with knowledge of 
 his negligent conduct, and that he appreciated or was bound 
 to appreciate his danger."^ 
 
 § 130. Defective cars, engines, tracks and appliances. — 
 
 The statute declares that the carrier shall be liable for an 
 injury or death resulting in whole or part "by reason of 
 any defect or insufficiency due to its negligence in its cars, 
 engines, appliances, machinery, tracks, roadbed, works, 
 boats, wharves, or other equipment."^** There are only a 
 
 '' Union Pac. R. Co. v. Fuller, this case, but I believe I have ac- 
 
 204 Fed. 45; 122 C. C. A. 359. curately stated the correct result of 
 
 That the defense of assumption of the decision. The Safety Appliance 
 
 risk is of no avail where a fellow ser- Act uses the term "running board." 
 
 vant has negligently caused the In the complaint the phrase "foot 
 
 injury, is universally held. Sweet v. board" was used; in one paragraph 
 
 Chicago & N. W. Ry. Co. 157 Wis. of the answer, "running board," in 
 
 400; 147 N. W. 1054; Caverhill v. another "foot board," and in cross 
 
 Boston & M. (N. H.) 91 Atl. 917; examination the plaintiff was three 
 
 Southern Ry. Co. v. Gadd, 207 Fed. times asked by the appellant about 
 
 277; 125 C. C. A. 21; Yazoo & M. R. the "running board." On the trial 
 
 Co. v. Wright, 207 Fed. 281; 125 otherwise the terms "foot board" 
 
 C. C. A. 25; Illinois Central R. Co. and "running board" were used inter- 
 
 v. Porter, 207 Fed. 311; 125 C. C. changeably. 
 
 A. 55; Pennsylvania R. Co. v. Cough- ^^ Michigan Central R. Co. v. 
 
 man, 208 Fed. 901; 120 C. C. A. 39. Schaffer, 220 Fed. 809. 
 
 "* Bramlett v. Southern Ky. Co. '' Section 1 of Act. In this respect 
 
 98 S. C. 319; 82 S. E. 501. There the Act of 1908 is somewhat broader 
 
 is some confusion in the opinion in than that of 1906.
 
 ASSUMPTION OF RISK. 211 
 
 few cases upon the exact point where the assumption of risk 
 is discussed. The general statement is that if the servant 
 was injured "by reason of any defect or negligence due to 
 its [the carrier's] negligence in its cars, engines, appliances, 
 machinery, tracks, roadbed, works, boats, wharves, or other 
 appliances"^' the carrier is liable, and in some it is added 
 that the servant did not assume the risk by reason of such 
 defects. It is very clear that if the defect is such as the 
 Safety Appliance Act covers, he does not assume the risk ; 
 for the statute expressly covers the case ; but it would seem 
 from the case of the Seaboard Air Line Railway that in the 
 case of user by the servant of any defective car or appli- 
 ance under the Safety Appliance Act, or a statute enacted 
 for the protection of the servant, the employee does assume 
 the risk, where he knows of the defect or by the use of ordi- 
 nary diligence could have known of it before he was in- 
 jured.^* 
 
 § 131. Question if risk was assumed. — Upon a given state 
 of facts it is usually a question for the court whether or not 
 
 ^' In Seaboard Air Line Ry. Co. he did not assume the risk. Southern 
 V. Horton, 233 U. S. 492; 34 Sup. Ct. Ry. Co. v. Jacobs (Va.) 81 S. E. 99. 
 635; 57 L. Ed. 907, reversing 162 So it has been held that a ear in- 
 N. C. 424; 78 S. E. 494; it was held spector familiar with the surround- 
 that an engineer assumed the risk ings assumed the risk of being caught 
 in operating a locomotive having between parallel tracks situated so 
 a water gauge inadequately guarded. close together that a person could 
 
 ^* This is also the reasonable de- not go between cars on the two 
 
 duction from the decision in the case tracks in safety. Central Vermont 
 
 of Bower v. Chicago & N. W. R. Co. Ry. Co. v. Bethune, 206 Fed. 868. 
 
 96 Neb. 419; 148 N. W. 145, where See also Farley v. New York, N. H. 
 
 the servant was injured by the burst- & H. R. Co. (Conn.) 91 Atl. 650. 
 
 ing of a Nathan lubricator on a But where a laborer was injured 
 
 locomotive. by being struck in the eye by a sliver 
 
 So it has been held that an engine from a much worn chisel used to 
 
 repairer working about an open car cut railroad ties, it was held that he 
 
 pit, where he was required to work could not be said to have assumed 
 
 in the course of his employment, the risk, even though he knew of 
 
 assumed the risk of injury by falling the condition and continued to work 
 
 into it. Glenn v. Cincinnati, N. O. after having complained of the in- 
 
 & T. P. Ry. Co. 157 Ky. 453; 163 strument to the foreman, the latter 
 
 S. W. 461. having threatened him, at the time, 
 
 So it was held error to tell the with discharge, unless he continued 
 
 jury that if the plaintiff knew of work. New York, N. H. & H. R. R. 
 
 the pile of cinders along the track and Co. v. Vizvari, 210 Fed. 118; 126 
 
 continued to work without complaint CCA. 632.
 
 212 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 the servant assumed the risk ; and the usual method is for 
 the court to charge the jury upon a hypothetical supposition 
 of facts that he did or did not assume the risk. But there 
 are instances where the question whether the servant did or 
 did not assume the risk is left to the jury. Such was the 
 case where a fireman was struck by a mail crane located too 
 close to the track, or whether he was guilty of contributory 
 negligence.^" A like ruling was made where a switchman 
 was jarred from the tender of a locomotive on which he was 
 riding,*^ and where a flagman was pushing a car along a 
 track and was injured by a torpedo that had been laid on 
 such track.*^ 
 
 '^ Rowlands v. Chicago & N. W. *• Southern Ry. Co. v. Howertoa 
 
 Ry. Co. 149 Wis. 51; 135 N. W. 156; (Ind.) 105 N. E. 1025; Erie R. Co. 
 
 Knapp V. Great Northern Ry. Co. v. Jacobus, 221 Fed. 335. 
 
 (Minn.) 153 N. W. 848; Tonsellito If the facts be undisputed, usually 
 
 V. New York Cent. & H. R. R. Co. the court may direct the verdict in 
 
 (N. J.) 94 Atl. 804. that respect. St. Louis & S. F. R. 
 
 " Louisville & N. R. Co. v. Lank- Co. v. Snowden (Okla.) 149 Pac. 
 
 ford, 209 Fed. 321: 126 C. C. A. 247. 1083.
 
 CHAPTER VII. 
 DEATH BY WRONGFUL ACT. 
 
 SECTION 
 
 132. Statute. 
 
 133. Beneficiary or widow cannot 
 
 maintain action. 
 
 134. Question raised that adminis- 
 
 trator must sue. 
 
 135. Judgment under state statute 
 
 or at common law as a bar 
 to action under Federal 
 statute. 
 
 136. Substituting administrator for 
 
 beneficiary in action brought 
 by latter — Statute of limi- 
 tations. 
 
 SECTION 
 
 137. Action by foreign personal 
 representative. 
 
 No action at common law. 
 
 Constitutionality of statute al- 
 lowing recovery for bene- 
 ficiaries. 
 
 Deceased without right of re- 
 covery. 
 
 Failure of deceased to bring 
 action. 
 
 Instantaneous death. 
 
 Survival of injured employee's 
 cause of action. 
 
 138. 
 139. 
 
 140. 
 
 141. 
 
 142. 
 143. 
 
 § 132. Statute. — The statute provides that a common car- 
 rier by railroad while engaging in certain commerce, "shall 
 be liable in damages to any person suffering injury while he 
 is employed in such commerce, or, in case of the death of 
 such employe, to his or her personal representative, for the 
 benefit of the surviving widow or husband and children of 
 such employe; and, if none, then of such employe's parents; 
 and, if none, then of the next of kin dependent upon such 
 employe, for such injury or death resulting in whole or in 
 part from the negligence of any of the officers, agents, or 
 employes of such carriers," etc. Under the statute only the 
 administrator and executor^* can bring the suit.^ The gen- 
 eral administrator may bring the action, a special one is not 
 necessary;- and letters of administration may issue, though 
 the deceased left no property.^* 
 
 '* De Rivera v. Atchison, T. & S. 
 F. Ry. Co. (Tex. Civ. App.); 149 S. 
 W. 223. 
 
 »St. Louis S. W. Ry. Co. v. 
 Brothers, (Tex. Civ. App.); 165 S. 
 W. 488; Cleveland, etc., R. Co. v. 
 Osborn, 36 Ind. App. 34; 73 N. E. 
 Rep. 285; Dillier v. Cleveland, etc., 
 R. Co. 34 Ind. App. 52; 72 N. E. 
 Rep. 271; Lake Erie, etc., R. Co. v. 
 Charmer, 161 Ind. 95; 67 N. E. Rep. 
 623; Cleveland, etc., R. Co. v. Os- 
 
 good, 36 Ind. App. 34; 73 N. E. Rep. 
 285. 
 
 - Lake Erie, etc., R. Co. v. Char- 
 mer, stipra; Cleveland, ete., R. Co. 
 v. Osgood, svjyra. 
 
 2* Gulf C. & S. F. Ry. Co. v. 
 Beezley (Tex. Civ. App.) 153 S. W. 
 651; Eastern Ry. Co. v. Ellis (Tex. 
 Civ. App.) 153 S. W. 701; De Rivera 
 v. Atchison, T. & S. F. Ry. Co. 
 (Tex. Civ. App.) 149 S. W. 223. 
 
 213
 
 214 
 
 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 § 133. Beneficiary or widow cannot maintain action. — 
 
 Those who will be entitled to the proceeds recoverable be- 
 cause of the death of an employee of the carrier, cannot 
 maintain an action to recover damages because of his death. 
 At common law no action for a death could be maintained ; 
 and when Congress provided that one could be maintained 
 and provided who should bring it, they gave it upon the 
 condition that only the person designated to bring it could 
 maintain the action. This excluded all others.*' This is true 
 as to the sole beneficiary,'^ as a parent.^ Nor can the widow 
 of the deceased, as such, maintain the action, even though 
 the deceased left no children.^ Not only can the widow not 
 sue under the Federal Statute, but she cannot sue under a 
 state statute giving her a right of action.^" 
 
 § 134. How question raised that administrator must sue. 
 
 — The right of the beneficiary to maintain the action can 
 
 6 American R. Co. v. Birch, 224 
 U. S. 547; 32 Sup. Ct. 603; 56 L. Ed. 
 879. 
 
 ' Penny v. New Orleans Great 
 Northern R. Co. 135 La. 962; 66 
 So. 313. 
 
 8 American R. Co. v. Birch, 
 supra; Flanders v. Georgia, S. & F. 
 Ry. Co. (Fla.) 67 So. 68; St. Louis, 
 S. F. & T. R. Co. V. Scale, 229 U. S. 
 156; 33 Sup. Ct. 651; 57 L. Ed. 1129, 
 reversing Tex. Civ. App. 148 S. W. 
 1099. 
 
 « Hearst v. St. Louis, L ]\L & S. 
 Ry. Co. (Mo. App.) 173 S. W. 86; 
 LaCasse v. New Orleans, T. & M. 
 R. Co. 135 La. 129; 64 So. 1012; 
 Vaughan v. St. Louis & S. F. R. Co. 
 177 Mo. App. 155; 164 S. W. 144; 
 Dungan v. St. Louis & S. F. R. Co. 
 (Mo. App.) 165 S. W. 1116; IMissouri, 
 K. & T. Ry. Co. v. Lenham. 39 Okla. 
 283; 135 Pac. 383; Mi.ssouri, K. & T. 
 R. Co. V Wulf, 57 U. S. 355; 33 Sup 
 Ct. 135; 57 L. Ed. 274, affirming 192 
 Fed. 919; 113 C. C. A. 665; Troxcll 
 V. Delaware, L. & W. R. Co. 227 U. 
 S. 434; 33 Sup. Ct. 274; 57 L. Ed. 274, 
 afTirniing 2(K) Fed. 44; 118 C. C. A. 
 272; Delaware, L. & W. R. Co. v. 
 
 Troxell, 183 Fed. 373; 105 C. C. A. 
 593; Rich v. St. Louis & S. F. Ry. Co. 
 166 Mo. App. 379; 148 S. W. 1011; 
 Thompson v. Wabash Ry. Co. 184 
 Fed. 554; Fithian v. St. Louis & S. 
 F. Ry. Co. 188 Fed. 842; St. Louis, 
 S. F. & T. R. Co. v. Seale, 229 U. S. 
 156; 33 Sup. Ct. 651; 57 L. Ed. 1129; 
 Eastern Ry. Co. v. Ellis (Tex. Civ. 
 App.) 153 S. W. 701; Kansas City, 
 M. & 0. Ry. Co. V. Pope (Tex. Civ. 
 App.) 152 S. W. 185; Gulf, C. & S. 
 F. Ry. Co. V. Lester (Tex. Civ. App.) 
 149 S. W. 841; Gulf C. & S. F. Ry. 
 Co. V. Beezley (Tex. Civ. App.) 153 
 S. W. 651; Kansas City, M. & O. Ry. 
 Co. V. Pope (Tex. Civ. App.) 153 
 S. W. 163; Penny v. New Orleans G. 
 N. R. Co. 135 La. 962; 66 So. 313; 
 Cincinnati, N. O. & T. P. R. Co. v. 
 Bonhani (Teun.) 171 S. W. 79. 
 
 On Thornbro v. Kansas City, M. 
 & O. Ry. Co. 91 Kas. 684; 139 Pac. 
 410, a widow, as such, was apparently 
 allowed to recover damages. 
 
 The words "if none" in the statute 
 refers to "surviving widow or husband 
 and children of such employee," and 
 not to personal representatives. Fith- 
 ian V. St. Louis & S. F. Ry. Co. 188 
 Fed. 842. 
 
 '» LaCasse v. New Orleans, T. & M. 
 R. Co. 135 La. 129; 64 So. 1012.
 
 DEATH BY WRONGFUL ACT. 215 
 
 be raised at any stage of the trial. ^^ Thus in the case just 
 cited, as soon as it appeared that the employee was injured 
 while engaged in interstate commerce, objection was at once 
 interposed to the introduction of any further evidence, be- 
 cause the action should have been brought by the admin- 
 istrator and not by the beneficiary, as had been done. A 
 plea in abatement is not necessary to present the question.^^ 
 
 § 135. Judgment under state statute or at common law 
 as a bar to action under Federal Statute. — Where a widow 
 brought an action under a state statute for the benefit of 
 herself and children, and prosecuted it to a final judgment, 
 it was held no bar to an action afterwards brought by her- 
 self as administrator of her deceased husband to recover 
 damages for his death. The decision was placed upon the 
 ground that the court was without authority to render the 
 decision. ^^ Where the widow brought an action under a 
 state statute and recovered a judgment, which on appeal 
 was reversed because she could not sue as widow ;^* and 
 subsequently brought suit as administrator, it was held that 
 she was not barred by the former action. The decision 
 goes further and holds that a judgment recovered by her 
 in her individual capacity would not be a bar to a recovery 
 in her administrative capacity.^^ 
 
 § 136. Substituting- administrator for beneficiary in ac- 
 tion brought by latter — State of limitations. — In Missouri 
 where a widow, as such, obtained a judgment for her and 
 her children's benefit, and after recovering the judgment 
 was appointed administrator, and in her representative 
 capacity entered an appearance and requested to be allowed 
 to claim the benefit of the judgment in her representative 
 
 " LaCasse v. New Orleans, T. & M. R. Co. 177 Mo. App. 155; 164 S. W. 
 
 R. Co. 135 La. 129; 64 So. 1012. 144. 
 
 1= Eastern Ry. Co. v. Ellis (Tex. i^ Delaware, L. & W. R. Co. 183 
 
 Civ. App.) 153 S. W. 701; Vaughan Fed. 373; 105 C. C. A. 593. 
 
 V. St. Louis & S. F. R. Co. 177 Mo. '^ Troxell v. Delaware, L. & W. R. 
 
 App. 155; 164 S. W. 144. Co. 227 U. S. 434; 33 Sup. Ct. 274; 
 
 "Vaughan v. St. Louis & S. F. 57 L. Ed. 274, reversing 200 Fed. 
 
 44, 118 C. C. A. 272.
 
 216- FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 capacity, it was held that the court had no power to permit 
 her to enter such an appearance and adopt the judgment ; 
 for the defendant was entitled to an opportunity to con- 
 trovert before a jury the fact of her appointment as an ad- 
 ministrator; but it could have permitted her to enter an 
 appearance, grant a new trial, and then permit her to prose- 
 cute the action anew.^*^ And in another case in the same 
 state and in the same court, it was held that such procedure 
 was unwarranted.^' But where the action w^as brought in 
 a Federal Court by the widow, and pending the action she 
 petitioned the court to permit her as administrator to prose- 
 cute the case in her personal capacity, it was held that un- 
 der the Federal Statute^* the court in its discretion could 
 allow it, even though more than two years had elapsed 
 since the death of the employee. The action as first brought 
 purported to be founded upon the Kansas statute ; but the 
 facts pleaded showed that the employee when injured was 
 engaged in interstate commerce for an interstate railroad, 
 although no reference was made to the Federal Statute ; and 
 the Supreme Court not only held that the substitution was 
 proper, but also that the Statute of Limitations had not 
 become a bar. The court did not consider that the substi- 
 tution was the equivalent of a new action, so as to render it 
 subject to the two years' limitation. "The charge was in 
 form rather than in substance. It introduced no new or 
 different cause of action, nor did it set up any different 
 state of facts as the ground of action, and therefore it 
 related back to the bringing of the suit. "^® 
 
 ^' Vaughan v. St. Louis & S. F. R. In a case of a non-suit, it was held 
 
 Co. 177 Mo. App. 155; 164 S. W. 144. that where, at the time of the dis- 
 
 " Dungan v. St. Louis & S. F. R. missal of action to enforce a common- 
 Co. (Mo. App.) 165 S. W. 1116. law liability for the death of a rail- 
 
 *' U. S. Rev. Stat. § 954; U. S. way employee, it was within the 
 
 Comp. Stat. 1901, p. 696. discretion of the court to dismiss the 
 
 "Missouri, K. & T. Ry. Co. v. entire action without prejudice, and 
 
 Wulf, 226 V. S. 570; 33 Sup. Ct. 135; it was equally within the court's 
 
 57 L. Ed. 274. affirming 192 Fed. 919; power to dismiss without prejudice to 
 
 113 C. C. A. 665, distinguishing the commencement of a new action to 
 
 Union Pac. R. Co. v. Wyler, 158 U. S. recover for decedent's death under 
 
 285; .39 L. Ed. 983; 15 Sup. Ct. 877; the Federal Act. Oliver v. Northern 
 
 Hall V. Louisville, etc. R. Co. 157 Pac. Ry. Co. 196 Fed. 432. 
 Fed. 464.
 
 DEATH BY WRONGFUL ACT. 
 
 217 
 
 § 137. Action by foreign personal representative. — It 
 
 may be stated that an administrator may maintain an action 
 in a state where he has not been appointed to recover dam- 
 ages occasioned by the death of his decedent. The rule in 
 this respect is governed by the Federal Statute and not by 
 the decisions of a state court. Thus an injury occurred in 
 Oklahoma, and letters of administration were there taken 
 out and suit to recover damages for the injury was brought 
 in Arkansas. A recovery was permitted.-" The same ruling 
 was made under the Federal Liability Act of June 11, 1906, 
 although the court held this act unconstitutional.^^ 
 
 § 138. No action at common law. — The maxim actio per- 
 sonalis moritur cum persona applied to actions at common 
 law for the death of a person ; and this is true whether the 
 death was instantaneous or not as a result of the injury.^ 
 Therefore, if a right to recover exists, it must be given by a 
 
 20 Midland Valley R. Co. v. Le- 
 Moyne, 104 Ark. 327; 148 S. W. 654. 
 
 ^' Brooks V. Southern Pac. Co. 
 148 Fed. 986. 
 
 ^ Michigan Central R. Co. v. Vree- 
 land, 227 U. S. 59; 33 Sup. Ct. 192; 
 57 L. Ed. 417; St. Louis, etc., R. Co. 
 V. Hesterly, 228 U. S. 702; 33 Sup. 
 Ct. 703; 57 L. Ed. 1031; American Ry. 
 Co. V. Didricksen, 227 U. S. 145; 
 33 Sup. Ct. 224; 57 L. Ed. 4.56; 
 St. Louis, etc., R. Co. v. Seale, 229 
 U. S. 156; 33 Sup. Ct. 1129; 57 L. 
 Ed. 651; Fulgham v. Midland Valley 
 R. Co. 167 Fed. 660; Walsh v. New 
 York, N. H. & H. R. Co. 173 Fed 
 494; Melzner v. Northern Pac. Ry 
 Co. 46 Mont. 162; 127 Pac. 1002 
 Cain V. Southern R. Co. 199 Fed. 211 
 Higgins V. Yelverton, Yelv. 89 
 Baker v. Bolton, 1 Campb. 493 
 Osborn v. Gillett, L. R. 8 Exch. 88 
 42 L. J. Exch. 53; 28 L. T. (N. S.) 
 197; 21 W. R. 409; Carey v. Berk- 
 shire R. Co. 1 Cush. 475; Eclen v. 
 Lexington, etc., R. Co. 14 B. Mon. 
 165; Hyatt v. Adams, 16 Mich. 180; 
 
 Grosso V. Delaware, etc., R. Co. 50 
 N. J. L. 317; 13 Atl. Rep. 233; Lyons 
 V. Woodward, 49 Me. 29; Wyatt v. 
 Williams, 43 N. H. 102; Kramer v. 
 Market St. Ry. Co. 25 Cal. 434; 
 Little Rock, etc. Ry. Co. v. Barker, 
 33 Ark. 350; Edgar v. Costello, 14 
 S. C. 20; Natchez, etc., R. Co. v. 
 Cook, 63 Miss. 38; Scheffler v. 
 Minneapolis, etc., R. Co. 32 Minn. 
 125; 19 N. W. Rep. 656; Sherman v. 
 Johnson, 58 Vt. 40; 2 Atl. Rep. 707; 
 Thomas v. Union Pac. Ry. Co. 1 
 Utah, 132; Sullivan v. Union Pac. 
 Ry. Co. 2 Fed. Rep. 447; 1 McCrary, 
 301; Whitford v. Panama R. Co. 23 
 N. Y. 465; Hubgh v. New Orleans, 
 etc., R. Co. 6 La. Ann. 495; Herman 
 V. New Orleans, etc., R. Co. 11 La 
 Ann. 5; Connecticut, etc., Co. v. New 
 York, etc., R. Co. 25 Conn. 265 
 Insurance Co. v. Brame, 95 U. S 
 754; 24 L. Ed. 580; The Harrisburg 
 119 U. S. 199; 7 Sup. Ct. Rep. 140 
 30 L. Ed. 358, reversing 15 Fed. Rep 
 610; In re La Burgogne, 117 Fed 
 Rep. 261; St. Louis, I. M. & So. Ry 
 Co. V. Crafts (U. S.) 35 Sup. Ct. 704
 
 218 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 statute.* A statute giving a right of action in force at the 
 place of the injury applies to a suit in admiralty.^ 
 
 § 139. Constitutionality of statute allowing recovery for 
 beneficiaries. — It is no longer an open question that a stat- 
 ute allowing a recovery for the benefit of those dependent 
 upon the deceased is constitutional. The validity of such a 
 statute has been firmly established.-- This is true although 
 the statute only applies to railroad companies.^^ Once the 
 cause of action has accrued in favor of a beneficiary, a sub- 
 sequent statute cannot change the beneficiary,-* or repeal 
 the right to the action.-^ 
 
 § 140. Deceased without right to recover. — The bene- 
 ficiaries only receive their right to recover damages through 
 the right of the deceased to recover damages if he had 
 brought the suit. If he could not successfully maintain an 
 action for his injuries, his administrator cannot maintain 
 one successfully for their benefit.-'' The right of action is 
 
 * Louisville, etc., R. Co. v. Jones, -^Chicago, etc., R. Co. v. Pounds, 
 
 45 Fla. 407; 34 So. Rep. 246; Peers v. 11 Lea. (Tenn.) 130. 
 
 Nevada, etc., Co. 119 Fed. Rep. ^^ Denver, etc., R. Co. v. Wood- 
 
 400; Fithian v. St. Louis & S. F. Ry. ward, 4 Colo. 162; Lundin v. Kansas 
 
 Co. 188 Fed. 842; Duke v. St. Louis Pac. Ry. Co. 4 Colo. 433. 
 
 & S. F. Ry. Co. 172 Fed. 684; Dillon =« Thomas v. Chicago & N. W. 
 
 V. Great Northern Ry. Co. 38 Mont. Ry. Co. 202 Fed. 7G6; Evansville, 
 
 485; 100 Pac. 960; St. Louis. I. M. etc., R. Co. v. Lowdermilk, 15 Ind. 
 
 & So. Ry. Co. V. Crafts (U. S.) 35 120; Ohio, etc., R. Co. v. Tindall, 
 
 Sun. Ct. 704. 13 Ind. 366; Hecht v. Ohio, etc., R. 
 
 ^Lindstron v. International, etc., Co. 132 Ind. 507; 32 N. E. Rep. 302; 
 
 Co. 117 Fed. Rep. 170; The North- Louisville, etc., R. Co. v. Thompson, 
 
 ern Queen, 117 Fed. Rep. 906. 107 Ind. 442; 8 N. E. Rep. 18; 9 N. E. 
 
 " Boston, etc., R. Co. v. State, 32 Rep. 357; Pittsburg, etc., R. Co. v. 
 
 N. H. 215; Louisville, etc., R. Co. v. Hosea, 152 Ind. 412; 53 N. E. Rep. 
 
 Louisville, etc., Co. (Ky.) 17 S. W. 419; Kaufman v. Cleveland, etc., R. 
 
 Rep. 567; Carroll v. Missouri Pac. Ry. Co. 144 Ind. 456; 43 N. E. Rep. 446; 
 
 Co. 88 Mo. 239; Sherlock v. Ailing, Pennsylvania, etc., R. Co. v. Meyers, 
 
 93 U. S. 99; 23 L. Ed. 819, affirming 1.36 Ind. 242; 36 N. E. Rep. 32; 
 
 44 Ind. 184; Southwestern, etc., R. Madison, etc., R. Co. v. Bacon, 6 
 
 Co. v. Pauik, 24 Ga. 536; Bond v. Ind. 205; Neilson v. Brown, 13 R. I. 
 
 Seerace, 2 Duv. 576. So the Federal 651; Martin v. Wallace, 40 Ga. 52; 
 
 statute is valid. Zikos v. Oregon Wallace v. Connor, 38 Ga. 199; Pym 
 
 R. & N. Co. 179 Fed. 893. v. Great, etc., Ry. Co. 2 B. & S. 759. 
 
 " Boston, etc., R. Co. v. State, 
 tiupru.
 
 DEATH BY WRONGFUL, ACT. 219 
 
 grounded upon the original wrongful injury of the de- 
 ceased.-^ 
 
 § 141. Failure of deceased to bring- action. — The failure 
 of the deceased to bring suit for his injuries, though he had 
 ample time to do so, is no defense.-^ 
 
 § 142. Instantaneous death. — The statute expressly pro- 
 vides for an action in favor of the beneficiaries in case of 
 death of the injured persons ; and this applies to an instan- 
 taneous death,-*^ 
 
 § 143. Survival of injured employee's cause of action. — 
 Before the amendment of 1910 the cause of action given the 
 injured employee did not survive his death, but died with 
 him.^° Consequently if the injured person died after bring- 
 ing suit to recover damages for his injuries, his personal 
 representative could not be substituted and prosecute the 
 suit for the benefit of the heirs or widow of the deceased f^ 
 but he must bring a new action for that purpose. But 
 Congress remedied this defect by adding section nine 
 of the act so as to read as follows: "That any right of 
 
 "Michigan Central R. Co. v. R. Co. 71 Iowa, 490; 32 N. W. Rep. 
 
 Vreeland, 227 U. S. 59; 33 Sup. Ct. 465; Worden v. Humeston, etc., etc., 
 
 192; 57 L. Ed. 417, reversing 189 R. Co. 72 Iowa, 201; 33 N. W. Rep. 
 
 Fed. 495. 629; Nashville, etc., R. Co. v. Prince, 
 
 =8 Malott V. Shimer, 153 Ind. 35; 2 Heisk. (Tenn.) 580; Fowleker v. 
 
 54 N. E. Rep. 101. Nash, 5 Baxt. (Tenn.) 663; Haley v. 
 
 ^ Michigan Central R. Co. v. Vree- Mobile, etc., R. Co. 7 Baxt. (Tenn.) 
 
 land, 227 U. S. 59; 33 Sup. Ct. 192; 239; Kansas City, etc., R. Co. v. 
 
 57 L. Ed. 417, reversing 189 Fed. 495. Daugherty, 88 Tenn. 721; 13 S. W. 
 
 In this case it was said: "There is no Rep. 698; Van Amburg v. Vicksburg, 
 
 express or implied limitation of the etc., R. Co. 37 La. Ann. 651; Hamil- 
 
 liability to cases in which the death ton v. Morgan, etc., R. Co. 42 La. 
 
 is instantaneous." Ann. 824; 8 So. Rep. 586. 
 
 On this point the case of Carolina, C. '"Walsh v. New York, N. H. & 
 
 6 O. Ry. v. Shewalter, 128 Tenn. 363; H. R. R. Co. 173 Fed. 494; Fulgham v. 
 161 S. W. 1136 is not sound. Brown Midland Valley R. Co. 167 Fed. 660; 
 V. Buffalo, etc., R. Co. 22 N. Y. 191; Michigan Central R. Co. v. Vree- 
 Reed v. Northeastern R. Co. 37 S. C. land, supra; Cain v. Southern Ry. 
 42; 16 S. E. Rep. 289; Roach v. Im- Co. 199 Fed. 210. 
 
 perial Mining Co. 7 Fed. Rep. 698; ^' Walsh v. New York, N. H. & 
 
 7 Sawy. 224; International, etc., R. H. R. Co. 173 Fed. 494; Farley v. 
 Co. v. Kindred, 57 Tex. 491; Murphy New York, N. H. & H. R. R. Co. 
 v. New York, etc., R. Co. 30 Conn. 87 Conn. 328; 87 Atl. 999. 
 
 184; Conners v. Burlington, etc.,
 
 220 
 
 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 action given by this act to a person suffering injury shall 
 survive to his or her personal representatives, for the 
 benefit of the surviving widow and children of such em- 
 ployee, and, if none, then of such employee 's parents, and, if 
 none, then of the next of kin dependent upon such employee, 
 but in such cases there shall be only one recovery for the 
 same injury. "^^ Quite recently the Supreme Court has very 
 carefully considered the effect of the addition of section 
 nine, above quoted, and after saying that section one of the 
 Act had not been changed^^ the court used this language 
 concerning the statute: "It continues, as before, to provide 
 for two distinct rights of action ; one in the injured person 
 for his personal loss and suffering where the injuries are not 
 immediately fatal, and the other in his personal representa- 
 tive for the pecuniary loss sustained by designated relatives 
 
 3=Cain V. Southern Ry. Co. 199 
 Fed. 211; Thomas v. Chicago & N. 
 W. Ry. Co. 202 Fed. 766. "We are of 
 the opinion that the plain meaning of 
 these statutory provisions is that, 
 where one receives an injury in the 
 employment of a railroad company 
 under such circumstances as entitles 
 him or her, as the case may be, by 
 virtue of the statute, to recover from 
 the company damages therefor, and 
 that such injury results in the death 
 of the injured person, damage result- 
 ing from the personal suffering, and 
 from such death, not only may be 
 recovered by the personal repre- 
 sentative of the deceased in one 
 action, but must be recovered in one 
 action only, if at all, for the benefit 
 of those specified in the statute." 
 Northern Pac. Ry. Co. v. Maerkl, 
 198 Fed. 1; 117 C. C. A. 237; Norfolk 
 & W. Ry. Co. V. Holbrook (T'. S.) 
 35 Sup. Ct. 143, reversing 215 Fed. 
 687. 
 
 Only one recovery is allowed. St. 
 
 Louis & S. F. R. Co. v. Conarty, 
 106 Ark. 421; 155 S.W. 93. 
 
 "Under Employer's Liability Act, 
 where death is instantaneous, the 
 beneficiary can recover their pecuni- 
 ary loss and nothing more; but the 
 relationship between them and the 
 deceased is a proper circumstance for 
 consideration in computing the same." 
 Norfolk & W. Ry. Co. v. Holbrook 
 (U. S.) 35 Sup. Ct. 143, reversing 215 
 Fed. 687. The court was not in this 
 case considering the amending section 
 nine. 
 
 If the employee lives an appreciable 
 length of time after his injury, his 
 course of action survives even though 
 unconscious. Capital Trust Co. v. 
 Great Northern Ry. Co. (Minn.) 149 
 N. W. 14. See Dillon v. Great 
 Northern Ry. Co. 38 Mont. 485; 100 
 Pac. 9()0. 
 
 =3'Tayior v. Taylor, 232 U. S. 363, 
 570; .34 Sup. Ct. 350; 58 L. Ed. 638, 
 641; 6 N. C. C. A. 436.
 
 DEATH BY WRONGFUL ACT. 220a 
 
 where the injuries immediately or ultimately result in death, 
 "Without abrogating or curtailing either right, the new sec- 
 tion provides in exact words that the right given to the 
 injured person 'shall survive' to his personal representative 
 'for the benefit of the same relatives in whose behalf the 
 other right is given. Brought into that by way of amend- 
 ment, this provision expresses the deliberate will of Congress. 
 Its terms are direct, evidently carefully chosen, and should 
 be given effect accordingly. It does not mean that the in- 
 jured person's right shall survive to his personal representa- 
 tive and yet be unenforceable by the latter, or that the sur- 
 vival shall be for the benefit of the designated relatives, and 
 yet be of no avail to them. On the contrary, it means that 
 the right existing in the injured person at his death — a 
 right covering his loss and suffering while he lives, but 
 taking no account of his premature death or of what he 
 would have earned or accomplished in the natural plan of 
 life — shall survive to his personal representative to the end 
 that it may be enforced and the proceeds paid to the rela- 
 tives indicated. And when this provision and section one 
 are read together the conclusion is unavoidable that the per- 
 sonal representative is to recover on behalf of the designated 
 beneficiaries, not only such damages as will compensate them 
 for their own pecuniary loss, but also such damages as will 
 be reasonably compensatory for the loss and suffering of the 
 injured person while he lived. "^* Where the deceased sur- 
 vived his injury only two hours a recovery by the adminis- 
 trator because of his pain and suffering for the benefit of 
 his widow and child was allowed, and this result was ap- 
 proved by the United States Supreme Court.^^ The admin- 
 
 ^* St. Louis, I. M. & So. Ry. Co. v. 's Kansas City So. Ry. Co. v. Leslie, 
 
 Crafts, 237 U. S. — ; 35 Sup. Ct. 704, 35 Sup. Ct. 844, reversing 112 Ark. 
 affirming (Ark.) 171 S. W. 1185. 305; 1G7 S. W. 83, but on the ground
 
 220b FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 istrator in such a case recovers not only the damages the 
 deceased would have recovered for his pain and suffering, 
 but also for the pecuniary loss the beneficiaries have sus- 
 tained; and the latter cannot be reduced by the amount of 
 the former. Both damages may be recovered in one action, 
 although there are two causes of action, perhaps in separate 
 paragraphs of complaint,^^ although there is no reason why 
 they may not be recovered in a single paragraph. The jury 
 need not specify in their verdict the amount of each dam- 
 age, unless a rule of local practice requires it; but they 
 may award a lump sum.^^ 
 
 that the instructions as to the pe- '' Kansas City So. Ry. Co. v. Leslie, 
 
 cuniary damages was erroneous. 35 Sup. Ct. 844, reversing 112 Ark. 
 
 56 Louisville & N. R. Co. v. Fleming 305; 167 S. W. 83. 
 (Ala.) 69 So. 125.
 
 CHAPTER VIII. 
 BENEFICIARIES. 
 
 144. Statute. 153. Emancipated child. 
 
 145. Order in which beneficiaries 154. Adopted child. 
 
 entitled to receive benefits. 155. Posthumous child. 
 
 146. No beneficiary in e.xistence or 156. Beneficiaries must survive de- 
 
 designated by the statute. ceased— Complaint. 
 
 147. Separation of deceased em- 157. Existence of a beneficiary a 
 
 ployee and his wife— Steps jurisdictional fact, 
 
 toward securing a divorce. 158. Statute of Limitations. 
 
 148. No husband or widow sur- 159. Who brings the action in case 
 
 viving. of death. 
 
 149. Next of kin dependent of 160. Judgment recovered by de- 
 
 employee, ceased. 
 
 150. Next of kin determined by 161. Costs. 
 
 state statute. 162. Suit by poor person. 
 
 151. Who are dependents. 163. Death of beneficiary. 
 
 152. Bastard. 164. Declaration of deceased. 
 
 § 144. Statute. — In case of the death of the injured em- 
 ployee the statute provides that the action may be brought 
 "for the benefit of the surviving widow or husband and 
 children of such employee ; and if none, then of such em- 
 ployee 's parents, and if none, then to the next of kin de- 
 pendent upon such employee."^ 
 
 § 145. Order in which beneficiaries entitled to receive 
 benefits. — In case of the death of the injured employee his 
 personal representative brings the action for the benefit of 
 those surviving him, and they are entitled to the proceeds 
 of any judgment recovered in the following order, viz. : 
 
 First. — The surviving widow or husband and children of 
 the employee. 
 
 Second. — If there be no widow, husband or children, then 
 for the benefit of the employee's parents. 
 
 * Section 1 of statute. 
 
 221
 
 222 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 Third. — If there be no beneficiaries under the first and 
 second classes, then for the benefit of the next of kin 
 dependent upon such employee. 
 
 If there be persons of the first class, then all the persons 
 of the second and third classes are excluded ;- if there be 
 none of the first, but those of the second class, all those 
 of the third class are excluded,^ and it is only where there 
 are none of the first and second classes that those of the 
 third class can be considered as beneficiaries.* 
 
 § 146. No beneficiary in existence or designated by the 
 statute. — If the deceased employee left surviving him no 
 widow, no children, no parents and no next of kin depend- 
 ent upon him, then no recovery can be had by the personal 
 representative. "No right of action is given for the benefit 
 of relatives other than those specified."^ A beneficiary 
 designated by a state statute who is not one named by the 
 Federal Act cannot be used to maintain the action. And 
 this is because the Federal Act gives the only cause of 
 action, in ease of the death of an interstate employee, that 
 can be maintained. It excludes all remedies at common law 
 or under a state statute.^ But a father may maintain an 
 
 action under the statute for loss of services of his infant 
 child where such child survives his injury.^* 
 
 2 St. Louis, S. F. & T. R. Co. v * Thomas v. Chicago & N. W. Ry. 
 
 Seale 229 U. S. 156; 33 Sup. Ct. 651; Co. 202 Fed. 766; Jones v. Charleston 
 
 57 L Ed. 1129; St. Louis, etc., R. Co. & W. C. R. Co. 98 S. C. 197; 82 S. E. 
 
 V. Geer (Tex. Civ. App.) 149 S. W. 415. 
 
 1178. * Second Employer's Liability Cases 
 
 'St. Louis, etc., R. Co. v. Geer 223 U. S. 1; 32 Sup. Ct. 169; 56 L. Ed. 
 
 (Tex. Civ. App.) 149 S. W. 1178; 327; Bradbury v. Chicago, etc., R. 
 
 Moffett V. Baltimore & O. R. Co. Co. 149 Iowa 51; 128 N. W. 1; Rich 
 
 220 Fed. 39. v. St. Louis, etc., R. Co. 166 Mo. 
 
 *St. Louis, etc., R. Co. v. Geer App. 379; 148 S. W. 1011; Melzner 
 
 (Tex. Civ. App.) 149 S. W. 1178; v. Northern Pac. R. Co. 46 Mont. 277; 
 
 Collins v. Pennsylvania Ry. Co. 148 127 Pac. 1002; St. Louis, etc., R. Co. 
 
 N. Y. Supp. 777. V. Hesterly, 228 U. S. 702; 33 Sup. Ct. 
 
 "Two of the plaintiffs, the father 703; 57 L. Ed. 1031; Illinois Central 
 
 and mother, in whose favor there was R. Co. v. Doherty, 153 Ky. 363; 155 
 
 a separate recovery, are not even S. W. 1119; American R. Co. v. 
 
 beneficiaries under theFederal statute, Didricksen, 227 U. S. 145; 33 Sup. 
 
 there being a surviving widow; and Ct. 224; 57 L. Ed. 456; Gulf Ry. Co. 
 
 she was not entitled to recover in her v. McGinnis, 228 U. S. 173; 33 Sup. 
 
 own name, but only through the Ct. 426; 57 L. Ed. 785, reversing 
 
 deceased's personal representation, (Tex. Civ. App.) 147 S. W. 1188; 
 
 a.s is shown by the terms of the Chesapeake & O. Ry. Co. v. Dwyer, 
 
 statute and the decisions before 157 Ky. 590; 163 S. W. 752. 
 
 cited." St. Louis, etc., R. Co. v. «• Tonsellito v. New York Cent. & 
 
 Seale, supra. H. R. R. Co. (N. J.) 94 Atl. 804.
 
 BENEFICIARIES. 223 
 
 § 147. Separation of deceased employee and his wife — 
 Steps toward securing a divorce. — The fact that the de- 
 ceased was not living with his wife at the time of his death 
 is no defense to the action nor to the recovery of damages 
 for her support;'^ even though the wife had taken steps to 
 secure a divorce.^ The marriage engagement of the widow 
 
 can not be shown.^* 
 
 § 148. No husband or widow surviving. — It will be noted 
 that the statute provides in the first class that the suit shall 
 be brought "for the benefit of the surviving widow or hus- 
 band and children of such employee," and the question nat- 
 urally arises, "Suppose, where the deceased employee is a 
 husband and father and no widow survives him, can the suit 
 be maintained for the benefit of his children alone? Must 
 there be a surviving widow in such an instance, in order to 
 authorize the bringing of the suit?" These questions have 
 been answered by some of the state courts in construing 
 similar statutes, and held that though there be no widow sur- 
 viving the deceased, but children survive, the action can be 
 maintained.® 
 
 § 149. Next of kin dependent upon employee. — If there be 
 no widow or husband and children or parent of the deceased 
 employee, then "the next of kin dependent upon" him are 
 entitled to the proceeds of the action, these falling in the 
 third group of beneficiaries. But the fact that the next of 
 kin are non-resident aliens does not defeat the action." Par- 
 
 ^ Dunbar v. Charleston & W. C. Moore, 15 N. Y. 432; OldBeld v. 
 
 Ry. Co. 186 Fed. 175 (a humorous New York, etc., R. Co. 14 N. Y. 310; 
 
 decision). Fogarty v. Northern Pac. Tilley v. Hudson R. Co. 24 N. Y. 471. 
 
 R. Co. (Wash.) 147 Pac. 652. " Rietveld v. Wabash R. Co. 129 
 
 8 Abel V. Northampton, etc., Co. la. 249; 105 N. W. Rep. 515; Pitts- 
 
 212 Pa. St. 329; 61 Atl. 915. burg, etc., R. Co. v. Naylor, 73 Ohio 
 
 8* Jones V. Kansas City So. Ry. Co. St. 115; 76 N. E. Rep. 505; Baltimore, 
 
 (La.) 68 So. 401. Damages may be etc., R. Co. v. Baldwin, 144 Fed. Rep. 
 
 recovered for a minor son of deceased 53; Alfson v. Bush Co. 182 N. Y. 
 
 by a divorced wife. McGarvey v. 393; 75 N. E. Rep. 230; Atchison, 
 
 McGarvey, 163 Ky. 242; 173 S. W. etc., R. Co. v. Fajardo, 74 Kan. 314; 
 
 765. 86 Pac. Rep. 301 ; Tanor v. Municipal, 
 
 'City of Chicago v. Major, 18 111. etc., Co. 84 N. Y. Stat. 1053; 88 
 
 349; Haggerty v. Central R. Co. App. Div. 251; Naylor v. Pittsburg, 
 
 31 N. J. L. 349; McMahon v. City etc., R. Co. 4 Ohio C. C. (N. S.) 437 
 of New York, 33 N. Y. 642; Quin v.
 
 224 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 tial dependency is sufficient to authorize the maintenance 
 of the suit." And in the case of a widow, husband, child or 
 parent the question of dependency is involved.^^ To recover 
 damages for the beneficiaries they must have been actually 
 dependent upon him for their support, either wholly or 
 partially, during his lifetime ; and the mere fact that he may 
 have occasionall}" given them some of his wages is not 
 enough. Thus where the employee was hardly sufficient for 
 his own support, it was ruled that his next of kin could not 
 recover.^^ Thus w^here an unmarried man of 20 w^as killed, 
 leaving only a brother and sister, to whose support he had 
 never contributed, it was held that there could be no re- 
 covery.^* And the same ruling was made where the child 
 was a married woman. ^^ But in order to maintain the ac- 
 tion there need not be shown a legal liability to support the 
 next of kin for whose benefit damages are sought.'^*' The 
 dependency for support is an issue in the case and must be 
 proven.^' In an action to recover damages for the benefit 
 of a young brother and sister of the deceased the court 
 accepted as sufficient very slight evidence of their support, 
 saying: "The evidence as to the tender ages of the chil- 
 dren and being without estate was sufficient evidence to be 
 
 {contra, Cleveland, etc., R. Co. v. 163 App. Div. 452; 148 N. Y. Supp. 
 
 Osgood, 36 Ind. App. 3-1; 70 N. E. 777. 
 
 Rep. 839) Hirschkovitz v. Penn- ^* Jones v. Charleston & W. C. Ry. 
 
 sylvania R. Co. 138 Fed. Rep. 438. Co. 98 S. C. 197; 82 S. E. 415; Gulf 
 
 Contra, ]McGovern v. Philadelphia C. & S. F. R. Co. v. McGinnis, 228 
 
 & R. Ry. Co. 209 Fed. 975. U. S. 173; 33 Sup. Ct. 426; 57 L. Ed. 
 
 "Savannah El. Co. v. Bell, 124 785, reversing (Tex. Civ. App.) 147 
 
 Ga. 663; 53 S. E. 109; Louisville, S. W. 1188. Contra, if he had con- 
 
 etc., R. Co. v. Jones, 50 Fla. 225, 39 tributed. Richelieu v. Union P. R. 
 
 So. Rep. 485. Co. (Neb.) 149 N. W. 772; Southern 
 
 '2 Gulf, C. & S. F. R. Co. v. Mc- Ry. Co. v. Vessell (Ala.) 68 So. 336. 
 
 Ginnis, 228 U. S. 173; 33 Sup. Ct. 426; '^ Gulf, C. & S. F. R. Co. v. Mc- 
 
 57 L. Ed. 192, reversing 147 S. W. Ginnis, supra; Southern Ry. Co. v. 
 
 1118; Michigan Central R. Co. v. Vessell (Ala.) 68 So. 336. 
 
 Vreeland, 227 U. S. 59; 33 Sup. Ct. '^ Michigan Central R. Co. v. 
 
 192; 57 L. Ed. 420; American R. Co. Vreeland, 227 U. S. 59; 33 Sup. Ct. 
 
 V. Didricksen, 227 U. S. 145; 33 Sup. 192; 57 L. Ed. 192; 189 Fed. 495; 
 
 Ct. 224; .57 L. Ed. 224; Melzner Rains v. Southern Ry. Co. (N. C.) 
 
 v. Northern Pac. R. Co. 46 Mont. 85 S. E. 294. 
 
 102; 127 Pac. 1002, is not the law. " Jones v. Charleston & W. C. Ry. 
 
 "Collins v. Penn.sylvania R. Co. Co. 98 S. C. 77; 82 S. E. 415.
 
 BENEFICIARIES. 225 
 
 submitted to the jury on the question of their being de- 
 pendent."^ 
 
 § 150. Next of kin determined by state statute. — In de- 
 termining who are "next of kin" the state statute in force 
 where the death occurs- controls, and not the common law. 
 It necessarily follows who are next of kin may vary in 
 different states. "The contention that the next of kin must 
 be the same in all the states is not in accordance with the 
 intent of the act. Indeed, there could be no uniformity, if 
 that was desirable, for there is no common law in Louisiana, 
 and the common law is much modified in some of the states 
 which we acquired from Mexico and France, and on many 
 subjects the rule of the common law has been held differ- 
 ently in the different states." "The object of the act of 
 Congress was to permit a recovery for wrongful death or 
 injuries on interstate railroads, and that the recovery should 
 go to the next of kin in the cases specified ; the next of kin 
 being determined by the law of the state in which the action 
 is brought, for the status of the citizen, and the statute regu- 
 lating descent and distribution is purely a state matter with 
 which Congress has no concern. By the reasoning in the 
 case above cited^ the words 'next of kin' are taken, like the 
 words 'heirs,' as meaning those to whom the property would 
 go, but who are the heirs and who are the next of kin is a 
 matter purely of state regulation,"* 
 
 ' Kenney v. Seaboard Air Line R. 
 Co. 165 N. C. 99; S2 S. E. 968; Rains 
 
 V. Southern Ry. Co. (N. C.) 85 S. E. Caldwell, 152 U. S. 65; 14 Sup. Ct. 
 
 294. 504; 38 L. Ed. 356. 
 
 "And the fact has been found by * Kenney v. Seaboard Air Line R. 
 
 the jury, who evidently gave due Co. 165 N. C. 99; 82 S. E. 968. 
 weight to the evidence of the earning Consult United States v. Fox, 94 
 
 capacity of intestate as may be in- U. S. 315; 24 L. Ed. 192; Cutting v. 
 
 ferred from the smallness of the Cutting. 6 Fed. 268; Moen v. Moen, 
 
 verdict." Ibid. 16 S. D. 214; 92 N. W. 13, and McCool 
 
 2 Not where the injury is inflicted. v. Smith, 1 Black. 459; 17 L. Ed. 
 
 ^ Hutchinson Investment Co. v. 218.
 
 226 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 § 151. Who are dependent on deceased. — In the previous 
 section it is said that a partial dependency on the deceased 
 was all that was necessary. Who is dependent is, of course, 
 a question of fact. An invalid sister who has received each 
 month thirty or thirty-five dollars, is unable to pay her doctor 
 bills or to work, and is, in fact, dependent upon her deceased 
 brother, comes within the statute.^^ An indigent mother living 
 with her unmarried son and depending upon him for support, 
 is dependent upon him within the meaning of a statute simi- 
 lar to the one under discussion.^® Where an aged father lived 
 in a foreign country, was feeble, destitute, unable to work, 
 and the deceased had many times sent him money, it was 
 held that he was dependent on the deceased son.^'' But where 
 it appeared that the alleged beneficiary was a half sister 
 with two children, that the deceased came to see her at times 
 and then usually gave her money, and sent her money every 
 other week or so for her rent, and she had no other means 
 of support, and since his death had supported herself, it 
 was held that she was not dependent upon him, there being 
 nothing to show the amount of her earnings or that she 
 was, in fact, dependent upon him.^^ The question of de- 
 pendency does not depend upon a strict legal right to it, 
 as where a person because of some disability, and without 
 property, was dependent on the deceased for support, and 
 because of past support he had reasonable expectancy of the 
 continuation if the deceased had lived.-- And the fact that 
 
 " Daly V. New Jersey, etc., R. ^^ Hodnett v. Boston, etc., R. Co. 
 
 Co. 155 Mass. 1; 29 N. E. Rep. 507. 156 Mass. 86; 30 N. E. Rep. 224. 
 
 " Bowerman v. Lackawanna, etc., "^ Louisville, etc., R. Co. v. Jones, 
 
 Co. 98 Mo. App. 308; 71 S. W. Rep. 45 Fla. 407; 34 So. Rep. 246; United 
 
 1062. States, etc., Co. v. Sullivan, 22 App. 
 
 -« Boyle V. Columbia, etc., Co. 182 Dec. 115. 
 Mass. 93; 64 N. E. Rep. 726.
 
 BENEFICIARIES. 227 
 
 the deceased had paid attentions to a young lady with a view 
 to marriage does not even tend to show his parents were not 
 dependent on him for support.-^ Where two brothers and a 
 nephew, with whom deceased lived and did housework they 
 were held entitled to recover, though there was no legal 
 obligation on her part to support them.-* The fact that 
 the beneficiary is a married woman will not defeat her right 
 of action where she does not live with her husband, is not 
 supported by him but was, in fact, dependent on the de- 
 ceased.^^ And the fact that the beneficiary is supported by 
 others after the death of the deceased does not prevent a 
 recovery.-*^ The fact of dependency must be established by 
 the plaintiff -^ for there can be no recovery unless that be 
 shown.^® 
 
 § 152. Bastard. — A suit for the benefit of a bastard where 
 its reputed father has been killed cannot be maintained; for 
 he is not of "kin" to the reputed father.^^ And it has been 
 held that the mother of an illegitimate child cannot recover 
 for its death,^° though it is believed that this is an incorrect 
 decision, and the contrary has been held.^^ 
 
 " Futz V. Western U. T. Co. 25 R. Co. v. Vreeland, 227 U. S. 59, 
 
 "Utah, 263; 71 Pac. Rep. 209. 33 Sup. Ct. 192; 57 L. Ed. 417. 
 
 "* Smith V. Michigan, etc., R. Co. =" Cincinnati, N. O. & T. P. Ry. 
 
 35 Ind. App. 188; 73 N. E. Rep. 928. Co. v. Wilson, 157 Ky. 460; 163 
 
 -' International, etc., R. Co. v. S. W. 493; Kenney v. Seaboard Air 
 
 Boykin, 32 Tex. Civ. App. 72; 85 Line R. Co. 166 N. C. 566; 82 
 
 S. W. Rep. 1163. The abandonment S. E. 968; McDonald v. Pittsburg, 
 
 goes to mitigation of damages. etc., R. Co. 144 Ind. 459; 43 N. E. 
 
 Fogarty v. Northern Pacific Ry. Rep. 447; Thornburgh v. American, 
 
 Co. (Wash.) 147 Pac. 652. etc., Co. 141 Ind. 443; 40 N. E. Rep. 
 
 2^ McDaniels v. Royle, etc., Co. 1062; Dickinson v. Northeastern R. 
 
 110 Mo. App. 706; 85 S. W. Rep. 679. Co. 2 H. & C. 735; 33 L. J. Exch. 91; 
 
 "Willis, etc., Co. v. Grizzell, 198 9 L. T. (N. S.) 299; 12 W. R. 52; 
 
 111. 313; 65 N. E. Rep. 74; Missouri, Good v. Towns, 56 Vt. 410. 
 etc., R. Co. V. Freeman (Tex. Civ. 2° Harkins v. Philadelphia, 15 Phila. 
 
 App.) 73 S. W. Rep. 542. 286. See Marshall v. Wabash R. Co. 
 
 28 Swift & Co. v. Johnson, 138 Fed. 46 Fed. Rep. 269; Robinson v. 
 
 Rep. 867; Diller v. Cleveland, etc., Georgia R., etc., Co. 117 Ga. 168; 
 
 R. Co. 34 Ind. App. 52; 72 N. E. 43 S. E. Rep. 452; Runt v. Illinois, 
 
 Rep. 271. etc., R. Co. 88 Miss. 575; 41 So. Rep. 
 
 "There must appear some reason- 1; McDonald v. Southern R. Co. 71 
 
 able expectation of pecuniary assist- S. C. 352; 51 S. E. Rep. 138. 
 ance or support of which they have " Muhl v. Southern M. R. Co. 
 
 been deprived." Michigan Central 10 Ohio St. 272.
 
 228 FEDERAL EMPLOYERS' LIABILITY ACT, 
 
 § 153. Emancipated child. — The fact that the child of 
 the deceased father has been emancipated is no defense.^^ 
 Nor is it a bar to the action that the child was not living 
 with the father at his death,-^^ or its custody awarded to the 
 divorced wife.^* 
 
 § 154. Adopted child.- — It has been held that an adopting 
 father could sue for the death of his adopted child,^^ and it 
 would seem that suit could he brought for the death of the 
 adopting father where such adopted child was the sole bene- 
 ficiary. Yet it has been held that such a child is not "next 
 of kin. "^^ But a child that had been merely given to the 
 deceased cannot be treated as a beneficiary, not being of 
 kin.37 
 
 § 155. Posthumous child. — The action may be brought 
 for the benefit of a child en ventre sa mere at the time of its 
 father's death. ^^ Such a child is a "surviving child. "^^ 
 
 § 156. Beneficiaries must survive deceased — Complaint. — 
 
 If there be no person alive designated as a beneficiary by the 
 statute, then no action can be maintained. The survival of 
 
 3-]\rattock V. Williamsville, etc., "' State v. Soale. 30 Ind. App. 
 
 R. Co. (Mo.) 95 S. W. Rep. 849. 73; 74 N. E. Rep. 1111 (sale of 
 
 ^ Gulla V. Lehigh, etc., Co. 28 intoxicating liquors to the father, 
 
 Pa. Super. Ct. 11. resulting in his death) : Quinlen 
 
 ^•Taylor v. San Antonio, etc., v. Welcli. 09 Hun, 584; 23 N. Y. 
 
 Co. 15^ Tex. Civ. App. 344; 93 Supp. 903; Thelluson v. Wood- 
 
 S. W. Rep. 074. ford, 4 Ves. 227; 11 Ves. 112. 
 
 ^ Tliornburgh v. American, etc., ^ Nelson v. Galveston, etc., Ry. 
 
 Co. 141 Ind. ■443: 40 N. E. Rep. Co. 78 Tex. G21; 14 S. W. Rep. 
 
 1062. 1021; Texas, etc., Ry. Co. v. Rob- 
 s'' He] dca nip V. .forsey City, etc., ertsou, 82 Tex. 657; "l7 S. W. Rep. 
 
 R. Co. 09 N. .1. 1.. 284; 55 Atl. 1041; The George and Richard, L. 
 
 j^pp 239 P^- Ad. & Ecc. 486; 24 L. T. 
 
 "Elvvood St. Rv Co. V. Cooper. (N- S.) 717; 20 Weekly Rep. 245; 
 
 22 Tnd. App. 459*; 53 N. E. Rep. Galveston etc. R. Co^v. Contreras 
 
 ir>no 1-1 1 c-t r. n r?^J 31 Tex. Civ. App. 489; 73 S. W. 
 
 1092: Elwood St. Rv. Co. v. Ross, it ' 
 
 20 Tn.l. Ai.p. 258; 58 N. E. Rep. ^"'^P' ^"^^■ 
 
 535.
 
 BENEFICIARIES. 
 
 229 
 
 a beneficiary is essential to the maintenance of the cause of 
 action. *° It is, therefore, essential for the administrator to 
 show that a person survived the deceased employe who was 
 then a beneficiary; and ff he do not, his complaint or 
 declaration will be insufficient;^^ and if it do not contain an 
 allegation of that fact, the judgment will be subject to a 
 motion to arrest it.^" 
 
 § 157. Existence of a beneficiary a jurisdictional fact. — 
 
 As the administrator can only wage a suit for the benefit 
 
 *''Koening v. City of Covington 
 (Ky.), 17 S. W. Rep. 128; Cincin- 
 nati, etc., R. Co. V. Pratt, 92 Ky. 
 233; 17 S. W. Rep. 484; Ken- 
 tuclvv, etc., R. Co. V. McGinty, 12 
 Ky. L. Rep. 482 ; 14 S. W. Rep. 601 ; 
 Louisville, etc., R. Co. v. Coppage 
 (Ky.), 13 S. W. Rep. 1086; Ken- 
 tucky, etc., R. Co. V. Wainwriglit 
 (Ky.), 13 S. W. Rep. 438; Cin- 
 cinnati, etc., R. Co. V. Adam 
 (Ky.), 13 S. W. Rep. 428; Louis- 
 ville, etc., R. Co. V. Merriweather 
 (Ky.), 12 S. W. Rep. 935; Con- 
 ley V. Cincinnati, etc., R. Co. 
 (ky.) 12 S. W. Rep. 764; Hen- 
 ning V. Louisville, etc., Co. (Ky. ) 
 12 S. W. Rep. 550; Wiltsie v. 
 Town of Linden, 77 Wis. 152; 46 
 N. W. Rep. 234; Woodward v. 
 Chicago, etc., R. Co. 23 Wis. 400; 
 Serensen v. Northern Pac. Ry. Co. 
 45 Fed. Rep. 407; Lilly v. Char- 
 lotte, etc., R. Co. 32 S. C. 142; 
 10 S. E. 932; Warren v. Engle- 
 hart, 13 Neb. 283; 13 N. W. Rep. 
 401 : Conlin v. City of Charleston, 
 15 Rich. L. 201; Burlington, etc., 
 R. Co. V. Crockett, 17 Xeb. 570; 
 14 K W. Rep. 219. 
 
 " Stewart v. Terre Haute, etc., 
 R. Co. 103 Ind. 44; 2 S. E. Rep. 
 208; Chicago, etc., R. Co. v. La 
 Porte, 33 Ind. App. 691; 71 K E. 
 Rep. 166; Lamphear v. Bucking- 
 ham, 33 Conn. 237; Indianapolis, 
 
 etc., R. Co. V. Keely, 23 Ind. 133; 
 Jeffersonville, etc., R. Co. v. Hen- 
 dricks, 41 Ind. 48; Chicago, etc., 
 R. Co. V. Morris, 26 111. 400; 
 Quincy Coal Co. v. Hood, 77 111. 
 68; Conant v. Griffin, 48 111. 410; 
 Clore V. Mclntire, 120 Ind. 262; 
 22 N. E. Rep. 128; Missouri Pac. 
 Ry. Co. V. Barber, 44 Kan. 612; 
 24 Pac. Rep. 969 ; Safford v. Drew, 
 3 Duer. 627; Greroux v. Graves, 
 62 Vt. 280; 19 Atl. Rep. 987; 
 Lucas V. New York, etc., R. Co. 
 21 Barb. 245; Northern Pac. R. 
 Co. V. Ellison, 3 Wash. 225; 28 
 Pac. Rep. 233; Westcott v. Cen- 
 tral Vt. R. Co. 01 Vt. 638; 17 
 Atl. Rep. 745; Schwarz v. Judd, 
 28 Minn. 371; 10 N. W. Rep. 208; 
 East Tennessee, etc., Ry. Co. v. 
 Lilly, 90 Tenn. 563; 18 S. W. Rep. 
 118; Barnum v. Chicago, etc., R. 
 Co. 30 Minn. 461; 16 N. W. Rep. 
 364. 
 
 ^= Stewart v. Terre Haute, 103 
 Ind. 44; 2 N. E. Rep. 208.
 
 230 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 of someone named in the statute, it follows that the exist- 
 ence of such a person is a jurisdictional fact, and must be 
 alleged and proven ; and if it be not alleged, the complaint 
 is demurrable where it appears that the action is one that 
 falls within the provisions of the Federal Statute. No pre- 
 sumption can cover over such an omission in the complaint 
 or declaration. As it must be alleged, so it must be proven.^ 
 Not only is the existence of a beneficiary a jurisdictional 
 fact, but it is a necessary allegation that he was dependent 
 on the deceased for support, even the care of the widow, 
 child or parent. Thus where the beneficiary was a married 
 daughter, and the Texas Court of Appeals held that the 
 Federal "Statute expressly authorized the suit to be brought 
 by the personal representative for the benefit of the sur- 
 viving wife and children of the deceased, irrespective of 
 whether they were dependent on him, or had the right to 
 expect pecuniary assistance from him," the Supreme Court 
 of the United States declared the construction to be erron- 
 eous, saying: "In a series of cases lately decided by this 
 court, the act in this respect has been construed as intended 
 only to compensate the surviving relative of such a deceased 
 for the actual pecuniary loss resulting to the particular 
 person or persons for whose benefit an action is given. The 
 recovery therefore must be limited to compensating those 
 relatives for whose benefit the administrator sues as are 
 shown to have sustained some pecuniary loss."- 
 
 § 158. Statute of Limitations. — The action must be 
 brought within two years after the death of the injured 
 person.^ A state statute of limitations has no applicability 
 
 iMelzner v. Northern Pac. Ry. U. S. 145; 33 Sup. Ct. 224; 57 L. 
 
 Co. 46 Mont. 102; 127 Pac. 766; Ed. 456. 
 
 Thomas v. Chicago, etc., R. Co. ^ Partee v. St. Louis, etc., R. Co. 
 
 202 Fed. 766; Illinois Cent. R. Co. v. 204 Fed. 970; Goodwin v. Bodeau, 
 
 Stewart, 223 Fed. 30. etc., Co. 109 La. 1050; 34 So. 74; 
 
 2 Gulf C. & S. F. R. Co. V. Mc- County v. Pacific, etc., Co. 68 N. J. 
 
 Ginnis, 228 U. S. 713; 33 Sup. Ct I^- 273; 53 Atl. 380; Staunton Coal 
 
 420; 57 L. Ed. 785, reversing (Tex. Co. v. Fischer, 119 III. App. 284; 
 
 Civ. App.) 147 S. W. 1118; Michigan Dare v. Wabash, etc., R. Co. 119 
 
 Central R. Co. v. Vreeland, 227 IJ. S. HI- App. 250; Crape v. Syracuse, 
 
 .59; 33 Sup. Ct. 417; .57 L. Ed. 192; 183 N. Y. .395; 70 N. E. 465; Winfree 
 
 American R. Co. v. Didricksen, 227 v. Northern Pac. Ry. Co. 173 Fed. 65.
 
 BENEFICIARIES. 231 
 
 to the case ;* and the time is not extended by the pendency 
 and dismissal of a former action as allowed by some codes 
 in the ordinary cases.'** The statute re(iuiring the action to 
 be brought within two years is not, strictly speaking, a stat- 
 ute of limitations, which must be specially pleaded, but is 
 an absolute bar, not removable by any of the ordinary 
 exceptions of that statute.*^ "This is not strictly a statute 
 of limitations," said the Supreme Court of North Carolina. 
 "It gives a right of action that would not otherwise exist. 
 * * * It must be accepted in all respects as the statute 
 gives it. Why the action was not brought within the time 
 does not appear, but any explanation in that respect would 
 be unavailing, as there is no saving clause as to the time 
 within which the action must be begun. "'''' "The time 
 within which the suit must be brought," said Chief Justice 
 Waite, "operates as a limitation of the liability itself as 
 created, and not of the remedy alone. It is a condition at- 
 tached to the right to sue at all." "The liability and the 
 remedy [in admiralty] are created by the same statutes, and 
 the limitations of the remedy are, therefore, to be treated as 
 limitations of the right. "''^ It follows from those statements 
 that if the complaint shows the action was not brought 
 within the two years, it is demurrable.*^ No exception can 
 be alleged to excuse the delay,*'' — as the defendant carrier 
 had agreed to employ the injured servant as a compensation 
 for his injuries.^" The statute provides that the action must 
 be "commenced within two years from the day the cause of 
 
 * Nichols V. Chesapeake & Ohio Ry. ^^ Taylor v. Cranberry, etc., Co. 
 
 Co. 195 Fed. 913. 94 N. C. 525; Best v. Town of Kings- 
 
 ^* Rodman v. Missouri Pac. Ry. ton, 106 N. C. 205; 10 S. E. Rep. 997. 
 
 Co. 65 Kan. 645; 70 Pac. Rep. 642; "The Harrisburg, 119 U. S. 199; 
 
 59 L. R. A. 704; Cavanagh v. Ocean, 7 Sup. Ct. Rep. 199; 30 L. Ed. 358, 
 
 etc., Co. 13 N. Y. Supp. 540; 9 N. reversing 15 Fed. Rep. 610. 
 
 Y. Supp. 198; 11 N. Y. Supp. 547; « Eastern Ry. Co. v. Ellis (Tex. 
 
 12 N. Y. Supp. 609; Boyd v. Clerk, Civ. App.) 153 S. W. 701; Hanna v. 
 
 8 Fed. Rep. 849. Jeffersonville R. Co. 32 Ind. 113; 
 
 *^ Morrison v. Baltimore & Ohio Jeffersonville, etc., R. Co. v. Hend- 
 
 Ry. Co. 40 App. D. C. 391; Shannon ricks, 41 Ind. 48; George v. Chicago, 
 
 v. Boston & M. R. Co. (N. H.) 92 etc., R. Co. 51 Wis. 603; 8 N. W. Rep. 
 
 Atl. 167; Hill v. New Haven, 37 374. 
 
 Vt. 501; Landigan v. New York, etc., " Hill v. New Haven, 37 Vt. 501. 
 
 R. Co. 5 Civ. Proc. Rep. (N. Y.) *" Morrison v. Baltimore & Ohio 
 
 76; Bonnell v. Jowett, 24 Hun. 524. Ry. Co. 40 App. D. C. 391.
 
 — 232 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 action accrued," and this excludes a state statute of limita- 
 tions.^^ Where the employee is instantly killed, the cause 
 of action accrues at once and the statute immediately begins 
 to run.''- In some states it has been held that the statute 
 does not begin to run until an administrator has been ap- 
 pointed;^^ but directly the opposite has also been held.^* 
 An amendment of the complaint may be made after the two 
 years have expired, if it does not state a new cause of 
 action.^^ An important question is presented where the in- 
 jured employee does not die because of his injuries until 
 some time after he has received them — a year, for instance. 
 Must the action be brought within two years from the date 
 of his injury or within two years from the date of his death? 
 A little consideration of this question will show that the suit 
 can be brought within two years after the death and that 
 the date of the injury is immaterial in this respect. While 
 the injured person was alive he could have no administrator, 
 nor could his parents, wife, children or next of kin depend- 
 ent upon him bring an action because of his injuries ; and 
 if he brought the action he would be entitled to the damages 
 recovered and not they. Where the beneficiary brought the 
 action in his own name (which he could not do), and on 
 being appointed administrator, appeared and moved to be 
 substituted plaintiff in his administrative capacity, it was 
 held proper to do so, although more than two years had 
 
 *' Shannon v. Boston & M. R. ^^ Missouri, etc., R. Co. v. Wulf, 
 
 Co. (N. H.) 92 Atl. 167. 226 U. S. 570; 33 Sup. Ct. 135; 57 
 
 *2 Hanna v. Jeffersonville R. Co. L. Ed. 274 (distinguishing Union 
 
 32 Ind. 113. Pac. R. Co. v. Wvler, 158 U. S. 285; 
 
 "Andrews v. Hartford, etc., R. 15 Sup. Ct. 817; 39 L. Ed. 983); 
 
 Co. 34 Conn. 57; Sherman v. Western Eastern Ry. Co. v. Elhs (Tex. Civ. 
 
 Stage Co. 24 Iowa, 515; see Louis- App.) 153 S. W. 701; City of Brad- 
 
 ville, etc., R. Co. v. Sanders, 86 Ky. ford v. Downs, 126 Pa. St. 622; 17 
 
 259; 5 S. W. Rep. 563. Atl. Rep. 884; Jeffersonville, etc. 
 
 '■• Bixler v. Pennsylvania R. Co. R. Co. v. Hendricks, 41 Ind. 48 
 
 201 Fed. 553 (a decision under the Kuhns v. Wisconsin, etc., Ry. Co 
 
 Federal Act); Fowlkes v. Nashville, 76 Iowa 67; 40 N. W. Rep. 92 
 
 etc., R. Co. 5 Baxt. 663; 9 Heisk. 829; Moody v. Pacific R. Co. 68 Mo. 470 
 
 Bee Bledsoe v. Stokes, 1 Baxt. 312. Daley v. Boston, etc., R. Co. 147 
 
 and Flatley v. Memphis, etc., R. Co. Mass. 101; 16 N. E. Rep. 690. 
 9 Heisk. 230.
 
 BENEFICIARIES. 233 
 
 expired since the death of the deceased.^^ It necessarily 
 follows that the statute hegins to run from the date of the 
 death of the injured person. But it has been held, upon 
 elaborate discussion, that the failure to bring the action 
 within two years was a defense that must be specially 
 pleaded, and if no plea to that effect be presented, the 
 defense is waived.^" 
 
 § 159. Who brings the action in case of death. — In case 
 of the death of the injured person before he brings an 
 action, only his personal representatives can bring the 
 action. Of course, personal representative means his ad- 
 ministrator or executor. The cause of action is given by 
 statute, and only the person to whom it is given can bring 
 the action to recover damages ; and the statute has named 
 that personal representative or that person. Even though 
 there be no widow or husband and children or parents, and 
 no personal representative, the "next of kin" cannot main- 
 tain the action.^^ If the deceased has brought suit and 
 then dies, only his personal representatives can prosecute 
 it to judgment. 
 
 § 160. Judgment recovered by deceased. — A judgment 
 recovered by the deceased during his lifetime because of his 
 injuries is a complete bar to a suit by his administrator to 
 recover for the beneficiaries,^'' but the commencement merely 
 of an action is not.'^'* 
 
 ^« Missouri, etc., R. Co. v. Wulf, ^^ Fithian v. St. Louis & S. F. Ry. 
 
 226 U. S. 570; 33 Sup. Ct. 135; 57 Co. 188 Fed. 842; Thompson v. 
 
 L. Ed. 274 (distinguishing Union Wabash Ry. Co. 184 Fed. 554; 
 
 Pac. Ry. Co. v. Wyler. 158 U. S. American R. Co. v. Birch, 32 U. S. 
 
 285; 15 Sup. Ct. 817; 39 L. Ed. 983); Sup. Ct. Rep. 603; De Rivera v. 
 
 Bixler v. Pennsylvania R. Co. 201 Atchison, T. & S. F. Ry. Co. (Tex. 
 
 Fed. 553; Van Doran v. Pennsylvania Civ. App.) 149 S. W. 223. 
 
 R. Co. 93 Fed. 266; 35 C. C. A. 282; ^e pjecht v. Ohio, etc.. R. Co. 132 
 
 Hall V. Louisville, etc., R. Co. 1.57 Ind. 507; 32 N. E. 302; 54 Am. & 
 
 Fed. 464. Eng. R. Cas. 75. See allusion to 
 
 ^' Burnett v. Atlantir Coast Line, this question in St. Louis, I. INI. & So. 
 
 (N. C); 79 Atl. 414 (a decision on the Ry. Co. 35 Sup. Ct. 704, 707. 
 
 Federal Act). 6"= International, etc., R. Co. v. 
 
 Kuehn, 70 Tex. 582; 8 S. W. 484.
 
 234 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 § 161. Costs. — The administrator is not liable personally 
 for the costs of the suit/" but the estate he represents is 
 liable, if, at least, solvent."' 
 
 § 162. Suit by poor person. — An injured person may 
 bring an action as a poor person, and may appeal any 
 judgment against him, without being required to prepay 
 fees or costs or for the printing of the record in the appel- 
 late court or give security therefor, before or after bringing 
 suit or action, upon making a showing to the court that he 
 is unable to pay the costs of the suit or action of a writ of 
 error or appeal, or to give security for them, and stating 
 "that he believes that he is entitled to the redress he seeks 
 by such suit or action on writ of error or appeal, and 
 setting forth briefly the nature of his alleged cause of action 
 or appeal." "^* 
 
 § 163. Death of beneficiary. — If the beneficiary die, even 
 after suit brought, the suit abates.^^^ And where an action 
 is brought for the widow who is the sole beneficiary and she 
 dies, an action cannot be thereafter prosecuted for the bene- 
 fit of the deceased's parent or next of kin dependent upon 
 him."' But if there be two or more beneficiaries standing 
 
 "'Evans v. Newland, 34 Tnd. 41 Ind. 48); Woodward v. Chi- 
 112; Kinney v. Central R. Co. 34 , cago, etc., R. Co. 23 Wis. 400 
 
 N. J. L. 273; see Hicks v. Barrett, Railroad v. Bean, 94 Tenn. 388 
 
 40 Ala. 291. 29 S. W. Rep. 370; Railway Co 
 
 "'Chicago, etc., R. Co. v. Harsh- v. Lilly, 90 Tena. 5G3; 18 S. W 
 
 man, 21 Ind. App. 23; 51 N. E. R<^P- 243; 49 Am. & Eng. R. Cas 
 
 Rep. 343. 495; Chivers v. Rogers, 50 La 
 
 "TaThis statute is set forth at ^nn. 57; 23 So. Rep. 100; Saun- 
 
 length in the Appendix A. ders v. Louisville, etc., R. Co. 40 
 
 ■"•Dillier v. Cleveland, etc., R. C C. A. 465; 111 Fed. Rep. 708; 
 
 Co. 34 Ind. App. 52; 72 N. E., Hennessey v. Bavarian, etc., Co. 
 
 Rep. 271 (disapproving of Jeffer- 145 Mo. 104; 46 S. W. Rep. 966. 
 sonville, etc., R. Co. v. Hendricks, ""Railroad Co. v. Bean, supra.
 
 BENEFICIARIES. 
 
 235 
 
 in the first or second order exclusively, and one die, the 
 action may be prosecuted for those living.^-'^ 
 
 § 164. Declarations of deceased. — If the declarations of 
 the deceased formed a part of the res gestae, they are ad- 
 missible ;^-^ but if they do not form a part of the res gestae 
 they are not admissible.^-^ 
 
 § 164a. Alien beneficiary. — A person residing abroad or 
 an alien beneficiary is entitled to the benefit of the statute, 
 and damages for his benefit may be recovered.^^^ 
 
 12" Senn v. Southern Ry. Co. 124 
 Mo. 621; 28 S. W. Rep. 66. If an 
 administrator die, his successor does 
 not bring the action. Hodges v. 
 Webber, 65 N. Y. App. Div. 170; 
 72 N. Y. Supp. 508. 
 
 1" Brownell v. Pacific R. Co. 47 
 Mo. 240; Fordyce v. McCouts, 51 
 Ark. 509; 11 S. W. Rep. 694; Little 
 Rock, etc., R. Co. v. Leverett, 48 
 Ark. 333; 3 S. W. Rep. 50; Rich- 
 mond, etc., Co. V. Hammond, 93 
 Ala. 181; 9 So. Rep. 577; Merkle 
 V. Bennington Tp. 58 Mich. 156; 
 24 N. W. Rep. 776; McKeigue v. 
 City of Janesville, 68 Wis. 50; 31 
 N. W. Rep. 298; Galveston v. 
 
 Barbour, 62 Tex. 172; Stockmann 
 V. Terre Haute, etc., R. Co. 15 Mo. 
 App. 503; Entwhistle v. Feighner, 
 60 Mo. 214. 
 
 '-- Pennsylvania R. Co. v. Long, 
 94 Ind. 250; City of Bradford v. 
 Downs, 126 Pa. St. 622; 17 Atl. 
 Rep. 884; Louisville, etc., R. Co. 
 V. Berry, 2 Ind. App. 427; 28 N. E. 
 Rep. 714; contra, Perigo v. Chicago, 
 etc., R. Co. 55 Iowa, 326; 7 N. W. 
 Rep. 621; Lord v. Pueblo, etc., R. 
 Co. 12 Colo. 390; 21 Pac. Rep. 148. 
 
 ^-^ McGovern v. Philadelphia & 
 R. R. Co. 235 U. S. 387; 34 Sup. 
 Ct. — , reversing 209 Fed. 975; 
 — C. C. A. — ; 6 N. C. C. — ; Bom- 
 bolis v. Minneapolis & St. L. R. Co. 
 (Minn.) 150 N. W. 385.
 
 CHAPTER IX. 
 
 DAMAGES. 
 
 105. Caution to be observed in con- 174. Use of annuity tables. 
 
 struing statute before and 175. Interest. 
 
 after amendment of 1910. 176. Damages not part of estate. 
 
 165a. Federal statute controls meas- 177. Amount of damages — Illustra- 
 
 ure of damages. tions. 
 
 166. Employee recovers actual but 178. Contributory negligence — Re- 
 
 not punitive damages. ducing the amount of recov- 
 
 167. Fatal injury before the amend- ery. 
 
 ment of 1910 — Two distinct 178a. Instructions on contributory 
 liabilities. negligence — Reducing dam- 
 
 168. Pecuniary damages only given ages otherwise recoverable. 
 
 to beneficiary. 179. Apportionment of damages 
 
 169. Pecuniary loss defined. among the beneficiaries. 
 
 170. Rule for measurement of dam- 180. Distributing proceeds of judg- 
 
 age differs according to re- ment. 
 
 lation of beneficiaries. 181. Survival of cause of action. 
 
 171. Damage by way of solatium. 182. Damages recoverable where 
 
 172. Minor child's damages. there is a survival of de- 
 
 173. Measure of damages. ceased's right of action. 
 
 § 165. Caution to be observed in construing statute be- 
 fore and after amendment of 1910. — Care must be observed 
 in examining the cases and in the construction of the Federal 
 Act to note the distinction introduced by the amendment of 
 1910, or where the death of the employee is instantaneous, 
 resulting in his cause of action not surviving or passing to 
 his personal representative.^ 
 
 § 165a. Federal statute controls measure of damages. — 
 
 The Federal statute controls the measure of dauiiiges when 
 it provides a different rule from that of the common law 
 
 'Carolina, C. Sz O. Rv. v. She- Kearney v. Boston & W. R. Co. 
 
 waiter (Tenn.) 161 S. W. 11.36; 9 Cush. 108; Hollenbeck v. Berk- 
 
 The Corsair, 145 TI. S. .3.35; 12 Sup. shire R. Co. 9 Cusli. 478; Hansford v. 
 
 Ct. 949; .36 L. Ed. 727 (10 minutes Payne, 11 Bush, 380. See the recent 
 
 survival, no damages recoverable); case of St. Louis, I. IVI. & So. Ry. Co. 
 
 236 V. Craft, 35 Sup. Ct. 704, 705.
 
 DAMAGKS. 237 
 
 (prohably not that of a state statute).- Thus a state statute 
 cannot limit the amount of the recovery,^ 
 
 § 166. Employee recovers actual but not punitive dam- 
 ages. — When the contributory negligence of the employee 
 is not involved, he recovers the actual damages he has suf- 
 fered by his injury, which the Supreme Court has declared 
 to be such damages as will "compensate him for his ex- 
 pense, loss of time, suffering, and diminished earning 
 power."* He cannot recover punitive damages; for they 
 are recoverable only in case of a wanton injury ; and the 
 statute covers only negligent injuries. So far as the em- 
 ployee is concerned it is not necessary to pursue the ques- 
 tion further ; for the statute does not change the general 
 rule upon the amount of damages recoverable for an in- 
 jury,^ except where contributory negligence is involved. 
 
 § 167. Fatal injury before the amendment of 1910. — 
 
 Speaking of the statute as it was prior to the amendment 
 of 1910 providing for a survival of the deceased employee's 
 right of action, Justice Lurton said: "We think the act 
 declares two distinct and independent liabilities, resting, of 
 course, upon the common foundation of a wrongful injury, 
 but based upon altogether different principles. It plainly 
 declares the liability of the carrier to its injured servant. 
 If he had survived he might have recovered such damages 
 
 "^ Louisville & N. R. Co. v. Stewart, * Michigan Central R. Co. v. Vree- 
 
 156 Ky. 550; 161 S. W. 557; 163 S. land, 227 U. S. 59; 33 Sup. Ct. 192; 
 
 W. 755; Chesapeake & Ohio Ry. Co. 57 L. Ed. 417, reversing 189 Fed. 495; 
 
 V. Dwyer, 157 Ky. 590; 163 S. W. Bennett v. Southern Ry. Co. 98 
 
 752. S. C. 319; 79 S. E. 710; Nashville, 
 
 2 Devine v. Chicago, R. I. & P.Ry. C. & St. L. R. Co. 158 Ky. 88; 164 
 
 Co. 265 111. 641; 107 N. E. 595. S. W. 310; Nashville, C. & St. L. R. 
 
 The Federal Supreme Court has Co. v. Banks, 156 Ky. 609; 161 S. W. 
 
 declared that the object of the statute 554; Jones v. Kansas City So. Ry. 
 
 was "to abrogate the common law Co. (La.) 68 So. 401; Southern Ry. Co. 
 
 rule completely exonerating the car- v. Peters (Ala.) 69 So. 610. It is 
 
 rier from liability in such a case, and error to leave to the jury the matter of 
 
 substitute a new rule confining the limiting the damages without naming 
 
 exoneration to a proportionate part any standard to which their action 
 
 of the damage corresponding to the shall conform other than their own 
 
 amount of negligence attributable conception of what is recoverable, 
 
 to the employee." Norfolk & W. Seaboard Air L. R. Co. v. Tilghman, 
 
 Ry. Co. v. Ernest, 229 U. S. 114; 33 35 Sup. Ct. 704, reversing 167 N. C. 
 
 Sup. Ct. 654; 57 L. Ed. 651; Illinois 163; 83 S. E. 315, 1090. 
 
 Central R. Co. v. Porter, 207 Fed. ' The statute fixes no limit on the 
 
 311; 125 C. C. A. 55. damages recoverable. Thornbro v. 
 
 Kansas City, M. & O. Ry. Co. 91 
 Kan. 684; 139 Pac. 410.
 
 238 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 as would have compensated him for his expense, loss of 
 time, suffering, and diminished earning power. But if he 
 does not live to recover upon his own cause of action, what 
 then? Does any right of action survive his death and pass 
 to his representative? This is a question which depends 
 upon the statute." And after declaring that this act of 
 Congress cannot be pieced out by resorting to the local 
 statutes of the state of procedure or that of the injury, and 
 that the cause of action the injured employee had did not 
 survive his death and vest in his personal representative, 
 but died with him, Justice Lurton declares: "The obvious 
 purpose of Congress was to save a right of action to certain 
 relatives dependent upon an employee wrongfully injured, 
 for the loss and damage resulting to them financially by 
 reason of the wrongful death. * * * This cause of ac- 
 tion is independent of any cause of action which the de- 
 cedent had, and includes no damages which he might have 
 recovered for his injury if he had survived. It is one be- 
 yond that which the decedent had — one proceeding upon 
 altogether different principles. It is a liability for the loss 
 and damages sustained by relatives dependent upon the 
 decedent. It is therefore a liability for the pecuniary dam- 
 ages resulting to them, and for that only. The statute, in 
 giving an action for the benefit of certain members of the 
 family of the decedent, is essentially identical with the first 
 act which ever provided for a cause of action arising out 
 of the death of a human being — that of 9 and 10 Vict., 
 chap. 93, known as Lord Campbell's Act. This act has been, 
 in its distinguishing feature, reenaeted in many of the states 
 and both in the courts of the states and of England has been 
 construed as not operating as a continuance of any right of 
 actions which the injured person would have had but for 
 his death, but as a new or independent cause of action for 
 the purpose of compensating certain dependent members of 
 the family for the deprivation, pecuniarily, resulting to them 
 from his wrongful death." "The distinguishing features of 
 that act are identical with the act of Congress of 1908 before
 
 DAMAGES. 239 
 
 its amendment: First, it is grounded upon the original 
 wrongful injury of the person; second, it is for the exclu- 
 sive benefit of certain specified relatives ; third, the damages 
 are such as flow from the deprivation of the pecuniary 
 benefits which the beneficiaries might have reasonably re- 
 ceived if the deceased had not died from his injuries."^ 
 
 § 168. Pecuniary damages only given to beneficiary. — In 
 
 the case from which an extended quotation has just been 
 made, Justice Lurton quotes from an opinion of Lord Black- 
 burn where he was construing Lord Campbell's Act, as fol- 
 lows: "A totally new action is given against the person 
 who would have been responsible to the deceased if the de- 
 ceased had lived — an action which * * * is new in its 
 species, new in its quality, new in its principle, in every 
 way new, and which can only be brought if there is any 
 person answering the description of the widow, parent, or 
 child, who, under such circumstances, suffers pecuniary 
 loss."^ "The pecuniary loss," says Justice Lurton, "is not 
 dependent upon any legal liability of the injured person to 
 the beneficiary. That is not the sole test. There must, how- 
 ever, appear some reasonable expectation of pecuniary as- 
 sistance or support of which they have been deprived. Com- 
 pensation for such loss manifestly does not include damages 
 by way of recompense for grief or wounded feelings. The 
 word 'pecuniary' did not appear in Lord Campbell's Act, 
 nor does it appear in our Act of 1908. But the former act 
 and all those which follow it have been continuously inter- 
 preted as providing only for compensation for pecuniary 
 loss or damage."^ In another case Justice Lurton again 
 
 6 Michigan Central R. Co. v. Vree- C. R. Co. v. Doherty, 153 Ky. 363; 
 
 land, 227 U. S. 59; 33 Sup. Ct. 192; 155 S. W. 1119. 
 
 57 L. Ed. 412, reversing 189 Fed. 495; ^ Seward v. The Vera Cruz L. R., 
 
 Bennett v. Southern Ry. 98 S. C. 10 App. Cas. 59. 
 
 319; 79 S. E. 710; Chesapeake & O. ' Michigan Central R. Co. v. Vree- 
 
 Ry. Co. V. Dwyer, 157 Ky. 590; 163 land, 227 U. S. 59; 33 Sup. Ct. 192; 
 
 S. W. 752; Louisville & N. R. Co. v. 57 L. Ed. 412, reversing 189 Fed. 495; 
 
 Stewart, 156 Ky. 550; 161 S. W. 557; American R. Co. v. Didricksen, 227 
 
 modified 157 Ky. 642; 163 S. W. 755; U. S. 145; 33 Sup. Ct. 224; 57 L. Ed. 
 
 Garrett v. Louisville & N. R. Co. 456, reversing 5 Porto Rico, 401, 427; 
 
 197Fed.715;117C.C.A. 109; Illinois Gulf, etc., R. Co. v. McGinnis, 228
 
 240 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 said: "The damages recoverable are limited to such loss as 
 results to them because they have been deprived of a reason- 
 able expectation of pecuniary benefits by the wrongful 
 death of the injured employee. The damage is limited 
 strictly to the financial loss thus sustained."^ Where the 
 parent is the beneficiary a reasonable expectation of sup- 
 port is all that need be shown ; and actual dependency on the 
 deceased for support need not be shown where the widow 
 and children are the beneficiaries.^*' 
 
 § 169. Pecuniary loss defined. — ' * A pecuniary loss or 
 damage," said Justice Lurton, "must be one which can be 
 measured by some standard. It is a term employed judi- 
 cially, 'not only to express the character of that loss to the 
 beneficial plaintiffs which is the foundation of their right 
 of recovery, but also to discriminate between a material 
 loss which is susceptible of a pecuniary valuation, and that 
 inestimable loss of the society and companionship of the 
 deceased relative upon which, in the nature of things, it is 
 not possible to set a pecuniary valuation. '^^ Nevertheless, 
 the word as judicially adopted is not so narrow as to exclude 
 damages for the loss of services of the husband, wife, or 
 child, and, when the beneficiary is a child, for the loss of 
 
 U. S. 173; 33 Sup. Ct. 426; 57 L. Ed. Louis, I. M. & S. Ry. Co. v. Hesterly, 
 
 785; 3 N. C. C. 806, reversing (Tex. 228 U. S. 702; 33 Sup. Ct. 703; 57 L. 
 
 Civ. App.) 147 S. W. 1188; Cain v. Ed. 1031, reversing 98 Ark. 240; 135 
 
 Southern R. Co. 199 Fed. 211 ; Thomas S. W. 874. 
 
 V. Chicago, etc., R. Co. 202 Fed. 768; * American R. Co. v. Didricksen, 
 
 Bennett v. Southern Ry. Co. (S. C.) 227 U. S. 145; 33 Sup. Ct. 224; 57 
 
 79 S. E. 710; Louisville & N. R. Co. L. Ed. 456, reversing 5 Porto Rico 401, 
 
 V. Johnson, 161 Ky. 824; 171 S. W. 427; Kansas City M. & O. Ry. Co. 
 
 847; Chesapeake & Ohio Ry. Co. v. v. Roe (Okla.) 150 Pac. 1035. 
 
 Dwyer, 157 Ky. 590; 163 S. W. 752; These quotations must be read in 
 
 Illinois Central R. Co. v. Doherty, the light of the fact that the amend- 
 
 153 Ky. 363; 155 S. W. 1119; Chesa- ment of 1910 was not involved, 
 
 peake & Ohio Rv. Co. v. Dwyer (Ky.) '" Dooley v. Seaboard Air Line R. 
 
 172 S. W. 918; McCouHough v. Co. 163 N. C. 454; 79 S. E. 970; 
 
 Chicago, R. I. & P. Ry. Co. 160 approved in Moffett v. Baltimore & 
 
 Iowa 524; 142 N. W. 67; North Ohio R. Co. 220 Fed. 39; Fogarty v. 
 
 Carolina R. Co. v. Zackary, 232 U. Northern Pacific Ry. Co. (Wash.) 147 
 
 S. 248; 34 Sup. Ct. 305; 58 L. Ed. 591, Pac. 652; Cain v. Southern Ry. Co. 
 
 reversing 156 N. C. 496; 72 S. E. 858; 199 Fed. 211; Raines v. Southern Ry. 
 
 IlliiioiH Central R. Co. v. Porter, Co. (N. C.) 85 N. E. 294. 
 
 207 Fed. 311; 125 C. C. A. 55; St. "Quoting Patterson's Railway Ac- 
 cident Law § 401.
 
 DAMAGES. 
 
 241 
 
 that care, counsel, training and education which it might, 
 under the evidence, have reasonably received from the 
 parent, and which can only be supplied by the services of 
 another for compensation." Justice Lurton then quotes 
 from a New York case^- as follows: "The word 'pecuniary' 
 was used in distinction to those injuries to the affections 
 and sentiments which arise from the death of relatives, and 
 which, though most painful and grievous to be borne, can- 
 not be measured or recompensed by money. It excludes, 
 also, those laws which result from the deprivation of the 
 society and companionship, which are equally incapable of 
 being defined by any recognized measure of value. "^^ No 
 hard and fast rule," continues Justice Lurton, "by which 
 pecuniary damages may in all cases be measured is possible. 
 In Lett v. St. Lawrence & 0. R. Co.^* it was said in the 
 opinion of Patterson, J. A., after a review of all the English 
 cases construing the act of Lord Campbell — 
 
 'That there is through them all the same principles of 
 construction applied to the statute. Each full state of 
 facts as it arose was dealt with, and furnished a further 
 illustration of the working of the act. The party claiming 
 was held to be entitled or not to be entitled, the scale of 
 compensation acted upon by the jury was approved or dis- 
 approved, in view of the immediate circumstances; but in 
 no case has it been attempted to be decided by anticipation 
 what are the limits beyond which the benefit of the statute 
 cannot be denied.' "^^ It is clear that under this reason- 
 
 i=Tilley v. Hudson River R. Co. Tiffany, Death by "Wrongful Act, 
 
 24 N. Y. 471, and 29 N. Y. 252; 86 §§ 154 to 162; Patterson, Railway 
 
 Am. Dec. 297. Ace. Law, §§ 401 to 406." 
 
 '^ "To the same effect are the cases ^* 11 Ont. App. Rep. 1. 
 
 of Schaub v. Hannibal & St. J. R. '^ Michigan Central R. Co. v. Vree- 
 
 Co. 106 INIo. 74; 16 S. W. 924, which land, 227 U. S. 59; 33 Sup. Ct. 192; 
 
 was followed by che Circuit Court of 57 L. Ed. 417, reversing 189 Fed. 495. 
 
 Appeals for the eighth circuit in In this case it was held error to tell 
 
 Atchison, T. & S. F. R. Co. v. Wilson, the jury to consider the relation be- 
 
 48 Fed. 57; 1 C. C. A. 25; 4U. S. App. tween husband and wife, and draw 
 
 25; Lelt v. St. Lawrence & O. R. upon their own experiences as men, 
 
 Co. 11 Ont. App. Rep. 1; Penn- and measure, as far as they could, 
 
 sylvania R. Co. v. Goodman, 62 Pj,. what it would reasonably have been 
 
 329; Louisville, N. A. & C. R. Co. v. worth to the wife in dollars to have 
 
 Rush, 127 Ind. 545; 26 N. E. 1010; had, during their Ufe together, had
 
 242 
 
 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 ing and the rule here stated, that the measure of damages 
 is the amount which will compensate the surviving hene- 
 ficiaries for the actual pecuniary loss they have suffered in 
 the death of the employee.^*' But the fact that the bene- 
 ficiaries are wealthy, will not necessarily defeat a recovery; 
 as where an aged parent relied upon his grownup son to 
 manage his farm of 1,800 acres.^^ 
 
 § 170. Rule for measurement of damages differs accord- 
 ing to relation of beneficiary. — "The rule for the measure- 
 ment of damages must differ according to the relation be- 
 tween the parties plaintiff and the decedent, 'according as 
 the action is brought for the benefit of husband, wife, minor 
 child or parent of minor child, for the loss of services or 
 support to which the beneficiary was legally entitled, or is 
 brought for the benefit of a person whose damages consist 
 only in the loss of a prospective benefit to which he was not 
 legally entitled.' "^^ It is proper for the court to tell the 
 jury where the widow with her children are the beneficiaries, 
 
 he lived, his use and advice. "This 
 threw the door open to the widest 
 speculation." 
 
 " Chesapeake & O. Ry. Co. v. 
 Dwyer, 1.57 Ky. 590; 163 S. W. 752; 
 St. Louis, etc., R. Co. v. Gear, (Tex. 
 Civ. App.); 149 S. W. 1178; Hard- 
 wick V. Wabash R. Co. (AIo.) 168 
 S. W. 328; Gulf C. & S. F. Ry. Co. v. 
 McGinnis, 228 U. S. 173; 33 Sup. Ct. 
 426; 57 L. Ed. 785; Louisville & N. R. 
 Co. V. Stewart, 156 Ky. 550; 161 S. 
 W. 557; New York, C. & St. L. Ry. 
 Co. V. Niebel, 214 Fed. 952; American 
 R. Co. V. Didricksen, 227 U. S. 145; 
 33 Sup. Ct. 224; 57 L. Ed. 456; LouLs- 
 ville & N. R. Co. v. FleininK (Ala.) 
 69 So. 125; Kansas City So. Ry. Co. 
 V. Leslie, 35 Sup. Ct. 844, reversing 
 112 Ark. 305; 167 S. W. 83, holding 
 an instruction erroneous. 
 
 Insurance paid because of death 
 docs not reduce the amount of the 
 recovery. lirabham v. Baltimore & 
 O. R. Co. 220 Fed. 35. 
 
 " Garrett v. Louisville & N. R. Co. 
 197 Fed. 715. 
 
 "This question of loss of prospective 
 gifts to the parents will ordinarily in- 
 volve UQ inquiry into the means and 
 earning capacity of the decedent on 
 the one hand, and the means and 
 earning capacity of the parents on the 
 
 other. The extent of previous con- 
 tributions for support would clearly 
 be a proper consideration. * * *, 
 In the nature of the case evidence 
 cannot be very definite as to the 
 actual amount of the pecuniary loss 
 sustained in such a case, but it does 
 devolve upon the plaintiff to show 
 those general facts which are neces- 
 sarily within the general knowledge 
 of the beneficiaries and which bear 
 upon the financial resources and pros- 
 pects of themselves, as well as those 
 of the decedent." ISIcCoullough v. 
 Chicago, R. I. & P. Ry. Co. 160 Iowa 
 524; 142 N. W. 67. 
 
 "* Michigan Central R. Co. v. 
 Vreeland, 227 U. S. 59; 33 Sup. Ct. 
 192; 57 L. Ed. 412, reversing 189 Fed. 
 495, quoting from Tiffany, Death 
 by Wrongful Act, § 158; Bennett v. 
 Southern Ry. (S. C.) 79 S. E. 710; 
 Fogarty v. Northern Pacific Ry. Co. 
 (Wash.) 147 Pac. 652; Norfolk & 
 W. Ry. Co. V. Holl)rook (U. S.) 35 
 Sup. Ct. 143, reversing 215 Fed. 687; 
 Illinois Central R. Co. v. Doherty, 
 153 Ky. 363; 155 S. W. 1119.
 
 DAMAGES. 
 
 243 
 
 that the pecuniary loss sustained would be greater than 
 where the beneficiaries were all adults or merely next of 
 kin.^^ ''The elements which make up the total damage re- 
 sulting to a minor child from a parent's death may be 
 materially different from those demanding examination 
 where the beneficiary is a spouse or collateral dependent 
 relative ; but in every instance the award must be based 
 upon money value, the amount of which can be ascertained 
 only upon a view of the peculiar facts presented."^" 
 
 § 171. Damages by way of solatium. — Damages cannot 
 
 >9 Norfolk & W. Ry. Co. v. Hol- 
 brook, 215 Fed. 687, but reversed (U. 
 S.) 35 Sup. Ct. 143; McCoullough v. 
 Chicago, R. I. & P. Ry. Co. 160 
 Iowa 524; 142 N. W. 67. 
 
 "The ascertained circumstances 
 must govern in every case." Norfolk 
 & W. Ry. Co. V. Holbrook (U. S.) 35 
 Sup. Ct. 183; 59 L. Ed. — . 
 
 It may be shown that the deceased 
 was a church member in order to 
 show pecuniary loss to his children 
 who thereby lost his moral training 
 and discipline and influence which 
 they would have received. White 
 V. Central Vermont Ry. Co. 87 Vt. 
 330; 89 Atl. 618. 
 
 This instruction prior to 1910 was 
 held a proper one to give: "In fixing 
 the simas you will be reasonable and 
 just, and fix such sums as will, in 
 your honest and deliberate judgment, 
 recompense or compensate the wife 
 and child for such pecuniary or 
 money loss as they actually sus- 
 tained in consequence of the death of 
 the husband and father. It is merely 
 a matter of pecuniary loss, however. 
 You cannot allow anything whatever 
 for the grief or anguish of the wife 
 or child by reason of the death. You 
 will consider the age of the deceased 
 and that of his wife and child, the 
 condition of the health of the de- 
 ceased, his earning capacity, and his 
 reasonable prospects at the time of 
 his death. You should include the 
 value of the support and protection 
 
 by the deceased of the wife and 
 dependent child, if any, that they 
 would have received during the time 
 that he probably would have lived. 
 You should also consider the accumu- 
 lation of property that the earnings 
 of the deceased would probably have 
 made had he continued to live, if 
 you find that, and the reasonable 
 expectation that the wife and child 
 had of pecuniary advantage by ulti- 
 mately receiving such accumulations, 
 if such you find. The limit of total 
 compensation to both wife and child 
 is such sum as, being put at interest, 
 will each year, by taking a part of 
 the principal and adding it to the 
 interest, yield an amount sufficient 
 for such support of the wife and the 
 dependent child during the time the 
 deceased would probably have lived, 
 as he would have furnished had he 
 lived, together with such sum as 
 the evidence shows there is a reason- 
 able expectation the wife and child 
 would have received from his earn- 
 ings." Sweet V. Chicago & N. W. 
 Ry. Co. 157 Wis. 400; 147 N. W. 1054. 
 For another instruction that was 
 approved, see Chesapeake & Ohio Ry. 
 Co. V. Dwyer, 162 Ky. 427; 172 S. W. 
 918. But see New York, C. & St. L. 
 R. Co. V. Niebel, 214 Fed. 952. For 
 an instruction approved, see Louis- 
 ville & N. R. Co. V. Fleming (Ala.) 
 69 So. 125. 
 
 20 Norfolk & W. R. Co. v. Holbrook 
 (U. S.) 35 Sup. Ct. 143, reversing 215 
 Fed. 687; American R. Co. v. Birch, 
 224 U. S. 547; 32 Sup. Ct. 603; 56 
 L. Ed. 879.
 
 244 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 be allowed by way of solatium for the grief and wounded 
 feelings of the beneficiaries;-^ nor can a widow recover for 
 loss of companionship of her husband.-" 
 
 §172. Minor child's damages. — "A minor child sustains 
 a loss from the death of a parent, and particularly of a 
 mother, altogether different from that of a wife or husband 
 from the death of the spouse. The loss of security and 
 companionship, and of the acts of kindness which originate 
 in the relation and are not in the nature of services, are not 
 capable of being measured by any material standard. But 
 the duty of the mother to minor children is that of nurture 
 and of intellectual training, such as, when obtained from 
 others, must be for financial compensation. In such a case 
 it has been held that the deprivation is such as to admit of 
 definite valuation, if there be evidence of the fitness of the 
 parent, and that the child has been actually deprived of such 
 advantages."-^ "The pecuniary injury suffered would be 
 much greater than where the beneficiaries were all adults 
 or dependents who were mere next of kin, so that the rela- 
 tion existing between deceased and the infant beneficiaries 
 prior to his death is a factor in fixing the amount of merely 
 pecuniary damages."-'* "For, as the loss recoverable is the 
 
 ^1 Michigan Central R. Co. v. -^ Michigan Central R. Co. v. 
 
 Vreeland, 227 U. S. 59; 33 Sup. Ct. Vreeland, 227 U. S. 59; 33 Sup. Ct. 
 
 192; 57 L. Ed. 417; Cain v. Southern 192; 57 L. Ed. 417, reversing 189 
 
 Ry. Co. 199 Fed. 211; St. Louis, Fed. 495; Cain v. Southern Ry. Co. 
 
 etc., R. Co. V. Geer (Tex. Civ. App.) 199 Fed. 211; Bennett v. Southern 
 
 149 S. W. 1178; Hubert v. Topeka, Ry. (S. C.) 79 S. E. 710; St. Louis, 
 
 34 Fed. 510; Perham v. Portland etc., R. Co. v. Duke, 192 Fed. 309; 
 
 Electric Co. 33 Ore. 458; 53 Pac. 14; 112 C. C. A. 564; St. Louis, etc., R. 
 
 40 L. R. A. 799; 72 Am. St. 730; Co. v. Geer (Tex. Civ. App.) 149 
 
 Garrett v. Louisville & N. R. Co. S. W. 1178; McCoullough v. Chicago, 
 
 197 Fed. 715; Illinois Central R. Co. R. I. & P. Ry. Co. 160 Iowa 524; 
 
 V. Barron, 5 Wall. 90; 18 L. Ed. 591, 142 N. W. 67; St. Louis, I. M. & So. 
 
 affirming 1 Biss. 453; Fed. Cas. No. Ry. Co. v. llodgers (Ark.) 176 S. .W. 
 
 1053; Blake v. Midland Rv. Co. 696. 
 
 18 Q. B. 93; 21 L. J. Q. B. 233; 16 2" Norfolk & W. Ry. Co. v. Hol- 
 
 Jur. 502; Hutchins v. St. Paul, etc., brook, 215 Fed. 687, reversed, but 
 
 R. Co. 44 Minn. 5; 46 N. W. 79; New not on this point (U. S.) 35 Sup. Ct. 
 
 York, C. & St. L. Ry. Co. v. Niebel, 143. 
 
 214 l'\id. 952; St. Louis, I. M. & So. The value of a father's service in 
 
 Ry. Co. v. Rodgers (Ark.) 176 S. W. attention to and care and super- 
 
 696. intendence of his children and family, 
 
 ^- New York C. & St. L. R. Co. v. in the education of his children, of 
 
 Niebel, 214 Fed. 952. which they are deprived by his death
 
 DAMAGES. 245 
 
 pecuniary loss only, It is apparent that a child shortly to 
 become of age could not suffer so great a loss in the father's 
 death as his younger brothers and sisters, the verdict should 
 refer to this obvious fact.""^ But the court cannot say that 
 the pecuniary injury suffered by a widow and infant chil- 
 dren is much greater than when the beneficiaries are all 
 adults or dependents who are next of kin.-*' 
 
 § 173. Measure of damages. — It will be observed that the 
 statute does not undertake to fix a limit to the amount of pe- 
 cuniary damages recoverable for the death of the employee ; 
 and a state statute fixing a limit in case of death has no 
 application whatsoever.^" Therefore, the courts are at lib- 
 erty to apply the usual rules followed in such instances. 
 The question is, "What pecuniary loss did the beneficiaries 
 suffer by the death of the deceased?" In ascertaining that 
 loss the age of the deceased, his earning capacity, his prob- 
 able earnings,^^ his habits of industry, his drinking habits, 
 and any other fact bearing upon his capacity to furnish the 
 beneficiaries a livelihood may be considered.'^^ The special 
 
 may be considered as an element of N. E. 1078; Dooley v. Railroad Co. 
 
 pecuniary loss. Cain v. Southern 163 N. C. 454; 79 S. E. 970; Irvin 
 
 Ry. Co. 199 Fed. 211. v. Railroad Co. 164 N. C. 454; 80 
 
 " Hardwick v. Wabash R. Co. S. E. 78; Bowers v. Southern Ry. Co. 
 
 181 Mo. App. 156; 168 S. W. 328. 10 Ga. App. 367; 73 S. E. 677. 
 
 26 Norfolk & W. Ry. Co. v. Hoi- " Vreeland v. Michigan Central R. 
 
 brook (U. S.) 35 Sup. Ct. 143, re- Co. 189 Fed. 495, reversed but not 
 
 versing 215 Fed. 687. on this point. 227 U. S. 59; 33 
 
 It may be shown that the deceased Sup. Ct. 192; 57 L. Ed. 417, but 
 
 was a church member, to show not on this point. Kaght v. Sadtler, 
 
 pecuniary loss to his children who etc., Co. 91 Mo. App. 574; St. Louis, 
 
 thereby lost his moral training and etc., Ry. Co. v. Bowles (Tex. Civ. 
 
 discipline and influence which they App.) 72 S. W. Rep. 451; Watson v. 
 
 would have received if he had lived. Seaboard, etc., R. Co. 133 N. C. 188; 
 
 White V. Central Vermont Ry. Co. 45 S. E. Rep. 555; Davidson, etc., 
 
 87 Vt. 330; 89 Atl. 618. Co. v. Severson, 109 Tenn. 572; 72 
 
 '«Devine v. Chicago, R. I. & P. S. W. Rep. 967; Neal v. Wilmington, 
 
 Ry. Co. 266 111. 248; 107 N. E. 595. etc., Co. 3 Penn. (Del.) 467; Carter 
 
 See § 165a. v. North Carohna R. Co. 139 N. C. 
 
 "Chesapeake & Ohio R. Co. v. 499; 52 S. E. Rep. 642; Beaumont, 
 
 Dwyer, 162 Ky. 427; 172 S. W. 918. etc., R. Co. v. Dilworth, 16 Tex. Civ. 
 
 Louisville & N. R. Co. v. Fleming App. 257; 94 S. W. Rep. 352; Knott 
 
 (Ala.) 69 So. 125. It is error to say to v. Peterson, 125 la. 404; 101 N. W. 
 
 the jury that, if at all, the plaintiff is Rep. 173; San Antonio, etc., R. Co. 
 
 entitled to recover the present value of v. Brock (Tex. Civ. App.) 80 S. W. 
 
 deceased's net earnings based on his Rep. 422; Louisville & N. R. Co. v. 
 
 expectancy. Kenney v. Seaboard Fleming (Ala.) 69 So. 125. 
 Air Line Ry. Co. 165 N. C. 99; 80
 
 246 
 
 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 aptitude of the deceased for a particular trade may be con- 
 sideredJ^ So his health may be shown as bearing upon his 
 earning capacity,^'* His disposition to contribute to the sup- 
 port of those dependent upon him, or to that of his wife, 
 children or parents, is a factor to be considered.^^ In the 
 case of a widow, at least, the amount of damages she suf- 
 fered may be based upon the length of time the deceased 
 would probably have lived f^ and this is not affected by her 
 subsequent marriage.^^ Where the deceased had a child, the 
 value of his services for the care and education of such 
 child may be taken into consideration,^* as well as his prob- 
 able increase of earning power.^^ "Where the wife is the 
 beneficiary, the measure of damages is the probable amount 
 she would have received if he had lived and not his prob- 
 able earnings.^® If the beneficiaries are next of kin depend- 
 ent upon him, proof of mere relationship is not sufficient ; 
 the actual fact of expectancy must be shown.^^ Declarations 
 
 '^ Snyder v. Lake Shore, etc., Ry. 
 Co. 131 Mich. 418; 91 N. W. Rep. 643; 
 Evarts v. Santa Barbara, etc., R. 
 Co. (Cal. App.) 86 Pac. Rep. 830; 
 Reiter, etc., Co. v. Howlin, 144 Ala. 
 192; 40 So. Rep. 280. 
 
 8° Coffey, etc., Co. v. Carter, 65 
 Kan. 565; 70 Pac. Rep. 635. 
 
 *' Fajardo v. New York Cent. R. 
 Oo. 84 N. Y. App. Div. 354: Fogarty 
 V. Northern P. Co. (Wash.) 147 
 Pac. 652. 
 
 *^ Chesapeake & Ohio Ry. Co. v. 
 Dwyer, 162 Ky. 427; 172 S. W. 918; 
 Cox V. Wilmington, etc., Ry. Co. 
 4 Penn. 162 (Del.) 53 Atl. Rep. 569. 
 
 *^ Consolidated Store Co. v. Mor- 
 gan, 160 Ind. 241; 66 N. E. Rep. 
 696; Chicago, etc., R. Co. v. Driscoll, 
 207 111. 9; 69 N. E. Rep. 620; but 
 see Hewill v. East, etc., Co. (Mich.) 
 98 N. W. Rep. 992. 
 
 ** Cameron, etc., Co. v. Anderson, 
 98 Tex. 156; 81 S. W. Rep. 282; 
 McCoullough V. Chicago, R. I. & 
 P. Ry. Co. 160 Iowa 524; 142 N. W. 
 67; Cain v. Southern Ry. Co. 199 
 Fed. 211. 
 
 Mortality tables may be based on 
 the expectancy of life. Mix v. Ham- 
 burg, «!tc., Co. 85 N. Y. App. Div. 
 475; 83 N. Y. St. 322; Knott v. 
 
 Peterson, 125 la. 404; 101 N. W. 
 Rep. 524; Ft. Worth, etc., R. Co. v. 
 Linthicum, 33 Tex. Civ. App. 375; 
 77 S. W. Rep. 40. See § 174. 
 
 85 Halverson v. Seattle El. Co. 35 
 Wash. 600; 77 Pac. Rep. 1058; 
 Barnes v. Columbia Lead Co. 107 
 Mo. App. 608; 82 S. W. Rep. 203; 
 American R. Co. v. Birch, 224 U. S. 
 547; 32 Sup. Ct. 603; 56 L. Ed. 879. 
 
 8^ Reed v. Queen Anne R. Co. 4 
 Penn. (Del.) 413; 57 Atl. Rep. 529; 
 Houston, etc., R. Co. v. Turner, 34 
 Tex. Civ. App. 397; 78 S. W. Rep. 
 712 (jury to consider whether a less 
 sum presently paid would compen- 
 sate her). Kenney v. Seaboard Air 
 Line Ry. Co. 165 N. C. 99; 80 S. E. 
 1078, with which compare Louisville 
 & N. R. Co. V. Stewart, 156 Ky. 550; 
 161 S. W. 557, modified 157 Ky. 642; 
 163 S. W. 755. 
 
 But it has been held that the wid- 
 ow's recovery for pecuniary loss can- 
 not exceed the probable earnings of 
 the deceased. Chesapeake & Ohio 
 Ry. Co. V. Dwyer, 162 Ky. 427; 172 
 S. W. 918; Fogarty v. Northern P. 
 R. Co. (Wash.) 147 Pac. 652. 
 
 8' Illinois Central R. Co. v. Doher- 
 ty, 153 Ky. 363; 155 S. W. 1119;
 
 DAMAGES. 247 
 
 of deceased evincing a probable support are admissible."" If 
 the suit is for the loss of a wife, the husband being the 
 beneficiary, the fact of his remarriage cannot be shown."** 
 The jury must determine the amount of the loss, and to do 
 this may apply their own observation, experience and knowl- 
 edge to the circumstances of the case f^ but they must con- 
 fine themselves to the evidence."^ The expectancy of the 
 life of the deceased may be shown ;^- but to show this the 
 longevity of the father or mother of the deceased cannot be 
 shown.^^ If the beneficiaries are dependent upon the de- 
 ceased, then their expectancy in life may be shown.®* The 
 fact that the deceased father may have become impoverished 
 if he had lived, and thus a burden to his children, need not 
 be considered by the jury."^ It cannot be shown what would 
 be the cost of an annuity bond on the deceased's expectancy 
 of life which would be sufficient to produce an annual in- 
 come equal to his annual income at the time of his death. ^'^ 
 In case of the death of a parent leaving a minor child, the 
 child's loss of care, education, support and moral training 
 is a subject for the jury's consideration ;®^ and it may also be 
 
 McCullough V. Chicago, R. I. & P. Kansas City, 178 Mo. 528; 77 S. 
 
 Ey. Co. 160 Iowa 524; 142 N. W. 67; W. Rep. 890; Louisville & N. R. Co. 
 
 Standard, etc., Co. v. Munsey, 33 v. Fleming (Ala.) 69 So. 125. 
 
 Tex. Civ. App. 416; 76 S. W. Rep. "^ Hinsdale v. New York, etc., R. 
 
 931; Chesapeake & O. Ry. Co. v. Co. 81 N. Y. App. Div. 617. 
 
 Dwyer, 157 Ky. 590; 163 S. W. 752; ^* The Dauntless, 121 Fed. Rep. 
 
 Collins V. Pennsylvania R. Co. 148 420. 
 N. Y. Supp. 777. 
 
 88 Gulf, etc., R. Co. v. Brown, 33 "^ Stemples v. Metropolitan St. Ry. 
 
 Tex. Civ. App. 269; 76 S. W. Rep. Co. 174 N. Y. 512; 66 N. E. Rep. 1117. 
 
 794. 86 Hinsdale v. New York, etc., R. 
 
 8' International, etc., Ry. Co. v. Co. 81 N. Y. App. Div. 617. 
 
 Boykin (Tex. Civ. App.) 85 S. W. The pecuniary damages cannot be 
 
 Rep. 1163; St. Louis, etc., R. Co. vitiated to an amount which at inter- 
 
 V. Cleere (Ark.) 88 S. W. Rep. 995 est, would, together with the principal, 
 
 (a wife remarrying). yield the decedent's defendant an 
 
 **• Denver, etc., R. Co. v. Gunning, annual income equal to the amount 
 
 33 Colo. 280; 80 Pac. Rep. 727; he would otherwise have received 
 
 Utah, etc., Co. v. Diamond, etc., Co. during the period of his life expect- 
 
 26 Utah, 299; 73 Pac. Rep. 524. ancy. Chesapeake & Ohio Ry. Co. v. 
 
 "» Cleveland, etc., R. Co. v. Dwyer, 157 Ky. 590; 172 S. W. 918; 
 
 Drumm, 32 Ind. App. 547; 70 N. E. Chesapeake & Ohio Ry. Co. v. 
 
 Rep. 286. Kelley, 160 Ky. 296; 169 S. W. 736. 
 
 "- Coffeyville, etc., Co. v. Carter, " Ganoche v. Johnson, etc., Co. 
 
 65 Kan. 565; 70 Pac. Rep. 635; 116 Mo. App. 596; 92 S. W. Rep. 
 
 Haines v. Pearson, 100 Mo. App. 918; Beaumont, etc., Co. v. Dil- 
 
 551; 75 S. W. Rep. 194; Jones v. worth, 16 Tex. Ct. Rep. 257; 94 S.
 
 248 
 
 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 shown in defense that he had abandoned it f^ or his solici- 
 tude for its moral training.'"' In case of the death of a minor 
 child, the value of his services until maturity may be re- 
 covered ;^°° and it may be shown that he was obedient, indus- 
 trious and economical.^"^ But it should be observed that the 
 damages to the child are not limited to those which accrued 
 during his minority.^"- If a parent is the beneficiary, then 
 damages may be awarded for reasonable expectation of the 
 parent of benefits that might have accrued for the services 
 of the deceased child ;^°^ but not for grief or anguish to 
 the parent nor for sufferings of the child.^°* The parent 
 when dependent on the child is entitled to recover more 
 than nominal damages. ^°^ The amount of property left by 
 the deceased is not a subject of inquiry,^"*' nor the pecuni- 
 ary resources of the widow or next of kin or their unfor- 
 tunate condition. ^°' Declarations of the deceased concerning 
 efforts of his children to get his property away from him are 
 
 W. Rep. 352; Texas, etc., R. Co. v. 
 Green, 15 Tex. Ct. Rep. 133; 95 S. W. 
 Rep. 694; IMcCoullough v. Chicago, 
 R. I. & P. Ry. Co. 160 Iowa 524; 
 142 N. W. 67. 
 
 '* Beaumont, etc., Co. v. Dil- 
 worth, supra. 
 
 ^^ St. Louis, etc., R. Co. v. Mathias 
 (Ark.) 91 S. W. Rep. 763. 
 
 ""' Cumberland, etc., Co. v. Ander- 
 son, 89 Miss. 732; 41 So. Rep. 263; 
 McCoullough V. Chicago, R. I. & P. 
 Ry. Co. 160 Iowa 524; 142 N. W. 
 67. 
 
 "" Anthony, etc., Co. v. Ashby, 
 
 198 111. 562; 64 N. E. Rep. 1109: 
 Stempels v. Metropolitan St. Ry 
 Co. 174 N. Y. 512; 66 N. E. Rep 
 1117; St. Louis, etc., Ry. Co. v 
 Haist, 71 Ark. 258; 72 S. W. Rep. 893 
 McCoullough V. Chicago, P. I. & P 
 Ry. Co. 160 Iowa 524; 142 N. W. 67 
 
 '"-Galveston, etc., Py. Co. v 
 Puonta, 30 Tex. Civ. App. 246; 70 
 S. W. Pep. 362. 
 
 '"^ Chicago, (!tc., R. Co. v. Beaver, 
 
 199 111. .34; (;5 X. E. Pep. 144; Corbett 
 v. Oregon, etc., P. Co. 25 Utah, 449; 
 71 Pac. Rep. 1005; Draper v. Tucker, 
 
 69 Neb. 434; 95 N. W. Rep. 1026; 
 Garrett v. Louisville & N. R. Co. 
 197 Fed. 715; 117 C. C. A. 109, but 
 not loss of the son's society and com- 
 panionship. American R. Co. v. 
 Didricksen, 227 U. S. 145; 33 Sup. 
 Ct. 224; 57 L. Ed. 456. In this la.st 
 case it was held error to say to the 
 jury that they might "take into 
 consideration the fact that they 
 [the beneficiaries] are the father and 
 mother of the deceased, and the fact 
 that they are deprived of his society 
 and any care and consideration he 
 might take of them or have for them 
 during his life," especially as there 
 was no allegation of any such loss, 
 nor evidence relating to the subject 
 or from which its pecuniary value 
 would have been estimated. 
 
 '"' Corbett v. Oregon, etc., Ry. 
 Co. supra. 
 
 '°^ Bowerman v. Lackawanna Min- 
 ing Co. 98 Mo. App. 308; 71 S. W. 
 Rep. 1062. The burden is not on the 
 plaintiff to show that the deceased 
 would have contributed to the 
 parents' support. Raines v. Southern 
 Ry. Co. (N. C.) 85 S. E. 294. 
 
 '"' Chicago, etc., R. Co. v. Holmes, 
 68 Neb. 826; 94 N. W. Pep. 1007. 
 
 '" Pittsburg, etc., P. Co. v. Kin- 
 mare, 203 111. 388; 67 N. E. Rep. 826.
 
 DAMAGES. 249 
 
 not admissible.'"^ The physical condition of the beneficiary 
 cannot be shown i'"" nor loss of society"" and grief."^ 
 "What the measure of damages should be depends to a 
 great extent upon the relationship of the survivors to the 
 deceased and the pecuniary loss sustained by them by reason 
 of his death. The widow and children are naturally de- 
 pendent upon him to a greater extent than any other rela- 
 tive and entitled to support from the husband and parent. 
 For this reason they would no doubt be entitled to a larger 
 compensation than other relatives. Next to them the par- 
 ents are more dependent upon a son than any others, as 
 there is not only a moral, but a legal, duty on the part of a 
 child to contribute toward the support and maintenance of 
 his parents when they are unable to support themselves. 
 The provisions for the benefit of relatives other than those 
 before mentioned is not unlimited, as the act expressly 
 provides only for such next of kin as were 'dependent' upon 
 the deceased. The amount of recovery must naturally de- 
 pend to a very great extent upon the contribution by the 
 deceased to those for whose benefit the action is prosecuted 
 by the personal representative. If the deceased contrib- 
 uted nothing toward the support of the next of kin and he 
 leaves no widow, children, or parents surviving him there 
 can be no recovery, because they sustained no pecuniary 
 loss by reason of his death.""- There can be no recovery 
 
 ^"^ Brown v. Southern Ry. Co. 65 "' Contra, Evarts v. Santa Bar- 
 
 S. C. 260; 43 S. E. Rep. 794. bara, etc., R. Co. supra; Brickman 
 
 '»' Seattle, etc., Co. v. Hartless, v. Southern R. Co. 74 S. C. 306; 
 
 144 Fed. Rep. 379; contra. Evarts 54 S. E. Rep. 553; Parker v. Crowell, 
 
 V. Santa Barbara, etc., R. Co. 3 etc., Co. 115 La. 463; 39 So. Rep. 445; 
 
 Cal. App. 712; 86 Pac. Rep. 830; Kelley v. Ohio, etc., R. Co. 58 W. 
 
 Emery v. Philadelphia, 208 Pa. St. Va. 216; 52 S. E. Rep. 520. 
 
 492; 57 Atl. Rep. 977; Fidelity, etc., "^ Fithian v. St. Louis & S. F 
 
 Co. V. Buzzard, 69 Kan. 330; 76 Pa. Ry. Co. 188 Fed. 842; Duke v. St 
 
 St. 832; Texas, etc., R. Co. v. Green, Louis & S. F. R. Co. 172 Fed. 684 
 
 15 Tex. Ct. Rep. 133; 95 S. W. Rep. 192 Fed. 306; 112 C. C. A. 564 
 
 694; Texarkana, etc., R. Co. v. American R. Co. v. Birch, 224 U. S 
 
 Fugier, 16 Tex. Ct. Rep. 724; 95 S. 547; 32 Sup. Ct. 603; 56 L. Ed. 879 
 
 W. Rep. 563. McCoullough v. Chicago, R. I. & P 
 
 »" New York C. & St. L. R. Co. v. R. Co. 160 Iowa 524; 142 N. W. 67 
 Niebel. 214 Fed. 952.
 
 250 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 of punitive damages, all consideration of punitive elements 
 being excluded ;^^^ nor for funeral expenses.^^* 
 
 § 174. Use of annuity tables. — In determining the 
 amount of damages, annuity tables may be resorted to where 
 the action is brought by the personal representative, but not 
 if the action be a continuation of the one brought by the 
 deceased. These "tables may be considered by the jury in 
 ascertaining the compensation the plaintiff is entitled to 
 receive for the pecuniary injuries sustained by the widow 
 and children by reason of the death of the intestate; but 
 the jury may also consider the state of health of the in- 
 testate, his age, habits, occupation, and the likelihood of 
 his being able to work during the period of his expectancy 
 of life."^^^ 
 
 § 175. Interest. — Interest cannot be added by the jury or 
 court upon the amount due, because the statute does not 
 provide for it ;"^ nor can interest be allowed on the verdict, 
 even though a state statute provides for it.^^^ 
 
 § 176. Damages not part of the estate. — As the amount 
 recovered is for the benefit of the beneficiaries it forms no 
 part of the estate,"^ and cannot be taken to pay its debts."^ 
 
 "' Michigan Central R. Co. v. condition. Smith v. Lehigh, etc., 
 
 Vreeland, 227 U. S. 59; 33 Sup. Ct. R. Co. 177 N. Y. 379; 69 N. E. Rep. 
 
 192; 57 L. Ed. 417; American R. Co. 729. 
 
 V. Didricksen, 227 U. S. 145; 33 Sup. "« Walsh v. New York, N. H. & H. 
 
 Ct. 224; 57 L.Ed. 456; Cain V. South- R. Co. 173 Fed. 494. Note 84, p. 236. 
 
 era R. Co. 199 Fed. 211; St. Louis, "^ Central R. Co. v. Sears, 66 Ga. 
 
 etc., R. Co. V. Geer (Tex. Civ. App.) 499; Cook v. New York, etc., R. Co. 
 
 149 S. W. 1178. 10 Hun. 426. 
 
 1" Collins V. Pennsylvania R. Co. "' Norton v. Erie R. Co. 163 App. 
 
 163 App. Div. 452; 148 N. Y. Supp. Div. 468; 148 N. Y. Supp. 771. 
 
 777. "8 Taylor v. Taylor, 232 U. S. 363; 
 
 Where counsel said to the jury 34 Sup. Ct. 350; 58 L. Ed. 638; Mc- 
 
 that the verdict asked was not a very Coullough v. Chicago, R. I. & P. Ry. 
 
 serious matter to a railroad company, Co. 160 Iowa 524; 142 N. W. 67; 
 
 "taking from them a few coppers, Gottlieb v. North Jersey St. Ry. Co. 
 
 but it means a good deal to the plain- 72 N. J. L. 480; 63 Atl. Rep. 339; 
 
 tiff," his statement was held to ex- Cleveland, etc., R. Co. v. Osgood, 
 
 ceed the limit of legitimate advocacy. 34 Ind. App. 34; 73 N. E. Rep. 285. 
 
 Caverhill v. Boston & M. R. Co. "^ In re Williams Est. 130 Iowa 
 
 (Vt.) 91 Atl. 917. .553; 107 N. W. Rep. 608; Western 
 
 The photograph of the deceased R. Co. v. Russell, 144 Ala. 142; 
 
 cannot be used to show bis physical 39 So. Rep. 311.
 
 DAMAGES. 251 
 
 Thus, damages occasioned to liis employer by the deceased 
 cannot be set off against the amount recoverable for his 
 death.^20 
 
 §177. Amount of damages — Illustrations.— I can give 
 only a few illustrations of the amount of damages recovered 
 under this statute prior to 1910, with the courts' de- 
 cisions. Thus where a brakeman of 24 years, earning $80 
 to $85 per month, having a life expectancy of thirty-nine 
 years and six months, whose health before the injury was 
 good and afterwards poor, suffered severe pain at the time 
 of the accident, and four or five days had his right arm 
 amputated two inches below the elbow, it was held that a 
 verdict for $15,000 should be reduced to $12,000.'-^ In an- 
 other case the deceased employee was 29 years of age at 
 his death, and had a life expectancy of 36 years, if he had 
 been in normal health. He married when 20 years of age, 
 and during the succeeding nine years, though apparently 
 industrious, he had spent several thousand dollars of his 
 wife's estate and all he himself had made, and left an estate 
 of only $250, Before he was married he taught school, and 
 after marriage did hauling, stacked lumber in a sawmill, 
 worked on a farm a year, and then began breaking on de- 
 fendant railway, contributing to his wife and five children 
 an average of $34 per month. During his married life he 
 had been confined in a hospital with a bronchial cough. One 
 of his lungs was dead, and testimony showed that that fact 
 would greatly shorten his life. The jury gave a verdict for 
 $17,545, but the court cut it down to $6,000.^ In another 
 case of instantaneous death, where no allowance was made 
 for suffering, and where the deceased had been guilty of 
 such contributory negligence as would have barred a recov- 
 ery but for the statute, a verdict for $10,000 was reduced 
 to $7,500." Where an employee had both legs cut off at the 
 
 »2o Western R. Co. v. Russell, » Duke v. St. Louis, etc., R. Co. 
 
 supra. 172 Fed. 684. 
 
 •■" Bradbury v. Chicago, R. I. & P. ^ Cain v. Southern R. Co. 199 Fed. 
 
 Ry. Co. 149 Iowa, 51 ; 128 N. W. 1. 211, 213.
 
 252 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 knees, and during the five hours he lived suffered great 
 pain, and mental anguish in contemplation of death, con- 
 tinually begging persons near to pra}^ for liim, a verdict for 
 $10,000 for pain and mental anguish he suffered was re- 
 duced to $5,000.^ A freight conductor was killed in the 
 yards by reason of his own negligence while on his way to 
 enter his caboose, his train having just been made up. His 
 negligence consisted in his failure to observe or heed the 
 signals of a switch engine, and in walking down the track 
 ahead of it. No negligence on the part of the defendant 
 railway was shown, and on that ground the verdict was set 
 aside. But the court said that a verdict of $35,000 was 
 excessive even though the defendant had been negligent.* 
 An engineer left a widow and four children. The youngest 
 child was six years old and mentally afflicted. The jury 
 returned a verdict for $11,885, giving to the widow and 
 three older children each an equal amount and to the 
 youngest $4,465. It was held that the amount awarded the 
 j^oungest child was not excessive.^ $20,000 for widow and 
 child beneficiaries has been held not excessive.*' A common 
 laborer, 23 years old, remained with and assisted his par- 
 ents until a few months before his death. Out of his first 
 month's w^ages he sent $10 to his father because of the lat- 
 ter 's needs. The parents worked on the farm, but did not 
 own it. It was held that there was not such a failure of 
 proof of pecuniary loss to the parents that the defendant 
 was entitled to either a judgment because of a verdict for 
 $2,000 or a new trial.'^ Where the evidence only showed 
 the mere fact that contributions had been made to his par- 
 ents by the deceased son in some amount by paying for his 
 board and room for two years or more, the parents being 
 
 ' St. Louis, etc., R. Co. v. Hcstcrly, * Southern Ry. Co. v. Vaughn 
 
 98 Ark. 240; 135 S. W. 874, but (Tex. Civ. App.) 164 S. W. 885. 
 
 reversed on other points. St. Louis, Contra, where a brakeman was earn- 
 
 etc, R. Co. V. Hesterly, 228 U. S. ing only $100 per month. Gulf C. 
 
 702; 33 Sup. Ct. 703; 57 L. Ed. 1031. & S. F. Ry. Co. (Tex. Civ. App.) 
 
 * Neil v Idaho, ete., R. Co. 22 153 S. W. 651. 
 
 Idaho 74; 125 I^io. 331. ' Lundeen v. Great Northern Ry. 
 
 ' Loiii.sviiie A: N. R. Co. v. Stewart Co. (Minn.) 150 N. W. 1088. 
 (Ky.) 174 S. W. 744.
 
 DAMAGES. 253 
 
 working people between 50 and 60 years of age, a verdict 
 for $5,000 was held unsupported by the evidence.^ 
 
 § 178. Contributory neglig-ence reducing the amount of 
 recovery. — The statute expressly provides that "the fact 
 that the employee may have been guilty of contributory 
 negligence shall not bar a recovery, but the damages shall be 
 diminished by the jury in proportion to the amount of neg- 
 ligence attributable to such employee."" It will thus be seen 
 that contributory negligence does not prohibit a recovery, 
 but it does reduce the damages otherwise recoverable. The 
 meaning of the statute is that where the casual negligence is 
 partly attributable to the employee and partly to the car- 
 rier, he can recover only a proportional amount, bearing the 
 same relation to the full amount as the negligence attribut- 
 able to the carrier bears to the entire negligence attribut- 
 able to both.^° Thus where a freight conductor was negli- 
 gent in failing to see that the switch of the siding, on which 
 his train had entered, was closed, and the engineer of the 
 passenger train following was also negligent in not discov- 
 ering that the switch was open, in time to have stopped his 
 train, it was held proper for the court to tell the jury the 
 deceased was guilty of contributory negligence, and that the 
 jury, after having found the amount of damages to which 
 his next of kin would be entitled in the absence of his con- 
 tributory negligence, they should abate that sum by the 
 amount tbey should find represented his proportionate con- 
 tributory negligence. "Manifestly," said the Circuit Court 
 of Appeals, "to give effect to the act, it is essential that the 
 relative amounts caused by the negligence of the respective 
 
 8 McCoullough V. Chicago, R. I. & Weber v. Great Northern R. Co. 125 
 P. Ry. Co. 160 Iowa, 524; 142 N. W. Minn. 348; 147 N. W. 427. 
 67. $10,000 for loss of right arm. It is the duty of the court, on re- 
 Plaintiff earning $125 pernionth, and quest, to give concrete instructions 
 60 years old. Knapp v. Great North- defining the acts which amount to 
 ern Ry. Co. (Minn.) 153 N. W. 848. contributory neglect, and a failure 
 " Section 3 of statute. to do so is a reversible error. Illinois 
 '" Norfolk, etc., R. Co. v. Earnest, Central Ry. Co. v. Nelson, 203 Fed. 
 229 U. S. 114; 33 Sup. Ct. 654; 57 957; Carpenter v. Kansas City Ry. 
 L. Ed. 1096; Seaboard A. L. Ry. Co. Co. (Mo. App.) 175 S. W. 234; 
 V. Tilghman, 35 Sup. Ct. 653, revers- Seaboard Air L. Ry. Co. v. Tilghman, 
 ing 167 N. C. 163; 83 S. E. 315, 1090; 237 U. S. 499. Contributory negli- 
 Seaboard A. L. Ry. Co. v. Tilghman, gence reduces the damages. Kenney 
 227 U. S. 499; Walsh v. Lake Shore v. Seaboard Air Line Ry. Co. 165 
 & M. R. Co. (Mich.) 151 N. W. 754; N. C. 99; 80 S. E. 1078; La Mere v. 
 Louisville & N. R. Co. v. Winkler, Ry. Transfer Co. 125 Minn. 526; 
 
 162 Ky. 843; 173 S. W. 151; Cincin- 145 N. W. 1068; Bowers v. Southern 
 nati, N. O. & T. P. Ry. Co. v. Goode, Ry. Co. 10 Ga. App. 367; 73 S. E. 
 
 163 Ky. 60; 173 S. W. 329; Pennsyl- 677; Jones v. Kansas City So. Ry. 
 vania R. Co. v. Sheeley, 221 Fed. 901; Co. (La.) 68 So. 401 ; Rains v. South- 
 ern Ry. Co. (N. C.) 85 S. E. 294.
 
 254 FEDERAL, EMPLOYERS' LIABILITY ACT. 
 
 parties should be declared, and we know of no fairer method 
 than that followed by the trial judge in the ease."^^ The 
 contributory negligence of the employee must be compared 
 with the entire negligence involved in the case and not 
 "with the negligence of the defendant" alone. Thus where 
 the court told the jury that where the plaintiff was guilty 
 of contributory negligence the damages should be dimin- 
 ished in proportion to the amount of negligence attributable 
 to the plaintiff, which "goes by way of diminution of 
 damages," it was held that no error was committed by the 
 use of the quoted words, but that the additional words "as 
 compared with the negligence of the defendant were er- 
 roneous." "But for the use in the second instance of the 
 additional words," said the court, " 'as compared with the 
 negligence of the defendant,' there would be no room for 
 criticism. These words were not happily chosen, for to have 
 reflected what the statute contemplates they should have 
 read, *as compared with the combined negligence of him- 
 self and the defendant.' We say this because the statutory 
 direction that the diminution shall be 'in proportion to the 
 amount of negligence attributable to such employee' means 
 and can only mean, that, where the casual negligence is 
 partly attributable to him and partly to the carrier, he shall 
 not recover full damages, but only a proportional amount, 
 bearing the same relation to the full amount as the negli- 
 gence attributable to the carrier bears to the entire negli- 
 gence attributable to both ; the purpose being to abrogate the 
 common law rule completely exonerating the carrier from 
 liability in such case, and to substitute a new rule, confining 
 the exoneration to a proportional part of the damages, 
 corresponding to the amount of negligence attributable to 
 the employee. "^^ Under this rule, if the carrier is negligent 
 
 " Louisville, etc., R. Co. v. Wene, L. Ed. 785; Pennsylvania R. Co. v. 
 
 202 Fed. 887; 121 C. C. A. 245; Sheeley, 221 Fed. 901. 
 Illinois Central R. Co. v. Porter, 207 Under this rule if the employee 
 
 Fed. 311; 125 C. C. A. 55. has suffered dainapos to the amount 
 
 '^ Norfolk, etc., R. Co. v. Earnest, of $4,000, but he was guilty of one- 
 
 229 U. S. 114; 33 Sup. Ct. G54; 57 fourth of the entire negligence in-
 
 DAMAGES. 
 
 255 
 
 in any degree, no negligence on the part of the employee, 
 however great, will defeat a recovery by liim/^ But if the 
 injury is not caused by the negligence of the carrier, there 
 can be no recovery." It must be remembered that the 
 statute expressly provides that contributory negligence does 
 not diminish the damages where the failure of the carrier 
 to comply with the Federal Safety Appliance Acts (or 
 Hours of Service Act) contributed to the injury.^^ 
 
 volved, he would be entitled to 
 recover $3,000. Pennsylvania R. 
 Co. V. Goughnous, 208 Fed. 961; 
 126 C. C. A. 39. See also Nashville, 
 C. & St. L. Ry. Co. V. Henry, 158 
 Ky. 88; 164 S. W. 310; Nashville, 
 C. & St. L. Ry. Co. V. Banks, 156 
 Ky. 609; 161 S. W. 554; Grand Trunk 
 Western Ry. Co. v. Lindsay, 233 
 U. S. 42; 34 Sup. Ct. 581 ; 58 L. Ed. — . 
 
 '•' Pennsylvania Co. v. Cole, 214 
 Fed. 948; White v. Central Vermont 
 Ry. Co. 87 Vt. 330; 89 Atl. 618; 
 Seaboard Air Line Ry. Co. v. Moore, 
 193 Fed. 1022; 113 C. C. A. 668, 
 affirmed 228 U. S. 433; 33 Sup. Ct. 
 580; 57 L. Ed. 907; New York C. 
 & St. L. R. Co. V. Niebel, 214 Fed. 
 952 
 
 »* Ellis V. Louisville, H. & St. L. 
 Ry. Co. 155 Ky. 745; 160 S. W. 512; 
 Louisville & N. R. Co. v. Wene, 
 202 Fed. 887; 121 C. C. A. 245; 
 Paulkey v. Atchison, T. & S. F. Ry. 
 Co. (Mo.) 168 S. W. 274; Cincinnati, 
 N. O. & T. P. Ry. Co. v. Swann, 
 160 Ky. 458; 169 S. W. 886; Miller 
 V. Michigan Central R. Co. (Mich.) 
 152 N. W. 235; Nelson v. Northern 
 Pac. Ry. Co. (Mont.) 148 Pac. 238; 
 Day V. Kelly (Mont.) 146 Pac. 930; 
 Smith V. St. Louis & S. F. R. Co. 
 (Kas.) 148 Pac. 759: Nelson v. North- 
 ern P. Ry. Co. (Mont.) 148 Pac. 388. 
 
 '5 Grand Trunk Western Ry. Co. 
 V. Lindsay, 233 U. S. 42; 34 Sup. Ct. 
 581; 58 L. Ed. 828, affirming 201 Fed. 
 836; 120 C. C. A. 166. 
 
 "Contributory negligence on the 
 part of the employee does not operate 
 even to diminish the recovery where 
 the injury has been occasioned in 
 part by the failure of the carrier to 
 comply with the exactions of an Act 
 of Congress created to promote the 
 safety of employees. In that con- 
 tingency the statute abolishes the 
 defense of contributory negligence. 
 
 not only as a bar to a recovery, but 
 for all purposes." Ibid. 
 
 For instructions to the jury on 
 this point, see Walsh v. Lake Shore 
 & M. S. Ry. Co. (Mich.) 151 N. W. 
 754. 
 
 It is error to tell the jury that if 
 deceased was contributarily negligent 
 the damages should be reduced in 
 proportion to the negligence attribut- 
 able to him. Louisville & N. R. Co. 
 v. Henderson (Ky.) 173 S. W. 343. 
 
 That contributory negligence is no 
 bar to a recovery of some damages. 
 See Neil v. Idaho & W. N. R. Co. 
 22 Idaho 74; 125 Pac. 331; Fish v. 
 Chicago, R. I. & P. Ry. Co. (Mo.) 
 172 S. W. 340; Paulkey v. Atchison, 
 T. & S. F. Ry. Co. (Tex. Civ. App.) 
 168 S. W. 274; Hardwick v. Wabash 
 R. Co. 181 Mo. App. 156; 168 S. W. 
 328; New York C. & St. L. R. Co. 
 V. Niebel, 214 Fed. 952; Pennsylvania 
 Co. V. Cole, 214 Fed. 948; Grand 
 Trunk Western Ry. Co. v. Lindsay, 
 201 Fed. 836; 120 C. C. A. 166; 
 Thornbro v. Kansas City, M. & 0. 
 Ry. Co. 91 Kan. 684; 139 Pac. 410; 
 Kenney v. Seaboard Air Line Ry. Co. 
 165 N. C. 99; 80 S. E. 1078; White v. 
 Central Vt. Ry. Co. 87 Vt. 330; 89 
 Atl. 618; Stephensville, N. & S. T. 
 Ry. Co. V. Shelton (Tex. Civ. App.) 
 163 S. W. 1034; Nashville, C. & St. 
 L. Ry. v. Henry, 158 Ky. 88; 164 S. 
 W. 310; Nashville, C. & St. L. R. 
 Co. V. Banks, 156 Ky. 609; 161 S. 
 W. 554; Carpenter v. Kansas City 
 So. Ry. Co. (Mo. App.) 175 S. W. 234; 
 Cross V. Chicago, B. & Q. R. Co. 
 (Mo. App.) 177 S. W. 1127; Hackney 
 V. Missouri, K. & T. Ry. Co. (Kan.) 
 149 Pac. 421; Louisville & N. R. Co. 
 V. Fleming (Ala.) 69 So. 125. 
 
 To reduce his damages, the em- 
 ployee's contributory negligence 
 "must directly and proximately con- 
 tribute to the injury." Illinois Cent.
 
 256 
 
 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 § 178a. Instructions on contributory negligence reducing 
 damages otherwise recoverable. — An instruction to the jury 
 that they should "diminish the damages, if any, awarded 
 the plaintiff, in proportion to the amount of negligence at- 
 tributable to him, so that he will not recover full damages, 
 but only a proportional part, bearing the same relation to 
 the full amount as the negligence attributable to the de- 
 fendant bears to the entire negligence attributable to both" 
 is a correct statement of the law.^^ An instruction that if the 
 plaintiff was guilty of contributory negligence the damages 
 must be diminished in proportion to the amount of negli- 
 ligence attributable to him, is not objectionable because 
 the court further said that such negligence "goes by way of 
 diminution of damages," since this statement must not be 
 regarded as a qualifying one, but merely as intended to 
 repeat the statutory requirement in somewhat different 
 terms,^^ In an action for the death of a switchman by being 
 jarred from the pilot of a road engine being used for switch- 
 ing purposes, it was held that a requested instruction that 
 
 R. Co. V. Porter, 207 Fed. 311; 125 
 C. C. A. 55. 
 
 If the plaintiff is without fault, he 
 is entitled to full damages. Carpenter 
 V. Kansas City Southern Ry. Co. 
 (Mo. App.) 175 S. W. 234. 
 
 "Under this act, no degree of 
 negligence on the part of the plain- 
 tiff, however gross or proximate, can, 
 as a matter of law, bar a recovery." 
 Pennsylvania Co. v. Cole, 214 Fed. 
 948. 
 
 "To say that plaintiff's negligence 
 equals the combined negligence of 
 plaintiff and defendant is impossible." 
 Pennsylvania Co. v. Cole, 214 Fed. 
 948. 
 
 "It is only when plaintiff's act is the 
 sole cause — when the defendant's act 
 is no part of the causation — that 
 defendant is free from liability under 
 the act." Grand Trunk Western 
 Ry. V. Lindsay, 201 Fed. 837, 844; 
 120 C. C. A. 1(56, 174, affirmed 233 
 U. 8. 42; 34 Sup. Ct. 581; 58 L. Ed. 
 828; Louisville & N. Ry. Co. v. Lank- 
 ford, 20f» Fed. 321; 120 C. C. A. 247. 
 
 A request that a finding of con- 
 tributory negligence would result in 
 a verdict for the defendant must be 
 denied. Chicago, G. W. R. Co. v. 
 iMcCormick, 200 P^ed. 375; 118 C. C. 
 A. 527. 
 
 "Under the rule of comparative 
 neghgence, the jury is entitled to 
 consider all the circumstances which 
 characterize the negligence of either 
 party and which tend to fix the 
 quantity and quality of that negli- 
 gence in its relation to the sum total of 
 the negligence of both parties. Even 
 though the negligence of either party 
 clearly appears, all circumstances of 
 aggravation or of mitigation must 
 be considered." New York C. & St. 
 L. R. Co. V. Niebel, 214 Fed. 952. 
 
 The jury must consider the plain- 
 tiff's negligence when fixing the dam- 
 ages. Hackney v. Missouri, K. & 
 T. Ry. Co. (Kan.) 149 Pac. 421, and 
 that question must be submitted to 
 it. Norfolk Southern R. Co. v. 
 Friebee, 35 Sup. Ct. 781, affirming 167 
 N. C. 290; 83 S. E. 360; first appeal 
 163 N. C. 351; 79 S. E. 685; 52 L. R. 
 A. (N. S.) 1114. 
 
 >6 Cincinnati, N. 0. & T. P. Ry. 
 Co. v. Goode (Ky.) 173 S. W. 329; 
 Louisville & N. R. Co. v. Holloway 
 (Ky.) 133 S. W. 343. 
 
 "Norfolk & W. Ry. Co. v. Ear- 
 nest, 229 U. S. 114; 33 Sup. Ct. 654; 
 57 L. Ed. 651. For an instruction 
 approved, see St. Louis, I. M. & So. 
 Rv. Co. v. Rodgers (Ark.) 176 S. W. 
 696.
 
 DAMAGES. 257 
 
 the deceased's act in riding on the pilot with knowledge of 
 the apparent and obvious danger, and without necessity, 
 should imperatively reduce the damages to a nominal sum 
 was properly refused, because, under the statute the dam- 
 ages recoverable in case of an employee's negligence bear 
 the same relation to the full amount as the negligence at- 
 tributable to the defendant bear to the entire negligence 
 attributable to both.^^ It is error to instruct the jury that 
 if the employee was guilty of negligence which contributed 
 to his injuries, they must diminish the damages in propor- 
 tion to the amount of negligence attributable to him in 
 producing the injury.^ ^ An instruction to diminish the 
 damages for contributor}^ negligence, "but for which the 
 plaintiff would not have been injured," is too broad, and 
 is erroneous ; for such negligence merely diminishes the 
 damages. So an instruction to diminish the damages, if 
 any, attributable to the plaintiff is erroneous, the proper 
 rule being that the plaintiff may recover a proportional 
 amount bearing the same relation to the full amount as its 
 negligence bears to the entire negligence of both.-" The 
 following instruction has been approved: "If the jury 
 should find for plaintiff, they should fix the damages at such 
 sum as would reasonably compensate the dependent mem- 
 bers of the family of said Kelley, if any there be, for the 
 pecuniary loss, if any shown by the evidence to have been 
 sustained by them because of said Kelley 's injury and death. 
 In fixing said amount the jury are authorized to take into 
 consideration the evidence showing the decedent's age, 
 habits, business ability, earning capacity, probable duration 
 of life, and also the pecuniary loss, if any, which the jury 
 may find from the evidence that the dependent members of 
 his family, if any, have sustained because of being deprived 
 of such maintenance or support or other pecuniary advan- 
 tages, if any, which the jury may believe from the evidence 
 
 18 Louisville & N. R. v. Lankford, & N. R. Co. v. Stewart, 157 Ky. 
 
 209 Fed. 321; 126 C. C. A. 247. C42; 161 S. W. 557. 
 
 's Nashville, C. & St. L. R. Co. =" Nashville, C. & St. L. Ry. Co. v. 
 
 V. Banks, 216 Fed. 554; Louisville Henry, 158 Ky. 88; 164 S. W. 310.
 
 258 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 they would have derived from his life thereafter."-^ In the 
 case just cited it was held that the jury are not required to 
 calculate -what would be the present cash value of the aggre- 
 gate amount which the dependents might expect to receive, 
 that is, the amount which, if placed at interest, would be 
 wholly consumed by the time the dependency ceased.^^* 
 
 § 179. Apportionment of damages among the benefici- 
 aries. — The jury should consider the actual pecuniary loss 
 of each beneficiary where the pleadings put such fact in 
 issue and there is evidence to support the issue. "The 
 statutory action of an administrator is not for the equal 
 benefit of each of the surviving relatives for whose benefit 
 the suit is brought. Though the judgment may be for a 
 gross amount, the interest of each beneficiary must be 
 measured by his or her individual pecuniary loss. That 
 apportionment is for the jury to return. This will, of 
 course, exclude any recovery in behalf of such as show no 
 pecuniary loss."-- But if the jury returns a verdict with- 
 out specifying the amount due each beneficiary, there is no 
 reversible error if no instruction or direction to apportion 
 the damages is asked or no exception taken to its form.-^ 
 "As the loss recoverable is the pecuniary loss only, it is 
 apparent that a child shortly to become of age could not 
 suffer so great a loss in the father's death as his younger 
 brothers and sisters, the verdict should respond to this obvi- 
 ous fact."-* It is reversible error to refuse to charge the 
 jury that the interest of each beneficiary must be measured 
 
 -' Chesapeake & O. Rv. Co. v. -^ Hardwick v. Wabash R. Co. 
 
 Kelley, 160 Ky. 29rD; 169 S. W. 736. ISl Mo. App. 156; 168 S. W. 328; 
 
 Instruction approved. Louisville & Copper River & N. W. Ry. Co. v. 
 
 X.R. Co. V. Fleming (Ala.) 69 So. 125. Reeder. 211 Fed. Ill; 127 C. C. A. 
 
 ^'' See section 166, note 4, as to duty 648; Southern Ry. Co. v. Smith, 
 
 to give instructions on damages. 205 Fed. 360; 123 C. C. A. 488; 
 
 "Gulf C. & S. F. R. Co. V. Mc- Yazoo & M. V. R. Co. v. Wright, 
 
 Ginnis, 228 U. S. 173; 33 Sup. Ct. 207 Fed. 281; 125 C. C. A. 25; March 
 
 426; 57 L. Ed. 785; St. Louis, etc., R. v. Walker, 48 Tex. 377; Missouri, K. 
 
 Co. v. Geer (Tex. Civ. App.) 149 S. & T. Ry. Co. v. Evans, 16 Tex. Civ. 
 
 W. 1178; Louisville & N. R. Co. v. App. 68; 41 S. W. 80. 
 
 Stewart, 1.56 Kv. 550; 161 S. W. 557; ■* Hardwick v. Wabash R. Co. 181 
 
 Louisville & N. R. Co. v. Stewart, Mo. App. 156; 168 S. W. 328. 
 157 Ky. 642; 174 S. W. 744; Louisville 
 & N. R. Co. V. Johnson, 161 Ky. 824; 
 171 S. W. 847; Collins v. Pennsylvania 
 R. Co. 1 IS .\. Y. Supp. 777.
 
 DAMAGES. 259 
 
 by his or her individual- pecnniary loss,-^ but not error to 
 refuse that they must designate the loss of each bene- 
 ficiary.-^* 
 
 § 180. Distribution of proceeds of judgment. — Where 
 the verdict designates the amount each beneficiary is en- 
 titled to recover, then the proceeds of the judgment must 
 be distributed accordingly, and the judgment rendered on 
 the verdict should designate the amount due each bene- 
 ficiary.-** But if there be no division of the amount recov- 
 ered designated, and no way to ascertain how the jury 
 apportioned the damages, then such amount must be dis- 
 tributed according to the laws of the state wherein the ad- 
 ministrator is appointed.^^ 
 
 § 181. Survival of cause of action. — It has been the uni- 
 versal rule that the cause of action an employee had to 
 recover damages for his injury came to an end when he 
 died; and that the action his personal representative could 
 maintain for the benefit of certain relatives designated by 
 the statute was an entirely new action — an action different 
 from his — based entirely upon different considerations. 
 Therefore damages he might have recovered for pain and 
 
 ^^ Collins V. Pennsylvania R. Co. peake & Ohio Ry. Co. v. Kelley, 160 
 
 163 App. Div. 452; 148 N. Y. Supp. Ky. 296; 169 S. W. 736. 
 777; St. Louis, S. & T. Ry. Co. v. ^5* Central Vt. R. Co. v. White, 35 
 
 Johnston, 78 Tex. 536; 15 S. W. 104. Sup. Ct. SG5, affirming 87 Vt. 330; 
 
 "If the jury find for the plaintiff 89 Atl. 618; St. Louis, I. M. & So. 
 
 they wiU find a gross sum for the Ry. Co. v. Rodgers (Ark.) 176 S. W. 
 
 plaintiff against the defendant which 696; Norfolk & W. R. Co. v. Stevens, 
 
 must not exceed the probable earn- 97 Va. 631; 34 S. E. 525; 46 L. R. A. 
 
 ing of Matt. Kelley. The gross sum 367; International & G. N. R. Co. v. 
 
 to be found for plaintiff, if the jury Lehman (Tex. Civ. App.) 72 S. W. 
 
 find for the plaintiff, must be the 619. 
 
 aggregate of the sum which the jury -* There is no decision on this 
 
 may find from the evidence and fix point that I know of, but it is the 
 
 as the pecuniary loss as above de- logical deduction from the language 
 
 scribed, which each dependent mem- used in Gulf, C. & S. F. R. Co. v. 
 
 her of Matt. Kelley's family may McGinnis, 228 U. S. 173; 33 Sup. Ct. 
 
 have sustained by his death, stating 426; 57 L. Ed. 785, reversing (Tex. 
 
 the amount awarded his widow, Civ. App.) 147 S. W. 1188; Taylor v. 
 
 Addie Kelley, Matt. L. Kelley, Ruth Taylor, 232 U. S. 363; 34 Sup. Ct. 
 
 Kelley, Thomas J. Kelley and Richard 350; 58 L. Ed. 638. See case below, 
 
 Kelley, if any for them, or any of 204 N. Y. 135; 97 N. E. (N. Y.) 
 
 them, but such findings in the ag- 502; Am. Cas. 1913 D, 276; 144 
 
 gregate must not exceed $32,000. App. Div. 634; 128 N. Y. Supp. 378. 
 In other words, if the jury find for -^ Pennsylvania R. Co. v. Long, 94 
 
 the plaintiff, you must, in your ver- Ind. 250; Bradford v. Downs, 126 
 
 diet, state also the respective amounts Pa. St. 622; 17 Atl. 884; Louisville 
 
 awarded each dependent member of etc., R. Co. v. Berry, 2 Ind. App. 427; 
 
 decedent's family." Given in Chesa- 28 N. E. 714.
 
 260 FEDERAL, EMPLOYERS' LIABILITY ACT. 
 
 suffering, and the expense occasioned by his injuries, were 
 not recoverable for the benefit of the beneficiaries named 
 in the statute.-^ But in 1910 Congress amended the original 
 Act of 1908 by adding an additional section to it, known as 
 section 9, and which is as follows: "Any right of action 
 given by this act to a person suffering injury shall survive 
 to his or her personal representative, for the benefit of the 
 surviving widow or husband and children of such employee, 
 and if none, then of such employee's parents; and, if none, 
 then of the next of kin dependent upon such employee, but 
 in such cases there shall be only one recovery for the same 
 injury." This section does not destroy either of the two 
 causes of action given by the statute to which it is added 
 as an amendment, but provides that one (and only one) 
 recovery may be had upon the two independent causes of 
 action combined in one, and in addition to the damages re- 
 coverable in case of death for the pecuniary loss inflicted, 
 the administrator may now recover a further sum upon the 
 action given to the person injured and which now survives. 
 Consequently the administrator may now recover for the 
 pain and suffering sustained by the deceased, as well as the 
 pecuniary loss or injury resulting to the beneficiaries from 
 his death. "We are of the opinion," said Judge Ross, "that 
 the plain meaning of these statutory provisions is that, when 
 one receives an injury in the employment of a railroad com- 
 pany under such circumstances as entitle him or her, as the 
 case may be, by virtue of the statute, to recover from the 
 company damages therefor, and that such injury results in 
 the death of the injured person, damages resulting from the 
 personal suffering, and from such death, not only may be 
 recovered by the personal representative of the deceased in 
 one action, but must be recovered in one action only, if at 
 all, for the benefit of those specified in the statute."-^ But 
 
 ^'MinhiKan Central T^. Co. v. 227 U. S. 145; 33 Sup. Ct. 224; 57 
 
 Vrooland, 227 U. S. .W; :« Sup. Ct. L. Ed. 450. 
 
 102; 57 L. Ed. 417; New York, C. =» Northern Pac. Ry. Co. v. Mnerkl, 
 
 & St. L. l{y. Co. V. Niebel, 214 I-ed. 198 Fed. 1; 117 C. C. A. 237; St. 
 
 952; American R. Co. v. Didrickscn, Louis & S. F. R. Co. v. Conarty, 196
 
 DAMAGES. 
 
 261 
 
 if the death be instantaneous there is no survival of an ac- 
 tion for pain and suffering; and if the complaint does not 
 show a reasonable expectancy of pecuniary assistance in 
 favor of the beneficiaries, there can be no recovery.^"' But if 
 the deceased survived his injury an appreciable length of 
 time, there can be a recovery for the pain and suffering he 
 has endured ; and the length of time he survives after his 
 injury is material in estimating the damages recoverable.^^ 
 The question has now been put at rest by a recent decision 
 of the Supreme Court. Speaking of the cause of action 
 given to the injured employee and the other given to his 
 administrator for the benefit of his relatives, the Court said : 
 "Although originating in the same wrongful act or neglect, 
 the two claims are quite distinct, no part of either being em- 
 braced in the other. One is for the wrong to the injured 
 person, and is confined to his personal loss and suffering 
 
 Ark. 421; 155 S. W. 93; Cain v. 
 Southern R. Co. 199 Fed. 211. See 
 Michigan Central R. Co. v. Vreeland, 
 227 U. S. 59; 33 Sup. Ct. 192; 57 
 L. Ed. 417; St. Louis, etc., Ry. Co. 
 V. Hesterly, 228 U. S. 702; 33 Sup. 
 Ct. 703; 57 L. Ed. 1031. 
 
 soMoffitt V. Baltimore & 0. R. 
 Co. 220 Fed. 39. (In this last case 
 it is said that Northern Pacific Ry. 
 Co. V. Maerkl, 198 Fed. 1; 117 C. C. 
 A. 237, is a doubtful authority.) 
 Norfolk & W. Ry. Co. v. Holbrook 
 (U. S.) 35 Sup. Ct. 143, reversing 215 
 Fed. 687; (C. C. A.); Carolina, C. & 
 O. R. Co. V. Shewalter, 128 Tenn. 
 363; 161 S. W. 1136. 
 
 That no damages can be recovered 
 when there is an instantaneous 
 death of the employee, notwith- 
 standing the statutory survival of 
 his cause of action, is decided in the 
 following cases, based on state 
 statutes: The Corsair, 145 U. S. 335; 
 12 Sup. Ct. 949; 36 L. Ed. 727; 
 Kearney v. Boston & W. R. Co. 
 9 Cush. 108; Hollenbeck v. Berk- 
 shire R. Co. 9 Cush. 478; Kennedy 
 v. Standard Sugar & Refinerv, 125 
 Mass. 90; 28 Am. Rep. 214; Moran 
 v. Rollings, 125 Mass. 93; Mulchaey 
 
 v. Washburn Car Co. 145 Mass. 281; 
 14 N. E. 106; 1 Am. St. 458; St. Louis, 
 I. M. & S. Rv. Co. V. Dawson, 68 
 Ark. 1; 56 S. W. 46; St. Louis, I. 
 M. & S. Ry. Co. V. Stamps, 84 Ark. 
 241; 104 S. W. 1114; I. C. R. Co. v. 
 Pendergrass, 69 Miss. 425; 12 So. 
 954; Vicksburg, etc., R. Co. v. 
 Phillips, 64 Miss. 693; 2 So. 537; 
 Dillon V. Great Northern R. Co. 
 38 Mont. 485; 100 Pac. 960; Belding 
 V. Black Hills R. Co. 3 S. D. 369; 
 53 N. W. 750; Hansford v. Payne, 
 11 Bush. 380; Newport News, etc.. 
 R. Co. V. Dentzel, 91 Ky. 42; 14 
 S. W. 958; Sweetland v. Chicago, 
 etc., R. Co. 117 Mich. 329; 75 N. W. 
 1066; 43 L. R. A. 568; Dolson v. 
 Lake .Shore, etc., R. Co. 128 Mich. 
 444; 87 N. W. 629; Kyes v. Vallev 
 Telephone Co. 132 Mich. 281; 93 
 N. W. 623; Oliver v. Houghton Co. 
 St. Rv. Co. 134 Mich. 367; 96 N. W. 
 434; 104 Am. St. 607; 3 Ann. Cas. 53. 
 " Brown v. Chicago & N. W. Ry. 
 Co. 102 Wis. 137; 77 N. W. 748; 78 
 N. W. 771: 44 L. R. A. 579; Leh- 
 mann v. Folwell, 95 Wis. 185; 70 
 N. W. 170; 37 L. R. A. 333; 60 Am. 
 St. 111.
 
 262 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 before he died, while the other is for the wrong to the bene- 
 ficiaries, and is confined to their pecuniary loss through his 
 death. One begins where the other ends, and a recovery 
 upon both in the same action is not a double recovery for a 
 single wrong, but a single recovery for a double wrong. "^^ 
 In this case the Court also said that "for such pain and 
 suffering as are substantially contemporaneous with death, 
 or mere incidents to it, as also the short periods of insensi- 
 bility which sometimes intervene between fatal injuries and 
 death, afford no basis for a separate estimation or award of 
 damages under statutes like that which is controlling here." 
 In discussing the statute the court passes by the question 
 what would be the effect if the injured employee were to re- 
 cover damages for his injuries and then die from them, so 
 far as thereafter his administrator might bring an action to 
 recover for the beneficiaries such pecuniary loss as they had 
 suffered. 
 
 § 182. Damages recoverable when there is a survival of 
 deceased's right of action. — It becomes a question of great 
 importance concerning the amount of damages the admin- 
 istrator may recover when the deceased's right of action 
 has survived and passed to his administrator. Does the 
 rule of pecuniary damages alone control? or is that a rule of 
 the past — a rule rendered obsolete by the amendment of 
 1910? Are the decisions of the Federal Supreme Court on 
 the subject of pecuniary damages no longer controlling? 
 Those decisions no longer correctly interpret the statute, 
 except when death is instantaneous, or immediately follows 
 the injury without an appreciable interval of time between 
 
 '2 St. Louis, I. M. & So. Ry. Co. v. obscure statements on this point in 
 
 Craft, 237 U. S. G48; 35 Sup. Ct. Taylor v. Taylor, 232 U. S. 363; 34 
 
 704, affirming (Ark.) 171 S. W. 1185. Sup. Ct. 350; 58 L. Ed. 638, reversing 
 
 The court quotes approvingly North- 204 N. Y. 135; 97 N. E. 502; Ann. 
 
 em P. R. Co. v. Maerkl, 198 Fed. 1; Cas. 1913 D, 276, which reversed 
 
 117 C. C. A. 237; Kansas City So. Ry. 144 App. Div. 634; 128 N. Y. Supp. 
 
 Co. v. I^eslie, 35 Sup. Ct. 844, revers- 378. A refusal to require the jury to 
 
 jng 112 Ark. 335; 167 S. W. 183; specify how much they allow for 
 
 Lfjuisville & N. R. Co. v. Fleming suffering and how much for pecuniary 
 
 (Ala.) 69 So. 125. loss is not error. St. Louis, I. M. & S. 
 
 The Craft case clears up some R. Co. (Ark.) 176 S. W. 696.
 
 DAMAGES. 263 
 
 the injury and death. In one case, quoting the amendment 
 of 1910, the court told the jury that it meant "that all the 
 rights the employee would have had for the injury re- 
 ceived will in the case of his death, go to his personal rep- 
 resentative, for the benefit of his widow and children, if 
 there be any ; and if none, then for the benefit of his parents. 
 In this case, if you shall find that plaintiff is entitled to 
 recover, the element of damages that would have survived 
 to Robert Shewalter [the deceased employee] had death not 
 resulted from his injuries, will survive for the benefit of his 
 father, he having left no widow, child or mother. I there- 
 fore instruct you that, in an action for personal injuries, the 
 plaintiff is entitled to recover compensation, so far as it is 
 susceptible of an estimate in money, for the loss and damage 
 caused to him by defendant's negligence, and a recoverable 
 sum for the pain and suffering, if any be shown ; and also a 
 fair recompense for the loss of what he would have otherwise 
 earned at his trade or profession, and has been deprived of 
 the capacity of earning, by the wrongful act of the defend- 
 ant, if such be shown. And this will be the measure of dam- 
 ages in this case, if you shall find for the plaintiff. In other 
 words, the pecuniary value of the life of the deceased, Rob- 
 ert Shewalter, is to be determined if you find for the plaint- 
 iff, upon a consideration of his expectancy of life, his age, 
 condition of health and strength, capacity for labor, and for 
 earning money, through skill in trade, occupation or busi- 
 ness, and his personal habits as to sobriety and industry, all 
 modified, however, by the fact that the expectation of life 
 is at most only a probability based upon experience, and also 
 by the fact that the earnings of this same individual are not 
 always uniform. All these elements are to be taken into 
 consideration by you, and, after weighing them all, you 
 should assess such amount of damages as may be sufficient 
 to compensate for the loss of the life whose value you are 
 attempting to estimate. "^^ It is now clear that for all in- 
 
 '^ As there was an instantaneous "The charge of the circuit judge was 
 death, this instruction, because of correct, under the statute of Ten- 
 that fact alone, was held erroneous. nessee [which is the question of sur-
 
 264 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 juries resulting in death, brought since the amendment of 
 1910 was enacted, the personal representatives may recover 
 in the same action for the pain and suffering of the deceased 
 and for the pecuniary loss to the beneficiaries.^* This, how- 
 ever, does not dispose of the question whether the admin- 
 istrator can recover for the benefit of those dependent upon 
 the deceased the amount spent for the hire of doctors, sur- 
 geons, and nurses. The right of action is given to an 
 employee "suffering injury while he is employed" by a 
 carrier in interstate commerce, and the damages recoverable 
 under the act is in no wise limited to those arising solely 
 from the injury without respect to the necessary cost of 
 sickness those produced. No doubt the employee if he sued 
 could recover these costs and expenses; and we see no rea- 
 son why the administrator may not recover them when he 
 sues for the benefit of the deceased's dependents upon him, 
 as they reduce the estate such dependents would probably 
 otherwise inherit (especially in case of the widow and his 
 children), because of the declaration of the statute. "That 
 any right of action given by this act to a person suffering 
 injury shall survive to his or her personal representative, 
 for the benefit" of designated persons.^^ 
 
 vival alone and similar to the Federal 171 S. W. 1185) lends color to the 
 statute], and is in accord with the statement in the text when it speaks 
 law laid down in Davidson-Benedict of the employee's right of action 
 Co. V. Severson, 109 Tenn. 572; 72 being "confined to his personal loss 
 S. W. 967, and cases there reviewed." and suffering before he died," and 
 Carolina, C. & O. llv. v. Shewalter then holds that this cause of action 
 12S Tenn. 3G3; 161 S. W. 1136. For passes at his death to his adminis- 
 instruction disapproved, see Kansas trators for the benefit of his, the de- 
 City So. R. Co. v. Leslie, 35 Sup. Ct. ceased's relatives. 
 844, reversing 112 Ark. 305; 1G7 S. Granting new trial as to the amount 
 W. S3. of damages only may be done. Nor. 
 
 '* Northern Pacific Ry. Co. v. folk So. R. Co. v. Ferebee, 35 Sup- 
 
 Maerkl, 198 Fed. 1; 117 C. C. A. 237; Ct. 781, affirming 167 N. C. 290; 83 
 
 St. Louis At S. F. R. Co. v. Conarty, S. E. 360; first appeal 163 N. C. 351; 
 
 96 Ark. 421; 155S. W. 93; St. Louis, 79 S. E. 685; 52 L. R. A. 1114. That 
 
 L M. & So. Ry. Co. v. Craft, 237 an employee may recover for neces- 
 
 U. S. — ; 35 Sup. Ct. 704, affirming sary medical attendance and nurse's 
 
 (Ark.) 171 S. W. 1185; Kansas City services, see Nashville, C. & St. L. 
 
 So. R. Co. V. Leslie, 35 Sup. Ct. 844, Ry. Co. v. Henry, 158 Ky. 88; 164 
 
 reversing 112 Ark. 305; 167 S. W. 83. S. W. 310. No funeral expenses 
 
 ^' The n^cent case of St. Louis, I. can be recovered, it was held in Collins 
 
 M. & So. Ry. Co. v. Craft, 237 U. S. v. Pennsylvania R. Co. 163 App. 
 
 — ; 35 Sup. Ct. 704 (aflirming (Ark.) Div. 452; 148 N. Y. Supp. 777.
 
 CHAPTER X. 
 RELEASE OF CLAIM FOR DAMAGES. 
 
 SECTION SECTION 
 
 183. Statute. 186. Receipt of relief money. 
 
 184. What contracts of release are 187. Contract for future release not 
 
 forbidden. binding on beneficiaries. 
 
 185. Constitutionality of section 5. 188. Release by beneficiary. 
 
 § 183. Statute. — Section five of the Federal Liability 
 Act provides "That any contract, rule, regulation, or device 
 whatsoever, the purpose and intent of which shall be to 
 enable any common carrier to exempt itself from any lia- 
 bility created by this act, shall to that extent be void ; 
 Provided, That in any action brought against any such 
 common carrier under or by virtue of any of the provisions 
 of this act, such common carrier may set off therein any 
 sum it has contributed or paid to any insurance, or relief 
 benefit, or indemnity that may have been paid to the in- 
 jured employee, or the person entitled thereto, on account 
 of the injury or death for which said action was brought." 
 
 § 184. What contracts of release are forbidden. — This 
 section practically applies to all kinds of contracts whereby 
 the carrier is relieved from liability. Thus it had been the 
 rule of several courts that where the employee joined a re- 
 lief or benefit association controlled by the officers of the 
 carrier, and the employee agreed that whatever amount he 
 received from the association should be considered as in 
 full compensation of his claim for injuries, and if he ac- 
 
 265
 
 266 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 cepted any amount from it, his acceptance should operate as 
 a release of the carrier, the contract was valid, notwith- 
 standing statutes declaring all contracts made by carriers 
 "with their employees, or rules or regulations adopted by 
 any such corporations releasing them from liability to any 
 employee having a right of action under the provisions" of 
 the statutes of which the quotation just made were parts, 
 were "declared null and void," where the employee had his 
 choice to sue or accept compensation under his agreement. 
 It was considered that the acceptance of the benefits 
 after the injury was a valid release.^ But the Supreme 
 Court of the United States has refused to accept this rule 
 as a correct interpretation of the Federal statute, and has 
 held that the carrier was only released to the extent of the 
 money actually paid by the relief department or association. 
 Not only did it thus hold, but it held that the statute applied 
 to contracts of release in force at the time it w^as adopted, 
 and that the statute was not invalid because of that fact." 
 "It includes every variety of agreement or arrangement of 
 this nature ; and stipulations, contained in contracts of mem- 
 bership in relief departments, that the acceptance of bene- 
 fits thereunder shall bar recovery, are within its terms. "^ 
 In order to avoid the effect of a state statute, the plaintiff 
 
 ' Pittsburg, etc., R. Co. v. INIoore, 5.S9; 56 L. Ed. 911, affirming 36 App. 
 
 152 Ind. 345; 53 N. E. 290; 44 L. R. D. C. 565; Burnett v. Atlantic Coast 
 
 A. 638; Johnson v. Philadelphia, etc.. Line R. Co. 163 N. C. 186; 79 S. E. 
 
 R. Co. 163 Pa. St. 127; 29 Atl. 854; 414; Wagner v. Chicago & A. R. Co. 
 
 Pittsburg, etc., R. Co. v. Cox, 55 (111.); 106 N. E. 809; Hogarty v. 
 
 Ohio St. 497; 45 N. E. 641; 35 L. Philadelphia & R. Ry. Co. 245 Pa. 
 
 R. A. 507; Donald v. Chicago, etc., 443; 91 Atl. 854; McGuire v. Rail- 
 
 R. Co. 93 Iowa 284; 61 N. W. 971; road Co. 131 Iowa 340; 108 N. W. 
 
 33 L. R. A. 492; Fuller v. Baltimore, 902; 33 L. R. A. (N. S.) 706. affirmed 
 
 etc., Ass'n, 67 Md. 433; 10 Atl. 237; 219 U. S. 549; 31 Sup. Ct. 259; 55 
 
 Chicago, etc., R. Co. v. Curter, 51 L. Ed. 328; Atlantic Coast Line R. 
 
 Neb. 442; 71 N. W. 42; State v. Co. v. Finn. 195 Fed. 685; Oliver 
 
 Baltimore, etc., R. Co. 36 Fed. 655. v. Northern Pac. R. Co. 196 Fed. 432; 
 
 2 Philadelphia, B. & W. R. Co. v. Malloy v. Northern Pac. R. Co. 151 
 
 Schubert, 224 U. S. 603; 32 Sup. Ct. Fed. 1019.
 
 RELEASE OF CLAIM FOR DAMAGES. 
 
 267 
 
 may show he was an interstate employee.^ A provision in 
 a contract depriving the employee of any benefits, unless any 
 suit brought by tlie employee against tlie carrier for negligent 
 injury should be dismissed, is void.* A contract by an ex- 
 press messenger releasing his company from liability for 
 damages is void where the messenger is also a servant of the 
 railroad company.^ 
 
 § 185. Constitutionality of section five. — The validity of 
 section five forbidding contracts of release has been decided 
 by the Supreme Court: "If Congress possesses the power to 
 impose this liability, which we here hold that it does, it also 
 l)Ossesses the power to insure its efficacy by prohibiting any 
 contract, rule, regulation, or device in evasion of it."*' In 
 a subsequent case the Supreme Court again held that this 
 section was valid." 
 
 ' Wagner v. Chicago & A. R. Co. 
 265 111. 245; 106 N. E. S09. 
 
 ^ Baltimore & 0. R. Co. v. Miller 
 (Ind.) 107 N. E. 545. 
 
 As to exemption of a railwaj'^ car- 
 rier for liability to a porter of the 
 Pullman Company where the latter 
 is released, see Robinson v. Balti- 
 more & O. R. Co. 40 App. D. C. 169. 
 
 The statute applies to an implied 
 contract. Rlalloy v. Northern Pac. 
 R. Co. 151 Fed. 1019. 
 
 5 Taylor v. Wells Fargo & Co. 220 
 Fed. 796. 
 
 ^ Second Employers' Liability 
 Cases, 223 U. S. 1 ; 32 Sup. Ct. 169: 56 
 L. Ed. 327. The court cites Chicago, 
 B. & Q. R. Co. V. McGuire, 219 U. S. 
 549; 31 Sup. Ct. 259; 55 L. Ed. 328; 
 Atlantic Coast Line R. Co. v. River- 
 side Mills, 219 U. S. 186; 31 Sup. Ct. 
 
 164; 55 L. Ed. 167; 31 L. R. A. (N. 
 S.) 7 and Baltimore & O. R. Co. v. 
 Interstate Commerce Commission, 
 221 U. S. 612; 31 Sup. Ct. 621; 55 
 L. Ed. 878. 
 
 'Philadelphia & W. R. Co. v. 
 Schubert, 224 U. S. 603; 32 Sup. Ct. 
 589; 56 L. Ed. 911, affirming 36 App. 
 D. C. 505. See also El Paso & N. E. 
 R. Co. V. Gutierrez, 215 U. S. 87; 30 
 Sup. Ct. 21; 54 L. Ed. 106; Hyde v. 
 Southern R. Co. 31 App. D. C. 466. 
 
 The Supreme Court of Connecticut 
 held this section five unconsti- 
 tutional. Hoxie V. New York, N. H. 
 & H. R. Co. 82 Conn. 352; 73 Atl. 
 754, but the case was reversed in 
 Second Employers' Liability Cases, 
 223 U. S. 1; 32 Sup. Ct. 169; 56 L. 
 Ed. 327.
 
 268 FEDERAL, EMPLOYERS' LIABILITY ACT. 
 
 The corresponding section of the Act of 1906 is very 
 similar to that of the present Act of 1908. The Supreme 
 Court of the District of Columbia held this section of 1906 
 valid, saying: "The right to make all recoverable contracts 
 is a property right, a right that was possessed both by the 
 defendant and by the plaintiff. 
 
 "They entered into this contract, and under it the de- 
 fendant paid the benefits and the plaintiff accepted them, 
 and we will assume that if it were not for the statute itself 
 the acceptance of the benefits after injury would constitute 
 a release of the plaintiff's damages; but the Congress has 
 undertaken to say that such a contract is against sound 
 public policy and shall not be recognized. Are there any 
 grounds upon which the legislature could base such an 
 enactment? ]\Iore than once in its brief the defendant 
 shows that the entering into of this contract by the plain- 
 tiff was not only a part of his contract of employment, but 
 was the condition of his being employed at all, and although 
 the contract itself as elaborately set forth provides for 
 certain preferences to be given those employees who be- 
 come members of the relief benefit department, the de- 
 fendant states, on page 15 of its brief, that all employees 
 of the defendant are required to become members of the 
 relief department as a condition of employment by that 
 company. That is to say, every employee is required to 
 agree upon a scale of benefits, so much for the loss of an 
 arm, so much for the loss of an eye, so much for the loss of 
 a life, and so on, which sums, if accepted by the employee 
 or his representative, after the injury or death has occurred, 
 shall constitute a bar to any action for the real damages. 
 It is now said that no harm has been done by such a con- 
 tract because the employee retained his option to accept 
 or refuse the benefits after the injury has been received. 
 During the oral argument the court asked the counsel for 
 the defendant why the company exacted of its employees 
 such an agreement in advance if it expected to rely only 
 upon a voluntary acceptance of benefits after the injury
 
 RELEASE OF CLAIM FOR DAMAGES. 269 
 
 and not at all upon the previous contract. The reply was 
 that a question might arise as to the condition of the em- 
 ployee at the time the benefits were accepted ; that it might 
 be claimed that he was not then in a condition to make an 
 intelligent decision, and in such a case the fact that he had 
 agreed upon such benefits at the time of his employment 
 and when he was in full possession of all his faculties would 
 help to sustain the act of acceptance. May this not have 
 been one of the reasons for the action taken by Congress? 
 If it is necessary to come back to the original contract in 
 order to sustain the act of acceptance, then it is necessary 
 to come back to a contract which the Congress has clearly 
 declared to be a contract made between parties who do not 
 stand on a level, and one party to which is presumably 
 subject to the undue influence of the other. 
 
 "The real heart of the question is whether the circum- 
 stances and situation are such that the laAvmaking body has 
 a right to say that the contract is made between parties, 
 one of whom has presumably an undue advantage over the 
 other. In the case at bar the plaintiff employee was re- 
 quired to and did pay the sum of $2 per month into the 
 relief department. He alleges that he lost his arm, or a 
 good part of it, through the negligence of the defendant. 
 For that loss he received, according to the plea in bar, 
 * * * $155 and an artificial arm, and this sum was due 
 to him regardless of the question whether the company was 
 negligent or not. On the other hand, of course, the com- 
 pany had agreed to contribute toward the fund and guaran- 
 teed the payment regardless of the question of its own 
 negligence. The defendant has argued at length that these 
 relief benefit contracts are of great advantage to the work- 
 man, but evidently Congress thought otherwise, and if this 
 case is a fair example of the returns to be received there 
 will probably be many others who will share that view. 
 
 "The fact should not be overlooked that although the em- 
 ployee has the option to reject the relief benefit contract 
 after he is injured, if he does so he forfeits what he has
 
 270 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 paid under it. He is not placed back where he was at the 
 beginning when he entered into the contract of employment. 
 
 "The act, however, provides that while the amounts paid 
 as relief benefits shall not bar the action they shall be 
 credited to the defendant so far as they were contributed 
 by the defendant, thus showing that Congress took note of 
 the fact that the employee himself had contributed on his 
 part to the relief benefit by the deductions from his wages, 
 and intended that these shall not inure to the benefit of the 
 defendant. 
 
 ' ' The Congress probably took notice of the fact that when 
 the employee accepted the benefits he got nothing that he 
 was not legally entitled to under the contract by which he 
 became a member of the department. No new consideration 
 passed to him. He was only ratifying the old contract 
 which he entered into as a part of his employment. He was 
 only exercising the option he had bought and paid for out 
 of his wages. The consideration of his agreement was the 
 contract of employment. The company said to him: 'We 
 will not employ you at all unless you come into this depart- 
 ment. If you do come into it you will be entitled to share 
 its benefits.' Now Congress says: 'That is all right so 
 far ; but the provision in the contract that the employee, by 
 accepting those benefits which he has bought and paid for, 
 shall bar himself from recovering his real damages is unfair 
 and against sound policy and shall be void. What is re- 
 ceived under such a contract shall relieve the company only 
 so far as it ought to be relieved.' Can the court say there 
 is no basis whatever for such a legislative decision? It is 
 easy to see that it may be for the interest of the carrier 
 to treat itself as liable in all cases of accident and injury 
 to its employees, waiving the question of negligence, pro- 
 vided the amounts to be paid for such injuries are suffi- 
 ciently low, and it may appear when the average is struck 
 that the carrier has made an immense saving. If Congress 
 thought that these relief benefits and insurance contracts 
 tended on the whole to relieve the common carrier of a
 
 RELEASE OF CLAIM FOR DAMAGES. 271 
 
 large part of the burden which they ought to bear, and 
 threw the burden upon the public, that may have been a 
 good reason for the passage of the act. Before the court 
 decides that the act has no sound rational basis it ought to 
 look at all possible reasons that may have induced Congress 
 to adopt it. What Congress evidently intended to do was 
 to cut up, root and branch, this whole attempt on the part 
 of the employer to substitute its own determination of its 
 liability and its own adjustment of the extent of that lia-, 
 bility as far as the same were embraced in the original 
 contract of employment, and to substitute for it an adjust- 
 ment in open court, or, at least, an adjustment by the parties 
 independent of such original contract. There is still an- 
 other consideration that may have had weight with 
 Congress. That body has attempted to secure a greater 
 degree of safety to railroad employees by requiring rail- 
 roads to use certain safety appliances and to abstain from 
 the use of certain other appliances, such as old-fashioned 
 couplings which maim and kill large numbers of their 
 workmen. If railroads can disobey such laws and turn 
 themselves into insurance companies for the settlement of 
 claims growing out of their violation of these laws, and fix 
 the amounts to be paid at such rates as are shown by the 
 plea in bar now under consideration, it may be very difficult 
 to enforce such statutes at all. 
 
 "Liberty of contract is certainly a very valuable right, but 
 it may not be hard to understand, in view of all these con- 
 siderations, how Congress came to look upon the so-called 
 liberty of contract between the employee and the employer 
 as theoretical rather than real, and to conclude that an act 
 like this would be really in favor of liberty rather than 
 against it. This court cannot find it in its province to 
 attempt to undo the work of the legislature in this humane 
 acf'^"" 
 
 6m Potter V. Baltimore & 0. R. Goldenstein v. Baltimore & 0. R. 
 Co. 37 Wash. Law Rep. 466; Co. 37 Wash. Law Rep. 2; McNa-
 
 272 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 § 186. Receipt of relief money. — The statute gives the 
 defendant the right to set off ''any sum it has contributed 
 or paid to any insurance, relief benefit, or indemnity, that 
 may have been paid to the injured employe or the person 
 entitled thereto on account of the injury or death for which 
 said action was brought." This is a defense and must be 
 brought forward by plea by the defendant; such a payment 
 cannot be shown under the general denial any more than a 
 settlement of the liability can be. After ascertaining the 
 amount the plaintiff would otherwise be entitled to recover, 
 the jury deducts therefrom the amount the injured person has 
 received and returns a verdict for the balance. The court 
 cannot make the deduction. The defendant may set off any 
 sum it has contributed or paid to any insurance, or relief 
 benefit it has paid, and it may also set off the amount of any 
 "indemnity that may have been paid to the injured employe 
 or the person entitled thereto on account of the injury or 
 death. ' ' It is the amount paid by the defendant that may be 
 set off and also the amount the plaintiff has received for his 
 injuries from any other source that may be set off. If the 
 amount paid by the defendant has been deducted from his 
 wages as they accrued, then the payment is not that of the de- 
 fendant, but that of the plaintiff.'^ But the insurance or 
 relief benefit must have been in force at the time of his 
 injury, and he must have received pecuniary benefit 
 therefrom ; the defendant must have paid nwney for the in- 
 surance or benefit. Of course, money paid for the insurance 
 
 mara v. Washington Terminal Co. In Zikos v. Oregon R. & N. Co. 
 
 35 App. D. C. 230; 38 Wash. Law 179 Fed. 893, it is said that this 
 
 Rep. 343. section can be eliminated and the 
 
 In quite a recent case the United statute still stand. 
 
 States Supreme Court has held that • Wagner v. Chicago & A. R. Co. 
 
 an existing valid contract may be 265 111. 245; 106 N. E. 809. 
 
 rendered invalid by an act of Con- In this case the employee was 
 
 gress within its power to enact under allowed to show he was an interstate 
 
 the interstate commerce clause, and employee to escape the adverse 
 
 this would seem to settle the validity effect to him of a state law otherwise 
 
 of the section of this Act of 190H now applicable. See also Rief v. Great 
 
 under discussion. Louisville & N. Northern Ry. Co. 126 Minn. 430; 148 
 
 R. Co. v. Mottloy, 219 U. S. 467; N. W. 309. 
 31 Sup. Ct. 265; 55 L. Ed. 297.
 
 RELEASE OP CLAIM FOR DAMAGES. 273 
 
 or benefit by another common carrier cannot be deducted. 
 Money received as an "indemnity" does not come from an 
 outside source but has a connection with the defendant.® 
 
 § 187. Contract for future release not binding on bene- 
 ficiaries. — Irrespective of whether or not the employee is 
 bound by his contract of release for future damages, the 
 beneficiaries are not bound thereby, because they are not 
 parties to the contract. Such a contract is not for their bene- 
 fit.^ This was held true where the deceased was a member 
 of a relief association, and had agreed that the acceptance of 
 the relief money should release his employer.^° But the pro- 
 viso to Section five evidently applies where the beneficiaries 
 bring action for the death of the employee ; and they will be 
 bound by its provisions the same as the employee, except 
 that if he be a member of a relief association and has not 
 elected to accept the amount due therefrom, whereby his 
 employer would be released, they would not be bound by 
 any of its provisions, unless they elected to accept payment 
 in accordance with the provisions of the contract. 
 
 § 188. Release by beneficiary. — A release by the injured 
 person in his lifetime and after his injuries of the defendant 
 from its liabilities to him, or a settlement or the procuring of 
 a judgment by him, is a complete bar to an action by his 
 administrator.^^ So a settlement or compromise by the ad- 
 
 ^ It is usually an enforced payment. Robinson v. Baltimore & Ohio R. Co. 
 
 ^ It is clear that the word "in- 35 Sup. Ct. 491; 58 L. Ed. — , affirming 
 
 demnity" does not cover the case of 40 App. D. C. 169. 
 
 ordinary life or accident insurance. The acceptance of relief money 
 
 Brabham v. Baltimore & O. R. Co. does not prevent a recovery. Bur- 
 
 220 Fed. 35. nett v. Atlantic Coast Line R. Co. 
 
 The contract of exemption applies 163 N. C. 186; 79 S. E. 414; Adams 
 
 to all cases within the scope of the v. Northern Pac. R. Co. 95 Fed. 938; 
 
 act, with hke effect as though pro- Illinois, etc., R. Co. v. Cozby, 69 
 
 mulgated by an act of state legis- 111. App. 256; Maney v. Chicago, etc., 
 
 lation. Hogerty v. Philadelphia & R. Co. 49 111. App. 105; Strode v. 
 
 R. R. Co. 245 Pa. 443; 91 Atl. 854. St. Louis Transit Co. (Mo.) 87 S. W. 
 
 The acceptance of benefits is no Rep. 976. 
 
 release. Ibid. Burnett v. Atlantic '" Cowen v. Ray, 47 C. C. A. 452; 
 
 Coast Line R. Co. 163 N. C. 186; 79 108 Fed. Rep. 320; Chicago, etc., 
 
 S. E. 414; Herring v. Atlantic Coast R. Co. v. Wymore, 40 Neb. 645; 58 
 
 Line R. Co. (N. C.) 84 S. E. 863. N. W. Rep. 1120; McKering v. 
 
 The amount that might be recover- Pennsylvania R. Co. 65 N. J. L. 57; 
 ed under a state workingman's com- 46 Atl. Rep. 715. 
 pensation statute cannot be deducted " Hecht v. Ohio, etc., R. Co. 132 
 from the amount otherwise recover- Ind. 507; 32 N. E. Rep. 302; Little- 
 able. Staley v. Illinois Cent. R. Co. wood v. Mayor, etc., 89 N. Y. 24, 
 111. App. 593; Jensen v. Southern P. affirming 15 J. & S. 547; Ried v. 
 Co. (N. Y.) 109 N. E. 600; Southern Great Eastern Ry. Co., L. R. 3 Q. B. 
 P. Co. v. Pillsbury (Col.) 151 Pac. 277. 555; 37 L. J. Q. B. 278; 18 L. T. (N. 
 
 9 Herring v. Atlantic Coast Line R. S.) 822; 16 W. R. 1040; Dibble v. 
 
 Co. (N. C.) 84 S. E. 863. New York, etc., R. Co. 25 Barb. 183; 
 
 But an agreement by a porter of Southern, etc., Co. v. Cassin, 111 
 
 the Pullman Car Company not to Ga. 575; 36 S. E. Rep. 881; Hill 
 
 hold the railway company over whose v. Pennsylvania R. Co. 178 Pa. 
 track he is hauled, if injured, is bind- 
 ing upon him, because he is not an 
 employee of the railway company.
 
 274 
 
 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 ministrator is a bar to the action/- but not without an order 
 of coart.^^ But neither the widow nor next of kin of the de- 
 ceased can release the claim of the administrator." Yet a 
 beneficiary may release so much of the amount as he or she 
 would be entitled to.^^ And if there be but one beneficiary, 
 he or she (and so all of them) may compromise the claim in 
 
 St. 223; 35 Atl. Rep. 997; 35 
 L. R. A. 196 ; 39 W. N. Cas. 221 ; 
 Price V. Railroad Co. 33 S. C. 
 556; 12 S. E. Rep. 413^ Brown v. 
 Chattanooga Elec. R. Co. 101 
 Tenn. 252; 47 S. W. Rep. 415. 
 But not if secured by unfair 
 means. Price v. Richmond, etc., 
 R. Co. 38 S. C. 199; 17 S. E. Rep. 
 732; Missouri, etc., Co. v. Brant- 
 ley, 26 Tex. Civ. App. 11; 62 S. 
 ^Y. Rep. 94; Thompson v. Ft. 
 Worth, etc., R. Co. 97 Tex. 590; 
 80 S. W. Rep. 990 ; Blount v. Gulf, 
 etc., R. Co. (Tex. Civ. App.) 82 
 S. W. Rep. 305. 
 
 The bringing of a suit by the 
 deceased, undetermined at his 
 death, is no bar to the adminis- 
 trator's suit. International, etc., 
 R. Co. V. Kuehn, 70 Tex. 582; 8 
 S. W. Rep. 484; Indianapolis, etc., 
 R. Co. V. Stout, 53 Ind. 143. 
 
 Evidence of the payment of the 
 expenses of the deceased's sickness 
 and of his funeral expenses is not 
 admissible in evidence. Murray v. 
 Usher, 117 N. Y. 542; 23 N. E. 
 Rep. 564; 46 ^un, 404. 
 
 "Hencliey v. City of Chicago, 
 41 111. 136; Hartigan v. Southern 
 Pac. R. Co. 86 Cal. 142; 24 Pac. 
 Rep. 851; Foot v. Great Northern 
 R. Co. 81 Minn. 493; 84 N. W. 
 Rep. 342; 52 L. R. A. 354; Balti- 
 more, etc., R. Co. v. Iloltman, 25 
 Ohio C. C. 140. 
 
 •MMttsimig, etc.. R. Co. v. (Jipe, 
 IGO Ind. '6(H); U5 N. E. Rep. 1034. 
 
 Order is not necessary. Foot v. 
 Great Northern R. Co. supra. A 
 fravidulent release held void. 
 Pisane v. Shanley, 66 N. J. L. 1 ; 
 48 Atl. Rep. 618. Before appor- 
 tionment, is valid. Sluber v. Mc- 
 Entee, 142 N. Y. 200; 47 N. Y. 
 App. Div. 471; 63 N. Y. Supp. 
 580; affirmed, 164 N. Y. 58; 58 
 N. E. Rep. 4. 
 
 " Yelton V. Evansville, etc., R. 
 Co. 134 Ind. 414; 33 N. E. Rep. 
 629; Cleveland, etc., Ry. Co. v. 
 Osgood, 36 Ind. App. 34; 73 N. E. 
 Rep. 285; Dovveli v. Burlington, 
 etc., Ry. Co. 62 Iowa, 029; Pitts- 
 burg, etc., R. Co. V. Moore, 152 
 Ind. 345; 53 N. E. 290; 44 L. R. 
 A. 638; South, etc., R. Co. v. Sul- 
 livan, 59 Ala. 272; Knoxville, etc., 
 R. Co. V. Acuir, 92 Tenn. 26; 20 
 S. W. Rep. 348; Pittsburg, etc., R. 
 Co. V. Hosea, 152 Ind. 412; 53 
 X. E. Rep. 419; Oyster v. Bur- 
 lington, etc., R. Co. 65 Neb. 789; 
 91 N. W. Rep. 699; 59 L. R. A. 
 291. 
 
 "Chicago, etc., Ry. Co. v. Wy- 
 more, 40 Neb. 645; 58 N. W. Rep. 
 1120. 
 
 ** Prater v. Tennessee, etc., Co. 
 105 Tenn. 496; 58 S. W. Rep. 
 1008; Small v. Kreech (Tenn.) 
 46 S. W. Rep, 1019; Stephens v. 
 Nashville, etc., R. Co. 10 Lea, 448; 
 Schmidt v. Deegan, 09 Wis. 300; 
 34 N. W. Rep. 83; Southern Pac. 
 (\). V. Tomlinson, 163 IT. S. 369; 
 16 Sup. Ct. Rep. 1171.
 
 CHAPTER XI. 
 IN WHAT COURTS SUIT MAY BE BROUGHT. 
 
 189. Plaintiff may bring suit in 192. Removal of case to Federal 
 
 Federal court. court. 
 
 190. Jurisdiction of state courts. 193. Joinder of action under Federal 
 
 191. Congress conferring jurisdiction statute and a common law 
 
 on a state court. action. 
 
 194. Where actions must be brought. 
 
 § 189. Plaintiff may bring suit in a federal court. — Section 
 six as amended in 1910 provides that "under this Act an ac- 
 tion may be brought in a Circuit Court of the United States/ 
 in the district of the residence of the defendant, or in which 
 the cause of action arose, or in which the defendant shall 
 be doing business at the time of commencing such action. 
 The jurisdiction of the courts of the United States under 
 this Act shall be concurrent with that of the courts of the 
 several states, and no case arising under this Act and 
 brought in any state court of competent jurisdiction shall 
 be removed to any court of the United States." - It will be 
 noted that this statute says nothing about the amount in- 
 volved. The action is a special one on the statute — a new 
 cause of action, so far as the United States law is concerned, 
 one that could not prior to this Act be enforced under a 
 
 1 The Judicial Code of the "of all suits and proceedings ards- 
 
 United States, approved March 3, ing under any law regulating com- 
 
 1911, abolished the circuit courts, merce, except those suits and 
 
 and the powers aad duties hereto- proceedings of which exclusive 
 
 fore exercised and performed were jurisdiction has been conferred 
 
 transferred and imposed upon the upon the commerce court." 
 United States district courts, and sigee Appendix A for this 
 
 by Section 24 of Article 8, the amendment, 
 district courts have jurisdiction 
 
 275
 
 276 
 
 FEDERAL, EMPLOYERS' LIABILITY ACT. 
 
 United States statute — and Congress having declared that 
 under the act "an action may be brought in a Circuit Court 
 of the United States ' ' intended and did by this declaration 
 give jurisdiction to that court to bring an action "under 
 this statute" regardless of the amount involved.^ 
 
 § 190. Jurisdiction of state courts. — In an action brought 
 under this statute the Supreme Court of Connecticut had 
 held that the courts of that state had no jurisdiction of a 
 cause of action brought upon this Act.'* But before the de- 
 cision of the Connecticut Supreme Court a number of 
 actions had been brought upon this Act in state courts, in 
 some of which no question of jurisdiction was raised,^ and 
 in others it was, and decided that a state court had juris- 
 diction.® This question came up in one of the circuit courts, 
 
 ' To the author this seems to be a 
 reasonable interpretation of this 
 section; but so far as he knows the 
 question has not been decided. But 
 it may be reasoned that by the 
 attempt to confer jurisdiction on 
 state courts, Congress intended only 
 to limit the right of action in the 
 Federal courts to instances where 
 three thousand dollars or more are 
 involved, and to provide a forum 
 where cases below that amount could 
 be tried. This amendment was made 
 because of the decision of the Supreme 
 Court of Connecticut in Hoxie v. 
 New York, N. H. & H. R. R. Co. 82 
 Conn. 352; 73 Atl. 754, holding that 
 state courts had no jurisdiction of an 
 action brought upon this statute, 
 and, therefore, if that be true, an 
 
 employee whose damages did not 
 amount to three thousand dollars was 
 without remedy. But it seems to the 
 author that it was the intent of 
 Congress to give the Federal courts 
 jurisdiction of all actions brought 
 under this statute, regardless of the 
 amount involved. 
 
 If an employee admits he was not 
 engaged in interstate commerce, that 
 admission deprives the Federal Court 
 of its jurisdiction. Delaware, L. & 
 W. R. Co. v. Yurkonis, 220 Fed. 429. 
 
 < Hoxie v. New York, N. H. & H. 
 R. R. Co. 82 Conn. 352; 73 Atl. 754, 
 reversed 223 U. S. 1; 32 Sup. Ct. 
 169; 56 L. Ed. 327. 
 
 * Central of Georgia R. Co. v. 
 Sims, 163 Ala. 669; 53 So. 826. 
 
 * Bradbury v. Chicago, R. I. & P. 
 Ry. Co. 149 Iowa 51; 128 N. W. 1; 
 St. Louis, I. M. & S. Ry. Co. v. 
 Hesterly (Ark.) 135 S. W. 874; At- 
 lantic Coast Line R. Co. v. Whitney, 
 62 Fla. 124; 56 So. 937.
 
 IN WHAT COURTS SUIT MAY BE BROUGHT. 277 
 
 in a case removed to it from a state court, and the court 
 held that a state court could entertain an action based 
 wholly on this statute."* ''State courts," said Judge Whit- 
 son, "enforce rights arising under the laws of the different 
 states, applying the rule of lex loci contractus. They 
 uphold rights arising in foreign nations which depend upon 
 the constitution of foreign laws. Let it be admitted that 
 this is through comity only, yet it would appear even then 
 that the analogy ought to follow. But this is a stronger 
 reason growing out of the more intimate relation of the 
 states to the general government. The Constitution of the 
 United States being the supreme law of the land, state and 
 Federal courts are alike subject to its provisions, and the 
 refusal of the former to enforce rights conferred by 
 Congress, would put them in the same category as 
 would a refusal to entertain causes flowing from any other 
 recognized source of authority. It would be an anomaly in 
 our system of state tribunals, after having so long enter- 
 tained the grievances of litigants, where rights are traceable 
 to Congressional legislation, should refuse to further do so 
 because of the fact that there has been provided, by a power 
 clearly competent, different rules of liability for those en- 
 gaged in interstate commerce from those which may be 
 fixed by statutes or recognized by decisions in the several 
 states. All government rests upon acquiescence in the 
 established order. Where common consent is withdrawn, 
 prescribed rules of conduct are overthrown and anarchy 
 reigns; and it is not to be supposed that state courts will 
 or can refuse to abide by the result when the Supreme 
 Court, the final arbiter, has decided that they have juris- 
 diction. If this should occur, the Constitution would cease 
 to be the supreme law of the land, and its express pro- 
 vision that 'the judges in every state shall be bound thereby, 
 anything in the Constitution or laws of any state to the 
 
 6a Zikos T. Oregon R. & N. Co. 179 Fed. 893.
 
 278 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 contrary notwithstanding, ' would become null and its appli- 
 cation inoperative. ' ' "'' 
 
 "The general question," said Justice Bradley, "whether 
 state courts can exercise concurrent jurisdiction with the 
 Federal courts in cases arising under the Constitution, laws 
 and treaties of the United States, has been elaborately dis- 
 cussed, both on the bench and in published treatises some- 
 times with a leaning in one direction and sometimes in the 
 other; but the result of these discussions has, in our judg- 
 ment, been, as seen in the above cases, to affirm the juris- 
 diction, where it is not excluded by express provisions or 
 by incompatibility in the exercise arising from the nature of 
 the particular case. When we consider the structure and 
 true relations of the Federal and state governments, there 
 is really no just foundation for excluding the state courts 
 from all such jurisdiction. The laws of the United States 
 are laws of the several states, and just as much binding 
 on the citizens and courts thereof as the state laws are. The 
 United States is not a foreign sovereignty as regards the 
 several states, but is a concurrent and, within its jurisdic- 
 diction, paramount sovereignty. Every citizen of a state is 
 a subject of two distinct sovereignties, having concurrent 
 jurisdiction in the states ; concurrent as to place and 
 person, though distinct as to subject-matter. Legal or 
 
 8b "So, thft holding in Hoxie v. "The legislature of a state can- 
 
 Kew York, N. H. & H. R. R. Oo. not abrogate or modify any of the 
 
 823 Conn. 732; 73 Atl. 754, that provisions of the Federal Consti- 
 
 it was not intended by Congress tution nor of the acts of Congress 
 
 that the rights granted should be touching matters within congres- 
 
 enforceable in the state courts, sional control ; but the courts of 
 
 cannot be followed for the reasons the state, in the absence of a pro- 
 
 alr^ady assigned and for the addi- hibitory provision in the Federal 
 
 tional reason that jurisdiction of Constitution or acts of Congress, 
 
 the state ofjurts is attributable to have full jurisdiiction over oases 
 
 the powers conferred upon them under the Constitution and laws of 
 
 by the states. To defeat the exer- the United States." Murray v. 
 
 cise of this power there must be Chicago & N. W. Ry. Co. 62 
 
 an expreas prohibition by Con- Fed. 24. 
 gress." Zikos v. Oregon R. & N. 
 Co. 17i» Fed. 893.
 
 IN WHAT COURTS SUIT MAY BE BROUGHT. 279 
 
 equitable rights acquired under either system of law, may 
 be enforced in any court of either sovereignty, competent to 
 hear and determine such kind of rights and not restrained 
 by its constitution in the exercise of such jurisdiction. 
 Thus a legal or equitable right acquired under the state 
 laws may be prosecuted in the state courts, and also, if 
 parties reside in different sates, in the Federal courts. So 
 rights, whether legal or equitable, acquired under the laws 
 of the United States, may be prosecuted in the United 
 States courts, or in the state courts, competent to decide 
 rights of the like character and class; subject, however, to 
 this qualification, that, where a right arises under a law 
 of the United States, Congress may, if it see fit, give to the 
 Federal courts exclusive jurisdiction. This jurisdiction is 
 sometimes exclusive by express enactment and sometimes 
 by implication. If an act of Congress gives a penalty to a 
 party aggrieved, without specifying a remedy for its en- 
 forcement, there is no reason why it should not be enforced, 
 if not provided otherwise by some act of Congress, by a 
 proper action in a state court. The fact that a state court 
 derives its existence and functions from the state laws is no 
 reason why it should not afford relief, because it is subject 
 also to the laws of the United States, and is just as much 
 bound to recognize the two as operative wdthin the state 
 as it is to recognize the state laws. The two together form 
 one system of jurisprudence, which constitutes the law of 
 the land for the state; and the courts of the two juris- 
 dictions are not foreign to each other, so as to be treated by 
 each other as such, but as courts of the same country, hav- 
 ing jurisdiction partly different and partly concurrent." ^° 
 The reasoning of this position is greatly supported by the 
 many cases that have been brought in state courts to re- 
 
 6c Claflin V. Houseman, 93 U. S. v. Oliver, 97 Ala. 719; 12 So. 
 
 130; 23 L. Ed. 83, quoted with 238; 38 Am. St. 215; Wilcox v. 
 
 approval in Bradburv v. Chicago Luco, 118 Cal. 642: 45 Pac. 676; 
 
 & N. W. Ry. Co. 149 Iowa, 51; 50 Pac. 758; 62 Am. ,St. 306; 45 
 
 128 N. W. i. L. R. A. 582; Schuyler National 
 
 On thia point, see, also, Raisler Bank v. Bollong, 24 Neb. 827; 40
 
 280 
 
 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 cover damages occasioned by a failure to equip cars with 
 automatic couplers as Congress had required of railway 
 companies engaged in interstate commerce, even though 
 provisions of the statute providing that an employee of such 
 a company did not assume the risk of coupling cars not 
 equipped as the statute required.*"^ 
 
 § 191. Congress conferring jurisdiction on a state court. 
 
 — The amendment of 1910 to Section six expressly declares 
 
 that "The jurisdiction of the courts of the United States 
 
 under this Act shall be concurrent with that of the courts 
 
 of the several states." The wording of this amendment, 
 
 Ala. 487; 35 So. Rep. 457; Geor- 
 gia Pac. R. Co. V. Davis, 92 Ala. 307; 
 9 So. Rep. 253; 25 Am. St. Rep. 47. 
 
 That state courts have jurisdic- 
 tion is settled. Mondon v. N. Y., 
 etc., R. Co., 32 U. S. Sup. Ct. 169; 
 White v. Missouri P. Ry. Co. (Mo. 
 App.) 178 S. W. 83; Kamboris v. 
 Oregon W. R. & N. Co. (Ore.) 146 
 Pac. 1097; Corbett v. Boston & M. 
 R. Co. (Mass.) 107 N. E. 60; Gibson 
 v. Bellingham & N. Ry. Co. 213 Fed. 
 488; Easter v. Virginian Ry. Co. 
 (W. Va.) 86 S. E. 37. 
 
 Mr. Borah: "If the state court 
 has jurisdiction in the matter, it 
 could enforce the Federal law just 
 the same as if it were a Federal 
 court." 60 Cong. Rec, 1st Sess., 
 p. 4537. 
 
 Mr. Dolliver: "But I do not 
 hesitate to say that I understand 
 that a citizen of Georgia can bring 
 a suit in the state court of Geor- 
 gia for the enforcement of his 
 riglits under this act, and would 
 remain in the state court of Geor- 
 gia unless the defendant exercised 
 his right under the judiciary act 
 and transferred the controversy to 
 the Federal court." 60 Oong. Rec, 
 1st Sess., p. 4548. 
 
 Senate Report, No. 432 in the 
 61st Congress, 2d Session, March 
 22, 1010, contains an argument, 
 backed by the citation of many 
 cases and quotations therefrom, 
 showing tliat the state courts have 
 jurisdiction of cases brought under 
 this statute. Appendix B. 
 
 K W. 417; Bletz v. Columbia 
 Nat. Bank, 87 Pa. 92; 30 Am. 
 Rep. 345; Brinkerhoff v. Bostwick, 
 88 N. Y. 60; People v. Welch, 141 
 N. Y. 273; 36 N. E. 328; 24 
 L. R. A. 117; 38 Am. St. 793. 
 
 edSee St. Louis, etc., Ry. Co. v. 
 Taylor, 210 U. S. 281; 28 Sup. Ct. 
 Rep. >616; 52 L. Ed. 1061; Sohlem- 
 mer v. Buffalo, etc., Ry. Co. 205 
 U. S. 1; 27 Sup. Ct. Rep. 407; 
 51 L. Ed. 681; reversing 207 
 Pa. St. 198; 56 Atl. Rep. 417; 
 Schlemmer v. Buffalo, etc., R. Co. 
 220 U. iS. 590; 31 Sup. Ct. 561; 
 55 L. Ed. 596; affirming 222 Pa. 
 470; 71 Atl. 1053. A number of 
 cases have been brought upon the 
 Safety Appliance Act in state 
 courts. Missouri Pac. Ry. Co. v. 
 Brinkmeier, 77 Kan. 14; 93 Pac. 
 Rep. 621; Southern Pac. R. Co. 
 v. Allen (Tex. Civ. App.), 106 
 S. W. Rep. 441; Chicago, etc., 
 Ry. Co. v. State (Ark.), Ill S. 
 W. Rep. 456; Cleveland, etc., Ry. 
 C(). V. Curtis, 134 111. App. 565; 
 Nichols V. Chesapeake, etc., Ry. 
 Co. 32 Ky. L. Rep. 270; 105 S. W. 
 4H1; 32 Ky. L. Rep. 270; Mobile, 
 etc. R. Co. V. Broml)erg, 141 
 Ala. 258; 37 So. Rep. 395; Kansas 
 City, (»tc., R. Co. V. Flippo, 138
 
 IN WHAT COURTS SUIT MAY BE BROUGHT. 281 
 
 it would seem, proceeds upon the assumption that state courts 
 had jurisdiction of actions brought under the Act and 
 Federal courts did not (at least if the amount involved did 
 not amount to two thousand dollars), and thereby it was 
 sought to confer jurisdiction upon the Federal courts. But 
 such is not the true interpretation of the statute, in the 
 light of the debates in Congress. This amendment was 
 made to confer jurisdiction upon state courts, because of 
 the decision of the Supreme Court of Connecticut,®® which 
 was severely criticised and declared to be erroneous. The 
 question is a very pertinent one, if a state court had no juris- 
 diction of an action brought under this statute can Congress 
 confer it? This question has not been specifically answered 
 although it has been discussed.**^ If we turn to a case of a 
 state court granting a foreigner naturalization papers under 
 the Federal statutes, we have an analogous instance of a 
 state court acting under a Federal statute. It has been ex- 
 pressly held that Congress can confer power upon state 
 courts to hear and grant an application for naturalization 
 papers, without an act of the state legislature authorizing 
 it to assume jurisdiction under the Federal statute. By the 
 Federal statute®^ '*a court of record of any of the states 
 having common-law jurisdiction and a seal, and a clerk" is 
 expressly authorized by Congress to naturalize qualified 
 aliens, and to issue to them certificates of citizenship. The 
 Constitution of the United States provides that Congress 
 shall have power "to establish a uniform rule of naturaliza- 
 tion * * * to make all laws which shall be necessary and 
 proper for carrying into execution the foregoing power, 
 and all other powers vested by this Constitution in the gov- 
 ernment of the United States or in any department or 
 offices thereof," and that "this Constitution and the laws 
 of the United States which shall be made in pursuance 
 thereof * * * shall be the supreme law of the land, and 
 
 eeHoxie v. New York, N. H. & 73 Atl. 762. 
 
 H. R. R. Co. 82 Conn. 352; 73 ef Zikos v. Ore^n R. & N". Co. 
 
 Atl. 754. Mondon v. N. G. A. H. 179 Fed. 893. 
 
 & H. R. Co., 82 Conn. 373; eg R. s. Sec. 2L&5.
 
 282 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 the judges in every state shall be bound thereby, anything 
 in the Constitution or laws of any state to the contrary 
 notwithstanding."*^'^ It is an axiomatic construction of the 
 powers conferred by the Federal Constitution that the 
 grant of power to do an act or to obtain an end is an implied 
 grant of plenary authority to select and use the appropriate 
 means to accomplish the purpose contemplated. It should 
 be observed that the Constitution of the United States hav- 
 ing granted Congress power over interstate commerce, such 
 power (and such are the effect of the decisions), draws 
 to Congress authority to select and use all appropriate 
 means to enforce its provisions. In a case where the power 
 of a state court to naturalize a foreigner was involved it 
 was claimed that this act of a state court in hearing an 
 application for and granting a naturalization certificate 
 was void on two grounds: First, because Congress had no 
 power under the Constitution to grant this power to a state 
 court ; and, second, because if it had the power, a court of 
 common-law jurisdiction had no authority to accept or to 
 exercise this power in the absence of state legislative per- 
 mission so to do from the state which established it. In 
 one case the court considered that as the statute on naturali- 
 zation had been in force since 1790, had been universally 
 acted upon by the courts and executive officers since that 
 date without question of its validity, it was now too late 
 to raise the question of its constitutionality. "Nor are 
 the conclusions which contemporaneous construction, time, 
 and practice have adopted without cogent reasons to sup- 
 port them," said the court. "While it is true that Mr. 
 Justice Story, speaking for the Supreme Court, declared in 
 1816 •■'' that the Congress had not vested any portion of the 
 judicial power of the nation in courts which it did not 
 itself ordain and establish, and this statement has since 
 been repeated ; the fact is that he was then thinking and 
 
 eh Art. 1, Soc. 8, and Art. 0. 1 Wheat. 304, 328-333; 4 L. 
 
 81 In Martin v. Hunter's Lessee, Ed. 97.
 
 IN WHAT COURTS SUIT MAY BE BROUGHT. 283 
 
 speaking of the judicial power granted by Section one ^^ 
 and defined by Section two '"^ of Article 2 of the Constitution. 
 The better opinion now is that the judicial power granted 
 by the former action, which may be vested in the national 
 courts only, is defined in the latter section ; that it necessarily 
 extends only to the trial of 'all cases in law and equity 
 arising under this Constitution,' and to the trial of the 
 other nine classes of cases named in Section two, and speci- 
 fied by Chief Justice Jay in his opinion in ChisJiolm v. 
 Georgia ^'^^ and that these sections neither expressly nor im- 
 pliedly prohibit Congress from conferring judicial power 
 upon other courts, or upon executive or other officers, in 
 other cases where, in its opinion, the devolution of such 
 power is either necessary or convenient in the execution of 
 the authority granted to the legislative or to the executive 
 department of the government through the Constitution. 
 Through the authority granted to the territorial courts to 
 have and determine controversies arising in the territory 
 of the United States is judicial power. But it is not a part 
 of the judicial power granted by Section one, and defined 
 by section two, of article three of the Constitution. Neverthe- 
 less, under the constitutional grant to Congress of power 
 to 'make all needful rules and regulations respecting the 
 
 6j "The judicial power of the States shall be a party; to c^n- 
 
 United States sliall be vested in troversies between two or more 
 
 one Supreme Court, and in such states, between a state and citizens 
 
 inferior courts as the Congress of another state, between citizens 
 
 may, from time to time ordain of diflerent states, between citizens 
 
 and establish." of the same state claiming lands 
 
 6k "The judicial power shall ex- under grants of different states, 
 
 tend to all cases, in law and and between a state or the citizens 
 
 equity, arising under tliis Consti- thereof, and foreign states, citizens 
 
 tution, the laws of the United or subjects." 
 
 States, and treaties made, or which el 2 Dall. 419, 475; 1 L. Ed. 440. 
 
 shall be made, under their author- The court also cited Ex parte 
 
 ity; to all cases affecting ambas- Gist, 26 Ala. 156, 162; Claflin 
 
 sadors, other public ministers, and v. Houseman, 93 U. S. 130, 139; 
 
 consuls; to all cases of admiralty 23 L. Ed. 833; and Robertson v. 
 
 and maritime jurisdiction; to con- Baldwin, 165 U. S. 275, 279; 17 
 
 troversies to which the United Sup. Ct. 326; 41 L. Ed. 715.
 
 284 
 
 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 territory * * * belonging to the United States, ' '^'" the 
 body may create territorial courts not contemplated nor 
 authorized by article three of the Constitution, and may con- 
 fer upon such courts and the bestowal of such authority 
 constitutes appropriate means by which to exercise the Con- 
 gressional power to make needful rules respecting the terri- 
 tory belonging to the United States/"^ Of the same nature 
 is the judicial power conferred upon the Secretary of the 
 Interior, the Commissioner of the General Land Office, and 
 his subordinate officers, to hear and determine claims to 
 the public lands of the nation ; ^° that bestowed on justices 
 of the peace and other magistrates of the state by Act 
 September 24, 1789,^^ to arrest and commit to jail persons 
 charged with a violation of the criminal laws of the United 
 States ; ^^ that conferred upon the state courts to hear and 
 determine suits by or against corporations and officers 
 created by the nation ; *''" that gives to magistrates of any 
 county, city or town corporate, to hear, determine, and 
 certify the claims of owners of fugitive slaves ; *^ that be- 
 stowed upon justices of the peace to arrest, commit to jail, 
 and deliver to the masters deserting seamen ; ®' that con- 
 ferred upon the courts of the state by the various acts of Con- 
 gress which empower them to naturalize aliens ; "" and that 
 
 em Article 4, Sec. 3. 38 Claflin v. Houseman, 03 U. S. 
 
 6n Citing American Ins. Co. v. 135 ; 23 L. Ed. 833. 
 
 Canter, 1 Pet. 511, 544; 7 L. Ed. es Under Act February 12, 1793, 
 
 242; Clinton v. Englebrecht, 13 Cliap. 7, 1 U. S. Stat, at L., 302, 
 
 Wall. 434, 447; 20 L. Ed. 650; Sec. 3; Prigg v. Pennsylvania, 16 
 
 M<;Allister v. United States, 141 Pet. 536, 615, 620, 621; 10 L. Ed. 
 
 U. S. 174, 184; 11 Sup. Ct. 949; 1060. 
 
 35 L. Ed. 693. et Under Act July 20, 1790, 
 
 60 Citing United States v. Win- Chap. 29; 1 U. S. 'Stat. at L., 
 
 ona & St. P. P. Co. 67 Fed. 948, 131, 134; Pobertson v. Baldwin. 
 
 957; 15 C. €. A. 96, 104. 165 U. S. 275, 277, 280; 17 Sup. 
 
 epl U. S. Stat, at L., Chap. 20, Ct. 326; 41 L. Ed. 715. 
 
 Sec. 33. «" I Stat. 103, 414; 2 Stat. 153, 
 
 eqEx parte Gist, 26 Ala. 156, 155; Re\'. Stat., Sec. 2165; Robert- 
 
 1^. son V. Baldwin, 165 U. S. 275: 17 
 
 «rBank of the United States v. Sup. Ct. 326; 41 L. Ed. 715; 
 
 Deveaux, 5 Cranch, 61 ; 3 L. Ed. Claflin v. Houseman, 93 U. S. 130,
 
 IN WHAT COURTS SUIT MAY BE BROUGHT. 285 
 
 granted by acts of Congress to executive officers of the 
 United States and to courts and magistrates of the states in 
 numerous other instances, not to try and determine the 
 cases specified in section two of article three of the Con- 
 stitution, but to perform the judicial function of hearing 
 and determining other questions and issues which a proper 
 exercise of the powers granted to the various departments 
 of the government require to be thus decided. The grant 
 by the Congress of the United States of the judicial power 
 to admit aliens to citizenship, and to hear and decide the 
 various questions which do not arise in the cases specified 
 in article three of the Constitution, but which a proper 
 exercise of the powers granted by that instrument to the 
 executive or to the legislative department of the govern- 
 ment requires to be judicially decided, was neither expressly 
 nor impliedly prohibited by that article. The Congressional 
 power to make such a grant, and to vest judicial authority 
 in state courts and officers, in such case, exists by virtue 
 of the established rule that the grant of a power to accom- 
 plish an object is a grant of the authority to select and use 
 the appropriate means to attain it." The court then pro- 
 ceeds to discuss the question whether it is necessary for a 
 state legislature to authorize a state court to proceed under 
 the Federal statute where Congress has extended to it au- 
 thority to act, and reaches the conclusion that it is not.®^ 
 "When the United States," said the court, "offered admis- 
 sion to the Union to the people of Missouri [where the case 
 arose], it made this offer subject to the potent condition 
 that the Constitution of the United States and the laws that 
 had been made and should be made by Congress in accord- 
 ance with its provisions, should become the supreme law 
 
 140; 23 L. Ed. 83; In re Connor, that this prohibition would be 
 
 39 Cal. 98^ 101 ; 2 Am. Rep. 427. fatal to the devolution of the con- 
 
 8v "The suggestion is noted that gressional authority." But no such 
 
 the legislature of a state might inhibition having been imposed, 
 
 prohibit its courts from exercising the court refused to discuss it. 
 the power of naturalization, and
 
 286 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 of the new state, binding alike upon all its inhabitants, 
 whether laymen or lawyers, citizens or judges. The people 
 of Missouri accepted the offer and its condition, and became 
 a part of the nation. Thereupon the Constitution of the 
 United States, and the laws enacted in accordance with, 
 which then conferred upon the courts of the states the judi- 
 cial power to admit aliens to citizenship, became a part of 
 the supreme law of the new state of Missouri, which the 
 people of that state, by their acceptance of the offer of 
 admission, had contracted should be obeyed and executed 
 by the citizens, the judges, and the courts of this state. The 
 acceptance by the people of Missouri of this offer of admis- 
 sion, in view of the power which had been granted by the 
 Congress to certain courts of the states to admit aliens to 
 citizenship, and in view of the practice of those courts to 
 exercise this jurisdiction, which had prevailed for nearly 
 three decades, gave to the courts of Missouri plenary juris- 
 diction to exercise any power to admit aliens to citizen- 
 ship which the Congress had then conferred or might 
 thereafter bestow upon them under the provisions of the 
 Constitution applicable to that subject.'^ The resistless con- 
 clusion is that the Congress of the United States was by 
 section eight, article one, of the Constitution, granted the 
 necessary authority to vest in the courts of the states having 
 common law jurisdiction the judicial power to admit quali- 
 fied aliens to citizenship ; that, in the absence of legislative 
 authority or permission from the states which created them, 
 such courts may lawfully exercise this power, and that 
 Section 2165 of the Revised Statutes is neither unconstitu- 
 tional nor invalid." " 
 
 ' Claflin V. Houseman, 93 U. S. 130, court or a Federal court. Thomas v. 
 
 13G-1 12; 23 L. Ed. 833; E.x parte Gist, Chicago & N. W. Ry. Co. 202 Fed. 
 
 26 Ala. 156, 164; Prigg v. Pennsvi- 766; St. Louis & S. F. R. Co. v. 
 
 vania, 16 Pet. .536, 620; 10 L. Ed. 1060; Fithian, 106 Ark. 491; 155 S. W. 88; 
 
 Robertson v. Baldwin, 165 U. S. 275, St. Louis & S. F. R. Co. v. Conarty, 
 
 280; 17 Sup. Ct. 326; 41 L. Ed. 715. 106 Ark. 421; 155 S. W. 93; Illinois 
 
 " Levin v. United States, 128 Fed. Central R. Co. v. Doherty, 153 Ky. 
 826; 63 C. C. A. 476. This question 363; 155 S. W. 119; Farrugo v. 
 is now settled. Mondou v. N. Y., Philadelphia & R. Ry. Co. 233 U. S. 
 etc., R. Co. 223 U. S. 1; 32 Sup. Ct. 352; 34 Sup. Ct. 591; 58 L. Ed. — ; 
 169; .56 L. Ed. 327. The plaintiff can Mis.souri, K. & T. Ry. Co. v. Lena- 
 make his choice between a state lian, 39 Okla. 283; 135 Pac. 507;
 
 IN WHAT COURTS SUIT MAY BE BROUGHT. 
 
 287 
 
 § 192. Removal of case to Federal court. — Before section 
 six of the Federal Act was amended in 1910, cases brought 
 in a state court could be removed to a Federal court, if 
 there was a diversity of citizenship.'-^ But in the amended 
 section it is now provided that no case arising under the 
 "act and brought in any state court of competent jurisdic- 
 tion shall be removed to any court of the United States;" 
 and this provision has been declared constitutional.^" This 
 act being remedial, this provision is liberally construed.^^ 
 A case, therefore, cannot be removed even in an instance 
 of diverse citizenship.^- This is even true since the Federal 
 Code has been adopted.^^ But if a removal be secured, and 
 no action be taken to have it remanded, the Federal court 
 will have jurisdiction of the case.^* Filing a reply in the 
 Federal court is not a waiver of the right to insist that 
 it be remanded.^^ If the defendant secures a removal he 
 cannot object to the Federal court taking jurisdiction of 
 
 Montgomery v. Southern Pac. Co. 
 64 Ore. 597; 131 Pac. 507; McCoul- 
 lough V. Chicago, R. I. & P. Ry. Co. 
 160 Iowa, 524; 142 N. W. 67; Hard- 
 wick V. Wabash R. Co. 181 Mo. App. 
 156; 168 S. W. 328. A Superior 
 court of Washington is a "state court 
 of competent jurisdiction." Gibson 
 V. Bellingham & N. Ry. Co. 213 Fed. 
 488; Southern Ry. Co. v. Howerton 
 (Ind.) 105 N. E. 1025; Pittsburg, etc., 
 R. Co. V. Mitchell, 175 Ind. 196; 
 91 N. E. 735; 93 N. E. 996. 
 
 ^Miller v. IlHnois Central R. Co 
 168 Fed. 982; Clark v. Southern Pac 
 Ry. Co. 175 Fed. 122; Van Brimmer 
 V. Texas & P. Ry. Co. 190 Fed. 394 
 Nichols V. Chesapeake & Ohio Ry 
 Co. 195 Fed. 913; Nichols v. Chesa- 
 peake & Ohio Ry. Co. 127 Ky. 310 
 105 S. W. 181; 17 L. R. A. (N. S.) 861 
 
 '" Teel V. Chesapeake & Ohio Ry 
 Co. 204 Fed. 918; 123 C. C. A. 240 
 47 L. R. A. (N. S.) 21 ; Fish v. Chicago 
 R. I. & P. Ry. Co. (Mo.) 172 S 
 W. 340; McChesney v. Illinois 
 Central R. Co. 197 Fed. 85; Kelly v 
 Chesapeake & Ohio Ry. Co. 201 Fed 
 602. 
 
 " Teel V. Chesapeake & Ohio Ry, 
 Co., supra. 
 
 '2 St. Louis & S. F. R. Co. v, 
 Conarty, 106 Ark. 421; 155 S. W. 93; 
 
 Teel V. Chesapeake & Ohio Ry. Co., 
 supra; Pankey v. Atchison, T. & S 
 F. Ry. Co. (Mo. App.) 168 S. W. 274: 
 Eng V. Southern Pac. Co. 210 Fed 
 92; Burnett v. Southern P. & S. Ry 
 Co. 210 Fed. 94; Patton v. Cincin- 
 nati, N. O. & T. P. Ry. 208 Fed. 29 
 Missouri, K. & T. Ry. Co. v. Bunk- 
 ley (Tex. Civ. App.) 153 S. W. 937 
 Smith V. Carnas Prairie Co. 216 Fed 
 799; Chesney v. Illinois Central R 
 Co. 197 Fed. 85; Strauser v. Chicago 
 B. & Q. R. Co. 193 Fed. 293; Saiek v 
 Pacific R. Co. 193 Fed. 303; Lee v 
 Texas, St. L. & W. R. Co. 193 Fed 
 768; Rice v. Boston & M. R. Co. 203 
 Fed. 580; Jones v. Kansas City So. 
 Ry. Co. (La.) 68 So. 401; Southern 
 Ry. Co. V. Puckett (Ga. App.) 85 
 S. E. 809; Peek v. Boston & M. R. 
 Co. 223 Fed. 448; Kansas City So. 
 R. Co. V. Leslie, 35 Sup. Ct. 844, 
 reversing 112 Ark. 305; 167 S. W. 
 844, and disapproving Van Brimmer 
 V. Texas & P. R. Co. 190 Fed. 394, to 
 the contrary; Lombardo v. Boston & 
 M. R. R. 223 Fed. 427. 
 
 "Patton V. Cincinnati, N. O. & 
 T. P. Ry. 208 Fed. 29. 
 
 i< Thomas v. Chicago & N. W. Ry. 
 Co. 202 Fed. 766; Stephens v. Chi- 
 cago. M. & St. P. Ry. Co. 206 Fed. 
 855. 
 
 15 Burnett v. Spokane. P. & S. Ry. 
 Co. 210 Fed. 94.
 
 238 FEDERAL, EMPLOYERS* LIABILITY ACT. 
 
 the case.^*^ There can be no removal even though the suit 
 be regarded for purposes of removal as one arising under the 
 Federal Act, though the negligence charged be not covered 
 by the act, or the facts alleged do not make out that there 
 had been negligence as charged." In one case the plaintiff 
 joined with the railroad defendant a cause of action against 
 an individual defendant alleged to have been the railroad's 
 master mechanic, alleging that he negligently directed the 
 intestate to operate the engine, at the time knowing it was 
 defective, and that the track over which he was to operate 
 it was also defective. In a petition or motion to remand 
 the case the railway company denied that the individual 
 defendant had even been its master mechanic, alleged that 
 he had nothing to do with directing the intestate to operate 
 the locomotive the derailment of which killed him, and that 
 such allegations in the complaint were untrue and known 
 to be so when made, and were made solely to prevent a 
 removal to the Federal court, which allegations were not 
 denied. It was held that the allegations in the petition for 
 a removal required a finding that the individual defendant 
 was fraudulently joined; and hence the action, if brought 
 against the railway company alone not being removable, 
 though diversity of citizeiisliip existed, the cause was not sub- 
 ject to removal.^^ 
 
 § 193. Joinder of action under Federal statute and a 
 common law action. — If the plaintiff joins a cause under 
 the Federal statute and at common law or under a state 
 statute, and there be a diversity of citizenship, the defend- 
 ant may successfully insist that the case be removed to the 
 
 '« Illinois Central R. Co. v. Egan, Saiek v. Pacific R. Co. 193 Fed. 303; 
 
 203 Fed. 937; 122 C. C. A. 239. Strau.scr v. Chicago, B. & Q. R. Co. 
 
 It ha.s been held that section 6 as 193 Fed. 293; Lee v. Toledo. St. L. 
 
 annended does not apply to cases & W. R. Co. 193 Fed. 68.5; Ulrich v. 
 
 l)rought before its amending. Ft. New York, etc., R. Co. 193 Fed. 768. 
 
 Smith (t W. R. Co. V. Blevins, 35 " DeAtlev v. Chesapeake & Ohio 
 
 Okia. .378; 1.30 Pac. .52.5. R. Co. 20rFed. .591. 
 
 Several cases held there could be '* Kelly v. Chesapeake & O. Ry. 
 
 no removal bcfort; section 6 \v;i3 Co. 201 Fed. 602. 
 amended, forbidding a removal.
 
 IN WHAT COURTS SUIT MAY BE BROUGHT. 289 
 
 Federal District Court; for by such joinder he waives his 
 right to insist that it be tried in a state court. So if the 
 evidence shows there is no liability under the Federal Act, 
 as soon as that fact appears the defendant may then file a 
 petition for removal, and is entitled to it if there be a 
 diversity of citizenship.^'* 
 
 § 194. Where actions must be brought. — The statute ex- 
 pressly declares, as amended in 1910, where the action must 
 be brought, viz.: "In a Circuit [now District] Court of the 
 United States, in the district of the residence of the defend- 
 ant, or in which the cause of action arose, or in which the 
 defendant shall be doing business at the time of commencing 
 such action." When the action is brought in a Federal 
 court the plaintiff has his option of three places where he 
 may bring it, viz.: (1) in the district of the residence of 
 the defendant; (2) or in which the cause of action arose; 
 (3) or in which the defendant shall be doing business at 
 the time of commencing the action. So far there is no 
 difficulty. But where shall the action be brought if brought 
 in a state court? Here resort must be had to the state stat- 
 utes in order to answer that question. Congress has not 
 undertaken to answer it. The law applicable in this respect 
 to a cause of action is the same as that applicable to any 
 other cause of action brought against the same defendant.-" 
 If sued in a Federal court outside of the district designated 
 above, the defendant may object, and file a plea in abate- 
 ment.^^ 
 
 " Strother v. Union Pacific R. Co. right to bring the action in a state 
 
 220 Fed. 731. court, it at the same time not only 
 
 -" No case on this exact point has adopted the state procedure, but also 
 
 come to my notice; and I think my the law relating to the venue, 
 text states the true rule. When -' Bottoms v. St. Louis & S. F. 
 
 Congress was stating in section 6, Ry. Co. 179 Fed. 318; Conrad v. 
 
 where an action might be brought, Atchison, T. & S. F. Ry. Co. 173 
 
 it had in mind the bringing of the Fed. 527; Smith v. Detroit & T. S. 
 
 action in a Federal court, and not in L. R. Co. 175 Fed. 506; McChesney 
 
 a state court. When it gave the v. Illinois Cent. R. Co. 197 Fed. 85.
 
 CHAPTER XII. 
 PLEADING AND PRACTICE. 
 
 SECTION 
 
 SECTION 
 
 195. 
 
 Negligence of interstate car- 
 
 
 resentative of deceased for 
 
 
 rier basis of action — Two 
 
 
 beneficiary — Statute of Limi- 
 
 
 branches of statute. 
 
 
 tations. 
 
 196. 
 
 Wilful injury. 
 
 207. 
 
 By what law sufficiency of 
 
 197. 
 
 No new right given employee. 
 
 
 complaint tested. 
 
 198. 
 
 New cause of action created for 
 
 208. 
 
 Defense action is governed by 
 
 
 benefit of beneficiaries. 
 
 
 Federal statute. 
 
 199. 
 
 Local state practice controls. 
 
 209. 
 
 Pleading a defense — Contribu- 
 
 200. 
 
 Complaint or petition by em- 
 
 
 tory negligence. 
 
 
 ployee. 
 
 210. 
 
 Answer of Statute of Limita- 
 
 201. 
 
 Allegations plaintiff and de- 
 
 
 tions. 
 
 
 fendant engaged in inter- 
 
 211. 
 
 Venue. 
 
 
 state commerce. 
 
 212. 
 
 Variance. 
 
 202. 
 
 Complaint for beneficiaries. 
 
 213. 
 
 Notice of injury received. 
 
 203. 
 
 Joinder of causes of action. 
 
 214. 
 
 Dismissal — Non-suit — Direct- 
 
 204. 
 
 Requiring plaintiff to elect. 
 
 
 ing verdict. 
 
 205. 
 
 Amendment of complaint to 
 
 215. 
 
 Evidence — Burden. 
 
 
 fit the evidence — Statute of 
 
 216. 
 
 Competency of witness. 
 
 
 Limitations. 
 
 217. 
 
 Instructions. 
 
 206. 
 
 Substituting the personal rep- 
 
 218. 
 
 Question for jury. 
 
 § 195. Negligence of interstate carrier basis of action — 
 Two branches of statute. — The statute gives a cause of ac- 
 tion to an interstate employee, or to his personal repre- 
 sentative for the benefit of certain designated kindred of 
 him, for an injury or death "resulting in whole or in part 
 from the negligence of any of the officers, agents or em- 
 ployees of" the "carrier or by reason of any defect or 
 insufficiency due to its negligence in its cars, engines, ap- 
 pliances, machinery, tracks, roadbed, ways or works, '"^ 
 "This clause has two branches," declared the Federal Su- 
 preme Court; "the one covering the negligence of any of 
 the officers, agents or employees of the carrier, which has 
 the effect of abolishing in this class of cases the common 
 
 ' Section 1 of act. The servant duty. Vanordstrand v. Northern 
 must be injured in the line of his P. Ry. Co. (Wash.) 151 Pac. 89. 
 
 290
 
 PLEADING AND PRACTICE. 291 
 
 law rule that exempted the employer from responsibility 
 for the negligence of a fellow employee of the plaintiff ; and 
 the other relating to defects and insufficiencies in the ears, 
 engines, appliances, etc. But, plainly, with respect to the 
 latter as well as the former ground of liability, it was the 
 intention of Congress to base the action upon negligence 
 only, and to exclude responsibility of the carrier to its em- 
 ployees for defects and insufficiencies not attributable to 
 negligence. The common law rule is that an employer is 
 not a guarantor of the safety of the place of work or ma- 
 chinery and appliances of the work; the extent of its duty 
 to its employees is to see that ordinary care and prudence 
 are exercised, to the end that the place in which the work 
 is to be performed and the tools and appliances of the work 
 may be safe for the workmen.- To hold that under the 
 statute the railroad company is liable for the injury or 
 death of an employee resulting from any defect or insuf- 
 ficiency in its cars, engines, appliances, etc., however caused, 
 is to take from the acts the words 'due to its negligence.' 
 The plain effect of these words is to condition the liability 
 upon negligence ; and had there been doubt before as to 
 the common law rule, certainly the act now limits the re- 
 sponsibility of the company as indicated."^ In many other 
 cases it is held that the action is based upon the negligence 
 of the carrier.* The negligence described in the complaint 
 
 2 Citing Hough v. Texas & P. R. exercise of reasonable care. In effect, 
 
 Co. 100 U. S. 213; 25 L. Ed. 612; the jury was instructed that the 
 
 Washington & G. R. Co. v. McDade, absence of the guard glass was con- 
 
 135 U. S. 554; 34 L. Ed. 235; 10 Sup. elusive evidence of defendant's negli- 
 
 Ct. 1044; Choctaw, O. & G. R. Co. v. gence. In this there was error." 
 McDade, 191 U. S. 64; 24 Sup. Ct. ' Cincinnati, N. 0. & T. P. Ry. Co. 
 
 24; 48 L. Ed. 96; 15 Am. Neg. Rep. v. Swann, 160 Ky. 458; 169 S. W. 886; 
 
 230. Boston & M. R. Co. v. Benson, 205 
 
 ' Seaboard Air Line R. Co. v. Hor- Fed. 878; 124 C. C. A. 68; Southern 
 
 ton, 233 U. S. 492; 34 Sup. Ct. 635; Ry. Co. v. Smith, 205 Fed. 360; 
 
 58 L. Ed. 1062, reversing 162 N. C. Illinois Central R. Co. v. Egan, 203 
 
 424; 78 S. E. 494. Fed. 937; 122 C. C. A. 239; South 
 
 "The instructions above quoted," Covington & C. St. Ry. Co. v. Finan, 
 
 continued the court, "imposed upon 153 Ky. 340; 155 S. W. 742; St. 
 
 the employer an absolute respon- Louis & S. F. R. Co. v. Fithian, 106 
 
 sibility for the safe condition of the Ark. 491; 155 S. W. 88; IMiller v. 
 
 appliances of the work, instead of Michigan Central R. Co. (Mich.) 
 
 limiting the responsibility to the 152 N. W. 235; Missouri, K. & T. Ry.
 
 292 
 
 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 must be proven in order to recover f and the burden to 
 prove it is on the plaintiff.® The carrier is not an insurer 
 of the safety of the place where the employee is required 
 to workj There can be no recovery for the act of a fellow 
 employee unless he failed to discharge a duty he owed the 
 injured servant.^ But contributory negligence will not de- 
 feat the action.^ 
 
 § 196. Wilful injury. — It is only in case of negligence 
 that the carrier is liable under the Federal statute ; there- 
 fore it is not liable under it for a wilful injury, nor for any 
 negligent injury not specified in the statute. ^° To recover 
 damages for such injuries the employee must resort to the 
 law of the state wherein the action is brought or the injury 
 sustained/^ but it has been said that an interstate employee 
 no longer has a right of action to recover damages for a 
 wilful injury."* 
 
 § 197. No new right given employee. — The employee is 
 not given a new cause of action by the statute that did not 
 exist at common law ; for the change of the law as to con- 
 tributory negligence, assumption of risk, and negligence of 
 fellow servant only withdraws certain defenses and does 
 not affect the right.^- But the action, in cases of the em- 
 
 Co. V. Binkley (Tex. Civ. App.) 
 153 S. W. 937; Lloyd v. Southern Rv. 
 Co. 166 N. C. 24; 81 S. E. 1003; 
 Pankey v. Atchison. T. & S. F. Rv. 
 Co. (Mo. App.) 168 S. W. 274; Neil 
 V. Idaho & W. N. R. Co. 22 Idaho, 74; 
 125 Pac. 331; Gekas v. Oregon-Wash- 
 ington R. & Xav. Co. (Ore.) 146 Pac. 
 970; Baltimore & Ohio R. Co. v. 
 Whitacre (Md.) 92 Atl. 1060; Willever 
 V. Delaware, L. & W. R. Co. (N. J.) 
 94 Atl. 595; Staley v. Illinois Cent. 
 R. Co. (111.) 109 N. E. 342, reversing 
 186 111. App. 593; Southern Ry. Co. v. 
 Peters (Ala.) 69 So. 611; Walsh v. 
 Lake Shore & M. S. Ry. Co. fiMich.) 
 Hawkins v. St. Louis & S. F. R. Co. 
 (iMo.) 174 S. W. 129; 151 N. W. 754; 
 Louisville & N. R. Co. v. Holloway, 
 163 Ky. 125; 173 S. W. 343. 
 
 ' Devine v. Chicago, R. I. & P. Rv. 
 Co. 266 111. 248; 107 N. E. 505; 
 Hobbs v. Great Northern Ry. Co. 
 80 Wash. 678; 142 Pac. 20; Bennett 
 v. Southern Ry. (S. C.) 79 S. E. 710. 
 
 •FLsh v. Chicago, R. I. & P. Rv. 
 Co. (Mo.) 172 S. W. 340; Louisville 
 & N. R. Co. V. Kemp, 140 Ga. 
 657; 79 S. E. 558. 
 
 ' Hawkins v. fit. Louis & S. F. R. 
 Co. (Mo. App.) 174 S. W. 129. 
 
 « Cincinnati, N. O. & T. P. Ry. Co. 
 V. Swann, 160 Ky. 458; 169 S. W. 886. 
 
 » Baltimore & O. R. Co. v. Whit- 
 acre (.Md.) 92 Atl. 1060; Chicago, 
 G. W. R. Co. v. McCormick, 200 Fed. 
 .375; 118 C. C. A. 527; Grand Trunk 
 W. Ry. Co. V. Lindsay, 201 Fed. 837, 
 
 844; 120 C. C. A. 166, 174; affirmed 
 233 U. S. 42; 34 Sup. Ct. 581; 58 L. 
 Ed. 828; Louisville & N. Ry. Co. v. 
 Lankford, 209 Fed. 321; 126 C. C. A. 
 247; Pennsylvania Co. v. Cole, 214 
 Fed. 948; Louisville & N. R. Co. v. 
 Henig, 162 Ky. 14; 171 S. W. 853; 
 Chadwick v. Oregon W. R. & N. (Ore.) 
 144 Pac. 1165; Heckney v. M. K. & T. 
 R. Co. (Kan.) 149 Pac. 421; Ross v. 
 St. Louis & S. F. R. Co. (Kan.) 144 
 Pac. 844; Seers v. Atlantic C. L. R. 
 Co. (N. C.) 86 S. E. 176; Fish v. Chi- 
 cago, R. I. & P. R. Co. (Mo.) 172 
 S. W. 340; Pittsburgh, C. C. & St. L. 
 R. Co. v. Farmers' T. & S. Co. (Ind.) 
 108 N. E. 108. 
 
 '" Seaboard Air Line R. Co. v. 
 Horton, 233 U. S. 492; 34 Sup. Ct. 
 635; 58 L. Ed. — , reversing 162 N. C. 
 424; 78 S. E. 494; Wabash R. Co. v. 
 Hayes, 234 U. S. 86; 34 Sup. Ct. 728; 
 58 L. Ed. 1226. 
 
 " It necessarily follows, it would 
 seem, that a paragraph of complaint, 
 claiming damages because of a wilful 
 injury can not be joined with one 
 under tlie Federal statute. Cincin- 
 nati, N. 0. & T. P. Ry. Co. v. Hill 
 (Ky.) 170 S. W. 599. 
 
 "•Staley v. Illinois Cent. R. Co. 
 (111.) 109 N. E. 342, reversing 188 
 111. App. 593, a very doubtful de- 
 cision. 
 
 '- Burnett v. Atlantic Coast Line 
 R. Co. 163 N. C. 186; 79 S. E. 414; 
 Garrett v. Railroad, 197 Fed. 715; 
 117 C. C. A. 109; Rains v. Southern 
 
 /^ _ / M r^ 
 
 oc a t:^ on «
 
 PLEADING AND PRACTICE. 293 
 
 ployee, as well as of the claims of the beneficiaries, must be 
 based upon the statute/^ 
 
 § 198. New cause of action created for benefit of bene- 
 ficiaries. — As the cause of action in an injured person died 
 with his death and no recovery could be had either by his 
 administrator or those dependent upon him for support, it 
 follows that the right of action given by the Federal statute 
 for the benefit of certain designated persons is a new action, 
 one created by the statute, one that does not exist except 
 as the statute provides. Thus in an English case, quoted 
 with approval by the Supreme Court of the United States,^* 
 it was said: "It will be evident that this act does not trans- 
 fer this [the deceased's] right of action to his representa- 
 tive, but gives to the representative a totally new right of 
 action, on different principles. "^^ This is the consensus of 
 all the cases.^® 
 
 § 199. Local state practice controls. — The practice in the 
 
 state court of the locality where the action is brought prevails, 
 both where the action is brought in a state court^' and in a 
 
 " Louisville & N. R. Co. v. Kemp, v. Philadelphia & R. Ry. Co. 209 
 
 140 Ga. 657; 79 S. E. 558; Missouri, Fed. 975; Missouri, K. & T. Ry. Co. v. 
 
 K. & T. Ry. Co. V. Lenahan, 39 Okla. Lenahan, 39 Okla. 283; 135 Pac. 383; 
 
 283; 135 Pac. 383. Louisville & N. R. Co. v. Kemp, 140 
 
 1^ Michigan Central R. Co. v. Ga. 657; 79 S. E. 558: St. Louis, I. 
 
 Vreeland, 227 U. S. 59; 33 Sup. Ct. M. & So. Rv. Co. v. Craft, 35 Sup. 
 
 192; 57 L. Ed. 417, reversing 189 Fed. Ct. 704, affirming (Ark.) 171 S. W. 
 
 495. 1185. But by the amendment of 
 
 '^ Blake v. Midland R. Co. 18 1910 the deceased's cause of action is 
 
 Q. B. 93. now transferred to his administrator 
 
 "A totally new action is given for the benefit of his heirs, 
 against the person who would have i' Chesapeake & Ohio Ry. Co. v. 
 been responsible to the deceased if Kelly, 161 Ky. 655; 171 S. W. 185; 
 the deceased had lived — an action Louisville & N. R. Co. v. Stewart, 
 which * * * is new in its species, 156 Ky. 550; 161 S. W. 557; Louis- 
 new in its quality, new in its principle, ville & N. R. Co. v. Holloway (Ky.) 
 in every way new, and which can 173 S. W. 343; Lloyd v. Southern Ry. 
 only be brought if there is any per- Co. 166 N. C. 24; 81 N. E. 1003; 
 son answering the description of the Sweet v. Chicago & N. W. Ry. Co. 
 widow, parent or child, who, under 157 Wis. 400; 147 N. W. 1054; 
 such circumstances, suffer pecuniary Cincinnati, N. O. & T. P. Ry. Co. 
 loss." Seward v. The Vera Cruz v. Swann, 160 Ky. 458; 169 S. W. 
 L. R. 10 App. Gas. 59. 886; McCoullough v. Chicago, R. I. 
 
 " McCoullough V. Chicago, R. I. & P. Rv. Co. 160 Iowa, 452; 142 N. 
 
 & P. Ry. Co. 160 Iowa, 524; 142 N. W. 67; Central Vt. R. Co. v. White, 
 
 W. 67; St. Louis, S. F. & T. Ry. Co. 35 Sup. Ct. 865; affirming 87 Vt. 330; 
 
 V. Seale, 229 U. S. 156; 33 Sup. Ct. 89 Atl. 618; Norfolk So. R. Co. v. 
 
 651; 57 L. Ed. 1129, reversing (Tex. Ferebee, 35 Sup. Ct. 781, affirming 
 
 Civ. App.) 149 S. W. 1099; McGovern 167 N. C. 290; 83 S. E. 360.
 
 294 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 Federal court. ^^ Thus if the local practice requires the 
 defense of assumption of risk to be specially pleaded, then 
 in an action under the Federal statute it must be pleaded 
 to be available as a defense.^^ This is further illustrated 
 by a Kentucky case where it was held that the practice of 
 the Federal courts to direct a verdict when the evidence 
 preponderates in favor of one party, though there be a 
 scintilla of evidence to the contrary, does not prevail when 
 the action is brought in the state court.^° This is still fur- 
 ther illustrated in a Minnesota case. In that state it was 
 held that a quotient verdict, as the state statute provided, 
 could be allowed, notwithstanding the action was based on 
 the Federal Act and if the action had been brought in the 
 Federal court a unanimous verdict would have been neces- 
 sary.^^ The rule regarding amendments is also controlled 
 by the local practice ;-- and if a general allegation of negli- 
 gence is sufficient in the state courts in actions for negli- 
 gence generally, then it is sufficient in an action on the Fed- 
 eral Act.-^ And it has been held that the sufficiency of the 
 evidence to make out a case under the Federal Act must be 
 determined by rule as to such sufficiency under the state 
 practice.-* So there will be no reversal of a case where a 
 local statute forbids one unless there be error affecting the 
 merits of the action.-^ 
 
 § 200. Complaint or petition by employee. — It is not nec- 
 essary to plead the act in order to show that the action is 
 
 " Thomas v. Chicago & N. W. Ry. Ry. Co. 126 Minn. 2G0; 148 N. W. 106; 
 
 Co. 202 Fed. 766; Bankson v. Illinois Bombolis v. Minneapolis & St. L. R. 
 
 Central R. Co. 196 Fed. 171; New Co. (Minn.) 150 N. W. 385. Not so 
 
 York, N. H. & H. II. R. Co. v. Vizvori, in Federal Court. Gibson v. Belling- 
 
 210 Fed. 118; 126 C. C. A. 632; ham & N. Ry. Co. 213 Fed. 488. 
 
 Canadian Pacific Ry. Co. v. Clark, -^ McAdow v. Kansas City W. Ry. 
 
 73 Fed. 76; 74 Fed. 362; 20 C. C. A. Co. (Mo. App.) 164 S. W. 188; 
 
 447. Briiikmeir v. Missouri Pac. Ry. Co. 
 
 '"Lloyd V. Southern Ry. Co. (N. 224 U. S. 268; 32 Sup. Ct. 412; 56 
 
 C); 81 S. E. 1003; New York, L. Ed. 758, affirming 81 Kan. 101; 
 
 N. H. & M. R. R. Co. V. Vizvori, 10.5 Pac. 221; Central Vt. R. Co. v. 
 
 210 Fed. 118; 126 C. C. A. 632. White, 35 Sup. Ct. 865, affirming 87 
 
 " Louisville & N. R. Co. v. Hollo- vt 330; 89 Atl. 618; Knapp v. Creat 
 
 way (Ky.) 173 S. W. 343. Northern Ry. Co. (Alinn.) 153 N. W. 
 
 ** Winters v. Minneapolis & St. L. gis. 
 
 '^'■' Louisville & N. R. Co. v. Stewart, 
 156 Ky. 550; 161 S. W. 557. 
 
 '^* Bennett v. Southern Ry., Caro- 
 lina Division (S. C.) 79 S. E. 710. 
 
 ■-'■ Mcintosh v. St. Louis & S. F. 
 R. Co. 182 Mo. App. 288; 108 S. W. 
 821.
 
 PLEADING AND PRACTICE, 295 
 
 based upon it ; nor is any reference to the provisions of the 
 act necessary.-'' It is sufficient if the complaint show that 
 the defendant and the employee were both engaged in inter- 
 state commerce at the time he received his injury ; and when 
 that is done the court will measure the plaintiff's right to 
 recover and the defendant's liability for damages by the 
 terms of the statute.-" It has been suggested that if the 
 declaration or complaint does not disclose whether the ac- 
 tion is based upon the statute or not — or whether it is 
 grounded upon the statute or the general law of negligence 
 — it is demurrable on the ground that no cause of action is 
 stated. But this position is untenable. The question of the 
 jurisdiction of a Federal court is always present throughout 
 the entire proceedings, except where there has been a waiver 
 over the person. It may be presented at any time. While its 
 jurisdiction is general in one sense of the word, in another 
 it is limited. The true rule is that if the declaration or 
 complaint does not disclose the action is based or grounded 
 upon the statute, then the plaintiff^ is not seeking to recover 
 for an injury received while engaged in the interstate traf- 
 fic of the defendant and the sufficiency of his pleading must 
 be measured by the general state law, the provisions of the 
 statute not being involved.-® However, if the evidence dis- 
 
 2«McChesney v. Illinois Central 105 Pac. 221; Missouri, etc., R. Co. v. 
 R. Co. 197 Fed. 85; Tralich v. Chi- Wulf, 226 U. S. 570; 33 Sup. Ct. 135; 
 
 cago, M. & St. P. Ry. Co. 217 Fed 
 675; Garrett v. Louisville & N. R 
 Co. 197 Fed. 718; 117 C. C. A. 109: 
 Kelly V. Chesapeake & Ohio Ry. Co 
 210 Fed. 602; St. Louis, etc., R. Co 
 V. Hesterly, 90 Ark. 240; 135 S. W 
 874; Bradbury v. Chicago, etc., R 
 Co. 149 Iowa 51; 128 N. W. 1 
 
 57 L. Ed. 274; Ullrich v. New York, 
 etc., R. Co. 193 Fed. 768; Cound v. 
 Atchison, T. & S. F. Ry. Co. 173 Fed. 
 527; Whittaker v. Illinois, etc., R. 
 Co. 176 Fed. 130; Smith v. Detroit, 
 etc., R. Co. 175 Fed. 506; Clark v. 
 Southern Pacific R. Co. 175 Fed. 122; 
 Erie R. Co. v. Kennedy, 191 Fed. 332; 
 
 Kansas City So. R. Co. v. Cook, 100 112 C. C. A. 76. 
 Ark. 467; 140 S. W. 579; St. Louis & =8 Atkinson v. Bullard (Ga. App.) 
 
 S. F. R. Co. V. Snowder (Okla.) 149 80 S. E. 220; Southern Ry. Co. v. 
 
 Pac. 1083. Ansley, 8 Ga. App. 325; 68 S. E. 1086; 
 
 "' Vandalia R. Co. v. Stringer (Ind.) St. Louis, S. F. & T. Ry. Co. (Tex. 
 
 106 N. E. 865; Erie R. Co. v. Welsh Civ. App.) 148 S. W. 1099; St. Louis 
 
 (Ohio) 105 N. E. 189; St. Louis, I. & S. F. R. Co. v. Cox (Tex. Civ. App.) 
 
 M. & S. Rv. Co. V. Hesterly 98 159 S. W. 1042; St. Louis, etc., R. 
 
 Ark. 240; 135 S. W. 874; Allen v. Co. v. Seale (Tex. Civ. App.) 148 
 
 Tuscarora Vallev R. Co. 229 Pa St S. W. 1099; Missouri, etc., R. Co. 
 
 97; 78 Atl. 34; "^30 L. R. A. (N S) v. Neaves (Tex. Civ. App.) 127 N. 
 1096; 140 Am. St. 714; Brinkmeier 
 V. Missouri Pac. Ry. Co. 81 Kan. 101;
 
 296 
 
 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 closes the case is one under the statute there will be a fatal 
 variance and the plaintiff must fail.-^ If the plaintiff un- 
 dertakes to plead the statute, either state or Federal, an 
 erroneous reference to the one in a cause of action, which 
 if sustained at all, would legally rest upon the other, will 
 not render the pleading insufficient, but the erroneous ref- 
 erence to the statute may be stricken out as surplusage, and 
 if there then be enough left to state a cause of action under 
 the statute actually applicable the case may proceed to judg- 
 ment accordingly. Instead of following this practice the 
 plaintiff may amend, subject to the rule of introducing a 
 new cause of action by amendment, to bring himself within 
 the applicable statute.^" But before there can be a recovery 
 under the Federal statute there must be facts enough alleged 
 to bring the case within its provisions.^^ If the plaintiff does 
 
 W. 1090; Bradbury v. Chicago, etc., 
 R. Co. 149 Iowa 51; 128 N. W. 1; 
 Thomas v. Chicago, etc., R. Co. 
 202 Fed. 766; Missouri, K. & T. Ry. 
 Co. V. Hawley (Tex. Civ. App.) 123 
 S. W. 726. 
 
 ^^ This section was approved in 
 ISIissouri, K. & T. Ry. Co. v. Haw- 
 ley (Tex. Civ. App.), 123 S. W. 726, 
 and in Moliter v. Wabash R. Co. 
 (Mo. App.); 168 S. W. 250. See 
 also McAdow v. Kansas City W. 
 Ry. Co. (Mo. App.) 164 S. W. 188. 
 
 But amendments to conform to the 
 evidence in this respect have been al- 
 lowed. Central Vt. R. Co. v. White, 
 35 Sup. Ct. 865, affirming 87 Vt. 330; 
 89 Atl. 618; Knapp v. Great Northern 
 R. Co. (Minn.) 153 N. W. 848. 
 
 Where the petition alleges a cause 
 of action under this statute it will 
 be so constructed, though it does not 
 mention the act or state that the 
 action is intended to be brought tliere- 
 under. Smith v. Detroit & T., S. L. 
 R. Co. 175 Fed. 506; Cound v. 
 Atchison, T. & S. F. Ry. Co. 173 
 Fed. 527. It should show that the 
 plaintiff and defendant were engaged 
 in interstate commerce at the time of 
 the injury. The precise nature of the 
 defect causing the injury need not be 
 shown. Norfolk & W. R. Co. v. 
 Hazelrigg, 184 Fed. 828; 107 C. C. A. 
 66. 
 
 In one case in Texas it has been 
 held that whether the defendant was 
 engaged in interstate commerce or 
 intrastate commerce at the time of 
 
 the injury being peculiarly within 
 its knowledge, the plaintiff is not 
 required to allege such fact with that 
 certainty required as to facts within 
 his own knowledge. Missouri, K. 
 & T. Ry. Co. V. Hawley (Tex. Civ. 
 App.) 123 S. W. 726. In this case 
 facts were so alleged as to show the 
 action was by an intrastate employee 
 against an interstate railway com- 
 pany. 
 
 3» Missouri, etc., R. Co. v. Wulf, 
 226 U. S. 57; 33 Sup. Ct. 135; 57 L. 
 Ed. 274, affirming 192 Fed. 919; 113 
 C. C. A. 665; Carpenter v. Kansas 
 C. S. Ry. Co. (Mo.) 175 S. W. 234. 
 
 ^' Bradburj'^ v. Chicago, etc., R. Co. 
 149 Iowa 51; 128 N. W. 1; Southern 
 R. Co. V. Ansley, 8 Ga. App. 325; 
 68 S. E. 1086; Walton v. Southern R. 
 Co. 179 Fed. 175; Thomas v. Chicago, 
 etc., R. Co. 202 Fed. 706; Missouri, 
 etc., R. Co. v. Hawley (Tex. Civ. 
 App.) 123 S. W. 726; Missouri, etc., 
 R. Co. V. Neaves (Tex. Civ. App.) 
 127 S. W. 1090; Whittakor v. Illinois, 
 etc., R. Co. 176 Fed. 130; Tsmura 
 V. Great Northern R. Co. 58 Wash. 
 316; 108 Pac. 774. 
 
 It must be alleged that the de- 
 fendant was a common carrier by 
 railroad. Shade v. Northern Pacific 
 Ry. Co. 206 Fed. 353.
 
 PLEADING AND PRACTICE. 
 
 297 
 
 not, in his pleading, claim the right to recover under the 
 Federal statute, then he will not he ahle to present on ap- 
 peal or by writ of error any question that might have arisen 
 under it."- If the plaintiff desires to avail himself of the 
 provisions of the Federal Act, then he has the burden to 
 allege and prove that he comes within its terms.^^ 
 
 § 201. Allegations plaintiff and defendant engaged in 
 interstate commerce. — To recover under the statute it must 
 be shown by the pleading that the employee-plaintiff was 
 at the time of his injury engaged in interstate commerce, 
 and also tliat tlie defendant was a common carrier by rail- 
 road at the same time, in the transaction wherein the em- 
 ployee was injured, likewise engaged in interstate com- 
 merce. This may be done by a direct averment, or by the 
 pleading of facts which show such is the fact.^* If the action 
 
 ^^ Chicago, etc., R. Co. v. Hackett, 
 228 U. S. 559; 33 Sup. Ct. 581; 57 
 L. Ed. 966; Smith v. Northern Pacific 
 Ry. Co. 79 Wash. 448; 140 Pac. 685. 
 
 ^^ Tsmura v. Great Northern R. Co. 
 58 Wash. 316; 108 Pac. 774; St. 
 Louis, etc., R. Co. v. Hesterly, 98 
 Ark. 240; 135 S. W. 874; Bradbury 
 V. Chicago, etc., R. Co. 149 Iowa 51; 
 128 N. W. 1; Hench v. Pennsylvania 
 R. Co. (Pa.) 91 Atl. 1056; Knowles 
 V. New York, N. H. & H. R. R. Co. 
 164 App. Div. — ; 150 N. Y. Supp. 99; 
 Bay V. Merrill & Ring Lumber Co. 
 211 Fed. 717. 
 
 Where the action was one of com- 
 mon law, a replication alleging that 
 it was under the Federal statute was 
 held to bring the action under the 
 statute. Niles v. Central Vt. Ry. Co. 
 87 Vt. 356; 89 Atl. 629; White v. 
 Central Vt. Ry. Co. 87 Vt. 330; 89 
 Atl. 618, affirmed 35 Sup. Ct. 865. 
 
 Where no reference was made to 
 any statute it was held that a motion 
 to make the complaint more specific 
 and definite lay. Mcintosh v. St. 
 Louis & S. F. R. Co. 182 Mo. App. 
 288; 168 S. W. 821. But this was 
 where the railroad desired to inter- 
 pose the defense that the action was 
 under the Federal Act. Mims v. 
 Atlantic C. L. R. Co. (S. C.) 85 S. E. 
 372. 
 
 Where the complaint was in- 
 sufficient under the Federal Act, yet 
 the evidence showed that act con- 
 trolled, it was held that the court 
 
 would treat the act as applicable. 
 St. Louis. I. M. & S. Ry. Co. v. 
 Coke (Ark.) 175 S. W. 1177, citing 
 Toledo, etc., Ry. Co. v. Slavin, 236 
 U.S. 457; 35 Sup. Ct. 306; 59 L. Ed. 
 — ; Mims v. Atlantic C. L. R. Co. 
 (S. C.) 85 S. E. 372. 
 
 The complaint must show that the 
 servant was injured when in the line of 
 his duty. Louisville & N. R. Co. v. 
 Fleming (Ala.) 69 So. 125. 
 
 3^ Walton V. Southern Ry. Co. 179 
 Fed. 175; St. Louis, etc., R. Co. v. 
 Hesterly, 98 Ark. 240; 135 S. W. 874; 
 Tsmura v. Great Northern R. Co. 
 58 Wash. 316; 108 Pac. 774; Bay v. 
 Merrill & Ring Lumber Co. 211 Fed. 
 717; Betondo v. New York Central 
 & H. R. R. Co. 149 N. Y. Supp. 339; 
 Smith V. Northern Pac. Ry. Co. 79 
 Wash. 448; 140 Pac. 685; Erie R. Co. 
 V. Welsh (Ohio) 105 _ N. E. 189; 
 Brinkmeier v. Missouri Pacific Ry. 
 Co. 81 Kan. 101; 105 Pac. 221; Allen 
 V. Tuscarora Valley R. Co. 229 Pa. 
 97; 78 Atl. 34; 30 L. R. A. (N. S.) 
 1096; 140 Am. St. 714; St. Louis & 
 S. F. R. Co. V, Snowden, 149 Pac. 
 1083; Peek v. Boston & M. R. Co. 
 223 Fed. 448. 
 
 Where the complaint failed to 
 allege the plaintiff was engaged in 
 interstate commerce, but the answer 
 did, it was held that the answer in 
 this respect aided the complaint. 
 White V. Central Vermont Ry. Co. 
 87 Vt. 330; 89 Atl. 618. See also 
 St. Louis, I. M. & S. R. Co. (Ark.) 
 171 S. W. 95.
 
 298 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 be brought in the Federal court, and no diversity of citizen- 
 ship be shown, and no allegations be made showing that both 
 the plaintiff and defendant, at the time plaintiff was in- 
 jured were engaged in interstate commerce, the court will 
 not have jurisdiction of the cause.^^ "Where the complaint 
 alleged that the railway carrier was a domestic corporation 
 operating a railroad from and to various points in the state, 
 that the employees assisted other employees in repairing 
 a bridge forming a part of the roadbed, and that while so 
 engaged, the employee was injured by the negligence of 
 the defendant, but did not refer to any statute as the basis 
 of the action, it was held that it stated a cause of action 
 under the Federal statute as against the single objection 
 that the complaint did not allege that the railway carrier 
 was engaged in interstate commerce. "It is common knowl- 
 edge that," said the court, "under the large meaning of 
 interstate commerce given by the courts, every railroad, 
 however short its own line, engages in interstate commerce 
 in handling freight or passengers destined to a point in 
 another state, whether such point of destination is reached 
 by its own line or through connecting carriers. All rail- 
 roads in this state are, in fact, required to engage in inter- 
 state commerce.^'^ As these hold [in the case cited below], 
 it is not necessary to specifically allege that a railroad is 
 engaged in interstate commerce in order that the court take 
 knowledge that an act of Congress regulating interstate 
 commerce is applicable thereto. Yet the lack of such al- 
 legation is the only defect suggested in this petition."" 
 The special facts alleged in the petition should be noted in 
 considering this case. The plaintiff was working on a bridge 
 of the defendant located on its right of way, and having re- 
 moved some timbers from it was unloading them, when one 
 of them fell, because of the carelessness of a fellow servant, 
 
 3' Walton V. Southern R. Co. 179 R. Co. 1S2 Mo. App. 288; 168 S. W. 
 
 Fed. 175. 821. 
 
 '" Citing State v. Railroad, 212 I\Io. It may be well doubted if this case 
 
 658; Ills. W. .500. will be accepted as sound in other 
 
 "Mcintosh V. St. Louis & S. F. states.
 
 PLEADING AND PRACTICE. 299 
 
 crushing his foot. This was an employment in repairing the 
 defendant's right of way, and the court very sensibly took 
 judicial notice that the right of way of all railroad com- 
 panies are devoted to uses in interstate traffic. The court 
 in taking judicial notice that a railroad wholly within a 
 state hauls over its roadbed and bridges interstate traffic 
 only took notice of what is universally known ; and brought 
 to the solution of the question involved simply common 
 sense.^^ If the injury had been inflicted by a train or a 
 defective car in the train, then another entirely different 
 question would have been presented ; for there might not 
 have been a car in the train carrying any interstate traffic, 
 and therefore the case not coming under the Federal stat- 
 ute. But not all the courts have been as liberal as the 
 Missouri court, as we shall now see. A complaint alleging 
 that the "defendant was a railroad corporation operating a 
 line of railroad in the state of Oklahoma, and was * * * 
 a common carrier of freight and passengers for hire" in 
 that state, but which did not allege that it was engaged in 
 interstate commerce, or that the deceased was injured while 
 employed by it in connection with such commerce, was 
 held insufficient to show a cause of action under the Fed- 
 eral Act.^*^ An allegation that "at the time of the inju- 
 ries hereinafter complained of your petitioner was en- 
 gaged in the transportation of interstate commerce" does 
 not show that the defendant was a common carrier engaged 
 in interstate commerce by railroad."*" So a complaint al- 
 leging that the servant-plaintiff was injured while loading 
 rails on a flat car, caused by the negligence of fellow ser- 
 vants, but not alleging whether the rails were old or new, 
 where they came from, where they were to be taken, nor 
 even where the car was to go when loaded, was held not to 
 show a cause of action under the Federal Act.*^ Turning 
 
 ^^ See remarks of Judge Cooley ^^ Walton v. Southern Ry. Co. 
 
 quoted in note 12* to section 34. 179 Fed. 175. 
 
 '^ St. Louis, etc.. R. Co. v. Hesterly, ^' Tsmura v. Great Northern R. 
 
 98 Ark. 240; 135 S. W. 874. Contra, Co. 58 Wash. 316; 108 Pac. 774. 
 Illinois Central R. Co. v. Rogers, 221 
 Fed. 52.
 
 300 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 now to instances M^here the allegations concerning interstate 
 commerce have been held sufficient we find that where the 
 petition alleged that the deceased was killed while em- 
 ployed by the defendant in interstate commerce, that de- 
 fendant was engaged in such commerce, and that the de- 
 cedent's death resulted from the negligence of the defend- 
 ant's servants, and the defective condition of its roadbed 
 and the engine he was required to use, it was held that it 
 sufficiently stated a cause of action within the Federal Act.''^ 
 And where it was alleged that the defendant was a Mis- 
 souri corporation engaged as a common carrier of commerce 
 between that state, Kansas, Arkansas and Texas, that plain- 
 tiff was employed at the time of his injury as a swing brake- 
 man on a local freight train running from Texas into Ar- 
 kansas, it was held that it was sufficiently shown that the 
 injury occurred while he and the defendant were engaged in 
 interstate commerce ; the allegation being plainly to the 
 effect that the train was running from the state of Texas 
 into the state of Arkansas, it was immaterial that the train 
 was described as a local train, and without a specific allega- 
 tion that it was then carrying consignments across the state 
 line. It was said that the mere operation of the train across 
 the state line for the purpose of carrying such interstate 
 shipments as might be offered w^as of itself interstate com- 
 merce without regard to whether it did actually carry any 
 shipments of that character upon that particular trip or 
 not.'*^ In this same case it was also held that it was not 
 necessary to aver that the particular defective car causing 
 the injury was one used in interstate traffic, because it con- 
 stituted a part of the train at the time of the injury and 
 he was then engaged in discharging his duties in operating 
 a train engaged in intei'state commerce, and allegations to 
 that effect were sufficient.'* Where the declaration charged 
 that at the time of the decedent's injury the defendant 
 owned and o[)('rat('d a rjiilioad as a common carrier in inter- 
 
 *- Kollv V. Chesapeake <t Oliio Uy. ■•■' Kansas etc., T{. Co. v. Cook, 
 
 Co. 201 Fed. G02. 100 Ark. 407; 140 S. W. 579. 
 
 " Ibid.
 
 PLEADING AND PRACTICE. 3OI 
 
 state commerce, and among other things conducted a station 
 and freight yard at or near Lakeland in Florida ; that on a 
 date named the decedent served as a switchman in such yard, 
 and was required by the defendant in discharge of his duty 
 in the moving of certain cars in the yard, to uncouple the 
 cars attached to an engine operated by defendant's em- 
 ployees ; and that the engine was kept and employed at such 
 point in the switching and moving of intrastate and inter- 
 state commerce as circumstances required, it was held that 
 the declaration sufficiently alleged that at the time of the 
 decedent's injury both he and the defendant were engaged 
 in interstate commerce.*^ So where a complaint alleged 
 that the defendant owned and operated an interstate system 
 of railways, with several branches, engaged in interstate 
 commerce between the several states from Minnesota to 
 Puget Sound and Oregon, and that one of the branches ex- 
 tended out of the city of Tacoma southeasterly, on which 
 the accident to the employee happened, it was held that it 
 sufficiently alleged that the branch line on which the acci- 
 dent happened was used in carrying on interstate com- 
 merce/*' Whether the defendant was engaged in intrastate 
 or interstate commerce at the time being a matter peculiarly 
 within the defendant's knowledge, the plaintiff is not re- 
 quired to allege such facts with the certainty required as to 
 facts within his own knowledge/"* 
 
 § 202. Complaint for beneficiaries. — It is clear that the 
 complaint or declaration must show that persons were alive, 
 at least at the time of the death of the injured person, who 
 come within some one of the clauses of the statute, and who 
 would be entitled to the damages recovered and their names 
 must be given;*'' and these facts must be supported by proof/® 
 
 ^5 Atlantic Coast Line R. Co. v. ■" Illinois Central R. Co. v. Porter, 
 
 Reaves, 208 Fed. 141; 125 C. C. A. 207 Fed. 311; 125 C. C. A. 55. 
 
 599. ^8 This is a jurisdictional fact. 
 
 ^^ Smith V. Northern Pac. Ry. Co. Melzner v. Northern Pac. R. Co. 
 
 79 Wash. 448; 140 Pac. 685. 46 Mont. 277; 127 Pac. 1002; Thomas 
 
 «* Missouri, K. & T. Rv. Co. v. v. Chicago, etc., R. Co. 202 Fed. 766; 
 
 Hawley (Tex. Civ. App.) 123 S. W. Illinois Central P. Co. v. Dohertv, 153 
 
 726. Ky.363; 155 S.W. 1119; Chesapeake &
 
 302 
 
 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 If the names of those entitled to share in the damages be 
 given, it is not necessary to show there are no such others.*^ 
 But if the action be for the benefit of a parent, it must be 
 alleged that the deceased left neither wife nor children.^" 
 It is necessary to allege facts showing a pecuniary loss to the 
 beneficiaries.^^ It need not be averred that there was an 
 immediate death, an averment of a mediate death being suf- 
 ficient.^^ The complaint must show the plaintiff's capacity 
 to sue.^^ It must also show the same facts, except the mat- 
 ter of damages, the deceased would have been required to 
 allege if he had when alive brought a suit to recover dam- 
 ages for the same injury.''" It need not be alleged that the 
 damages had not been paid.''^ It must be shown that the 
 injured person had died;"- but it need not necessarily be 
 proven of the precise date alleged when it took place."^ The 
 names of the beneficiaries should be set forth.'** It is not 
 
 Ohio Ry. Co. v. Dwyer, 157 Ky. 590; 
 163 S. W. 752; Webster v. Norwegian 
 Min. Co. 137 Cal. 399; 70 Pac. Rep. 
 276; Oulighan v. Butler, 189 Mass. 
 287; 75 N. E. Rep. 726; Chicago, etc., 
 R. Co. V. La Porte, 33 Ind. App. 691; 
 71 N. E. Rep. 166; St. Louis, etc., R. 
 Co. V. Black, 79 Ark. 179; 95 S. W. 
 Rep. 155; Southern R. Co. v. Max- 
 well, 113 Tenn. 464; 82 S. W. Rep. 
 1137; Chicago, etc., R. Co. v. Kin- 
 mare, 115 111. App. 132; Kamboris 
 V. Oregon-W. R. & N. Co. (Ore.) 
 146 Pac. 1097. 
 
 *^ The complaint may be amended 
 to show who are the persons pe- 
 cuniarily affected by the deceased's 
 death. Kenney v. Seaboard Air 
 Line R. Co. (N. C); 80 S. E. 1078; 
 Chicago Great W. R. Co. v. Corinth, 
 200 Fed. 375; Peers v. Nevada, etc., 
 Co. 119 Fed. Rep. 400; Barnes v. 
 Ward, 9 C. B. 392. 
 
 ''O Moffett V. Baltimore & Ohio R. 
 Co. 220 Fed. 39. 
 
 '"' Union Pac. R. Co. v. Roeser, 
 69 Neb. 62; 95 N. W. Rep. 68; 
 Peers v. Nevada, etc., Co. 19 Fed. 
 Rep. 400; Peden v. American Bridge 
 Co. 120 Fed. Rep. 523; Kenney v. 
 New York, etc., Co. 49 Hun. 535; 
 2 N. Y. Supp. 512; Wescott v. 
 Central Vt. R. Co. 61 Vt. 438; 17 
 
 Atl. Rep. 745; Barnum v. Chicago, 
 etc., R. Co. 30 Minn. 461; 16 N. W. 
 Rep. 364; Kelley v. Chicago, etc., 
 R. Co. 50 Wis. 381; 7 N. W. Rep. 291; 
 Korrady v. Lake Shore, etc., R. Co. 
 131 Ind. 261; 29 N. E. Rep. 1069; 
 Chicago, etc., R. Co. v. Thomas, 
 155 Ind. 634; 58 N. E. Rep. 1040. 
 
 *8 Carrigan v. Stillwell, 97 Me. 247; 
 54 Atl. Rep. 389; 61 L. R. A. 163. 
 
 «« Martin v. Butte, 34 Mont. 281; 
 86 Pac. Rep. 264. 
 
 6°Trott v. Birmingham R. Co. 
 144 Ala. 383; 39 So. Rep. 716; 
 Rosney v. Erie R. Co. 124 Fed. Rep. 
 90; Birmingham, etc., Ry. Co. v. 
 Gunn, 141 Ala. 372; 37 So. Rep. 329; 
 Dorsey v. Columbus R. Co. 121 Ga. 
 697; 49 S. E. Rep. 698; United, etc., 
 Co. V. State, 100 Md. 634; 60 Atl. 
 Rep. 248. 
 
 ^' Louisville, etc., R. Co. v. Sum- 
 mers, 125 Fed. Rep. 719. 
 
 *^ Denver, etc., R. Co. v. Gun- 
 ning, 33 Colo. 280; 80 Pac. Rep. 727. 
 
 *^ International, etc., R. Co. v. 
 Glover, 13 Tex. Civ. App. 263; 88 
 S. W. Rep. 515. 
 
 ^ Illinois Central R. Co. v. Porter, 
 207 Fed. 311; 125 C. C. A. 55.
 
 PLEADING AND PRACTICE. 303 
 
 fatal to describe some as beneficiaries who are not if others 
 be named who are."" "Where a complaint alleged the de- 
 ceased left as his "only heirs at law" a father and mother, 
 it was held not necessary to allege he left neither wife nor 
 children."" The appointment of the plaintiff as administrator 
 need not be expressly alleged, where he brings the suit in 
 his representative capacity."*^ It is not necessary to allege 
 that the administrator, or the beneficiaries, were free from 
 fanlt,"^ and under the present statute this allegation is not 
 necessary. The appointment of the plaintiff as adminis- 
 trator is not put in issue by a general denial, and so need 
 not be proven. '^^ An amendment is allowable which adds 
 different allegations in respect to the defendant's negli- 
 gence,'^^ or more particulars,'^^ or adds an allegation that 
 the deceased left a wife and children.''* In the case of a 
 widow or minor children, a reasonable expectancy of support 
 need not be alleged.''^ If the action is for the benefit of the 
 next of kin, the complaint must show an actual deprivation 
 of pecuniary benefits that had flowed from the deceased, a 
 mere loss of an occasional gift being insufficient.''" 
 
 8« Clore V. Mclntire, 120 Ind. 262; " Daley v. Boston, etc., R. Co. 
 
 22 N. E. Rep. 128; Korrady v. Lake 147 Mass. 101; 16 N. E. Rep. 690. 
 
 Shore, etc., R. Co. 131 Ind. 261; 29 "Harris v. Central R. Co. 78 
 
 N. E. 1069. Ga. 525; 3 S. E. Rep. 355. 
 
 " Chicago, etc., R. Co. v. La Porte, ''' South Carolina R. Co. v. Nix, 
 
 33 Ind. App. 691; 71 N. E. Rep. 166. 68 Ga. 572. See Haynie v. Chicago, 
 
 ^* Chicago, etc., R. Co. v. Cummins, etc., R. Co. 9 111. App. 105. 
 
 24 Ind. App. 192; 53 N. E. Rep. " Dooley v. Seaboard Air Line R. 
 
 1026; Louisville, etc., R. Co. v. Co. 163 N. C. 454; 79 S. E. 970; 
 
 Trammell, 93 Ala. 350; 9 So. Rep. Moffett v. Baltimore & Ohio R. Co. 
 
 870; Bowler v. Lane, 9 Met. (Ky.) 311. 220 Fed. 39; McCoullough v. Chicago, 
 
 The appointment of an adminis- R. I. & P. Ry. Co. 160 Iowa 452; 
 
 trator cannot be collaterally attacked. 142 N. W. 67. 
 
 Gulf, C. & S. F. Ry. Co. (Tex. Civ. '6 minois Central R. Co. v. Do- 
 
 App.) 153 S. W. 651. herty, 153 Ky. 363; 155 S. W. 1119; 
 
 *^ Chicago, etc., R. Co. v. La Porte, Garrett v. Louisville & N. R. Co. 
 
 33 Ind. App. 691; 71 N. E. Rep. 166. 235 U. S. 308; 35 Sup. Ct. 32. See 
 
 " Ewen V. Chicago, etc., R. Co. McCoullough v. Chicago, R. I. & P. 
 
 38 Wis. 613; Union Ry., etc., Co. v. Ry. Co. 160 Iowa 452; 142 N. W. 
 
 Shacklet, 119 111. 232; 10 N. E. Rep. 67; Rains v. Southern Ry. Co. (N. 
 
 896. C.) 85 S. E. 294. 
 
 If his letters of administration It has been held that an omission 
 have been revoked, that fact must to state that the plaintiff was en- 
 be put in issue by a special plea. gaged in interstate commerce when 
 Burlington, etc., R. Co. v. Crockett, injured may be supplied by an 
 17 Neb. 570; 24 N. W. Rep. 219. answer so alleging. Vickery v. New 
 
 London Northern R. Co. 87 Conn. 
 634; 89 Atl. 277; White v. Central 
 Vt. Ry. Co. 87 Vt. 330; 89 Atl. 618, 
 affirmed 35 Sup. Ct. 865.
 
 304 FEDERAL, EMPLOYERS' LIABILITY ACT. 
 
 § 203. Joinder of causes of action. — The plaintiff may 
 combine in his complaint, declaration or petition a para- 
 graph on the Federal statute, on a state statute, and on the 
 common law. And it is proper that he should do so ; for he 
 may not be able to prove a cause of action under the Federal 
 statute, and if he had only a cause of action stated under 
 the statute he might be defeated in not being able to prove 
 it ; and then when he sues under a state statute or at com- 
 mon law, the defendant might defeat him by showing the 
 liability was under the Federal statute, if the question of 
 res judicate did not stoj) it. The joinder of counts or para- 
 graphs in this way is quite common.'^^ Not only may a 
 joinder thus be made, but it is permissible to combine in 
 a single paragraph facts showing a liability under the com- 
 mon law, under a state statute in force where the injury 
 occurred, and under the Federal statute.'^ Where a statute 
 or the code of the state permits alternative pleading, the 
 plaintiff may plead in the alternative either that he (or the 
 deceased) was injured while employed in intrastate com- 
 merce or interstate commerce, but he does not know which 
 of the two ; and of course he may allege that he was injured 
 by an intrastate or interstate train, but which of the two 
 he does not know.'^ Where but one cause of action was 
 stated in a complaint of one paragraph which was sufficient 
 
 "Bouchard v. Central Vermont S. W. 951, but modified 153 Ky. 378; 
 
 Ry. Co. 87 Vt. 399; 89 Atl. 475; 155 S. W. 723; Bankson v. Illinois 
 
 Taylor v. Southern Ry. Co. (Ind. Cent. R. Co. 196 Fed. 171; Grow v. 
 
 App.) 101 N. E. 506; Thomas v. Oregon Short Line R. Co. 44 Utah 
 
 Chicago & N. W. Ry. Co. 202 Fed. 160; 138 Pac. 398. 
 
 766; Ulrich v. New York, N. H. & '^ payne v. New York, S. & W. 
 
 H. R. Co. 193 Fed. 768; Atlantic R. Co. 201 N. Y. 436; 95 N. E. 79, 
 
 Coast Line R. Co. v. Jones, 9 Ala. modifying 141 App. Div. 833; 125 
 
 App. 499; 63 So. 693; Delaware. L. N. Y. Supp. 1011. See 127 N. Y. 
 
 & \V. R. Co. V. Yunkonis, 220 Fed. Supp. 1135; Strother v. Union Pacific 
 
 429, affirming 213 Fed. 537; Wabash R. Co. 220 Fed. 731; Jones v. Chesa- 
 
 R. Co. V. Hayes, 224 U. S. 86; 34 peake & Ohio Ry. Co. 149 Ky. 566; 
 
 Sup. Ct. 729; 58 L. Ed. 1226 (dictum); 149 S. W. 951; Ulrich v. New York, 
 
 Ex parte Atlantic Coast Line R. Co. N. H. & IL R. Co. 193 Fed. 768; 
 
 (Ala.j 67 So. 256; Atkin.s v. Bullard Illinois Central R. Co. v. Nelson, 
 
 (Ca. App.) 80 S. E. 220; Southern 212 Fed. 69. 
 
 Ry. Co. V. Anslny, 8 Ga. App. 325; '•' Louisville & N. R. Co. v. Strange, 
 
 68 S. E. 10S6; Jones v. Chesapeake 156 Ky. 439; 161 S. W. 239. 
 & Ohio Ky. Co. 149 Ky. 566; 149
 
 PLEADING AND PRACTICE. 
 
 305 
 
 both under the Federal Act and at common law, it was held 
 that the mere fact that it was tried on the theory that it was 
 a common law action did not prevent the judgment for 
 plaintiff being sustained on appeal, the plaintiff having 
 proven all that he would under the statute and more ; it 
 being a case of mere irregularity and not one governed by 
 the one definite theory line of cases.^° 
 
 § 204. Requiring plaintiff to elect. — Whether or not the 
 plaintiff should be put to his election whether he will pro- 
 ceed under the Federal Act, under the state statute, or at 
 common law, where he has combined the three causes of 
 action in one complaint, declaration or petition depends on 
 the local practice ; and the same rule applies where two or 
 three causes of action is combined in one paragraph. In 
 Kentucky it is held that he should be at the opening of the 
 evidence f^ and in Iowa it is held that he may be.^^ By such 
 a course, however, the plaintiff loses all the benefit of his 
 right to join the three causes of action, at least if he is 
 required to elect before the close of the evidence. The bet- 
 ter practice is to submit the entire case to the jury; in which 
 event the court must instruct the jury on the action pre- 
 sented by the several paragraphs.®^ Where at the close of 
 his evidence, the complaint setting forth a single cause of 
 action under the state law, the plaintiff amended his com- 
 plaint so as to make it state a single count containing a 
 cause of action under the Federal Act, it was held that he 
 thereby elected to abandon his cause of action under the 
 state law and rely on his cause of action under the Federal 
 Act, which he was estopped from revoking or repudiating 
 
 '" Southern Ry. Co. v. Howerton Held also not reversible error to 
 
 (Ind.) 105 N. E. 1025, reversing overrule the motion. Louisville & 
 
 Appellate Court decision 101 N. E. N. R. Co. v. RIoore, 156 Ky. 708; 
 
 121; 103 N. E. 121. 161 S. W. 1129; Thompson v. Cin- 
 
 Actions by an administrator to cinnati, N. O. & T. P. Ry. Co. 165 
 
 recover for the pain and suffering; of Ky. 256; 176 S. W. 1006. 
 
 the deceased, and also for pecuniary 82 ^rmbruster v. Chicago, R. I. & 
 
 loss to the beneficiaries may be joined, p. Ry. Co. (Iowa) 147 N. W. 337. 
 
 probably in a single paragraph. 83 gankson v. Illinois Central R. 
 
 Louisville & N. R. Co. v. Fleming Co. 196 Fed. 171; Ex parte Atlantic 
 
 (Ala.) 69 So. 125. Coast Line R. Co. (Ala.) 67 So. 256. 
 
 " South Covington & C. St. Ry. it has been h-ld that no error was 
 
 Co. v. Finnan, 153 Ky. 340; 155 S. committed in refusing to require the 
 
 W. 742; Louisville & N. R. Co. v. plaintiff to elect in a very similar 
 
 Strange, 156 Ky. 439; 161 S. W. 239. instance. St. Louis, T. M. & So. Ry. 
 
 Co. v. Rogers (Ark.) 176 S. W. 696.
 
 306 FEDERAL, EMPLOYERS' LIABILITY ACT. 
 
 after a verdict was directed against him on his pleading and 
 evidence.^* 
 
 § 205. Amendment of complaint to fit the evidence — 
 Statute of Limitations. — Usually the court may permit an 
 amendment of the complaint or petition to fit the evidence 
 at its close, but this depends upon the local state practice. 
 Where it was sought by the pleadings to bring the action 
 on the Federal statute, but the evidence showed a liability 
 under the local common law, and the allegations were broad 
 enough to cover the latter, the court treated the allegations 
 concerning the Federal statute as eliminated, and this was 
 held proper by the Federal Supreme Court. "The plaintiff 
 asserted only one right to recover for the injury, and in the 
 nature of things he could have but one. Whether it arose 
 under the Federal Act or under the state law, it was equally 
 cognizable in the state court ; and had it been presented in 
 an alternative way in separate courts, one containing and 
 the other omitting the allegations that the injury occurred 
 in interstate commerce, the propriety of proceeding to a 
 judgment under the latter court, after it appeared that the 
 first could not be sustained, doubtless would have been 
 freely conceded. Certainly nothing in the Federal Act 
 would have been in the way. Instead of presenting his case 
 in an alternative way, the plaintiff so stated it as to indicate 
 that he was claiming only under the Federal Act. And 
 where the proofs demonstrated that the injurj^ arose out- 
 side of the interstate commerce, and therefore that no re- 
 covery could be had under the Federal Act, the court was 
 confronted with tlic question whether the declaration could 
 
 8* Bravis v. Chicago, M. & St. P, proceed under Federal statute, the 
 
 Ry. Co. 217 Fed. 234; citing St. Louis, case as to all defendants except the 
 
 I. M. & S. Ry. Co. V. Ilestcrly, 228 interstate railroad must be dismissed. 
 
 U. S. 7C2; 33 Sup. Ct. 703; 57 L. Ed. Thompson v. Cincinnati, N. O. & 
 
 1031; Union Pac. Ry. Co. v. Wyler, T. P. Ry. Co. 1G5 Ky. 256; 176 S. W. 
 
 158 U. S. 285; 15 Sup. Ct. 877; 39 lOOG. 
 
 L. Ed. 083; Northern Pacific Ry. If there be a misjoinder of defend- 
 
 Co. V. Shight, 205 (J. S. 122; 27 Sup. ants they must move the court to 
 
 Ct. 412; 51 L. Ed. .378; Matz v. recjuire the plaintiff to elect as 
 
 Chicago <fe S. R. Co. 88 Fed. 770; against which defendant he will pro- 
 
 Whalen v. Gordon, 95 Fed. 314; ceed when the evidence closes. 
 
 37 C. C. A. 70. l!:iection between two Copper River & N. W. Ry. Co. v. 
 
 Buit.s— one under .state law and the Heney, 211 Fed. 4.59; 127 C. C. A. 
 
 other under F(-deral Act. Corbett v. 048; Louisville & N. R. Co. v. Flem- 
 
 Roston & M. H. Co. fMass.) 107 N. ing (Ala.) 09 So. 125. 
 E. 00. When the plaintiff elects to
 
 PLEADING AND PRACTICE. 307 
 
 be amended, or regarded as amended, to conform to the 
 proofs. Holding that this could be done, the court treated 
 the mistaken allegation that the injury occurred in inter- 
 state commerce as eliminated. Therein the court merely 
 gave effect to a rule of local practice, the application of 
 which was not in anywise in contravention of the Federal 
 Act. It follows that the contention that the defendant was 
 denied a right or immunity to which it was entitled under 
 the Federal Act is not only untenable, but so devoid of color 
 as to furnish no basis for this writ of error. "^^ The com- 
 plaint may be amended to show the existence of persons 
 pecuniarily affected by the employee's death and other re- 
 lated matters.^'' Where the complaint was silent as to 
 whether the action was intended to be an intrastate case or 
 one involving interstate commerce, an amendment making 
 it an interstate commerce case was held not to allege a new 
 cause of action.^^ An amendment of a defectively stated 
 cause of action, bad on general demurrer, by amplifying it 
 so as to state a cause of action under the Federal Act, does 
 not permit the bar of the statute of limitations to intervene, 
 if the cause was not barred when the first complaint or 
 petition was filed.*^ On reversal, with directions to grant a 
 new trial, amendments should be allowed, so as to bring the 
 action within the Federal Act, if the appellate court has de- 
 cided that such action should have been brought under that 
 act.^^ In Michigan, under the statute of that state concerning 
 amendment of pleadings, it was held that a declaration not 
 counting upon the Federal Act or on the state statute, but 
 alleging facts imposing a liability under the Federal statute, 
 if it had charged that at the time of the accident the de- 
 fendant was engaged in interstate commerce, could be 
 amended to conform to the proof that such defendant was 
 
 8= Wabash R. Co. v. Hayes, 234 U. R. Co. 87 Conn. 634; 89 Atl. 277; 
 
 S. 86; 34 Sup. Ct. 729; 58 L. Ed. 1226, Smith v. Atlantic Coast Line R. Co. 
 
 affirming 180 111. App. 511; IHinois 210 Fed. 761; 127 C. C. A. 311. 
 Central R. Co. V. Nelson, 212 Fed. 69; ^s Eastern Ry. Co. v. Ellis (Tex. 
 
 Central Vt. R. Co. v. White, 35 Sup. Civ. App.) 153 S. W. 701; Cincinnati, 
 
 Ct. 865. affirming 87 Vt. 330: 89 Atl. N. O. & T. P. Ry. Co. v. Goode, 163 
 
 618; Knapp v. Great Northern Ry. Ky. 60; 173 S. W. 329; Te.xarkana & 
 
 Co. (Minn.) l.")3 N. W. 848. S. F. Ry. Co. v. Casey (Tex. Civ. 
 
 ** Keuney v. Seaboard Air Line App.) 172 S. W. 729. 
 Ry. Co. 166 N. C. 566; 80 S. E. 1078. 9' Cincinnati, N. O. & T. P. Ry. Co. 
 
 8' Vickery v. New London Northern v. Goode, 155 Ky. 153; 159 S. W. 695.
 
 308 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 engaged in interstate commerce, so as to authorize a recov- 
 ery under the Federal Act.^° By amending his complaint so 
 as to show a claim under a state statute, the plaintiff can- 
 not thereafter claim that he is entitled to recover under the 
 Federal statute.''^ An amendment after the two years 
 limitation by adding formal allegations to bring the case 
 under the Federal Act is permissible, the allegations con- 
 cerning the injury remaining the same. In such an instance 
 no new cause of action has been brought by adding the 
 amendment or changing the complaint."- An amendment 
 of a cause of action defectively stated, bad on general de- 
 murrer, by amplifying it so as to state a cause of action, 
 does not permit the bar of limitations to be used as a de- 
 fense, if the cause was not barred when the original petition 
 was filed."^ The complaint may be amended so as to show 
 the beneficiary,®* After the jury is sworn the plaintiff may 
 change the allegation concerning which court appointed him 
 administrator.®^ Where the original petition alleged a com- 
 mon law cause of action, and conceding that the amended 
 petition alleged a cause of action under the state and Fed- 
 eral statutes constituted a departure, it was held that the 
 objection was waived by answering to the merits and going 
 to trial on the amended petition.®'^ But where the petition did 
 not contain the necessary allegations concerning interstate 
 commerce, but the facts making the Federal statute appli- 
 cable appeared on the trial, it was held that not only could 
 there be no recovery, but also that the petition could not 
 
 *" Femette v. Pere Marquette R. ^^ Smith v. Atlantic Coast Line 
 
 Co. (Mich.) 144 N. W. 834. R. Co. 210 Fed. 761; 127 C. C. A. 311; 
 
 Under statutory authority, the Cincinnati, N. O. & T. P. Ry. Co. v. 
 
 Supreme Court treated the dec- Goode (Ky.) 173 S. W. 329. 
 
 hiration amended, in order to affirm "' Eastern Ry. Co. v. Ellis (Tex. 
 
 the case. Civ. App.) 153 S. W. 701. 
 
 "' Bravis v. Chicago, I. M. & St. "'' Kenney v. Seaboard Air Line 
 
 P. Ry. 217 Fed. 234. R. Co. 1()5 N. C. 99; 80 S. E. 1078. 
 
 The same is true where the de- "^ Chicago Great W. R. Co. v. 
 
 feiidant succeeds in getting the com- McCormick, 200 Fed. 375. 
 
 plaint amended on motion. Illinois '■"^ McAdoo v. Kansas City W. Ry. 
 
 Central R. Co. v. Nelson, 212 Fed. Co. (Mo. App.) 164 S. W. 188. 
 69.
 
 PLEADING AND PRACTICE. 309 
 
 be amended to conform to the proof, inasmuch as there had 
 been a complete variance."^ 
 
 § 206. Substituting- the personal representative of de- 
 ceased for beneficiary — Statute of Limitations. — In a num- 
 ber of cases the action has been brought by a beneficiary — 
 usually the widow — and on the mistake being discovered, 
 successful endeavors have been made to substitute the per- 
 sonal representative of the deceased in place of the plaintiff. 
 The most notable case is one that, arose in a Federal court. 
 There the widow, in her individual capacity, brought the 
 suit for the benefit of herself. At that time there was no 
 administrator upon the estate, and no necessity for any. 
 After that she was appointed administratrix, and after the 
 issues were closed, and more than two years after the death 
 of her husband, she asked by proper pleading, to be ad- 
 mitted to prosecute the cause of action as administratrix, 
 and was substituted in her representative capacity for 
 herself in her individual capacity, and this was held not 
 error, and that the substitution was not equivalent to the 
 commencement of a new action, so as to render it subject to 
 the two years limitation prescribed by section six. "The 
 change was in form rather than in substance. It introduced 
 no new form or different cause of action, nor did it set up 
 any different state of facts as the ground of action, and 
 therefore it related back to the beginning of the suit."^^ In 
 other instances a like ruling has been made.^^ But such 
 a substitution cannot be made on appeal."" 
 
 " Moliter v. Wabash R. Co. (Mo.) 1906. Bixler v. Pennsylvania R. Co. 
 
 164 S. W. 188. This case simply pre- 201 Fed. 553. See also Doran v. 
 
 sents an instance of local practice. Pennsylvania R. Co. 93 Fed. 266; 
 
 See though Cincinnati, N. O. & 35 C. C. A. 282; Texarkana & Ft. 
 
 T. P. Ry. Co. V. Goode, 155 Ky. 153; S. Rv. Co. v. Casey (Tex. Civ. App.) 
 
 159 S. W. 695. 172 S. W. 729. 
 
 ^* Missouri, K. & T. Ry. Co. v. Since the administrator may main- 
 
 Wulf, 226 U. S. 570; 33 Sup. Ct. 135; tain an action because of the pain 
 
 57 L. Ed. 274, affirming 192 Fed. 919; and anguish the deceased suffered, 
 
 113 C. C. A. 665, and distinguishing there is no reason why he cannot 
 
 Union Pacific R. Co. v. Wyler, 158 be substituted in an action brought 
 
 U. S. 285; 15 Sup. Ct. 877; 39 L. Ed. by the injured servant where his death 
 
 983. occurs before judgment rendered. 
 
 s^Hall V. Louisville, etc., R. Co. '"o Missouri, K. & T. Rv. Co. v. 
 
 157 Fed. 464, under Act of June 11, Lenahan, 39 Okla. 283; 13o>ac. 383.
 
 310 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 § 207. By what law sufRciency of complaint tested. — ^If 
 
 the allegations of the complaint do not show that the action 
 is brought under a statute, its sufficiency will be judged by 
 the common law/°^ 
 
 § 208. Defense is governed by Federal statute. — The 
 local state practice governs so far as pleading a defense. 
 Thus under the New York practice the defense that the 
 liability is only under the Federal Act and not under the 
 state law has to be presented by answer ;^°^ and there is a 
 like case in lowa^""^ and Georgia. ^°* But so far as the ques- 
 tion that the action must be brought under that statute and 
 not under a state law, these cases in New York, Iowa and 
 Georgia are erroneous. It is not a mere question of prac- 
 tice, but a jurisdictional one ; and as soon as the evidence 
 discloses the fact that the case is one governed by the Fed- 
 eral Act and not by the state law the question can be raised 
 without an answer having been filed to that effect. ^°^ This 
 may be done by moving for a nonsuit or requesting instruc- 
 tions to be given to the jury without raising the question 
 by answer.^"*^ When the suit is upon a state statute or at 
 
 "' Guana v. Southern Pacific Co. 58 L. Ed. 591, reversing 156 N. C. 496; 
 
 15 Ariz. 413; 139 Pac. 782; St. Louis, 72 S. E. 858; Grand Trunk W. Ry. 
 
 S. F. & T. Ry. Co. v. Seale (Tex. Co. v. Lindsay, 232 U. S. 248; 34 
 
 Civ. App.) 148 S. W. 1099. Sup. Ct. 581; 58 L. Ed. 828; Seaboard 
 
 "2 Bitondo v. New York Central Air Line R. Co. v. Duvall, 225 U. S. 
 
 & H. R. R. Co. 163 App. Div. 823; 477; 32 Sup. Ct. 790; 56 L. Ed. 1171; 
 
 149 N. Y. Supp. 339. Toledo, St. L. & W. R. Co. v. 
 
 "3 Bradbury v. Chicago, etc., R. Slavin, 236 U. S. 457; 35 Sup. Ct. 
 
 Co. 149 Iowa 51; 128 N. W. 1. 306; 58 L. Ed. — , reversing 88 Ohio 
 
 '" Southern R. Co. v. Ansley, 8 St. 536; 106 N. E. 1077; Flanders v. 
 
 Ga. App. 325; 68 S. E. 1086. Georgia, S. & F. Ry. Co. (Fla.) 67 
 
 Apparently also in Texas. St. So. 68; Delaware, L. & W. R. Co. 
 
 Louis & S. F. R. Co. v. Cox (Tex. v. Yurkonis, 220 Fed. 429, affirming 
 
 Civ. App.) 159 S. W. 1042, and Ken- 213 Fed. 537; Molitor v. Wabash R. 
 
 tucky, Cincinnati, N. O. & T. P. Ry. Co. (Mo.) 168 S. \V. 250; Kelly v. 
 
 Co. 1.55 Ky. 1.53; 1.59 S. W. 695. Chesapeake & Ohio Ry. Co. 201 Fed. 
 
 '«'St. Louis, etc., R. Co. v. Seale, 602; Stafford v. Norfolk & W. Ry. 
 
 229 U. S. 1.56; 33 Sup. Ct. 651; .57 Co. 202 Fed. 605; Rice v. Boston 
 
 L.Ed. 651, reversing (Tex. Civ. App.). & M. R. Co. 203 Fed. 580. 
 
 148 S. W. 1099; Gulf, etc., R. Co. v. Where the defendant set up the 
 
 Lester (Tex. Civ. App.) 149 S. W. jurisdictional facts for the appli- 
 
 841 (precise point decided). cation of the Federal Act, and the 
 
 ""' North Carolina R. Co. v. Zack- plaintiff admitted the truth of these 
 
 ary, 232 L'. S. 248; 34 Suj). Ct. .305; allegations, it was held that the
 
 PLEADING AND PRACTICE, 
 
 311 
 
 common law the defendant may raise the question that the 
 action should have been brought upon the P^ederal statute 
 as soon as the evidence discloses that fact, by objecting to 
 the further introduction of evidence.^°^ But the defendant 
 must in some way set up the claim that the case is governed 
 by the Federal Act, or he will waive his right to so insist 
 on appeal. ^°^ 
 
 § 209. Pleading a defense — Contributory negligence. — 
 
 If the practice in the local state courts requires a particular 
 defense to be presented by answer, it must be so presented 
 in an action on the Federal Act.^°^ That is true where 
 assumption of risk must be especially pleaded according to 
 the local practice.^^° But if the local practice does not 
 require a plea or answer to raise the question, then in an 
 action under the Federal Act it may be raised without 
 pleading it.^" If the local practice requires contributory 
 negligence to be pleaded in actions of negligence, then 
 
 plaintifiF could recover under that act. 
 Vickery v. New London N. R. Co. 87 
 Conn. 634; 89 Atl. 277; Central Vt. 
 R. Co. V. White, 87 Vt. 330; 89 Atl. 
 618, affirmed 35 Sup. Ct. 865. 
 
 But where the wife sued in her 
 individual capacity, and the defendant 
 set up the jurisdictional facts, making 
 the Federal Act applicable, she was 
 denied a recovery. Rich v. St. 
 Louis & S. F. R. Co. 166 Mo. App. 
 399; 148 S. W. 1011. 
 
 "^ Penny v. New Orleans Great 
 Northern R. Co. 135 La. 962; 66 So. 
 313; Melzner v. Northern Pacific Ry. 
 Co. 46 Mont. 162; 127 Pac. 1002. 
 
 The question cannot be raised 
 for the first time on appeal. Chicago, 
 R. I. & P. Ry. Co. V. HoUiday (Okla.) 
 145 Pac. 786. 
 
 '"8 Chicago, I. L. R. Co. v. Hackett, 
 228 U. S. 559; 33 Sup. Ct. 581; 57 
 L. Ed. 581, affirming 170 111. App. 140; 
 Gaber v. Duluth, S. S. & A. Ry. Co. 
 (Wis.) 150 N. W. 489; Missouri, K. 
 & T. Ry. Co. V. Lenahan, 39 Okla. 
 283; 135 Pac. 383; Louisville & N. 
 R. Co. v. Barrett, 85 S. E. 923. 
 
 Where the defendant admitted that 
 the plaintiff was injured while en- 
 gaged in interstate commerce, it was 
 
 held that his admission did not give 
 the Federal court jurisdiction. Dela- 
 ware, L. & W. R. Co. v. Yurkonis, 
 220 Fed. 429, affirming 213 Fed. 537. 
 lo^'Bitondo v. New York Central 
 R. Co. 163 App. Div. 823; 149 N. Y. 
 Supp. 339; New York, N. H. & H. 
 R. R. Co. v. Vizvori, 210 Fed. 118; 
 126 C. C. A. 632; Southern Ry. Co. 
 V. Roger, 219 Fed. 702; Pelton v. 
 Illinois C. R. Co. (Iowa) 156 N. W. 
 236. 
 
 11° Sweet v. Chicago & N. W. Ry. 
 Co. 157 Wis. 400; 147 N. W. 1054; 
 Illinois Central R. Co. v Dougherty, 
 153 Kv. 363; 155 S. W. 1119; Lloyd 
 v. Southern Ry. Co. 166 N. C. 24; 
 81 S. E. 1003; New York, N. H. & H. 
 R. Co. V. Vizvori, 210 Fed. 118; 126 
 C, C. A. 632; Cincinnati, N. O. & T. 
 & T. P. Ry. Co. V. Goldston, 156 
 Ky. 410; 161 S. W. 246; Oberhn v. 
 Oregon-W. R. & N. Co. (Ore.) 142 
 Pac. 554. 
 
 "1 Guana v. Southern Pac. Co. 15 
 Ariz. 413; 139 Pac. 782; Lloyd v. 
 Southern Ry. Co. 166 N. C. 24; 81 
 S. E. 1003; Freeman v. Powell (Te.\. 
 Civ. App.) 144 S. W. 1033; Barker 
 V. Kansas City, M. & O. Ry. Co. 88 
 Kan. 767; 129 Pac. 1151; 43 L. R. A. 
 (N. S.) 1121.
 
 3]^2 FEDERAL, EMPLOYERS' LIABILITY ACT. 
 
 it must be pleaded in an action on the Federal statute, 
 not as a full defense, but a defense as to the amount of dam- 
 ages recoverable, and the defendant, whether pleaded or not, 
 has the burden to show it."^ But the contrary has been 
 expressly held, on the ground that contributory negligence 
 only goes to the amount of damages recoverable. ^^^ The 
 burden is on the defendant to show contributory negli- 
 
 § 210. Answer of Statute of Limitations. — ^It has been ex- 
 pressly decided that if the defendant desires to avail him- 
 self of the fact that the action had not been brought within 
 two years after the injury was inflicted on the one hand, 
 or within two years after the employee's death due to his 
 injury, that fact must be set up by answer,"^ thus treating 
 the statute on this point as an ordinary statute of limitation. 
 But as we have elsewhere stated,^^*' the burden seems to be 
 on the plaintiff to show that he brought his action within 
 two years after his cause of action accrued. ^^^ 
 
 § 211. Venue. — The action is transitory, not local.^^^ And 
 where the action is brought in the Federal court, but not 
 specially based upon either the Federal or a state statute, 
 
 11= Seaboard Air Line Ry. Co. v, (Mo.) 172 S. W. 340; Pennsylvania 
 
 IMoore, 193 Fed. 1022; 113 C. C. A. R. Co. v. Goughnour, 208 Fed. 961; 
 
 608, affirmed 228 U. S. 433; 33 Sup. 126 C. C. A. 39. 
 
 Ct. 580; 57 L. Ed. 907; White v. Interrogatories to the jury on the 
 
 Central Vt. Ry. Co. 87 Vt. 330; question of contributory negligence 
 
 89 Atl. 618; St. Louis, I. 1\I. & So. Ry. may be refused. Lloyd v. Southern 
 
 Co. V. Rodgers (Ark.) 176 S. W. 696; Ry. Co. 166 N. C. 24; 81 S. E. 1003. 
 
 Jones V. Kansas City So. Ry. Co. It has been held that an omission 
 
 (La.) 68 So. 401; Carpenter v. Kan- in the complaint to show that the 
 
 sas City S. Ry. Co. (j\Io.) 175 S. W. plaintiff was engaged in interstate 
 
 234. A plea of contributory negli- commerce might be supplied by the 
 
 gence as a full defense is demurrable. answer. Vickery v. New London 
 
 Southern Ry. Co. v. Peters (Ala.) Northern R. Co. 87 Conn. 634; 89 
 
 69 So. 611. Atl. 277; White v. Central Vermont 
 
 "3 Lloyd V. Southern Ry. Co. Ry. Co. 87 Vt. 330; 89 Atl. 618. 
 
 166 N. C. 24; 81 S. E. 1003. '"• Burnett v. Atlantic Coast Line 
 
 It is error to charge the jury that R. Co. 163 N. C. 186; 79 S. E. 414. 
 
 contributory negligence is a defense. ^'^ Section 118. 
 
 Chicago Great W. R. Co. v. Mc- '*' The provisions extending the 
 
 Corrnick, 200 Fed. .375. time, within which actions may be 
 
 "< White V. Central Vermont Ry. brought, to two years is not retro- 
 Co. 87 Vt. .330; 89 All. 018, affirmed active. Mouicas v. Baltimore & 
 35 Sup. Ct. 805; Seaboard Air Line Ohio R. Co. 40 App. D. C. 391. 
 Ry. Co. V. Moore, 193 Fed. 1022; "» Anderson v. Louisville & N. R. 
 ] 13 C. C. A. (;08, affirmed 228 U. S. Co. 210 Fed. 689. 
 4.33; 33 Sup. Ct. .'',80; .57 L. Ed. 907; 
 Fish V. Chicago, R. I. & P. Ry. Co.
 
 PLEADING AND PRACTICE. 313 
 
 if no objection is made that the ease is brought in the 
 wrong venue at the proper time it is waived/^^ 
 
 § 212. Variance. — If the action be expressly based on the 
 state law, but the evidence shows a liability under the 
 Federal Act, there is a fatal variance ; and if the action is 
 expressly based on the Federal Act, but a liability be shown 
 at common law or under a state statute, there is likewise a 
 fatal variance.* But if no statute be pleaded, yet the facts 
 alleged show a cause of action under the Federal statute, 
 and the proof shows such to be the case, there is no vari- 
 ance.^'° Where the action was based on the Federal statute 
 and the plaintiff failed to prove he was engaged in inter- 
 state commerce at the time of the accident it was held that 
 he was entitled to have his case submitted under the com- 
 mon law theory, his petition containing allegations suf- 
 ficient to state a common law cause of action ;^-^ but after- 
 wards this part of the opinion was withdrawn as unneces- 
 sary.^^^ Where the plaintiff sued at common law, but it 
 appeared in evidence that the Federal statute was appli- 
 cable, and on submission of the case on the common law- 
 count, the jury brought in a verdict for the plaintiff, the 
 case was reversed, the Supreme Court holding that the 
 plaintiff must rely upon the Federal statute in order to re- 
 cover.^^^ But it should be observed that this is not so much 
 a case of variance as it is one involving the rule that an 
 interstate employee must sue on the Federal statute, and has 
 no other cause of action. It is quite different when the 
 action is brought under the Federal statute and allegations 
 
 »" Erie R. Co. v. Kennedy, 191 See also Erie R. Co. v. Kennedy, 
 
 Fed. 332; 112 C. C. A. 76. 191 Fed. 332; 112 C. C. A. 76, and 
 
 • Kelly V. Chesapeake & Ohio Ullrich v. New York, N. H. & H. R. 
 
 Ry. Co. 201 Fed. 602; Stafford v. R. Co. 193 Fed. 768. 
 Norfolk & W. Ry. Co. 202 Fed. 605; '- Jones v. Chesapeake & Ohio R. 
 
 Rice V. Boston & M. R. Co. 203 Fed. Co. 153 Ky. 378; 155 S. W. 723. 
 580; Komboris v. Oregon & Wash. i^s Qains v. Detroit, G. H. & M. 
 
 R. & Nav. Co. (Ore.) 146 Pac. 1097; Ry. Co. (Mich.) 148 N. W. 397. 
 
 Lauer v. Northern P. R. Co. (Wash.) See Mcintosh v. St. Louis & S. F. R. 
 
 145 Pac. 606; Koennecke v. Sea- Co. 182 App. 288; 168 S. W. 821. 
 
 board A. L. R. Co. (S. C.) 85 S. E. 374. Total variance, Kamboris v. Oregon 
 
 '=''Ho!?erty v. Philadelphia & R. & W. R. & Nav. Co. (Ore.) 146 
 
 R. Co. 245 Pa. 443; 91 Atl. 854. Pac. 1097. 
 
 '-* Jones V. Chesapeake & Ohio Ry. 
 Co. 149 Ky. 566; 149 S. W. 951.
 
 314 
 
 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 are used which are sufficient to bring the action on a state 
 statute or at common law, and the proof concerning liability 
 under the Federal statute fails. In such an instance the 
 plaintiff may go to the jury on the state statute or common 
 law as his proof may show. And the same is true where 
 the action is at common law or on a state statute, but the 
 allegations being broad enough to show a liability under 
 the Federal Act, a recovery may be had under the latter, all 
 reference to the state statute being regarded as surplus- 
 age.^^* 
 
 § 213. Notice of injury received. — A state statute requir- 
 ing notice of an injury to be given the defendant before an 
 action to recover damages therefor, has no application.^^'' 
 
 § 214. Dismissal — Nonsuit — Directing verdict. — The pro- 
 vision in the Federal statute that contributory negligence 
 shall not be a complete bar to a recovery is equivalent to a 
 declaration that the court cannot direct a nonsuit on the ground 
 
 '" Southern Ry. Co. v. Ansley, 8 
 Ga. App. 325; 68 S. E. 1086. 
 
 Where the cause of action arose 
 before the Federal Act, went into 
 force, but the action, based on 
 that act, was brought after it went 
 into force, by the administrator, it 
 was held that no recovery could be 
 had under a state law giving a right 
 of action, not to the personal repre- 
 sentatives but to the deceased's 
 parents, because the damages went 
 to the estate of the deceased employee, 
 for which a personal representative 
 might maintain an action was a 
 distinct cause of action from damages 
 to his parent resulting from his death 
 and for which the statute gave a 
 cause of action to his parents. Win- 
 free V. Northern Pac. R. Co. 227 
 U. S. 206; 33 Sup. Ct. 273; 57 L. Ed. 
 518, affirming 173 Fed. 65. 
 
 Where the Federal Act was not 
 alleged, but the evidence showed a 
 cau.sc of action under it, the court 
 refused to reverse the case, because 
 a state statute forbade a reversal 
 unless there be error affecting the 
 
 merits of the case. Mcintosh v. 
 St. Louis & S. F. R. Co. (Mo. App.) 
 168 S. W. 821. 
 
 A petition stating facts consti- 
 tuting a cause of action under the 
 Federal Act is supported by evidence 
 bringing the case within that act, 
 though it be merely alleged that at 
 the time of the injury the common law 
 liability of the employer for injuries 
 was in force — the petition not being 
 effected by a reference to the non- 
 effective law. Carpenter v. Kansas 
 City Southern Ry. Co. (Mo. App.) 
 175 S. W. 234. 
 
 Though the complaint be in- 
 sufficient under the Federal Act, 
 yet if the evidence shows that act 
 controls, it will be applied to the facts 
 proven. St. Louis, I. M. & S. Ry. 
 Co. (Ark.) 175 S. W. 1177. See 
 Toledo, etc., Ry. Co. v. Slavin, 236 
 U. S. 457; 35 Sup. Ct. 306; 59 L. 
 Ed.—. 
 
 Variance from negligent acts al- 
 leged. Louisville & N. R. Co. (Ala.) 
 69 So. 106. 
 
 ■^f-El Paso & N. E. Ry. Co. v. 
 Gutierrez, 215 U. S. 87; 30 Sup. Ct. 
 21; 54 L. Ed. 106.
 
 PLEADING AND PRACTICE. 3^5 
 
 plaintiff's own evidence shows him to be guilty of contrib- 
 utory negligence.^-*^ A case may be dismissed without 
 prejudice/" 
 
 § 215. Evidence — Burden. — The plaintiff has the burden 
 to show that at the time he or the deceased was injured he 
 was a servant of the defendant engaged in interstate com- 
 merce, that the defendant was a carrier by railroad engaged 
 in such commerce, and that his injuries were due to the 
 defendant's negligence as set forth in his complaint or pe- 
 tition. ^-^ Evidence of the general duties of the members 
 of the train crew while the employee was employed by the 
 railroad company is admissible,^-^ yet merely showing that the 
 railroad carrier was engaged in interstate commerce does 
 rot show that the employee was so engaged when injured.^^° 
 Evidence that the train had on it interstate shipments may 
 be introduced to show that the train was one being used in 
 interstate commerce. And where there was no direct proof 
 that the cars had interstate shipments aboard, but the usual 
 course of business was shown, it was held that there was 
 sufficient proof that the train was an interstate commerce 
 train. ^^^ Proof that some of the cars in the train contained 
 interstate shipments may be shown by its conductor without 
 putting in evidence the defendant's records of such ship- 
 ments, the plaintiff not being compelled to produce them.^^- 
 In a Federal case it was said: "The cars had been em- 
 
 '26 Horton v. Seaboard Air Line App. Div. — ; 150 N. Y. Supp. 99; 
 
 Ry. Co. 157 N. C. 146; 72 S. E. 958; McAuliffe v. N. Y. C. & H. R. R. Co. 
 
 Pfeiffer v. Oregon W. R. & N. Co. 150 N. Y. Supp. 512; Erie R. Co. v. 
 
 (Ore.) 144 Pac. 762. Jacobus, 221 Fed. 335; Boyle v. 
 
 1" Oliver v. Northern Pac. Ry. Co. Pennsylvania R. Co. 221 Fed. 453. 
 
 196 Fed. 432. It must be alleged and shown that 
 
 1-* Charleston & W. C. Ry. Co. v. the injury occurred within the ser- 
 
 Anchors, 10 Ga. App. 322; 73 S. E. vant's line of duty. Louisville & N. 
 
 551; Montgomery v. Southern Pacific R. Co. v. Fleming (Ala.) 69 So. 125. 
 
 Co. 64 Ore. 597; 131 Pac. 507; »=9 Montgomery v. Southern Pacific 
 
 Devine v. Chicago, R. L & P. Ry. Co. Ry. 64 Ore. 597; 131 Pac. 507; Evans 
 
 266 111. 248; 107 N. E. 595; Southern v. Detroit, G. H. & M. Ry. Co. 
 
 Pacific Co. v. Vaughn (Tex. Civ. (Mich.) 148 N. W. 490. 
 
 App.) 165 S. W. 885; Wheeling Ter- "o Gordon v. New Orleans Great 
 
 minal Ry. Co. v. Russell. 209 Fed. Northern R. Co. 135 La. 137; 64 So. 
 
 795; 126 C. C. A. 519; Ft. Worth 1014. 
 
 Belt Ry. Co. v. Ferryman (Tex. Civ. "^ Southern Pacific Co. v. Vaughn 
 
 App.) 158 S. W. 1181; Gordon v. (Tex. Civ. App.) 165 S. W. 885; 
 
 New Orleans G. N. R. Co. 135 La. Devine v. Chicago. R. I. & P. Ry. 
 
 137; 64 So. 1014; Baltimore & Ohio Co. 185 111. App. 488; affirmed (111 ) 
 
 R. Co. v. Whitacre (Md.) 92 Atl. 107 N. E. 595. 
 
 1060; Hench v. Pennsylvania R. Co. "2 Devine v. Chicago, R. I. & P. Ry. 
 
 (Pa.) 91 Atl. 1056; Knowles v. New Co. 266 111. 248; 107 N. E. 595. 
 York, N. H. & H. R. R. Co. 164
 
 316 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 ployed in interstate commerce. It was not shown that they 
 had been withdrawn from its service. The reasonable pre- 
 sumption, therefore, is that they had remained in it. In 
 practice such presumption will not work injustice. The 
 defendant carrier will usually have little difficulty in show- 
 ing, when it wishes to do so, where the cars were to be taken 
 and for what purpose. For the plaintiff to trace them may 
 be difficult and excessive.""^ But in a state court it was 
 held that there was no presumption that the cars being 
 shifted at the time of the accident were intended for use 
 in interstate commerce ; and the failure of the defendant to 
 produce its records to show what cars were being moved in 
 the freight yard on the night of the accident created no 
 presumption that the cars in the yard were being used in 
 interstate commerce, where the defendant's clerk who kept 
 the records of cars testified there had been no such records 
 of the particular cars in the freight yard.^^* The Federal 
 Act, being general in its terms, makes no specific regulation 
 as to the quantity, quality, and methods of proof of negli- 
 gence, and therefore the state law is applicable in deter- 
 mining what is proper proof and sufficient proof. There- 
 fore, it was held, proof that the injury was caused by de- 
 fective appliances made out a prima facie case of negligence 
 on the part of the carrier, that being the rule in the state 
 courts. ^^^ And in another case it was said of the Federal 
 Act: "The statute makes the mere proof of the existence 
 of defects in appliances prima facie evidence of negligence ; 
 and that having been shown, it throws the burden of dis- 
 proving negligence upon the employer. "^^" "Where the ac- 
 tion is brought by an administrator for the benefit of the 
 deceased's mother it must be alleged and proven that the 
 deceased left neither widow nor children, but that fact may 
 
 133 Wheeling Terminal Rj'. Co. v. "^ Hench v. Pennsylvania R. Co. 
 
 Russell, 207 P^ed. 795; 12G C. C. A. (Pa.) 91 Atl. 105G. 
 
 519. >35 Bennett v. Southern Ry. (S. C.) 
 
 Sufficient proof cars were used in 79 S. E. 710. 
 
 interstate commerce. See Pittsburg, '■''« South Covington & C. St. Ry. 
 
 C. C. & St. L. R. Co. V. Glenn, 219 Co. v. Finan, 153 Ky. 340: 155 S. W. 
 
 Fed. 148. 742.
 
 PLEADING AND PRACTICE. 3X7 
 
 be proven inferentially.^^^ It must be shown that the injured 
 person was an employee of the defendant at the time of his 
 injury.^^^ The existence of a beneficiary within the pro- 
 visions of the act is an issuable fact, and must be alleged 
 and proven.^-'" 
 
 § 216. Competency of witness. — The state law must be 
 looked to in order to determine the competency of a person 
 offered as a witness to testify.^*" But it has been held that 
 the widow may testify and a state statute providing that in 
 similar cases she cannot testify, has no application to an 
 action under the Federal Act.^*^ 
 
 § 217. Instructions. — It is the duty of the court to in- 
 struct the jury generally concerning the Federal statute so 
 far as it applies to the case in hand. But the defendant 
 cannot complain of the court's action in failing to instruct 
 under that statute, which destroys the defense of the negli- 
 gence of a fellow servant, where the jury are told that the 
 plaintiff could not recover if his injuries were caused by a 
 fellow servant."^ This is upon the ground that the rule of 
 law, as stated in the instructions given, were more favor- 
 able to the defendant than those presented by the Federal 
 Act.^*^ Nor can the defendant complain of a failure of the 
 court to give the law concerning comparative negligence, as 
 laid down in the statute, where the instructions given per- 
 mitted a recovery only in the event the jury should find 
 the defendant negligent and the plaintiff free from con- 
 tributory negligence.^** So an instruction given on the 
 
 1" Moffett V. Baltimore & Ohio St. Louis & S. F. R. Co. v. Conarty, 
 
 R. Co. 220 Fed. 39. 106 Ark. 421; 155 S. W. 93. 
 
 '38 Ft. Worth Belt Ry. Co. v. '<= Atchison, etc., R. Co. v. Mills, 
 
 Ferryman, (Tex. Civ. App.); 158 S. 53 Tex. Civ. App. 359; 116 S. W. 852. 
 
 W. 1181. '"Galveston, etc., R. Co. v. 
 
 '3" Melzner v. Northern Pacific R. Averill (Tex. Civ. App.) 136 S. W. 98; 
 
 Co. 46 Mont. 162; 127 Pac. 1002; Southern R. Co. v. Ansley, 8 Ga. App. 
 
 Thomas v. Chicago, etc., R. Co. 202 325; 68 S. E. 1086; Erie R. Co. v. 
 
 Fed. 766. Kennedy, 191 Fed. 332; 112 C. C. A. 
 
 '" Bennett v. Southern Ry. (S. C.) 76. 
 
 79 S. E. 710. '4« Atchison, etc., R. Co. v. Milk, 
 
 '^'St. Louis & S. F. R. Co. v. 53 Tex. Civ. App. 359; 116 S. W. 
 
 Fithian, 106 Ark. 491; 155 S. W. 88; 852; Galveston, etc., R. Co. v. 
 
 Averill (Tex. Civ. App.) 136 S. W. 98.
 
 318 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 theory that the action is based on the Federal Act, even 
 though erroneous, because not warranted by the pleadings, 
 is not prejudicial to the defendant, unless the rules of lia- 
 bility under that act are more burdensome than those under 
 the alternative state statute. Thus, where the complaint 
 described generally the right of action, without specifying 
 whether it was based specifically upon the Federal or a state 
 statute, and the defendant in its answer set up that the plain- 
 tiff was engaged in interstate commerce when injured, that 
 it was a carrier by railroad engaged in such commerce, but 
 insisted at the trial that the case did not fall within the 
 Federal Act, because the complaint did not so bring it ; and 
 the court instructed the jury upon the theory that the ac- 
 tion was based upon the Federal Act ; it was held that, with- 
 out regard as to whether the case properly arose under the 
 Federal Act or the state law, a judgment for the plaintiff was 
 correct, the instuctions given not being shown to be more 
 burdensome to the defendant than would have been had they 
 been given upon the theory that the case arose under the 
 state law.^*^ An instruction upon the assumption of risk may 
 be refused which is couched in such general and sweeping 
 terms as not to be calculated to give the jury an accurate 
 understanding of the law upon that subject, or to direct 
 their attention to the particular phase of the case to which 
 it is deemed applicable.^*" An instruction for a recovery un- 
 der the Federal Act when the evidence does not show a 
 liability under it should be refused.^*" A request to instruct 
 the jury under the state law made by the defendant binds 
 it to that theory of the case.* Although contributory negli- 
 gence is not a bar to the action, and is considered only in 
 fixing the amount of damages recoverable, yell nevertheless 
 
 ''"' Erie R. Co. v. Kennedy, 191 case and Erie R. Co. v. Kennedy, 
 
 Fed. 332; 112 C. C. A. 76. 191 Fed. 332; 112 C. C. A. 76. 
 
 '"Norfolk, etc., R. Co. V. Earnst, '<' Vandalia R. Co. v. Stringer 
 
 229 U. S. 114; 33 Sup. Ct. 654; 57 (Ind.) lOfi N. E. 865. 
 
 L. Ed. 564. * Wabash R. Co. v. Hayes, 234 U. 
 
 On taking exceptions to an in- S. S6; 34 S. C. 729; 58 L. Ed.l226; 
 
 Btruction, where no unu.sual point of affirming 180 111. App. 511. 
 practice is involved, see the above
 
 PLEADING AND PRACTICE. 3]^9 
 
 it is the duty of the court to give the jury a concrete in- 
 struction defining the acts which constitute contributory 
 neglect ; and a failure to do so on request constitutes re- 
 versible error.^"*® And the defendant is not bound to tender 
 concrete instructions on the measure of damages where con- 
 tributory negligence is shown, in order to complain of the 
 court's instructions on the measure of damages."^ 
 
 § 218. Question for jury — Damages. — The negligence of 
 the defendant is a question for the jury.'^° When the facts 
 concerning whether the case comes within the Federal stat- 
 ute are undisputed, then that question is one for the court ;^^^ 
 but if disputed then it is one for the jury under the instruc- 
 tions of tlie court.'" In determining tlie damages "the jury 
 may take into consideration the age, health, and expectancy of 
 life of the deceased, his earning capacity, his character, his 
 mode of treatment of his family, and the amount contributed 
 out of his wages to them for their support, and calculate 
 from these facts the amount" they "as reasonable and 
 practical men, believe the plaintiff's loss to be because of the 
 death. "^^^ "Under the rule of comparative negligence, the 
 jury is entitled to consider all the circumstances which 
 characterize the negligence of either party and which tend 
 to fix the quantity of that negligence in its relation to the 
 sum total of the negligence of both parties. Even though 
 the negligence of both parties clearly appears, all circum- 
 stances of aggravation or mitigation must be considered. ' '^^* 
 
 »8 Illinois Central Ry. Co. v. Pittsburg, C. C. & St. L. R. Co. v. 
 
 Nelson, 203 Fed. 957. Glinn, 219 Fed. 148; Erie R. Co. v. 
 
 '« Chesapeake & Ohio Ry. Co. v. Jacobus, 221 Fed. 335. (See this 
 
 Dwyer, 157 Ky. 590; 163 S. W. 752. case for instructions to jury.) See 
 
 "Courts should point out applicable also 208 Fed. 989; 126 C. C. A. 77; 
 
 principles with painstaking care and Clark v. Chicago, G. W. R. Co! 
 
 diligently exercise their full powers to (Iowa) 152 N. W. 635; Koennecke v. 
 
 prevent unjust results." Kansas City Seaboard A. L. Ry. (S. C.) 85 S. E. 
 
 So. R. Co. V. LesHe, 35 Sup. Ct. 844, 374; Charpeski v. Great Northern Ry. 
 
 reversing 112 Ark. 305; 167 S. W. 83. Co. (Minn.) 150 N. W. 1091. 
 
 150 McCouIlough V. Chicago, R. I. '" American R. Co. v. Birch, 224 
 
 & P. Ry. Co. 160 Iowa, 452; 142 N. U. S. 547; 32 Sup. Ct. 603; 56 L. 
 
 W. 67; Knapp v. Great Northern Ry. Ed. 879; Cain v. Southern Ry. Co. 
 
 Co. (Minn.) 153 N. W. 848. 199 Fed. 211; Kansas City So. R. Co. 
 
 '*' Gaber v. Duluth, S. S. & A. Ry. v. Leslie, 35 Sup. Ct. 844, reversing 
 
 Co. (Wis.) 150 N. W. 489. 112 Ark. 305; 167 S. W. 83. 
 
 1" Gaber v. Duluth, S. S. & A. Ry. i" New York C. & St. L. R. Co. 
 
 Co. (Wis.) 150 N. W. 489; North v. Niebel, 214 Fed. 953. Assumption 
 
 Carolina R. Co. v. Zackary, 232 U. of risk, usually, and contributory 
 
 D. 248; 34 Sup. Ct. 305; 58 L. Ed. 591, negligence are questions for the jury, 
 
 reversing 156 N. C. 496; 72 S. E. 858; Knapp v. Great Northern Ry. Co. 
 
 (Minn.) 153 N. W. 848; Tonsellito v. 
 New York Cent. & H. R. R. Co. 
 (N. J.) 94 Atl. 804.
 
 CHAPTER XIII. 
 APPEAL AND WRIT OF ERROR. 
 
 SECTION SECTION 
 
 219. On appeal from Federal court. 223. Amount in controversy. 
 
 220. Appeal from State court to 224. Penalty assessed against ap- 
 
 Federal Supreme court. pellant. 
 
 221. How question raised to secure 224a. Remittitur of excessive dam- 
 
 right of appeal. ages. 
 
 222. What questions can and cannot 
 
 be raised on appeal. 
 
 § 219. On appeal from Federal court. — If the action has 
 been brought on the Federal Act it is the duty of the Fed- 
 eral Supreme Court to jDass upon all questions for decision, 
 even though they do not involve an interpretation of the 
 statute.^ If the lower court improperly holds that the em- 
 ployee was engaged in interstate commerce at the time of 
 the accident, an appeal lies to the Federal Supreme Court.- 
 When the validity of the act is drawn in question, an appeal 
 lies direct to that court.^ A writ of error lies from that 
 court to review a judgment of a circuit court of appeals 
 where the matter in controversy exceeds $1,000."^ 
 
 § 220. Appeal from state court to Federal Supreme 
 
 Court. — An ai)pcal lies from a State Supreme Appellate 
 Court to the Federal Supreme Court only where a consti- 
 
 1 Southern Ry. Co. v. Gadd, 233 R. Co. 229 U. S. 146; 33 Sup. Ct. G48; 
 
 U. S. 572; 34 Sup. Ct. 696; 58 L. Ed. 67 L. Ed. 648. 
 
 — ; Seaboard Air Line R. Co. v. ' Michigan Central R. Co. v. Vree- 
 
 Moore, 228 U. S. 433; 33 Sup. Ct. land, 227 U. S. 59; 33 Sup. Ct. 192; 
 
 580; 57 L. Ed. — ; Chicago Junction 57 L. Ed. 417; Norfolk, etc., R. Co. 
 
 R. Co. V. King, 222 U. S. 222; 32 v. Earnest, 229 U. S. 114; 33 Sup. 
 
 Sup. Ct. 79; 56 L. Ed. 173; Chicago, Ct. 654; 57 L. Ed. 1096. 
 R. I. & P. R. Co. V. Brown, 229 U. S. " Missouri, etc., R. Co. v. Wulf, 226 
 
 317; 33 Sup. Ct. 840; 57 L. Ed. 1204; U. S. 570; 33 Sup. Ct. 135; 57 L. Ed. 
 
 3 N. C. C. A. 826. 274. 
 
 ^ Pedersen v. Delaware, L. & W. 
 
 320
 
 APPEAL AND WRIT OF ERROR. 321 
 
 tutional question or a construction of the Federal Act is 
 involved, as where the trial court has erroneously construed 
 the statute, or refuses to give a particular instruction con- 
 struing it to which the party requesting it is entitled ; and then 
 only when the question is properly presented and saved. 
 The Federal Supreme Court on such appeal is not a general 
 court of review.^ This includes the right of the plaintiff to 
 recover upon or the defendant to be shielded from liability 
 under a proper application of the statute ; and also includes 
 the question whether or not there was sufficient evidence 
 of the defendant's liability under the statute to warrant a 
 submission of the case to the jury.^ Such as where a recov- 
 ery is allowed in the absence of proof of the designated 
 beneficiaries;'' or the state court permitted a beneficiary to 
 recover who sues in his own personal capacity f or error in 
 allowing the administrator of deceased to recover for pain 
 and suffering before the amendment of 1910.'' Ordinary 
 questions of negligence and rulings thereon are not review- 
 able, and will be dealt with in a summary manner ; nor is 
 the question of excessive damages.^** Questions relating to 
 practice and procedure being governed by the state law will 
 not be reviewed." An appeal does not lie to the Federal 
 Supreme Court on merely incidental questions not Federal 
 in character — those which do not in their essence involve 
 the existence of the right in the plaintiff to recover under 
 the Federal statute to which his recourse by the pleadings 
 was exclusively confined, or the converse, the right of the de- 
 
 6 Seaboard Air Line Ry. Co. v. Seale, 229 U. S. 156; 33 Sup. Ct. 651; 
 
 Duvall, 225 U. S. 477; 32 Sup. Ct. 57 L. Ed. 1129. 
 
 790; 57 L. Ed. — . 9 st. Louis, I. M. & S. Ry. Co. v. 
 
 6 St. Louis, I. M. & S. Ry. Co. v. Hesterly, 228 U. S. 702; 33 Sup. Ct. 
 
 McWhirter, 229 U. S. 265; 33 Sup. 703; 57 L. Ed. 1031. 
 
 Ct. 858; 57 L. Ed. 1177. i" Southern Ry. Co. v. Bennett, 
 
 ' North Carolina R. Co. V. Zackary, 233 U. S. 80; 34 Sup. Ct. 566; 57 
 
 232 U. S. 248; 34 Sup. Ct. 305; 58 L. Ed. — ; Missouri, K. & T. Ry. Co. 
 
 L. Ed. 591, reversing 156 N. C. 456; v. West, 232 U. S. 682; 34 Sup. Ct. 
 
 72 S. E. 858; Gulf C. & S. F. Ry. Co. 471; 57 L. Ed. — ; 38 Okla. 581; 134 
 
 V. McGinnis, 228 U. S. 173; 33 Sup. Pac. 655. 
 
 Ct. 426; 57 L. Ed. 785. " Brinkmeier v. Missouri Pacific 
 
 »St. Louis, S. F. & T. Ry. Co. v. Ry. Co. 224 IT. S. 268; 32 Sup. Ct. 
 
 412; 57 L. Ed. 758.
 
 322 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 fendant to be shielded from responsibility under the stat- 
 ute, because when applied no liability on his part from the 
 statute could result/^ Where a state court decided against 
 the plaintiff to the effect that upon the evidence he as- 
 sumed the ordinary common law risks, when he contended 
 that he did not because his right to recover was based upon 
 a violation of the safety appliance statute, it was held that 
 a question was presented for review by the Federal Supreme 
 Court.12 
 
 § 221. How question raised to secure right of appeal. — 
 
 "Whether or not the question was governed by the Federal 
 Act was properly raised in the trial court, in accordance 
 with the pertinent provisions of the local Code of Procedure 
 is immaterial, where it appears that the appellant claimed 
 a right to recover or immunity under the Federal Act, and 
 the highest court either decided or assumed that the record 
 sufficiently presented a question of Federal right, and de- 
 cided against the party asserting that right.^* A question 
 of interpretation of the Federal Act is not presented for 
 review by a refusal of the trial court on defendant's request 
 to take the case from the jury by a peremptory instruction, 
 wiiere, taking into consideration the proof, the request is 
 absolutely without merit. Such a question is not raised on 
 a record which shows that the trial court's reply to an ex- 
 ception to the general charge based on the court's silence 
 
 ^- Seaboard Air Line Ry. v. Pad- Whirter, 229 U. S. 265; 33 Sup. Ct. 
 
 gett(U. S.)35Sup. Ct. 4S1;58L. Ed. 858; 57 L. Ed. 1179; Seaboard Air 
 
 — , affirming (S. C.) 83 S. E. 633; Line R. Co. v. Horton, 233 U. S. 
 
 Missouri, K. & T. Ry. Co. v. West, 492; 34 Sup. Ct. 635; 58 L. Ed. 1062. 
 
 232 U. S. 682; 34 Sup. Ct. 471; 58 An appeal lies from a State Su- 
 
 L. Ed. — , dismissing writ of error to preme court to the Federal Supreme 
 
 38 0kla. 581;134Pac.655. court. Hardwick v. Wabash R. Co. 
 
 ■•'Southern Ry. Co. v. Crockett, 181 Mo. App. 156; 168 S. W. 328. 
 
 234 U. S. 725; 34 Sup. Ct. 897; 58 i^ North Carolina R. Co. v. Zach- 
 
 L. Ed. 1564, citing St. Louis, I. M. & ary, 232 U. S. 248; 34 Sup. Ct. 305; 
 
 S. R. Co. V. Taylor, 210 U. S. 281; 57 L. Ed. 591, reversing 156 N. C. 
 
 28 Sup. Ct. 616; 52 L. Ed. 1061; 496; 72 S. E. 858; St. Louis, L M. 
 
 21 Am. Neg. Rep. 464; Seaboard Air & S. Ry. Co. v. Hesterly, 228 U. S. 
 
 Line R. Co. v. Duvail, 225 U. S. 702; 33 Sup. Ct. 703; 57 L. Ed. 1031, 
 
 477; -.',2 Sup. Ct. 790; 5() L. Ed. 1171; reversing 98 Ark. 240; 135 S. W. 874; 
 
 St. Loui.s, L M. <t S. R. Co. v. Mc- Toledo, St. L. & W. R. Co. v. Slavin, 
 
 236 U. S. 454; 35 Sup. Ct. 306.
 
 APPEAL AND WRIT OF ERROR. 323 
 
 concerning the assumption of risk, that he understood the 
 doctrine to have been abolished by that statute, was so 
 qualified as to convey clearly that, as the matter to which 
 the excepted charge related purely concerned the common 
 law principles of fellow servant and contributory negli- 
 gence, they were controlled by the provisions of the statute, 
 and there was nothing in the excepted portion of the charge 
 which in any possible way was relevant to the doctrine of 
 the assumption of risk — especially as this question was not 
 presented by any request to charge, nor raised on a motion 
 for a new trial, nor referred to in the assignments of error 
 either in the Circuit Court of Appeals or in the Supreme 
 Court.^^ If the evidence shows that the case is governed by 
 the Federal Act, and the defendant so contends at the trial, 
 the question is sufficiently presented to enable it to raise 
 its liability under the act, even though the pleadings are not 
 based on the act.^^ A decision of a state court, having sub- 
 stantial support in the record, that the pleadings and evi- 
 dence in an action for the death against an interstate rail- 
 way company demonstrates that the deceased was in the 
 employ of an express company, and that therefore the de- 
 fendant's liability was not controlled by the Federal Lia- 
 bility Act, involves no denial of any asserted Federal right, 
 and is not reviewable in the Federal Supreme Court/^ A 
 judgment of compulsory nonsuit in an action brought in a 
 Federal district court under the employers' liability statute, 
 which rests upon the ground that the evidence at the trial 
 
 "Southern R. Co. v. Gadd, 233 858; 58 L. Ed. 1179, reversing 145 
 
 U. S. 572; 34 Sup. Ct. 696; 58 L. Ed. Ky. 427; 140 S. W. 672. 
 
 — , affirming 207 Fed. 277. This is especially true if the ap- 
 
 *^ Toledo, St. L. & W. R. Co. v. pellant's contention if acceded to 
 
 Slavin, (U. S.); 35 Sup. Ct. 306; would probably produce a verdict 
 
 58 L. Ed. — , reversing 88 Ohio St. in its favor. Seaboard Air Line Ry. 
 
 536; 106 N. E. 1077; St. Louis, S. F. Co. v. Horton, 233 U. S. 492; 34 Sup. 
 
 & T. Ry. Co. V. Seale, 229 U. S. 156; Ct. 635; 58 L. Ed. 1062, reversing 162 
 
 33 Sup. Ct. 651; 57 L. Ed. 1129, re- N. C. 424; 78 S. E. 494. 
 
 versing (Tex. Civ. App.) 148 S. W. ''Missouri, K. & T. Ry. Co. v. 
 
 1099; Missouri, K. & T. Ry. Co. v. West, 232 U. S. 682; 34 Sup. Ct. 471; 
 
 Lenahan, 39 Okla. 283; 135 Pac. 382; 58 L. Ed. — , dismissing writ of error. 
 
 St. Louis, I. M. & S. Ry. Co. v. Mc- Decision in lower court, 38 Okla. 581; 
 
 Whirter, 229 U. S. 265; 34 Sup. Ct. 134 Pac. 655.
 
 324 FEDERAL, EMPLOYERS' LIABILITY ACT. 
 
 did not disclose that the plaintiff when injured was en- 
 gaged in interstate commerce, does not present a question 
 as to the power of that court as a Federal court to hear and 
 determine the case under the Judicial Code/^ to sustain a 
 direct writ of error from the Federal Supreme Court, sued 
 out on the ground that the jurisdiction below was in issue. ^"^ 
 The Federal Supreme Court will analyze the evidence on 
 a writ of error to the extent necessary to give the plaintiff 
 in error the benefit of its asserted Federal right.-° "Where 
 the facts pleaded show a cause of action under the Federal 
 statute, but the case is tried upon the theory that it was a 
 common law action ; this was held that the judgment should 
 be affirmed, the plaintiff' having proved all he was required 
 to prove under the Federal statutes and more besides. This 
 was held to be a mere irregularity, and not one governed by 
 the one definite theory line of cases.-^ 
 
 § 222. What questions can and cannot be raised on ap- 
 peal. — The theory on which the case was tried cannot be 
 changed on appeal to secure a reversal.-- A request to in- 
 struct the jury under the state law made by the plaintiff 
 binds him to that theory.-^ If the defendant insists at the 
 trial that the case is governed by a state statute, on appeal 
 he cannot insist that it is governed by the Federal Act.-* 
 The defendant cannot question the pleadings for the first 
 time on appeal.-^ Pleading contributory negligence, and 
 
 >8 Judicial Code, § 238; 76 Stat. ^4 minols Central R. Co. v. Egan, 
 
 at L. 1157, chap. 231; U. S. Comp. supra. 
 Stat. Supp. 1911, p. 228. 25 g^ith v. Northern Pacific Ry. 
 
 "Farrugia v. Philadelphia & R. Co. 79 Wash. 448; 140 Pac. 685; 
 
 R. Co. 233 U. S. 352; 34 Sup. Ct. 591; Chicago, R. I. & P. Ry. Co. v. Holli- 
 
 58 L. Ed. — . day (Okla.) 145 Pac. 786. 
 
 2° North Carolina R. Co. v. Zach- It has been held that where there 
 
 ary, 232 U. S. 248; 34 Sup. Ct. 305; is a failure to bring the suit on the 
 
 58 L. Ed. 591, reversing 15GN. C. 496; Federal Act, but the evidence shows 
 
 72 S. E. 858. a cause of action under it, tliere can 
 
 -' Southern Ry. Co. v. Howerton be no reversal where a state statute 
 
 (Ind.) 105 N. E. 1025. See also forbids a reversal unless there be 
 
 Chicago & N. W. Ry. Co. v. Gray, error affecting the merits of the 
 
 237 U. S. 399; Yazoo & M. V. R. Co. action. Mcintosh v. St. Louis & S. 
 
 V. Wright, 235 U. S. 376; 35 Sup. F. R. Co. 182 Mo. App. 288; 168 
 
 Ct. 130. S. W. 821. 
 
 '■'- Illinois Central R. Co. v. Egan, 
 203 Fed. 9:}7; 122 C. C. A. 239. 
 
 2'WabaHli R. Co. v. Hayes, 234 
 U. S. 86; 31 Sup. Ct. 729; .58 L. Ed. 
 1226, afiirrning ISO 111. App. 511.
 
 APPEAL AND WRIT OF ERROR. 325 
 
 thus having relied upon a state law, is not an estoppel, since 
 the plaintiff and not the defendant had the election how 
 the suit should be brought, and as he relied upon the state 
 law the defendant has no choice if it was to defend upon 
 the facts pleaded.-*' If it be not contended in the lower 
 court that the Federal Act applies, it cannot be so con- 
 tended on appeal.-'^ The question of misjoinder cannot be 
 raised for the first time on appeal.-^* 
 
 § 223. Amount in controversy. — A writ of error lies to 
 review the decision of a Circuit Court of Appeals affirming 
 a judgment of the district court where the matter in con- 
 troversy exceeds one thousand dollars.-^ 
 
 § 224. Penalty assessed against appellant. — Five percent 
 damages will be awarded by the United States Supreme 
 Court under its rule numbered 23 upon an affirmance of a 
 judgment of the Circuit Court of Appeals, where the con- 
 tentions that the interpretation of the Federal Liability Act 
 was involved are wholly lacking in merit, especially where 
 the only questions presented for decision are those of gen- 
 eral law, as to which it does not clearly appear that any 
 error had been committed.-^ 
 
 § 224a. Remittitur of excessive damages. — Where an er- 
 roneous basis was given the jury by the court upon which 
 to estimate the damages, and the court deemed the damages 
 excessive, the court refused to order a remittitur so it could 
 affirm the judgment. "We are not aware," said the court, 
 
 '^ St. Louis, I. M. & S. Ry. Co. v. Where evidence is rejected which 
 
 Hesterly, 228 U. S. 702; 33 Sup. Ct. would have made the defendant's 
 703; 57 L. Ed. 1031, reversing 98 case worse, the error will not be 
 Ark. 240; 135 S. W. 874. reviewed. Chicago & N. W. Ry. Co. 
 
 " St. Louis, I. M. & S. Ry. Co. v. v. Gray, 35 Sup. Ct. 620, affirming 
 Coke (Ark.) 175 S. W. 1177; Graber 153 Wis. 637; 142 N. W. 505. 
 v. Duluth, S. S. & A. R. Co. (Wis.) "' Louisville & N. R. Co. v. Flem- 
 
 150 N. W. 489. ing (Ala.) 69 So. 125. Questions of 
 
 As to what is not a Federal ques- general law, involving no construction 
 tion where a brakeman went between of the Federal Statute, will not be 
 the cars to couple them, in violation reviewed on appeal from a State 
 of a rule of the company, when the Supreme Court. Central Vt. R. Co. 
 couplers would not work, see Minne- v. White, 35 Sup. Ct. 865, affirming 
 apohs, S. & P. S. Ry. Co. v. Popplar, 87 Vt. 330; 89 Atl. 618. 
 35 Sup. Ct. 609, affirming 121 Minn. "' Missouri, K. & T. Ry. Co. v. 
 
 413; 141 N. W. 798; Ann. Cas. 1914 Wulf, 226 U. S. 570; 33 Sup. Ct. 135; 
 D. 383. 57 L. Ed. 274, affirming 192 Fed. 919; 
 
 113 C. C. A. 665. 
 
 29 Southern Ry. Co. v. Gadd, 233 
 U. S. 572; 34 Sup. Ct. 696; 58 L. Ed. 
 — , affirming 207 Fed. 277.
 
 326 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 "of any instance where the practice has been adopted by a 
 Federal appellate court in which the elements of damages 
 were of such indeterminate character that there was no 
 criterion for segregation. In view of the manifest merit of 
 the practice, we are not prepared to hold that it may never 
 be adopted in any case where the verdict is based on these 
 indeterminate elements ; it may sometimes clearly enough, 
 apear from the whole record that the damages resting on 
 the erroneous foundation cannot be more than a certain 
 amount and that there can be no injustice in providing 
 that the verdict may stand if the plaintiff will remit the 
 amount. However this might be, we think the present case 
 is not one of those where a remittitur can be permitted. 
 First, what portion of the whole damages was represented 
 by the verdict after a proportionate deduction on account 
 of contributory negligence; second, what portion of the 
 verdict was considered as damages to the widow ; third, 
 what portion of these damages to the widow was for loss 
 of society as distinguished from loss of support. As the 
 record stands, to sanction a reduction in the judgment now 
 and so to cure the error in the charge would require us 
 either to find an unknown fraction of an unknown portion 
 of an unknown whole, or else to allow so liberally for these 
 uncertainties as to put upon the plaintiff a greater and more 
 unjust burden than is imposed by the award of a new 
 trial. "^° 
 
 '" New York C. & St. L. Ry. Co. v. damages are excessive will not be 
 Niebel, 214 Fed. 952. On an appeal considered. St. Louis, I. M. & So. 
 to the Supreme Court from a State Ry. Co. v. Craft, 35 Sup. Ct. 704; 
 Supreme Court the claim that the 237 U. S. 648, affirming (Ark.) 171 
 
 S. W. 1185.
 
 PART II. 
 
 Safety Appliance Acts.
 
 CHAPTER XIV. 
 
 ORIGIN, OBJECT, CONSTITUTIONALITY AND INTER- 
 PRETATION OF STATUTE. 
 
 SECTION SECTION 
 
 225. Origin of Safety Appliance Act. 230. Interpretation of statute. 
 
 226. Resolution of American Rail- 231. State legislation concerning 
 
 way Association. safety appliances. 
 
 227. Object of statute. 232. Common carrier and railroad 
 
 228. Constitutionality of statute. defined. 
 
 229. Federal control of interstate 
 
 commerce. 
 
 § 225. Origin of Safety Appliance Act. — The origin of 
 the Safety Appliance Act was largely due to President Har- 
 rison, who repeatedly urged its passage upon Congress, both 
 in public messages and privately upon individual congress- 
 men. In his first annual message to Congress on December 3, 
 1889, he used this language : ' ' The attention of the Inter- 
 state Commerce Commission has been called to the urgent 
 need of congressional legislation for the better protection of 
 the lives and limbs of those engaged in operating the great 
 interstate freight lines of the country, and especially of the 
 yardmen and brakemen. A petition, signed by nearly ten 
 thousand railway brakemen, was presented to the commission 
 asking that steps might be taken to bring about the use of 
 automatic brakes and couplers on freight trains. At a meet- 
 ing of state railroad commissioners and their accredited rep- 
 resentatives, held at Washington in March last, upon the 
 invitation of the Interstate Commerce Commission, a resolu- 
 tion was unanimously adopted urging the commission 'to 
 consider what can be done to prevent the loss of life aiud 
 limbs in coupling and uncoupling freight cars and in hand- 
 ling the brakes of such cars.' During the year ending June 
 30, 1888, over two thousand railroad employes were killed in 
 service, and more than twenty thousand injured. It is com- 
 
 329
 
 330 FEDERAL SAFETY APPUANCE ACT. 
 
 petent, I think, for Congress to require uniformity in the 
 construction of cars used in interstate commerce and the use 
 of improved safety appliances upon such trains. Time will 
 be necessary to make the needed changes, but an earnest and 
 intelligent beginning should be made at once. It is a re- 
 proach to our civilization that any class of American work- 
 men should, in the pursuit of a necessary and useful vocation, 
 be subject to a peril of life and limb as great as that of a 
 soldier in time of war. " ^ In his annual message of December 
 1, 1890, President Harrison again said: "It may still be 
 possible for this Congress to inaugurate, by suitable legisla- 
 tion, a movement looking to uniformity and increased safety 
 in the use of couplers and brakes upon freight trains engaged 
 in interstate commerce. The chief difficulty in the way is to 
 secure agreement as to the best appliances, simplicity, ef- 
 fectiveness and cost being considered. This difficulty will 
 only yield to legislation, which should be based upon full in- 
 quiry and impartial tests. The purpose should be to secure 
 the co-operation of all well disposed managers and owners; 
 but the fearful fact that every year 's delay involves the sacri- 
 fice of two thousand lives and the maiming of twenty thou- 
 sand young men should plead both with Congress and the 
 managers against any needless delay."- In his annual mes- 
 sage of December 9, 1891, he again said: "I have twice 
 before urgently called the attention of Congress to the neces- 
 sity of legislation for the protection of the lives of railroad 
 employes, but nothing has yet been done. During the year 
 ending June 30, 1890, 369 brakemen were killed and 7,841 
 maimed while engaged in coupling cars. The total number of 
 railroad employes killed during the year was 2,451, and the 
 number injured 22,390. This is a cruel and largely needless 
 sacrifice. The government is spending nearly $1,000,000 an- 
 nually to save the lives of shipwrecked seamen ; every steam 
 vessel is rigidly inspected and re(piired to adopt the most ap- 
 proved safety appliances. All this is good. But how shall 
 
 ' MesHa^eH and Papers of Presi- = Messajjcs and Papers of the 
 
 dents, Vol. 0, p. 51. Presidents, Vol. 9, p. 126.
 
 ORIGIN, OBJECT, ETC., OF STATUTE. ^31 
 
 we excuse the lack of interest and effort in behalf of this 
 army of brave young men who in our land commerce are 
 sacrificed every year by the continued use of antiquated and 
 dangerous appliances? A law requiring of every railroad 
 engaged in interstate commerce the equipment each year of a 
 given per cent, of its freight cars with automatic couplers 
 and air brakes would compel an agreement between the roads 
 as to the kind of brakes and couplers to be used, and would 
 very soon and very greatly reduce the present fearful death 
 rate among railroad employes." ' In his final annual mes- 
 sage of December 5, 1892, he again alluded to the subject as 
 follows : "In renewing the recommendation which I have 
 made in three preceding annual messages that Congress should 
 legislate for the protection of railroad employes against the 
 dangers incident to the old and inadequate methods of brake- 
 ing and coupling which are still in use upon freight trains, I 
 do so with the hope that this Congress may take action upon 
 the subject. Statistics furnished by the Interstate Commerce 
 Commission show that during the year ending June 30, 1891, 
 there were fortj^-seven styles of car couplers reported to be in 
 use, and that during the same period there were 2,660 em- 
 ployes killed and 26,140 injured. Nearly sixteen per cent, of 
 the deaths occurred in the coupling and uncoupling of cars 
 and over thirty-six per cent, of the injuries had the same 
 origin."* As a result of these messages, President Harri- 
 son, on March 2, 1893, two days before the expiration of his 
 term of office, had the satisfaction of realizing the fruition 
 of his recommendations and endeavors, and in signing the 
 present Safety Appliance Act. On April 1, 1896, Section 6 
 
 ^Messages and Papers of the ling, the demand for protection, 
 
 Presidents, Vol. 9, p. 208. and the necessity of automatic 
 
 * Messages and Papers of the couplers coupling interchangeably. 
 
 Presidents, Vol. 9, p. 331. See Johnson v. Southern Pacific Co. 
 
 also Senate Report of the First 196 U. S. 1 ; 25 Sup. Ct. Rep. 158. 
 
 Session of the 52nd Congress (No. For debates in Congress on the 
 
 1049) and the House Report of Safety Appliance Act. see 24 
 
 the same session (No. 1678), set- Cong. Rec, pt. 2, pp. 1246, 1273, 
 
 ting out the numerous and in- et seq. 
 creasing casualties due to coup-
 
 332 FEDERAL SAFETY APPLI^VNCE ACT. 
 
 of the act was amended; and on IMarch 2, 1903, a supple- 
 mentary act was adopted.^ 
 
 § 226. Resolutions of American Railway Association.— 
 On June 6, 1893, the American Railway Association, pursuant 
 to the provisions of Section 5, adopted and certified to the 
 Interstate Commerce Commission the following resolutions, 
 viz: (1) "Eesolved, That the standard height of draw bars 
 for freight cars, measured perpendicular from the level of 
 the tops of the rails to the center of the draw bars, for 
 standard gauge railroads in the United States, shall be thirty- 
 four and one-half inches, and the maximum variation from 
 such standard heights to be allowed between the draw bars of 
 empty and loaded cars shall be three inches. " (2) Resolved, 
 That the standard height of draw bars for freight cars, 
 measured perpendicular from the level of the tops of the rails 
 to the centers of the draw bars, for the narrow gauge rail- 
 roads in the United States, shall be twenty-six inches, and the 
 maximum variation from such standard height to be allowed 
 between the draw bars of empty and loaded cars shall be 
 three inches." ° 
 
 § 227. Object of statute — Construction,— It is clear that 
 the intention of Congress in the passage of the Safety 
 Appliance Act was to, in a measure secure the safety of 
 
 ' Tlie act provided that auto- provision of the Federal statute, 
 
 malic couplers should be used on authorizing the American Railway 
 
 and after January 1, 1898. but Association to fix the height of 
 
 the Interstate Commerce Comniis- drawbars, is constitutional, and 
 
 sion extended the time two vears. ^I'^it the action of that association 
 
 and subsequentlv seven months i^ valid and binding on interstate 
 
 longer. .Johnson v. Southern Pa- ^-'^^^'^^^ companies. St. Louis I. 
 
 eifie Co supra ^^- ^ «• ^y- Co. v. Neal, 83 Ark. 
 
 cine ^o. supra ^^^^ ^^ ^ ^^^ ^^^ ^^^ ^ ^^ 
 
 " Interstate Commerce Report, , /, . , , • , «? i 
 
 ,£,„„ -. nnn ox T • of this casc ( whicli WRs amrmed, 
 
 1S93 pp. 74, 263 ^t-J^om., ^^ ^ ^^ ^ g ^^ ^_ 
 
 etc., Ry Co v^ lay^r, 210 US. Baylor, 210 U. S. 281; 52 L. Ed. 
 
 2«1' 286; 28 Sup. Ct. Rep 616; j^g^ '33 g ct. 616), see Chi- 
 
 fJ\J'i- w '/ %ol I', '^^ -^^ B. & Q. R. Co. V. United 
 
 .of' II « w ?P- o-o' '■ '^^^t<>s, 220 U. S. 559; 31 Sup. Ct. 
 
 591; 98 f5. W. Kep. Ja;). 612; 55 L. Ed. 582, and Union Bridge 
 
 A state court has held that the ^^ ^ ^r^jted States, 204 U. S. 364; 
 
 27 Sup. Ct. 367.
 
 ORIGIN, OBJECT, ETC., OP^ STATUTE. 
 
 333 
 
 employees of railroads in moving cars in interstate com- 
 merce/ "Obviously the purpose of this statute is the pro- 
 tection of the lives and limbs of men, and such statutes, 
 when the words fairly permit, are so construed as to prevent 
 the mischief and advance the remedy."* "The obvious 
 purpose of the legislature was to supplant the qualified 
 duty of the common law with the absolute duty deemed by 
 it more just. "^^ "The law was intended to protect the 
 lives and safety of all employees, whether they are reason- 
 
 7 United iStates v. Southern Pa 
 cific Oo. 154 Fed. Rep. 897 
 Crawford v. New York, etc., R 
 Co. 10 Amer. Neg. Rep. 166 
 United States v. Southern Ry. Co 
 135 Fed. Rep. 122; St. Louis & 
 S. F. R. Co. V. Delk, 86 C. C. A. 
 9'5; 158 Fed. 9.31; 14 Amer. and 
 Eng. Ann. Gas. 233. Referring to 
 the opinion in this case just cited, 
 altliough reversing it, the Supreme 
 Court of the United States said: 
 "The Circuit Court of Appeals 
 well said, in the present case, that 
 while tlie general purpose of tlie 
 statute was to promote the safety 
 of employees and travelers, its 
 immediate purpose was to providfe 
 a particular mode to effect that 
 result, namely, the equipping of 
 each car used in moving inter- 
 state traffic with couplers, coupling 
 automatieally by impact and which 
 can be uncoupled witliout the neces- 
 sity of men going between the ends 
 of the cars." Delk v. St. Louis & 
 S. F. R. Co. 220 U. S. 580; 31 
 Sup. Ct. 617; 55 L. Ed. 590. 
 
 8 Chicago, etc., R. Oo. v. Voel- 
 ker, 129 Fed. Rep. 522; 65 C. C. 
 A. 65; 70 L. R. A. 264; Sohlem- 
 mer v. Buffalo, etc., R. Go. 205 
 U. S. 1; 27 Sup. Ct. Rep. 407; 51 
 L. Eel 681; reversing 207 Pa. St. 
 398; 56 Atl. 417; Atlantic Coast 
 
 Line R. Co. v. United States, 168 
 Fed. Rep. 175 (decided March 1, 
 1909); Wabash R. Co. v. United 
 States, 168 Fed. Rep. 1 (decided 
 February 3, 1909); Southern Ry. 
 Co. V. Snyder, 187 Fed. 492; 
 United States v. Illinois Cent. R. 
 Cb. 177 Fed. 801. 
 
 "I do not know whether statis- 
 tics are obtainable as to whether 
 the judgments obtained against 
 and expense incurred by the com- 
 panies were greater than those 
 incurred in putting on the auto- 
 matic coupler. But aside from 
 all that, an undoubted purpose of 
 Congress was humanitarian. The 
 purpose was to end the maiming 
 and killing of the vas.t army of 
 men engaged in railroad work. 
 And that the results have been 
 good one now needs but look at the 
 court dockets and the men newer 
 in the railroad service and read 
 the statistics of the past few 
 years." United States v. Chicago, 
 etc., Ry. Oo. 149 Fed. Rep. 486. 
 
 8a St. Louis, I. M. Ry. Co. v. 
 Taylor, 210 U. S. 281; 28 Sup. Ct. 
 61G; 52 L. Ed. 1061; Johnson v. 
 Great Northern Ry. Oo. 178 Fed. 
 643; CMcago, B. & Q. R. Co. v. 
 United States, 220 U. S. 559; 31 
 Sup. Ct. 612; 55 L. Ed. 582.
 
 334 
 
 FEDERAL SAFETY APPLIANCE ACT. 
 
 ably prudent or not."^^ "The Safety Appliance Act is a 
 remedial statute, and must be so construed as to accomplish 
 the intent of Congress. Its provisions 'should not be taken 
 in a narrow sense.' Nor should its undoubted humanitarian 
 purpose be frittered away by judicial construction."^^ "The 
 act upon its face showed that its object was to promote the 
 safety of employees and travelers upon railroads. "^^ 
 
 § 228. Constitutionality of statute. — There is no serious 
 question concerning the constitutionality of the Safety Ap- 
 pliance Act. It has been expressly held to be constitutional.^ 
 
 81 United States v. Chicago, M. & 
 St. P. Ry. Co. Appendix G; United 
 States V. Southern Ry. Co. Appendix 
 G; United States v. St. Louis S. W. 
 Ry. Co. Appendix G; United States 
 V. Chicago Great Western Ry. Co. 
 162 Fed. 775. 
 
 *- Snyder v. Southern Pacific Ry. 
 Co. 187 Fed. 492. 
 
 The construction of the language 
 of the Safety Appliance Acts is 
 not controlled by the language or 
 by the interpretation of the terms 
 of the act to regulate commerce. 
 Pacific Coast R. Co. v. United 
 States, 173 Fed. 448; United 
 States V. Colorado & N. W. R. Co. 
 157 Fed. 321. 
 
 "The amendment of 1903, 32 
 Stat, at L., 943, had three objects: 
 First, to extend the Safety Appli- 
 ance Act to traffic in the District 
 of Columbia and the territories; 
 second, to remove the doubt as to 
 the meaning of tlie term 'cars' as 
 used in the Act, created by the 
 decision of this court in the John- 
 son Case, 117 Fed. 462; third, to 
 enlarge the scope of the Safety 
 Appliance Act, so as to include 
 not only 'the cars, locomotives, 
 tenders, and similar vehicles,' etc. 
 therein referred to, but also to 
 embrace 'all other locomotives, 
 tenders, cars, and similar vehicles 
 VLsex} in connection therewith." 
 Chicago & N. W. Ry. Co. v. 
 United States, 168 Fed. 236. 
 
 " Adair v. United States, 208 U. S. 
 161; 28 Sup. Ct. 277; 52 L. Ed. 436. 
 
 ' United States v. Atlantic, 
 etc., R. Co. 153 Fed. Rep. 918; 
 Pliiladelphia, etc., R. Co. v. Wink- 
 ler, 4 Pennewill (Del.), 387; 
 56 Atl. Rep. 112; affirmed, 4 Del. 
 80; 53 Atl. Rep. 90; Spain v, 
 St. Louis, etc., R. Co. 151 Fed. 
 Rep. 522; Plummer v. Northern 
 Pac. Ry. 152 Fed. Rep. 206; St. 
 Louis, etc., Ry. Co. v. Taylor, 210 
 U. S. 281; 28 Sup. Ct. Rep. 616; 
 52 L. Ed. 1061; S. C. 74 Ark. 
 445; 78 S. W. Rep. 220; 83 
 Ark. 591; 98 S. W. Rep. 959; 
 Union Bridge Co. v. United States, 
 204 U. S. 364; Britfield v. Stana- 
 han, 192 U. S. 470; Kansas City, 
 3tc., R. Co. V. Flippo, 138 
 Ala. 487 ; 35 So. Rep. 457 ; United 
 States V. Chicago, etc., Ry. Co. 
 149 Fed. Rep. 486; United States 
 V. Great Northern Ry. Co. 145 
 Fed. Rep. 438; Chicago Junction 
 Ry. Co. V. King, 169 Fed. 372; 
 United States v. Baltimore & O. 
 R. Co. Appendix — ; Chicago, R. I. 
 & P. Ry. Co. 185 Fed. 80; United 
 States V. Boston & M. R. Co. 168 
 Fed. 148; Southern Ry. Co. v. 
 Snyder, 187 Fed. 492. 
 
 The Act of 1903 (Stat at L., 
 943, Chap. 976) in aid of the 
 statute did not render the original 
 act unconstitutional. United States 
 V. Wheeling & L. E. R. Oo. 167 
 Fed. 198; Southern Ry. Oo. v. 
 United States, 222 U. S. 20; 32
 
 ORIGIN, OBJECT, ETC., OP STATUTE. 335 
 
 In passing upon the Federal Employers' Liability Act in the 
 Supreme Court of the United States, the court refers to two 
 cases ^** as settling the question of the validity of the Safety 
 Appliance Act.^^ In still another case in the United States 
 Supreme Court the question of the validity of the statute 
 was practically^ settled.^- And in a recent decision the 
 validity of this statute has been put at rest by the Supreme 
 Court, even holding that it is valid as to intrastate cars 
 moved over an interstate railroad. The court said: "We 
 come, then, to the question whether those acts are within 
 the power of Congress under the commerce clause of the 
 Constitution, considering that they are not confined to 
 vehicles used in moving interstate traffic, but embrace vehi- 
 cles used in moving intrastate traffic. The answer to this 
 question depends upon another, which is, Is there a real 
 or substantial relation or connection between what is re- 
 quired by those acts in respect of vehicles used in moving 
 intrastate traffic, and the object which the acts obviously 
 are designed to attain; namely, the safety of interstate 
 commerce and those who are employed in its movement? 
 Or, stating it another way. Is there such a close or direct 
 relation or connection between the two classes of traffic, 
 when moving over the same railroad, as to make it certain 
 that the safety of the interstate traffic and of those who 
 are employed in its movement will be promoted in a real 
 or substantial sense by applying the requirements of these 
 acts to vehicles used in moving the traffic which is intra- 
 
 Sup. Ct. 2; 56 L. Ed. 72; affirm- lo Johnson v. Southern Pac. Co. 
 
 ing 164 Fed. 347; Watson v. 196 U. S. 1; 25 Sup. Ct. Rep. 
 
 St. Louis, I. M. & S. Ry. Co. 169 158; 49 L. Ed. 363; reversing 54 
 
 Fed. 942; Adair v. United States, C. C. A. 508; 117 Fed. Rep. 462; 
 
 208 U. S. 167; 38 Sup. Ct. 277; and Sclilemmer v. Buffalo, etc., R. 
 
 52 L. Ed. 436; Atlantic Coast Co. 205 U. S. 1; 27 Sup. Ct. Rep. 
 
 Line v. United States, 168 Fed. 407; 51 L. Ed. 681; reversing 207 
 
 175; Wabash R. Co. v. United Pa. St. 198; 56 Atl. Rep. 417. 
 
 States. 168 Fed. 1; Kelly v. Great n Employee's Liability Act, 207 
 
 Northern Ry. Co. 152*111. 211; U. S. 463;" 28 Sup. Ct. Rep. 143; 
 
 United States v. Wheeling & L. E. 52 L. Ed. 297. 
 
 R. Co. 167 Fed. 198; United States 12 St. Louis, etc., R. Co. v. Tay- 
 
 V. Pennsylvania Co., Appendix. lor, 210 U. S. 281; 28 Sup. Ct. 
 
 Rep. 616; 52 L. Ed. 1061.
 
 336 FEDERAL SAFETY APPLIANCE ACT. 
 
 state as ^vell as to those used in moving that which is inter- 
 state? If the answer to this question, as doubly stated, be 
 in the affirmative, then the principal question must be 
 answered in the same way. And this is so, not because 
 Congress possesses any power to regulate intrastate com- 
 merce as such, but because its power to regulate interstate 
 commerce is plenary, and competently may be exerted to 
 secure the safety of the persons and property transported 
 therein and of those who are employed in such transporta- 
 tion, no matter what may be the source of the danger 
 which threatens it. That is to say, it is no objection to such 
 an exertion of this power that the dangers intended to be 
 avoided were, in whole or in part, out of matters connected 
 with intrastate commerce. Speaking only of railroads 
 which use highways of both interstate and intrastate com- 
 merce, these things are of common knowledge : Both classes 
 of traffic are at times carried in the same car, and when this 
 is not the case, the cars in which they are carried are 
 frequently commingled in the same train and in the same 
 switching and other movements at terminals. Cars are 
 seldom set apart for exclusive use in moving either class 
 of traffic, but generally are used interchangeably in moving 
 both; and the situation is much the same with trainmen, 
 switchmen, and like employees, for they usually, if not 
 necessarily, have to do with both classes of traffic. Besides, 
 the several trains on the same railroad are not independent 
 in point of movement and safety, but are interdependent; 
 for whatever brings delay or disaster to one, or results in 
 disabling one of its operatives, is calculated to injure the 
 progress and imperil the safety of other trains. And so 
 the absence of appropriate safety appliance from any part 
 of any train is a menace not only to that train, but to others. 
 These practical considerations make it plain, as we think, 
 that the questions before stated must be answered in the 
 affirmative.'"-^ 
 
 I'jfi Soutliem Ry. Co. United 104 Fed. 347. For a criticism of 
 
 Stati'H, 222 U. S. 20; 32 Sup. tliis decision, sec 73 Cent. L. Jr. 
 
 C't 2- 50 L. Ed. 72; ;i(lirniiiu' 423. To same effect is Texas & P. 
 
 ' Ky. Co. V. Kigsby, 222 Fed. 221.
 
 ORIGIX, OBJECT, ETC., OF STATUTE. 337 
 
 § 229. Federal control of interstate commerce. — ' ' The 
 
 power to regulate eoinnierce among the states is general 
 and includes authority to regulate all its parts, (1) the sub- 
 jects of commerce, the articles, information, intelligence 
 transported from state to state; (2) the transactions of com- 
 merce, the merchants, carriers, laborers who carry it on ; 
 (3) the means, the vehicles, the cars, steamboats, coaches, 
 wagons by which subjects of commerce are carried; (4) the 
 operation, the contracts, terms, rates under w^hich it is con- 
 ducted."^ "In so far as commerce can be regulated and 
 controlled, it falls within the power of a state or of Congress. 
 To say that it falls within the power of neither is to argue 
 an absurdity, and to say tliat up in the air somewhere is a 
 subject-matter not grappled with by either the state or 
 nation. I do not for one moment believe in that kind of 
 talk."- "The people of the United States carved out of 
 their sovereign power, reserved from the states, and granted 
 to the Congress of the United States exclusive and plenary 
 power to regulate commerce among the states and with for- 
 eign nations. That power is not subordinate, but is para- 
 mount to all the powers of the states. If its independent 
 and lawful exercise of this congressional power and the 
 attempted exercise by a state of any of its powers infringe 
 or conflict, the former must prevail and the latter must give 
 w^ay. The Constitution and the acts of Congress passed in 
 pursuance thereof are the supreme law" of the land. "^ One 
 system of regulation of interstate commerce is alone ap- 
 propriate ;* and a state statute which attempts to regulate 
 interstate commerce or conflicts with a valid Federal regu- 
 lation of such commerce is void.^ And this true even though 
 
 1 United States v. Colorado & N. W. R. Co. 157 Fed. 321; Wabash R. 
 
 W. R. Co. 157 Fed. 321. Co. v. United States, 168 Fed. 1. 
 
 - United States v. Chicago & M. " United States v. Southern Ry. Co. 
 
 St. P. Ry. Co. 149 Fed. 486. 164 Fed. 347. 
 
 3 United States v. Colorado <fe N. ^ Northern Pacific Ry. Co. v. State,
 
 338 
 
 FEDERAL SAFETY APPLIANCE ACT. 
 
 the limitations of the state enactment are less stringent 
 than those permitted by the Federal statute.*' But a state 
 statute which merely regulates the instrumentalities of com- 
 merce without encroaching upon the prerogatives of the 
 Federal government is valid as an exercise of the police 
 power of the state.'^ The safety appliance act of a state is 
 not invalid as being repugnant to the Federal Acts if the 
 provisions of the former are consistent with the latter with 
 respect to the appliances prescribed.® In the regulation of 
 interstate commerce Congress may incidentally regulate in- 
 trastate or local commerce.^ The regulation of interstate 
 commerce conprehends the power to regulate its agencies 
 and instrumentalities ;^° and the rails and roadway of, as 
 well as the cars used on, interstate railroads are instru- 
 mentalities of interstate commerce.^^ The obstruction of 
 interstate commerce is unlawful.^^ 
 
 222 U. S. 370; 32 Sup. Ct. 160; 56 
 L. Ed. 237; Erie R. Co. v. New York, 
 233 U. S. 671; 34 Sup. Ct. 756; 58 
 L. Ed. 1149. reversing 198 N. Y. 369; 
 91 N. E. 849; Detroit, T. & I. Ry. 
 Co. V. State, 91 N. E. 869; State v. 
 Missouri Pacific Ry. Co. Ill S. W. 
 500; State v. Texas & N. O. R. Co. 
 124 S. W. 984; State v. Wabash R. 
 Co. 141 S. W. 646; State v. Northern 
 Pacific Ry. Co. 93 Pac. 945; State 
 V. Chicago, AI. & St. P. Ry. Co. 117 
 N. W. 686. 
 
 « State V. Chicago, M. & St. P. Ry. 
 Co. 117 N. W. 686; State v. Northern 
 Pacific Ry. Co. 93 Pac. 945; State v. 
 Missouri Pacific Ry. Co. Ill S. W. 
 501; State v. Texas & N. O. R. Co. 
 124 S. W. 984; State v. Wabash R. 
 Co. 141 S. W. 646; Erie R. Co. v. 
 New York, 233 U. S. 671; 34 Sup. 
 Ct. 756; 58 L. Ed. 1149, reversing 198 
 N. Y. 369; 91 N. E. 849. 
 
 7 Detroit, T. & I. Ry. Co. v. State, 
 91 N. E. 869. 
 
 * Southern Ry. Co. v. Railroad 
 
 Com., 179 Ind. 23; 100 N. E. 337; 
 Luken v. Lake Shore & M. S. Ry. Co. 
 94 N. E. 175; Pittsburg, C. C. & St. 
 L. Ry. Co. V. State, 87 N. E. 1034. 
 
 ^ Southern Ry. Co. v. United States, 
 222 U. S. 20; 32 Sup. Ct. 2; 56 L. Ed. 
 72. 
 
 " United States v. Great Northern 
 Ry. Co. 145 Fed. 438; United States 
 v. Southern Ry. Co. 164 Fed. 347. 
 
 ^' United States v. Southern Ry. 
 Co. 164 Fed. 347; United States v. 
 Wheeling & L. E. R. Co. 167 Fed. 
 198. 
 
 ^- United States v. Southern Ry. 
 Co. 164 Fed. 347; Debs Case, 158 
 U. S. 564; 15 Sup. Ct. 900; 39 L. 
 Ed. 1092. 
 
 The statute applies to Porto Rico 
 by reason of the Foraker Act of April 
 12, 1900 (31 Stat, at L. 80, chap. 19, 
 § 14). American R. Co. v. Did- 
 rickson, 227 U. S. 145; 33 Sup. Ct. 
 224; 57 L. Ed. 456, reversing 5 Porto 
 Rico, Fed. Rep. 401, 427.
 
 ORIGIN, OBJECT, ETC., OP STATUTE. 339 
 
 § 230. Interpretation of statute. — The statute is to be 
 construed liberally, as it were, for the protection of the em- 
 ploye. It requires of the railroad company a strict com- 
 pliance with its terms. It was enacted for the preservation of 
 the life and limbs of the employe, and to place upon the em- 
 ployer, so far as possible, the burden of the loss the employe 
 has sustained by reason of his employer having failed to com- 
 ply with the requirements of the statute in the construction 
 or car eouplers.^^ In a suit by the United States against a 
 railroad to recover a penalty, it has been held that the ac- 
 tion is a criminal one and the same interpretation should be 
 applied to the statute as is applied to the usual 
 penal statute.^* On the other hand, in a suit by 
 the United States, it is said: "This act of Con- 
 gress is a, remedial statute, and it is the duty of the court to 
 so construe its provisions as to accomplish the intent of Con- 
 gress — to protect the lives and limbs of men engaged in inter- 
 state commerce. "^^ "The primary object of the act," said 
 Chief Justice Fuller, "was to promote the public welfare by 
 securing the safety of employes and travelers, and it was in 
 that aspect remedial, while for violation a penalty of one 
 hundred dollars, recoverable in a civil action, was provided 
 for, and in that aspect was penal. But the design to give 
 relief was more dominant than to infliet punishment, and the 
 act might well be held to fall within the rule applicable to 
 statutes to prevent fraud upon the revenue, and for the col- 
 lection of customs, that rule not requiring absolute strictness 
 
 " Plummer v. Northern Pac. Ry. 486; United States v. Great Northern 
 
 152 Fed. Rep. 206; United States v. Ry. Co. 150 Fed. Rep. 229; Southern 
 
 Atlantic, etc., R. Co. 153 Fed. Rep. Ry. Co. v. Crockett, 234 U. S. 725; 
 
 918; Wabash R. Co. v. United States, 34 Sup. Ct.897; 58 L.Ed. 1564; United 
 
 168 Fed. Rep. 1 (decided February 3, States v. Chicago, M. & P. S. Ry. 
 
 1909), see St. Louis, etc., Ry. Co. v. Co. 197 Fed. 624; United States v. 
 
 Taylor, 210 U. S. 281; 28 Sup. Ct. Denver & R. G. R. Co. 197 Fed. 629; 
 
 Rep. 616; 52 L. Ed. 1061; s. c. 74 Pennell v. Philadelphia & R. Ry. Co. 
 
 Ark. 445; 78 S. W. 220; 83 Ark. 591; 231 U. S. 675; 34 Sup. Ct. 220; 58 
 
 98 S. W. Rep. 959; Schlemmer v. L. Ed. 430, affirming 203 Fed. 681; 
 
 Buffalo, etc., R. Co. 205 U. S. 1; Southern Ry. Co. v. United States, 
 
 27 Sup. Ct. Rep. 407; 51 L. Ed. 681, 222 U. S. 20; 32 Sup. Ct. 2; 56 L. 
 
 reversing 207 Pa. St. 198; 56 Atl. Ed. 72. 
 
 Rep. 417; United States v. El Paso, '* United States v. lUinois Cent, 
 
 etc., R. Co. reported in Appendix; R. Co. 156 Fed. Rep. 182. 
 
 United States v. Southern Ry. Co. '* United States v. Central of Ga. 
 
 135 Fed. Rep. 122; United States v. Ry. 157 Fed. Rep. 893. 
 Chicago, etc., R. Co. 149 Fed. Rep.
 
 340 
 
 FEDERAL, SAFETY APPIJANCE ACT. 
 
 of construction."^^ The construction of the language of 
 the Safety Appliance Act is not controlled by the inter- 
 pretation of the terms of the act to regulate commerce. ^^ 
 
 § 231. State legislation concerning safety appliances. — 
 
 In a number of states, laws have been enacted with ref- 
 erence to safety appliances on railroad locomotives, cars 
 and vehicles; and it is important to know whether those 
 laws are valid in view^ of the power of Congress to legis- 
 late upon that subject under the interstate commerce clause. 
 Although broad enough in its terms, the Federal Safety 
 Appliance Act does not apply to cars wholly engaged in 
 intrastate commerce and not used on a highway of inter- 
 state commerce.^^ The state of Ohio enacted a law in 
 almost the exact language of the Federal Safety Appliance 
 Act with reference to automatic couplers, but limited it to a 
 "locomotive, car, tender, or similar vehicle used in moving 
 state traffic." In an action against an interstate railroad 
 
 " Johnson v. Southern Pac. Ry. 
 Co. 196 U. S. 1; 25 Sup. Ct. Rep. 
 158, reversing 54 C. C. A. 508; 117 
 Fed. Rep. 462; United States v. 
 Colorado, etc., R. Co. 157 Fed. Rep. 
 321; Chicago, etc., R. Co. v. King, 
 
 169 Fed. Rep. 372 (decided February 
 3, 1909); Wabash Ry. Co. v. United 
 States, 168 Fed. Rep. 1 (decided 
 February 3, 1909); Atlantic, etc., R. 
 Co. V. United States, 168 Fed. Rep. 
 175 (decided March 1, 1909). 
 
 "The act of Congress is a remedial 
 statute, and it is the duty of the court 
 to so construe its provisions as to 
 accomplish the intent of Congress — 
 to protect the lives and limbs of men 
 engaged in interstate commerce." 
 United States v. Central of Ga. Ry. 
 Co. 157 Fed. Rep. 893; Southern Ry. 
 Co. v. Snyder, 187 Fed. 492; United 
 States V. Baltimore & O. Ry. Co. 
 
 170 Fed. 456; Southern Ry. Co. v. 
 Crockett, 234 U. S. 725; 34 Sup. Ct. 
 725; 58 L. Ed. — ; United States v. 
 Southern Ry. Co. 135 Fed. 122; 
 United States v. Chicago, B. & Q. 
 Ry. Co. 156 Fed. 180; United States 
 V. Central of Georgia Ry. Co. 157 
 Fed. 893; Unitf^d States v. Southern 
 Ry. Co. 170 Fed. 1014; United States 
 V. Chicago, R. I. & r. Ry. Co. 173 
 Fed. 084; United States v. Illinois 
 Central R. Co. 177 Fed. 801; United 
 States v. St. Louis S. W. Ry. Co. 
 184 Fed. 28; Southern Ry. Co. v. 
 Snyder, 187 Fed. 492; Gray v. 
 Louisville <t N. R. Co. 197 Fed. 874; 
 United States v. Pere Marquette 
 R. Co. 211 Fed. 220; Lake Shore 
 
 & M. S. Ry. Co. V. Benson, 97 N. 
 E. 417; La Mere v. Ry. Trans. Co. 
 125 Minn. 159; 145 N. W. 1068; 
 Missouri Pacific v. Brinkmeier, 77 
 Kan. 14; 93 Pac. 621; Luken v. 
 Lake Shore & M. S. Ry. Co. 154 111. 
 App. 550; United States v. St. Louis 
 S. W. Ry. Co. 189 Fed. 954; United 
 States V. Chicago, M. & P. S. Ry. 
 Co. 197 Fed. 624; United States v. 
 Atlantic Coast Line R. Co. 211 Fed. 
 897; United States v. Northern 
 Pacific Ry. Co. 213 Fed. 539. 
 
 " Pacific Coast Ry. Co. v. United 
 States, 173 Fed. 448 (but see United 
 States V. Geddes, Appendix); United 
 States V. Chicago G. W. Ry. Co. 
 162 Fed. 775; Voelker v. Chicago, M. 
 & St. P. Ry. Co. 116 Fed. 867; United 
 States V. Chicago, R. I. & P. Ry. Co. 
 173 Fed. 684; United States v. 
 Chicago, M. & St. P. Ry. Co. 149 
 Fed. 486; United States v. Southern 
 Ry. Co. 135 Fed. 122; United States 
 V. Southern Ry. Co. 170 Fed. 1014; 
 United States v. Atlantic Coast Line 
 R. R. Co. 153 Fed. 918; United 
 States v. Illinois Central P. R. Co. 
 150 Fed. 182; United States v. 
 Chicago & N. W. Ry. Co. 157 Fed. 
 616; United States v. Terminal R. 
 Assn. Appendix G. 
 
 '8 Loui.sville & N. R. Co. 186 Fed. 
 280; Employers' Liability Cases, 
 207 U. S. 463; 28 Sup. Ct. 141; 52 
 L. Ed. 297; United States v. Erie 
 R. Co. 166 Fed. 352; Detroit, T. & 
 I. Ry. Co. V. State, 83 Ohio St. 273; 
 94 N. E. 175.
 
 ORIGIN, OBJECT, ETC., OF STATUTE. ^^l 
 
 company to recover a penalty for failing to equip a railroad 
 car "moving in state traffic," the defendant set up that the 
 car was used on its interstate railroad and was not therefore 
 subject to the Ohio statute. In the discussion of the case 
 counsel for the defendant road asked three questions, and 
 contended that each of them should receive an answer in 
 the affirmative: "(1) Does the fact that the car in question 
 was commonly and usually employed in interstate traffic, 
 although it was at the particular time actually carrying 
 intrastate traffic, subject it to the Federal control in such 
 wise as to take it out of state control? (2) Does the fact 
 that it was a part of a train containing other cars loaded 
 with interstate traffic (and which are therefore subject to 
 the Federal Act) have the effect to bring this particular car 
 also within the operation of the Federal Act in such wise as 
 to take it out of state control? (3) Does the fact that the 
 railroad was commonly and usually employed in interstate 
 commerce and that defendant was engaged in business as 
 an interstate carrier, have such effect?" The court an- 
 swered each of those questions in the negative, saying: "If 
 the statute regulates interstate commerce, or creates regu- 
 lations in conflict with Federal regulation of such commerce, 
 it is invalid. In Atlantic Coast Line Railroad Company v. 
 Wharton,^^ it is held that 'Any exercise of state authority, 
 whether made directly or through the instrumentalities of 
 a commission, which directly regulates interstate commerce 
 is repugnant to the commerce clause of the Federal 
 Constitution.' The statute in question does not purport to 
 be a regulation of interstate traffic, but is limited strictly 
 to the moving of traffic from one point to another in the 
 state, and it is evident from its various requirements as well 
 as its title that it was passed in the exercise of the police 
 po%ver of the state to promote the safety in the state of 
 employees and travelers upon railroads, and without any 
 thought or intention of meddling with interstate commerce." 
 
 18 207 U. S. 328; 28 Sup. Ct. 121; 52 L. Ed. 230.
 
 342 FEDERAL SAFETY APPLIANCE ACT. 
 
 The court then quoted from the Federal Safety Appliance 
 Act as well as from a Federal decision -** passing upon a 
 state statute on the subject of automatic couplers, and says : 
 "Our statute does not conflict with the Federal statute in 
 the character of the coupler, but require the same kind 
 of coupler, and was passed to promote the same object, 
 though under a different power, and, while no doubt it was 
 enacted to apply to cars assumed not to be covered by the 
 Federal statute, it is not unreasonable, and is not void 
 merely because a failure to equip the car with automatic 
 couplers would subject the railroad company to punishment 
 under a state statute, as well as under the act of Congress. 
 'The same act or service of act may constitute an offense 
 equally against the United States and the state, subjecting 
 the guilty party to punishment under the laws of each 
 government.'*^ The regulation of commerce among the 
 states is within the exclusive jurisdiction of Congress, but it is 
 well-settled that a state statute, enacted in the exercise of its 
 police power, not regulating or directly affecting inter- 
 state commerce or in conflict with Federal regulation, but 
 merely regulating the instrumentalities of commerce, is not 
 void; and when such state regulations do conflict with 
 Federal regulations they are not void on the ground that 
 the state has exercised a power exclusively in Congress, 
 but because the Constitution and the laws of the United 
 States made in pursuance thereof are the supreme laws of 
 the land." The court then quotes from Ashell v. Kanas,'^ 
 that "while the state may not legislate for the direct control 
 of interstate commerce, a proper police regulation which 
 does not conflict with the Congressional legislation on the 
 subject involved is not necessarily unconstitutional, because 
 it may have an indirect effect upon interstate commerce," 
 and also from Missouri Pacific Railway Company v. Lara- 
 
 zoVoelker v. Chicago, M. & U. S. (131; 10 Sup. Ct. 47; 46 
 
 ,St. P. Ky. Co. 12)9 Fed. 522; re- L. Ed. 
 
 versing 110 led. 807. -2 200 U. S. 261; 28 Sup. Ct. 
 
 2iCroB.-4 V. North Carolina, 132 4«5; 52 L. Ivd. 778.
 
 ORIGIN, OBJECT, ETC., OF STATUTE. 343 
 
 hee Flour Mills Company,-^ when a peremptory writ of man- 
 damus was allowed by the Supreme Court of Kansas, com- 
 manding one railroad company to transfer cars to and from 
 a mill or another railroad, and which was affirmed, in which 
 it was said by Mr. Justice Brewer: "The roads are, there- 
 fore, engaged in both interstate commerce and that within 
 the state. In the former they are subject to the regulation 
 of Congress ; in the latter to that of the state, and to enforce 
 the proper relation between Congress and the state, the full 
 control of each over the commerce subject to its dominion 
 must be preserved." "Running through the entire argument 
 of counsel for the Missouri Pacific is the thought that the 
 control of Congress over interstate commerce and a dele- 
 gation of that control to a commission necessarily withdraws 
 from the state all power in respect to regulation of a local 
 character. This proposition cannot be sustained." The 
 court also quotes from the dissenting opinion of Mr. Justice 
 Moody: "I venture to think that the weight of authority 
 establishes the following principles : The commerce laws of 
 the Constitution vests the power to regulate interstate com- 
 merce exclusively in the Congress and leaves the power to 
 regulate intrastate commerce exclusively in the states. 
 Both powers being exclusive, neither can be directly ex- 
 cised except by the government in which it is vested. 
 Though the state may not directly control interstate com- 
 merce, it may often indirectly affect that commerce by the 
 exercise of other governmental powers with which it is 
 undoubtedly clothed. And this indirect affect may be al- 
 lowed to operate until the Congress enacts legislation con- 
 flicting with it, to which it must yield as the paramount 
 power." The Ohio court then adds: "It follows that the 
 question propounded by counsel should receive a negative 
 answer. ' ' -* But in view of the recent decision of the 
 
 23 211 U. S. 612; 29 Sup. Ct. A similar decision has been ren- 
 214; 53 L. Ed. 352. dered upon a Nebraska statute 
 
 24 Detroit, T. & I. Ry. Co. v. which provided that "in all actions 
 State, i82 Ohio .St. 60; 91 N. E. hereafter brought against any rail- 
 869. way company to recover damages
 
 314 
 
 FEDERAL SAFETY APPLIANCE ACT. 
 
 Supreme Court of the United States holding that intrastate 
 ears moving on " a highway of interstate commerce, " ^^ it 
 may be questioned whether the Oliio statute is not void; for 
 the Federal Safety Appliance Act applies in exactly the 
 same way to cars and in state commerce in Ohio as does the 
 Ohio statute; and Congress having taken over to itself 
 legislation on that point, can the state legislate upon it? 
 But we think the answer to this is that so long as the 
 statutes are identical in effect as applied to intrastate com- 
 merce, the state may inflict punishment for failure to 
 comply with its own statute, and Congress may likewise do 
 so with reference to its own statute."® 
 
 § 232. Common carrier and railroad defined. — The stat- 
 ute only applies to "any common carrier engaged in inter- 
 state commerce by railroad." A common carrier has thus 
 been defined: "A common or public carrier is one who by 
 virtue of his business or calling undertakes, for compensa- 
 
 for personal injuries to any employee 
 or when such injuries have resulted 
 in his death the fact that such em- 
 ployee may have been guilty of 
 contributory negligence shall not 
 bar a recovery when his contributory 
 negligence was slight and that of the 
 employer was gross in comparison, 
 but damages shall be diminished by 
 the jury in proportion to the amount 
 of negligence attributable to such 
 employee." Pacific Ry. Co. v. 
 Castle, 172 Fed. 841. 
 
 A state statute regulating the speed 
 of railway trains at highway cross- 
 ings is not invalid as applied to inter- 
 state trains, Congress not having 
 legislated on the subject. Southern 
 Ry. Co. V. King, 217 U. S. 524; 
 30 Sup. Ct. 594; 54 L. Ed. 8G8, affirm- 
 ing 100 Fed. 3.32; 87 C. C. A. 284. 
 
 '■^^ See section 243. 
 
 '* The Ohio statute requires the 
 coupling to be so constructed that 
 it will couple by impact. McGarvey 
 V. Detroit, T. & I. Ry. Co. 83 Ohio 
 St. 273; 94 X. E. 424. 
 
 The Illinois statute, almost iden- 
 tical with the Federal .statute, has 
 been held constitutional. Luken v. 
 
 Lake Shore & M. S. Ry. Co. 248 111. 
 377; 94 N. E. 175. 
 
 The Texas statute is constitutional. 
 Freeman v. Swan, (Tex. Civ. App.) 
 143 S. W. 724. 
 
 The validity of the Nebraska 
 statute (Comp. Stat. 21, §§ 3 and 4) 
 insofar as it imposes liability upon a 
 railway company for injury to an 
 employee engaged in interstate com- 
 merce, arising from the negligence 
 of an employee, and modifying the rule 
 of contributory negligence, is not 
 affected because such statute also 
 covers subjects dealt with by the 
 Federal Safety Appliance Acts, such 
 as acts of negligence of railway com- 
 panies in respect of their cars, road- 
 bed, machinery, etc. Missouri Pacific 
 Ry. Co. V. Castle, 224 U. S. 541; 
 32 Sup. Ct. 600; 50 L. Ed. 875. 
 
 State legislation applying to inter- 
 state cars is void. Cleveland, C. C. 
 & St. L. Ry. Co. V. Public Service 
 Commission (Ind.) 108 N. E. 515; 
 Southern Ry. Co. v. Ry. Commission, 
 2.36 U. S. 4.39; 35 Sup. Ct. 304; 54 L. 
 Ed.—, reversing 179 Ind. 23; 100 
 N. E. 337.
 
 ORIGIN, OBJECT, ETC., OF STATUTE. 34.5 
 
 tion, to transport personal property from one place to an- 
 other, either by land or water, and deliver the same, for all 
 such as may choose to employ him ; and every one who 
 ■undertakes to carry and deliver, for compensation, the 
 goods of all persons indifferently is, as to liability, to be 
 deemed a common carrier."-^ "A railroad has been defined 
 as a road or way on which iron rails are laid for wheels to 
 run over for the conveyance of heavy loads and vehicles.-* 
 Such a track is a railroad independently of the use made 
 of the track in hauling of cars over it."-'* 
 
 " Moore on Carriers quoted by Shore & M. S. R. Co. v. United 
 
 Judge Munger in United States v. States, 93 U. S. 442. 
 Ramsey, 197 Fed. 144. "Railroads" are defined in the 
 
 -* Citing Dinsniore v. Racine M. Interstate Commerce Act. 24 Stat. 
 
 R. Co. 12 Wis. G49. at L. 379, as amended 34 Stat, at L. 
 
 2« United States v. Union Stock 584. 
 Yards Co. 161 Fed. 919, citing Lake
 
 CHAPTER XV. 
 
 USE IN INTERSTATE TRAFFIC. 
 
 SECTION 
 
 233. What is interstate commerce — ■ 
 
 Test. 
 
 234. What is interstate commerce. 
 
 235. Illustrations of interstate com- 
 
 SECTION 
 
 commission of offense — Use 
 
 of car. 
 251. Car not used in interstate 
 
 commerce. 
 Interstate car in "connection" 
 
 with intrastate car. 
 Use of car in interstate com- 
 merce. 
 Temporary suspension of trans- 
 portation. 
 Permitting cars to be hauled 
 
 over its line. 
 Defendant hauling cars over 
 
 another company's line of 
 
 railway. 
 Freight designed for another 
 
 state — Not yet left the first 
 
 state. 
 Intrastate traffic — Narrow 
 
 gauge railroad wholly within 
 
 state. 
 Intrastate railroad engaged in 
 
 carrying interstate commerce 
 
 articles. 
 United States against Geddes 
 
 denied. 
 Effect of the case of Southern 
 
 Railway Company against 
 
 United States on Geddes and 
 
 Colorado cases. 
 Burden — Reasonable doubt. 
 
 §233. What is interstate commerce— Test. — "Importa- 
 tion into one state from another," said Judge Sanborn, "is 
 the indispensable element in the test of interstate commerce. 
 Every part of every transportation of articles of commerce in 
 a continuous passage from an inception in one state to a pre- 
 316 
 
 
 merce. 
 
 252. 
 
 236. 
 
 Interterritorial commerce — Act 
 
 
 
 of 1903. 
 
 253. 
 
 237. 
 
 Use of car forbidden. 
 
 
 238. 
 
 "Haul," "used," and "train" 
 defined. 
 
 254. 
 
 239. 
 
 Inhibition of statute — Car em- 
 ployed in interstate traffic. 
 
 255. 
 
 240. 
 
 Car in use, what is. 
 
 256. 
 
 241. 
 
 Empty car in interstate train. 
 
 
 242. 
 
 Hauling or using car not loaded 
 
 
 
 with interstate trafiic in inter- 
 
 257. 
 
 
 state train. 
 
 
 243. 
 
 Intrastate car on interstate 
 
 
 
 railroad. 
 
 258. 
 
 244. 
 
 Transportation of articles of 
 interstate commerce for an 
 
 
 
 independent express com- 
 
 259. 
 
 
 pany. 
 
 
 245. 
 
 Distance defective car hauled. 
 
 
 246. 
 
 Switching car. 
 
 260. 
 
 247. 
 
 Belt railroad — Terminal road. 
 
 
 248. 
 
 Car on spur track. 
 
 261. 
 
 249. 
 
 Used in moving interstate 
 traffic — Sending car to re- 
 pair shop — Making up train. 
 
 
 250. 
 
 Hauling car not essential to 
 
 262.
 
 USE IN INTERSTATE TRAFFIC. 34-7 
 
 scribed destination in another is a transaction of interstate 
 commerce. Goods so carried never cease to be articles of in- 
 terstate commerce from the time they are started upon their 
 passage in one state until their delivery at their destination 
 in the other is completed, and they there mingle with and be- 
 come a part of the great mass of property within the latter 
 state. Their transportation never ceases to be a transaction 
 of interstate commerce from its inception in one state until 
 the delivery of the goods at their prescribed destination in 
 the other, and every one who participates in it, who carries 
 the goods through any part of their continued passage, un- 
 avoidably engages in interstate commerce."^ 
 
 § 234. What is interstate commerce.— In discussing the 
 question of interstate commerce and what it is, the Supreme 
 Court of the United Stat-es used the following language, 
 which has been applied in the construction of the Safety 
 Appliance Act : "In this case it is admitted that the steamer 
 was engaged in shipping and transporting down Grand river 
 goods destined and marked for other states than ]\Iichigan, 
 and in receiving and transporting up the river goods brought 
 
 1 United States v. Colorado, etc., Rep. 139 ; Caldwell v. North Caro- 
 R. Co. 157 Fed. Rep. 321; citing lina, 187 U. S. 622; 23 Sup. Ct. 
 Rhodes v. Iowa, 170 U. S. 412; Rep. 229; 47 L. Ed. 336; reversing 
 18 Sup. Ct. Rep. 664; 42 L. Ed. 127 K C. 521; 37 S. E. Rep. 138. 
 1088; reversing 90 Iowa, 496; 58 The act approved March 2, 1903, 
 N. W. Rep. 887; 21 L. R. A. 245; is not unconstitutional, and the 
 Kelley v. Rhoades, 188 U. S. 1; Employers' Liability Cases, 207 U. 
 23 Sup. Ct. Rep. 259; 47 L. Ed. S. 463; 28 Sup. Ct. Rep. 143; 52 
 359; reversing 9 Wyo. 352; 87 L. Ed. 297, is not in point; for the 
 Am. St. Rep. 959; 63 Pac. Rep. statute then under consideration 
 935; Houston, etc., Co. v. Ins. applied to the individuals or cor- 
 Co. 89 Tex. 1; 32 S. W. Rep. porations engaged in interstate 
 889; 30 L. R. A. 713; 53 Am. St. commerce, whereas the Automatic- 
 Rep. 17; Leisy v. Hardin, 135 Safety Appliance Act is addressed 
 U. S. 100; 10 Sup. Ct. Rep. 681; alone to an instrument of inter- 
 34 L. Ed. 128; reversing 78 Iowa, state commerce, viz., an interstate 
 286- 43 N W 188; Lyng v. railroad. United States v. South- 
 Michigan, 135 U."s. 161; 10 Sup. em Ry. Co 164 Jed Rep 347; 
 Ct. R^p. 725; 34 L. Ed. 150; re- affirmed, 222 U. S. 20; 32 Sup. 
 versing 74 Mich. 579: 42 N. W. ^- ^■' ^^ ^ ^^'
 
 348 FEDERAL SAFETY APPLIANCE ACT. 
 
 withiu the state from without its limits; but inasmuch as her 
 agency in the transportation was entirely within the limits 
 of the state, and she did not run in connection with, or in 
 continuation of, any line of vessels or railway leading to 
 other states, it is contended that she was engaged entirely in 
 domestic commerce. But this conclusion does not follow. So 
 far as she was employed in transporting goods destined for 
 other states, or goods brought from without the limits of 
 Michigan and destined to places within that state, she was 
 engaged in commerce between the states, and however limited 
 that commerce may have been, she w^as, so far as it went, sub- 
 ject to the legislation of Congress. She was employed as an 
 instrument of that commerce, for whenever a commodity has 
 begun to move as an article of trade from one state to an- 
 other, commerce in that commodity between the states has 
 commenced. The fact that several different and independent 
 agencies are employed in transporting the commodity, some 
 acting entirely in one state, and some acting through two or 
 more states, does in no respect affect the character of the 
 transaction. To the extent in which each agency acts in that 
 transportation, it is subject to the regulation of Congress. 
 It is said that if the position here asserted be sustained, there 
 is no such thing as the domestic trade of a state ; that Con- 
 gress may take the entire control of the commerce of the 
 country, and extend its regulations to the railroads within a 
 state on which grain or fruit is transported to a distant 
 market. We answer that the present case relates to trans- 
 portation on the navigable waters of the United States, and 
 we are not called upon to express an opinion upon the power 
 of Congress over interstate commerce when carried on by land 
 transportation. And we answer further, that we are unable 
 to draw any clear and distinct line between the authority of 
 Congress to regulate an agency employed in commerce be- 
 tween the states, when that agency extends through two or 
 more states, and when it is confined in its action entirely 
 within the limits of a single state. If its authority does not 
 extend to an agency in such commerce, when that agency is 
 confined within the limits of a state, its entire authority over
 
 USE IN INTERSTATE TRAFFIC. 
 
 349 
 
 interstate commerce may be defeated. Several agencies com- 
 bining, each taking up the commodity transported at the 
 boundary line at one end of a state, and leaving it at the 
 boundary line at the other end, the Federal jurisdiction 
 would be entirely ousted, and the constitutional provision 
 would become a dead letter. "- 
 
 § 235. Illustrations of interstate commerce. — ' ' By inter- 
 state commerce is meant traffic that is moved from one 
 state or territory into or through some other state or terri- 
 tory."^ Transportation from one state through another to 
 a Canadian province is interstate commerce ;* so is traffic 
 hauled from one point in a state to another point in the 
 same state, passing en route through a portion of another 
 state.^ The interstate character of a shipment attaches 
 Avhen it begins to move as an article of interstate commerce, 
 and continues until its ultimate destination is reached.® 
 Stoppage in a car yard is a mere incident of the transpor- 
 
 2 The Daniel Ball, 10 Wall. 557, 
 19 L. Ed. 999, reversing Brown, 
 Admr. Cas. 193; Fed. Cas. No. 3564, 
 used in United States v. Colorado, 
 etc., Ry. Co. 157 Fed. Rep. 321; 
 Elgin, etc., R. Co. v. United States, 
 168 Fed. Rep. 1; United States v. 
 Great Western Ry. Co. 162 Fed. 775; 
 United States v. Central of Georgia, 
 157 Fed. 893; Northern Pacific Ry. 
 Co. V. State, 222 U. S. 370; 32 Sup. 
 Ct. 160; 56 L. Ed. 237. 
 
 A car billed on defendant's line 
 of railroad in Illinois to a destina- 
 tion in Missouri is a car used in mov- 
 ing interstate traffic, although the 
 defendant does not haul the car from 
 one state to another. United States 
 V. Southern Ry. Co. 135 Fed. Rep. 
 122. 
 
 No system can be devised to turn 
 interstate commerce into intrastate 
 commerce. United States v. Chicago, 
 etc., R. Co. 149 Fed. Rep. 486. 
 
 Where a car is loaded in one state 
 with a commodity destined for an- 
 other state, and begins to move, 
 then interstate commerce has begun 
 and does not cease until the car has 
 arrived at its point of final desti- 
 
 nation. United States v. Atlantic 
 Coast Line R. Co. 168 Fed. Rep. 
 175 (decided February 24, 1909); 
 Appendix G, p. 372; St. Louis & 
 S. F. R. Co. V. Delk, 158 Fed. 931; 
 United States v. Erie R. Co. 166 
 Fed. 352; Hanley v. Kansas City So. 
 Ry. Co. 187 Fed. 617; Belt Ry. Co. v. 
 United States, 168 Fed. 542; Chicago, 
 ]M. & St. P. Ry. Co. V. Voelker, 129 
 Fed. 522; Pacific Coast Ry. Co. v. 
 United States, 173 Fed. 448; United 
 States V. Central of Georgia, 157 
 Fed. 893; Erie R. Co. v. Russell, 
 183 Fed. 722. 
 
 ^ United States v. Chicago Great 
 Western Ry. Co. 162 Fed. 775; 
 Wabash R. Co. v. United States. 
 168 Fed. 1; United States v. Central 
 of Georgia Ry. Co. 157 Fed. 893; 
 United States v. Colorado «fe N. W. 
 R. Co. 157 Fed. 321. 
 
 ^ Northern Pacific Ry. Co. v. State, 
 222 U. S. 370; 32 Sup. Ct. 160; 56 
 L. Ed. 237. 
 
 5 United States v. Erie R. Co. 166 
 Fed. 352. 
 
 6 United States v. Geddes, 131 Fed. 
 452.
 
 350 FEDERAL SAFETY APPLIANCE ACT. 
 
 tation in interstate commerce J "When a commodity orig- 
 inating in one state and destined to a point in another 
 state is put aboard a car, and that car begins to move, inter- 
 state commerce has begun, and that interstate commerce it 
 continues to be until it reaches its destination,"^ "Whether 
 the ultimate destination was near by or remote is not ma- 
 terial.^ If started in movement it is interstate commerce, 
 although it has not yet left the state of the origin of such 
 movement.^" Temporary stoppage of a car, even for re- 
 pairs, does not withdraw it from the use of interstate com- 
 merce.^^ Employees on work trains, engaged in picking up 
 logs along the right of way for interstate shipment, are en- 
 gaged in interstate commeree.^^ A car moved for the pur- 
 pose of being laden with an interstate shipment is used in 
 such commerce.^^ And in the absence of evidence to the 
 contrary, the fact that a car was subsequently hauled by a 
 carrier to an interstate destination is properly to be con- 
 sidered by the jury in determining its intended destination 
 at the time it was moved for lading.^* The weighing of cars 
 to determine the weight of their interstate contents is inter- 
 state commerce.^^ The transportation by a railroad com- 
 pany of interstate shipments for an independent express 
 
 ^ St. Louis & S. F. R. Co. v. Delk, v. Zachary, 232 U. S. 248; 34 Sup. 
 
 158 Fed. 931. Ct. 305; 58 L. Ed. 591. 
 
 8 Belt Ry. Co. v. United States, " Erie R. Co. v. Russell, 183 Fed. 
 168 Fed. 542. 726. But see Siegel v. New York 
 
 9 Chicago, M. & St. P. Ry. Co. v. Central & H. R. R. Co. 178 Fed. 873. 
 Voelker, 129 Fed. 522; United States '= United States v. Chicago, M. 
 V. Central of Georgia Ry. Co. 157 & P. S. Ry. Co. 197 Fed. 624. 
 
 Fed. 893. "Chicago & N. W. Ry. Co. v. 
 
 •" United States v. Central of United States, 168 Fed. 236; Bresky 
 
 Georgia Ry. Co. 157 Fed. 893; v. Minneapolis & St. L. Ry. Co. 
 
 Pacific Coast Ry. Co. v. United 115 Minn. 386; 132 N. W. 337. 
 
 States, 173 Fed. 448; United States '^ Bresky v. Minneapolis & St. L. 
 
 V. Colorado & N. W. R. Co. 157 Fed. Ry. Co. 115 Minn. 386; 132 N. W. 
 
 321; United States v. Western & A. 337. 
 
 R. Co. 184 Fed. 336; United States V. '^ Wheeling Terminal Ry. Co. v. 
 
 Chicago, M. & P. S. Ry. Co. 197 Fed. Russell, 209 Fed. 795; 126 C. C. A. 
 
 021; Felt v. Denver & K. G. R. Co. 519. 
 110 Pac. 215; North Carolina R. Co.
 
 USE IN INTERSTATE TRAFFIC. 35^ 
 
 company is interstate commerce.^" The transportation by 
 an interstate carrier of its own products or property is in- 
 terstate commerce.^^ Mere rebilling a shipment does not 
 affect its interstate character/*^ but a diverting order 
 changes, ah initio, the destination of a shipment/" The 
 relation between interstate and intrastate commerce is so 
 intimate, and their functions so commingled, that conditions 
 injuriously affecting the latter may jeopardize the former.^" 
 
 § 236. Interterritorial commerce — Act of 1903. — The 
 
 interterritorial couimerce designated in the Act of 1903 is 
 equivalent to the interstate commerce under the Act of 1893. 
 In an action for a violation of the statute in a territory the 
 complaint will not be defective for a failure to allege that 
 the defendant is a common carrier engaged in interstate 
 commerce, if it alleges that the defendant is a common car- 
 rier engaged in commerce by railroad among the several 
 territories of the United States, particularly the territories 
 of Arizona and New Mexico.^ 
 
 § 237. Use of car forbidden. — In the first section of the 
 statute it is declared that *'it shall be unlawful for any com- 
 mon carrier engaged in interstate commerce by railroad to 
 use on its line any locomotive engine" not equipped with 
 a driving-wheel brake ; and in the sixth section, as amended 
 in 1896, it is provided, "That any such common carrier 
 using any locomotive engine, running any train, or hauling 
 or permitting to be hauled or used on its line any car in 
 
 >« United States v. Colorado & N. ^o Southern Ry. Co. v. United 
 
 W. R. Co. 157 Fed. 342. States, 222 U. S. 20; 32 Sup. Ct. 2; 
 
 "United States v. Chicago, M. 56 L. Ed. 72; Wabash R. Co. v. 
 
 & St. P. Ry. Co. 149 Fed. 486; United States, 168 Fed. 1; United 
 
 Johnson v. Chicago G. W. Ry. Co. States v. Great Northern Ry. Co. 
 
 164 S. W. 260; Barker v. Kansas 145 Fed. 438; State v. Chicago, M. 
 
 City, M. & O. Ry. Co. 88 Kan. 767; & St. P. Ry. Co. 136 Wis. 407; 117 
 
 129 Pac. 1151; United States v. N. W. 686; United States v. Erie R. 
 
 Chicago & N. W. Ry. Co. 157 Fed. Co. 35 Sup. Ct. 621, reversing 212 
 
 616. Fed. 853; 129 C. C. A. 307. 
 
 ** United States v. Colorado & N. ' United States v. El Paso, etc., 
 
 W. R. Co. 157 Fed. 321. R. Co. Appendix G. 
 
 " United States v. Pacific Coast Ry. 
 Co. 173 Fed. 453.
 
 352 FEDERAL SAFETY APPLIANCE ACT. 
 
 violation of the provisions" of the act shall be liable to a 
 penalt}^ Section second provides that "it shall be unlaw- 
 ful for any such common carrier to haul or permit to be 
 hauled or used on its line any car used in moving inter- 
 state traffic not equipped with couplers coupling auto- 
 matically by impact, and which can be uncoupled without 
 the necessity of men going between the ends of the cars." 
 By reason of the language of this statute it is clear that it 
 is only the use of insufficiently equipped cars that is for- 
 bidden ; and, of course, the hauling of the car is a use. The 
 ownership of the car is immaterial.* It is not the mere fact 
 of the ownership of a car, defectively, or not at all, equipped 
 even though there be an intent to use or haul it, that con- 
 stitutes the offense against the statute ; but the offense against 
 or violation of the statute is its actual use or hauling 
 it. "The act of 1893 makes it unlawful for a company to 
 do certain things: First, to haul the car. Second, to per- 
 mit the car to be hauled. Third, to use or permit a car to 
 be used. All three of these prohibitions are with reference 
 to cars on the lines of the company within this judicial dis- 
 trict. And the prohibitions are with reference to cars used 
 only in interstate traffic and which are not equipped with 
 couplers coupling automatically by impact and which cars 
 can be coupled without the necessity of men going between 
 the ends of the cars. " ° It is immaterial what is the pur- 
 pose of the movement of the car nor the distance it is hauled, 
 nor whose car it is. If the car is defective the railroad 
 company is liable." 
 
 * Crawford v. New York, etc., G; United States v. Southern Pacific 
 
 R. Co. 10 Am. & Eng. R. Cas. 166; Co. 169 Fed. 407. 
 United States v. Chicago, etc., R. « United States v. Erie R. Co. 35 
 
 Co. 143 Fed. Rep. 353; United States Sup. Ct. 621; United States v. 
 
 V. Chicago, etc., Ry. Co. 149 Fed. Northern Pac. T. Co. 144 Fed. Rep. 
 
 Rep. 486; Philadelphia & Ry. Co. v. 861; United States v. Chicago, etc., 
 
 United States, 191 Fed. 1; 111 C. C. R. Co. 143 Fed. Rep. 353; United 
 
 A. 661; Gray v. Louisville & N. R. States v. Southern Ry. Co. 105 Fed. 
 
 Co. 197 Fed. 874. Rep. 122; Crawford v. New York, 
 
 "* United States v. Chicago, etc., etc., R. Co. 10 Am. & Eng. R. Cas. 
 
 Ry. Co. 149 Fed. Rep. 486; United 166. If the car is one that is regularly 
 
 States V. Northern Pac. T. Co. 144 used in the movement of interstate 
 
 Fed. Rep. 861; Elgin, etc., R. Co. v. traffic, and is at the time involved in 
 
 United States, 168 Fed. Rep. 1; the movement of a train containing 
 
 Chicago, etc., R. Co. v. United States, interstate traffic, the lading of the car 
 
 168 Fed. Rop. 236; United States v. is wholly immaterial. United States 
 
 iSouthern Pacific Ry. Co., Appendix v. Wheeling (see Appendix G).
 
 USK IN INTERSTATE TRAFFIC. 353 
 
 § 238. ' ' Haul, " " used " and " train ' ' defined.— To ' ' haul ' ' 
 means (1) to "drag with force or violence, to pull, to draw, 
 to tug, to drag; (2) to carry or convey in a cart or other 
 vehicle/ The word "haul" as used in the statute is not 
 limited to the second part of the definition quoted ; for "such 
 a construction would so far negative the purpose of the act 
 in question as to well nigh render it of no practical use."* 
 The term "used" means "employed for a purpose," and 
 imports a certain degree of permanence." It is of broader 
 significance than the word "hauled." "The statute forbids 
 hauling and using, "Why were both words used? If the 
 car was fully loaded and on the track ready to be started 
 as a part of an interstate train, with engine attached and 
 fired, and requiring only the touch of the engineer to start, 
 would not the car be 'used' or in use, within the statute, 
 before it was hauled? If it was without the automatic 
 coupler, so that the brakeman would have to go between 
 the cars to couple them, it clearly would be within the mis- 
 chief the statute was intended to prevent. 'Used' has other 
 meanings than 'hauled.' It is a broader word."^° A "train" 
 is one aggregation of cars drawn by the same engine ; but 
 if the engine is changed there is a different train." Yet if 
 the engine and crew (and even the caboose) be changed 
 and another engine and crew (and caboose) be substituted 
 it is still a "train. "^- The word "train" as used in the 
 Safety Appliance Act is used in the ordinary and not the 
 technical sense of the word regardless of the varying rules 
 and practices of carriers.^^ Speaking of the statute, the 
 Supreme Court has said: "As the context shows, a train 
 in the sense intended consists of an engine and cars which 
 have been assembled and coupled together for a run or trip 
 along the road. Where a train is thus made up and is pro- 
 ceeding on its journey it is within the operation of the air- 
 brake provision."^* 
 
 ' Worcester's Dictionary. La Mere v. Ey. Transfer Co. 125 
 
 8 United States v. St. Louis, I. M. Minn. 526; 145 "N. W. 1068; Chicago, 
 
 & S. Ry. Co. 154 Fed. 516. B. & Q. R. Co. v. United States, 
 
 8 United States v. Spokane & I. 211 Fed. 12; 127 C. C. A. 438; 
 
 E. R. Co. 206 Fed. 988. United States v. Erie R. Co. 35 Sup. 
 
 1" United States v. St. Louis S. W. Ct. 621; 212 Fed. 853; 129 C. C. A. 
 
 Ry. Co. 184 Fed. 28. 307. See Detroit St. Ry. Co. v. 
 
 11 United States v. Boston & M. Mills, 85 Mich. 634; 48 N. W. 1007; 
 
 R. Co. 168 Fed. 148; United States Dacey v. Old Colony R. Co. 153 
 
 V. Chicago, B. & Q. R. Co. 35 Sup. Mass. 112; 26 N. E. 437, and Carson 
 
 Ct. 634, affirming 211 Fed. 12; 127 v. Boston & A. R. Co. 164 Mass. 
 
 C. C. A. 438. 523; 42 N. E. 112. 
 
 1= United States v. Chicago G. W. '* United States v. Erie R. Co. 35 
 
 Ry. Co. 162 Fed. 775. Sup. Ct. 621, reversing 212 Fed. 853; 
 
 I'llnited States v. Grand Trunk, 129 C. C. A. 307, and reversal on 
 
 203 Fed. 775; United States v. Pere first appeal, 197 Fed. 287; 116 C. C. 
 
 Marquette R. Co. 211 Fed. 220; A. 649, section 303a.
 
 354 
 
 FEDERAL SAFETY APPLIANCE ACT. 
 
 § 239. Inhibition of statute — Car employed in interstate 
 traffic. — ''The statute was designed to inhibit the hauling 
 or using by any railroad company in its line any car used 
 in moving interstate traffic not equipped with couplers 
 coupling automatically by impact, etc., the denouncement 
 being against the use of the car. It makes but little differ- 
 ence, therefore, whether the car contained at the time any 
 commodity being carried as freight or not, if the car was one 
 being used in moving interstate traffic, not in the sense that 
 at the particular time it was going, loaded or partially so 
 with a commodity being shipped from one state into another 
 or others, but that it w^as being employed in a service that 
 was moving interstate traffic. " ^ A car loaded with coal, 
 to be delivered to a consignee in another state, is used "in 
 moving interstate traffic," if hauled by a railroad company 
 in taking it from the place of loading, although such com- 
 
 ^ United States v. Northern, etc., 
 Ry. Co. 144 Fed. Rep. 861. In this 
 case the court adds: "Such is the 
 construction given the law by Shiras, 
 district judge in Voelker v. Chicago, 
 etc., Ry. Co. 116 Fed. Rep. 867, and 
 affirmed by Mr. Chief Justice Fuller 
 in Johnson v. Southern Pac. Co. 196 
 U. S. 1; 25 Sup. Ct. Rep. 158; 49 L. 
 Ed. 363, reversing 54 C. C. A. 508; 
 117 Fed. Rep. 462;" United States v. 
 Colorado & N. W. R. Co. 157 Fed. 
 321; 85 C. C. A. 27; United States 
 V. Union Stock Yards Co. 161 Fed. 
 919; Devine v. Chicago & C. R. Co. 
 266 111. 248; 102 N. E. 803; United 
 States V. International & G. N. R. 
 Co. 174 Fed. 638; Chicago, M. & St. 
 P. Ry. Co. 165 Fed. 423; Southern 
 Ry. Co. V. Snyder, 187 Fed. 492; 
 United States v. Western & A. R. 
 Co. 184 Fed. 336; Erie R. Co. v. 
 Russell, 183 Fed. 722; Hohnleiter v. 
 Southern Pacific Co. 177 Fed. 796; 
 Norfolk & W. Ry. Co. v. United 
 States, 177 Fed. 623; United States 
 V. Baltimore & Ohio R. Co. 170 Fed. 
 456; United States v. WheeUng & 
 L. E. R. Co. 167 Fed. 198. "The 
 words 'used in moving interstate 
 traffic' should not be taken in a 
 narrow sense." Schlemmor v. Buff- 
 alo, etc., R. Co. 205 U. S. 1; 27 Sup. 
 Ct. Rep. 407; 51 L. Ed. 6S1, reversing 
 207 Pa. St. 19H; .56 .Ml. Rep. 417; 
 United States v. Chicago, etc., Ry. 
 Co. 143 Fed. Rep. 373. 
 
 "The railway locomotive, train, 
 or car, or the car as a constituent 
 of the train, ihat goes from State 
 to State carrying wholly, or in 
 part, any interstate commerce are 
 for the time being instrumentali- 
 ties of interstate commerce; as 
 also the locomotive train, or car 
 that, though not going out of the 
 State, carries on its way through 
 the State traffic that is interstate 
 transit; and the obverse of that 
 would seem to be that a train trav- 
 eling wholly b.2tween points in the 
 same State, and not going out of 
 the State, and carrying wholly 
 commerce originating in the State, 
 destined to points in the same 
 State, is not for the time being an 
 instrument of interstate com- 
 merce." Elgin, etc., R. Co. v. United 
 States, 168 Fed. Rep. 1; Wabash, 
 etc., R. Co. V. United States, 168 
 Fed. Rep. 1. But see now the 
 interpretation placed upon this 
 statutt! by the Supreme Court of 
 the United States, Sec. 159.
 
 USE IN INTERSTATE TRAPPIC. 
 
 355 
 
 pan,y only undertakes to deliver it to a connecting carrier 
 within the same state. ^ And this is true, although it only 
 hauls it through its own yards." A railroad company haul- 
 ing its own rails from one state to another, to be there used 
 by it, is engaged in interstate commerce.^ ° But it has been 
 held that coal mined in Kentucky and there loaded, and 
 then billed and shipped to another place in the same state, 
 is not turned into interstate commerce by the fact that in 
 its route it passed through a part of another state.^^ 
 
 8 United (States v. Sou/thern E.y. 
 Cb. 135 Fed. Rep. 122. 
 
 9 United States v. Pittsburg, 
 etc., R. Co. 143 Fed. Rep. 360; 
 contra, McCutcheon v. Atlantic, 
 etc., R. Co. 81 S. C. 71; 61 S. E. 
 Rep. 1108. But hauling empty 
 intrastate cars in an interstate 
 train is within the statute, Elgin, 
 etc., R. Co. V. United States, 168 
 Fed. Rep. 1. 
 
 10 United States v. Chicago, etc., 
 R. Co. 149 Fed. Rep. 486 ; affirmed, 
 165 Fed. 423; 91 C. C. A. 373. 
 
 So it is a violation of the stat- 
 ute for a company to haul sand 
 for itself in improperly equipped 
 cars from one sitate to another. 
 United States v. Southern R. Co. 
 167 Fed. 198; Appendix G. 
 
 11 Louisville, etc., R. Co. v. Van- 
 cleave, 23 Ky. L. Rep. 479; 63 S. 
 W. Rep. 22; Louisville, etc., 3,. 
 Co. V. Walker, 23 Ky. L. Rep. 
 453; 63 S. W. Rep. 20. See Com- 
 monwealth V. Lehigh Valley R. 
 Co. (Pa.); 17 Atl. 179; Lehigh 
 Valley R. Co. v. Commonwealth, 
 (Pa.): 18 Atl. 125; Chicago, 
 
 M. & St. P. R. Co. V. Minnesota, 
 134 U. S. 418; 10 Sup Ct. 462, 
 702; 33 L. Ed. 970; Lehigh Valley 
 R. Co. V. Pennsylvania, 145 U. iS. 
 192; 12 Sup. Ct. 806; 36 L. Ed. 
 672; Cincinnati Packet Co. v. Bay, 
 
 200 U. S. 179; 26 Sup. Ct. 208; 
 50 L. Ed. 428; United States v. 
 Lediigh Valley R. Co. 115 Fed. 
 373; Campbell v. Chicago, etc., R. 
 Co. 86 Iowa. 641; 53 X. W. 323; 
 Seawell v. Kansas City, etc., R. 
 Co. 119 Mo. 222; 24 S. W. 1002. 
 But the United States Court held 
 it is interstate commerce. United 
 States V. Erie R. Co. 163 Fed. Rep. 
 352. See Hanley v. Kansas City So. 
 Ry. Co. 187 U. S. 618; 23 Sup. Ct. 
 Rep. ai4; 47 L. Ed. 33; affirming 
 106 Fed. Rep. 353; Sternberg v. 
 Cape Fear & Y. V. R. Co. (N. C.) 
 7 S. E. 836: State v. Chicago, 
 St. P., M. & 0. R. Co. 40 Minn. 
 267; 41 K W. 1047; New Orleai s 
 Cotton Exchange v. Cincinnati, 
 etc., R. Co. 2 Interstate Com. Rep. 
 289; Kansas C. S. Ry. Co. v. R. R. 
 Commission, 106 Fed. 359; United 
 States V. Erie R. Co. 166 Fed. 352; 
 Shelby, etc., Co. v. Southern Ry. 
 Co. 147 N. C. 66; 60 S. E. 721; 
 Davis V. Southern Ry. Co. 147 
 X. C. 68; 60 S. E. 722; St. Louis 
 & S-. F. Ry. Co. V. State, 87 Ai-k. 
 562; 113 S. W. 203; IVIires v. 
 St. Louis & S. F. Ry. Co. 134 ]Mo. 
 App. 379; 114 S. W. 1052. Ca^es 
 cited in this section must now be 
 read in the light of the recent de- 
 cisions of the United States Su- 
 preme Court. See Sec. 243.
 
 356 
 
 FEDERAL SAFETY APPLIANCE ACT, 
 
 § 240. Car in use, what is— A loaded car from another 
 state, not yet delivered to the consignee at the time of its 
 stoppage in a railroad yard at its destination and shunted 
 on a side track for repairs to its coupler which had become 
 defective, is still a car used in interstate commerce. "Its 
 stoppage in the yard was an incident to the transportation. 
 The injury to the coupler was one easily repaired without 
 being taken to a repair shop, and the car was being hauled 
 upon the track when the accident occurred. " ^^ It is the 
 use of the ear that is the test.^-^ 
 
 § 241. Empty car in interstate train. The statute does 
 not state whether it applies to loaded or unloaded cars, and 
 it therefore applies to a defective empty car hauled in an 
 interstate train. ^-* "Here is a train which is engaged — at 
 least a part cf it — in interstate commerce, and so long as 
 that is true every car in the train is impressed, so far as 
 
 12 St. Louis, etc., R. Co. v. Delk, 
 158 Fed. Rep. 9i31; citing John- 
 son V. Southern Pacific Co. 196 
 U. S. 1; 25 Sup. Ct. Rep. 158; 49 
 L. Ed. 363; reversing 54 C. C. A. 
 508; 117 Fed. Rep. 462; Chicago, 
 etc. R. Co. V. Voelker, 129 Fed. 
 Rep. 522; 65 C, C. A. 226; 70 
 L. R. A. 264. 
 
 In order to constitute a viola- 
 tion of the (Safety Appliance Act, 
 the car must be moved in a defec- 
 tive condition. United Slates v. 
 Lehigh Valley R. Co. 162 Fed. Rep. 
 410 (see 160 Fed. 696, Appen- 
 dix G) ; United States v. Phila- 
 delphia, etc., R. Co. 162 Fed. Rep. 
 405 (see Appendix G, p. 315) ; 
 United States v. Pennsylvania R. 
 Co. 162 Fed. Rep. 408 (see Appen- 
 dix G) ; United States v. Philadel- 
 phia, etc., R. Co. 160 Fed. Rep. 
 696; 162 Fed. Rep. 403. 
 
 Judge Lurton dissented, distin- 
 guishing the case from the Johnson 
 case, and Railway v. Powles, 71 
 
 Miss. 1003; 15 So. Rep. 138, and 
 Taylor v. Boston Ry. 189 Mass. 
 390; 74 N. E. Rep. 591, arising 
 under similar state statutes. 
 
 12a United States v. Southern 
 Pacific Ry. Co. 167 Fed. 699; United 
 States V. Spokane & E. R. Co. 206 
 Fed. 988; Winkler v. Philadelphia 
 & R. Ry. Co. 4 Penn. (Del.) 90; 53 
 Atl. 90. 
 
 '2» See section 264; Norfolk & W. 
 Ry. Co. v. United States, 177 Fed. 
 623; Hohenleitner v. Southern Pacific 
 Co. 177 Fed. 796; Chicago & N. W. 
 Ry. Co. V. United States, 168 Fed. 
 238; Southern Ry. Co. v. Snyder, 187 
 Fed. 497; United States v. Louisville 
 & N. R. Co. 162 Fed. 185. (Such is 
 the Illinois statute. Luken v. Lake 
 Shore & M. Ry. Co. 248 111. 377; 94 
 N. E. 175.) United States v. Chicago 
 & N. W. Ry. Co. 157 Fed. 616, 
 reversed 168 Fed. 236; Kelly v. 
 Great Northern, 152 Fed. 211; Snead 
 v. Central of Georgia, 151 Fed. 
 608; Louisville & N. R. Co. v. United 
 States, 174 Fed. 1021; 98 C. C. A. 
 664; Elgin, etc., 11. Co. v. United 
 States, 168 Fed. 1.
 
 USE IN INTERSTxlTE TRAPPIC. 357 
 
 the requirements of this act are concerned, with an inter- 
 state character. It is a part of the current. The empty car 
 may at any moment be coupled to the interstate car. A 
 brakeman engaged in performing some duty in respect to 
 the interstate car may be compelled to pass over or use a 
 grab-iron on the empty car or couple the empty car to the 
 interstate car. Endless confusion would arise if any dis- 
 tinction was made under such conditions between a car 
 loaded with interstate traffic and an empty car regularly 
 used in the movement of interstate traffic, but at the time 
 unloaded and coupled to another car actually in use in the 
 movement of interstate traffic. Of course, the same thing 
 must be said of the loaded car, whatever the character of 
 the freight it carries, if it is a car regularly used in the 
 movements of interstate traffic. "^^^^ "It is enacted that 'no 
 cars, either loaded or unloaded, shall be used in interstate 
 traffic which do not comply with the standard.' There is 
 no escape from the meaning of these words. Explanation 
 cannot clarify them, and ought not to be employed to con- 
 fuse them or lessen their significance."^"*^ 
 
 § 242, Hauling or using car not loaded with interstate 
 traffic in interstate train.— The statute covers an instance 
 of using or hauling in an interstate train a ear not loaded 
 with interstate traffic nor hauled from one state to another. 
 The statute, as amended in 1896/^ prohibits the "hauling or 
 permitting to be hauled or used on its line, any car in viola- 
 tion" of the Safety Appliance Act. "The older statute 
 
 12C United Statos v. Wheeling & j^g & ^ E R Co. 167 Fed 198; 
 
 T P P Pn ifiT F^rl I^R- Clncago & N. W. Ry. Co. V. United 
 
 «; T \ i V p rl t n!ll' States! 168 Fed. 236; United States 
 
 St. Louis & S. F. K. Co. V. Delk, ^ Southern Ry. Co. 170 Fed. 1014; 
 
 158 Fed. 931; 86 C. 0. A. 95; United States v. International & G. 
 
 Chicago Junction Ry. v. King, 169 N R. Co. 174 Fed. 638; Hohen- 
 
 Fed. 372; 94 C. C. A. 652; United leitner v. Southern Pacific Co. 177 
 
 States V. Southern Pacific Rv. Co. Fed. 796; Campbell v. Spokane & 
 
 169 Fed. 407; 94 C. C. A.' 629; I. E. R. Co. 188 Fed. 516; Felt v. 
 
 Southern Ry. Co. v. Snyder, 187 Denver & R. G. R. Co. 48 Colo. 249; 
 
 Fed. 492; Johnson v. Southern Pacific 110 Pac. 215; Luken v. Lake Shore 
 
 Co. 196 U. S. 1; 25 Sup. Ct. 158; & M. S. Ry. Co. 248 III. 377; 94 N. E. 
 
 49 L. Ed. 363; North CaroUna R. Co. 1'5. 
 
 V. Zachary, 232 U. S. 248; 34 Sup. i^d St. Louis & L M. Ry. Co. v. 
 
 Ct. 305; 58 L. Ed. 591; Voelker v. Taylor, 210 U. S. 281; 28 Sup. Ct. 
 
 Chesapeake & St. P. Ry. Co. 116 Fed. QlG ; 52 L. Ed. 1061 ; United States 
 
 867; United States v. Northern y Baltimore & 0. R. Co. 170 Fed. 
 
 Pacific Terminal Co. 144 Fed. 861; ^-q 
 
 United States V St Louis I. M & ^.'r^^^^ ^^.^j^^ ^.^^^^^^ ^j^^j, ^1^^ ^^^.,. 
 
 S.Ry. Co. 154 Fed. 516; United States, . , , , ., , ,, j;, ■ -p 
 
 V. Chicago & N. W. R;. Co. 157 Fed. ^^ ^^^ Jf**' \\ ''"^l l^^f' .J''" ^; 
 
 616; Untted States v. Louisville & ^o. v. Russell, 183 Fed. / 22; Felt 
 
 N. R. Co. 162 Fed. 185; Chicago, v. Denver & G. R. Co. 4b Colo. 
 
 M. & St. P. Ry. Co. V. United States 249; 110 Pac. 215, 1136. 
 165 Fed. 423; United States v. Wheel- is Section 6 of Act.
 
 358 FEDERAL SAFETY APPLIANCE ACT. 
 
 was with reference only to cars used in moving interstate 
 traffic regardless of whether it wrs a local road or one ex- 
 tending into several eases. The reported cases, and the re- 
 ports of the Interstate Commerce Commission, show that it 
 was often difficult to prove in wh^t traffic, local or interstate, 
 the car was being used, and without such evidence neither 
 state nor national prosecution could be carried on. And to 
 cure that defect, the latter statute covers all cars used on 
 any railroad engaged in interstate traffic regardless of 
 whether the particular car was for local or interstate use. "^* 
 
 § 243. Intrastate car on interstate railroad. — This phase 
 of the statute has recently received careful attention by the 
 Supreme Court of the United States. A railroad company 
 was indicted rnd convicted on these facts, as stated by that 
 court: "The defendant, while operating a railroad which 
 wag 'a part of a through highway' over which traffic was 
 continually being moved from one state to another, hauled 
 over a part of its railroad, daring the month of February, 
 1907, five cars, the couplers upon which were defective and 
 inoperative. Two of the cars v/ere used at the time in mov- 
 ing interstate traffic, and the other three in moving intra- 
 
 1* United States v. Chicago, etc., 453; United States v. Soutliern 
 
 Ry. Co. 149 Fed. Rep. 486 ; South- Ry. Co. 164 Fed. 347 ; Un-ted 
 
 ern Ry. Co. v. United States, 222 States v. Atlantic Coast Line, Ap- 
 
 U. S. 20; 32 Sup. Ct. 2; 56 L. Ed. pendix G; United States v. Clii- 
 
 affirming 164 Fed. 347. cago, etc., R. Co. 162 Fed. Rep. 
 
 Cars hauled from one point in a 775. And so must empty cars 
 
 state to anotliei- point in the same hauled in an interstate train, 
 
 state, loaded with intrastate com- United States v. Erie R. Co. 166 
 
 merce, but in an interstate train, Fed. Rep. 352 ; Erie R. Co. v. 
 
 must be equipped with automatic Russell, 183 Fed. 722; United 
 
 couplers. Elgin, etc., R. Co. v. States v. International & G. N. R. 
 
 United States, 168 Fed. Rep. 1; Co. 174 Fed. C38; Wabash R. Co. 
 
 United States v. Great Korthern v. Unitcil States, 108 Fed. 1; 93 
 
 Ry. Co. 145 Fed. 438; Chicago C. C. A. 93; Pacific Coast Ry. Co. 
 
 Junction Ry. Co. v. King, 169 Fed. v. United States, 173 Fed. 448; 
 
 372; United States v. Chicago, M. Louisville & N. R. Co. v. United 
 
 & St. P. Ry. Oo. 149 Fed. 486; States, 186 Fed. 280; Felt v. 
 
 United States v. Chicago G. W. Denver & R. G. R. Co. 48 Oolo. 
 
 R. Co. 162 Fed. 775; Ignited States 249; 110 Pac. 215, 1136. 
 V. Pacific Ooajst Ry. Co. 173 Fed.
 
 USE IN INTERSTATE TRAFFIC. 359 
 
 tate traffic ; but it does not appear that the use of the three 
 was in connection with any car or cars used in interstate 
 commerce. The defendant particularly objected to the as- 
 sessment of eny penalty for the hauling of the three cars, 
 and insisted, first, that such a hauling in intrastate com- 
 merce, althougli upon a railroad over which traffic was con- 
 tinually being moved from one state to another, was not 
 within the prohibition of the Safety Appliance Acts of 
 Congress; and, second, if it was, those acts should be pro- 
 nounced invalid, as being in excess of the power of Congress 
 under the commerce clause of the Constitution. ' ' ^*^ It will 
 thus be perceived that the court had before it the question 
 of hauling cars on an interstate railroad without their being 
 hauled in an interstate train — the hauling of cars in intra- 
 state commerce. The court then proceeds, after the state- 
 ment quoted, by first giving an historical review of the 
 statutes, as follows: "The original act of March 2, 1893,^*'' 
 imposed upon every common carrier 'engaged in interstate 
 commerce by railroad' the duty of equipping all trains, loco- 
 motives, and cars used on its line of railroad in moving 
 interstate traffic, Math designated appliances calculated to 
 promote the safety of that traffic and of the employees en- 
 gaged in its movement ; and the second section of that act 
 made it unlawful for 'any such common carrier' to haul or 
 permit to be hauled or used on its line of railroad any car 
 'and in moving interstate traffic,' not equipped with auto- 
 matic couplers capable of being coupled and uncoupled 
 without the necessity of a man going between the ends of 
 the cars. The act of March 2, 1903,^*° amended the earlier 
 one and enlarged its scope by declaring, inte7' alia, that its 
 provisions and requirements should 'apply to all trains, 
 locomotives, tenders, cars and similar vehicles used on any 
 railroad engaged in interstate commerce, and in the terri- 
 
 14a The statute in this respect i4b 27 Stat, at L., 531, Chap. 196; 
 
 was held to be constitutional. See U. S. Comp. Stat. 1901, p. 3174. 
 Sec. 149. The case reported below i^c 32 Stat, at L., 943, Chap. 07.?; 
 
 is United States v. Southern Ry. U. S. Oomp. Stat. Supp. 1909, 
 
 Co. 164 Fed. 347. p. 1143.
 
 360 FEDERAL SAFETY APPLIANCE ACT. 
 
 tories and the District of Columbia, and to all other loco- 
 motives, tenders, cars and similar vehicles used in connection 
 therewith.' Both the acts contained some minor ex- 
 ceptions, but they have no real bearing here." The court 
 then proceeds: "The real controversy is over the true sig- 
 nificance of the words 'on any railroad engaged' in the 
 first clause of the amendatory provision. But for them the 
 true test of the application of that clause to locomotive, car, 
 or similar vehicle would be, or it was under the original 
 act, the use of the vehicle in moving interstate traffic. On 
 the other hand, when they are given their natural signifi- 
 cation, as presumptively they should be, the scope of the 
 clause is such that the true test of its application is the use 
 of the vehicle on a railroad which is a highway of inter- 
 state commerce, and not its use in moving interstate traffic. 
 And so certain is this that we think there would be no con- 
 tention to the contrary were it not for the presence 
 in the amendatory provision of the third clause — 'and 
 to all other locomotives, tenders, cars, and similar vehicles 
 used in connection therewith.' In this there is a sug- 
 gestion that what precedes does not cover the entire 
 field; but at most it is only a suggestion, and gives no 
 warrant for disregarding the plain words, 'on any rail- 
 road engaged' in the first clause. True, if they were 
 rejected, the two clauses, in the instance of a train composed 
 of many cars, some moving in interstate traffic and others 
 moving in intrastate traffic, would, by their concurrent opera- 
 tion, bring the entire train within the statutes. But it is 
 not necessary to reject them to accomplish this result, for 
 the first clause, with these words in it, does even more ; 
 that is to say, it embraces every train on a railroad which 
 is a highway of interstate commerce, without regard to the 
 class of traffic which the cars are moving. The two clauses 
 are in no wise antagonistic, ])ut, at most, only redundant; 
 and we perceive no reason for believing that Congress in- 
 tended that loss than the full effect should be given to the 
 moro comprehensive one, but, on the contrary, good reason 
 for )>elieving otherwise. As between the two opposing
 
 USK IN INTERSTATE TRAFFIC. 3G1 
 
 views — one rejecting the words 'on any railroad engaged' in 
 the first clause, and the other treating the third clause, as 
 redundant — the latter is to be preferred, first, because it is 
 in accord with the manifest purpose, shown throughout the 
 amendatory act, to enlarge the scope of the earlier one and 
 to make it more effective ; and, second, because the words 
 which it would be necessary to reject to give effect to the 
 other view were not originally in the amendatory act, but 
 were inserted in it by way of amendment while it was in 
 process of adoption ^"^ thus making it certain that without 
 them the act would not express the will of Congress. For 
 these reasons it must be held that the original act, as en- 
 larged by the amendatory one, is intended to embrace all 
 locomotives, cars, and similar vehicles used on any railroad 
 which is a highway of interstate commerce. ' ' "'^ According 
 to this decision the test of a railroad company's liability is 
 the use of a vehicle on its "railroad which is a highway of 
 interstate commerce," and it is not necessary to show that 
 interstate traffic was in the car or in some part of the train 
 in which it was being moved or hauled.* In many of the 
 earlier cases, therefore, where the railroad companies were 
 held liable on the ground that the car was loaded with inter- 
 state traffic or w^as incorporated in a train hauling inter- 
 state traffic, the judgments of the court were correct, though 
 placed upon grounds different from that taken by the 
 Supreme Court. By this decision it is not necessary to 
 prove that interstate traffic was aboard the car or train, it 
 being sufficient to show that the defendant's railroad was 
 
 i4d Fifty-sOTenth Cong., 1st Ses.s , v. United States, 168 Fed. 236; 
 
 Vol 35, pt. 7, p. 7300: Id. Norfolk & W. Ry. Co. v. United 
 
 2d. Sess., Vol. 36 pt. 3, p. 22i68. ^^^^^'^^^^ ^f'^.; f^'l ,^°"i'Xl"^ f 
 
 i4e Southern Ry Co. v. United ?,n^VT^°; T* JJ°f "^ ^*^,^'^ ^^^ f'f 
 oj. i. ooo TT o on oo o n4. n 280; United States v. W estern & A. 
 States 222 U. S. 20; 32 Sup. Ct 2; ^ ^^ ^g^ ^^^ 335 
 
 56 L. Ed. /2, affirming 164 ted^347. j^ ^uken v. Lake Shore & M. S. 
 
 For cnticism of this case see 73 Cent. ^ ^.^ ^48 III. 377; 94 xN. E. 175, the 
 
 L. Jr. 423. Ihe case lollows Delk v. „ n x r th- • u 1 1 ^u 4. 
 
 Oi T • f a T7 r> o o-yn tt o con oupreme Court of ilhnois holds that 
 
 St. Louis & S. 1*. R. Co. 220 U. b. 580; ., . . ■ i x. xu j r i- 
 
 01 d r^t ciT tcr T XT' J con the test is whether the aetective 
 31 Sup. Ct. 617; 65 L. Ed. 590, re- • ■ x i. j. 
 
 • ire T? J oQi Qr n n a nc car was moving interstate commerce 
 versing 158 ied. 931 86 C. C. A. 9o; . .1 .• ^u ^ ■ ^-a ■ ■ j 
 
 1 ^ * f T7 A n 000 Q , ' at the time the plaintin was injured. 
 
 14 A. & E. Ann. Cas. 236. See, also, m • u e xu j • • 1 *u 
 
 Q. J . J ^r q T> A ihis was before the decision by the 
 
 Tj' i 1 'no" A 1 mn 10^ a wr' Supreme Court of the United States. 
 Hesterly 98 Ark 240; 13o S W. i^go^thern R. Co. v. Crockett, 
 
 874; Patten V. Faithorn. 152 111. 334 U. S. 725; 34 Sup. Ct. 897; 58 
 
 ^PP;. '*-^i.?;'T'.:^o°T*'''> ^l\ ,''- L. Ed. 1564; Chicago, M. & P. S. R. 
 
 V. King, 169 Fed^ 372; Lnited States ^^ ^_ United States 196 Fed. 882; 
 
 V. International & G. N. R. Co. 174 1100 n a aaa 
 
 Fed. 638; Chicago & N. W. Ry. Co. ^^^ *"• *"• ^- *^*-
 
 '363 FEDERAL SAFETY APPLIANCE ACT. 
 
 a highway of interstate commerce.^** Of course, it may be 
 shown in evidence that cars in the same train were loaded 
 with interstate traffic, or that empty cars therein were being 
 hauled from one state to another; or it may be shown that 
 interstate traffic or cars were being or had been carried in 
 other trains over the same railroad of the defendant, for 
 the purpose of showing that such railroad line was ' ' a high- 
 w^ay of interstate commerce." Waybills showing the move- 
 ment of interstate freight over the railroad line in question 
 are admissible to prove the fact that the line was "a high^ 
 way of interstate commerce;" and copies of such bills regu- 
 larly kept in the defendant's office at the point of shipment, 
 when properly identified, may be put in evidence, without 
 accounting for the originals, as admissions of the charge 
 that the railroad line was "a highway of interstate com- 
 merce;" and even a memorandum of an employee, made in 
 the line of his duty, from the original waybills is admissible 
 to prove that charge.^*" 
 
 § 244. Transportation of articles of interstate commerce 
 for an independent express company. — If a railroad com- 
 pany, even though it has its lines wholly within the bound- 
 aries of a single state, accept and transport articles of 
 interstate commerce for an independent express company, 
 it is engaged in interstate commerce and must equip its cars 
 
 "* This decision of the United of a state." See also Brinkmeier v. 
 States Supreme Court in a measure ISIissouri Pacific Ry. Co. 224 U. S. 268; 
 clears away the difficulty the court 32 Sup. Ct. 412; 56 L.Ed. 758; Brink- 
 labored under in Louisville & N. R. meier v. Missouri Pacific R. Co. 81 
 Co. V. United States, 186 Fed. 280, Kan. 101; IQo Pac. 221; Felt v. Den- 
 and shows that the court was not ver & R. G. R. Co. 48 Colo. 249; 
 exactly correct in its interpretation 110 Pac. 215; Burho v. Minneapolis 
 of the statute as set forth in the & St. L. Ry. Co. 141 N. W. 300; 
 following language, viz.: "These Popplar v. Minneapolis, St. P. & 
 considerations lead us to the con- S. S. M. Ry. Co. 121 Minn. 413; 141 
 elusion that the amendment of 1903 N. W. 798; Devine v. Illinois Central 
 was intended to be a regulation of R. Co. 156 111. App. 369. 
 railroads while they are engaged in "We deem the true intent and 
 interstate commerce and that the meaning to be that the provisions and 
 language means the same thing as if requirements respecting train brakes, 
 the word 'when' were interposed automatic couplers, grab irons, and 
 before the word 'engaged.' And, in- the height of draw bars shall be ex- 
 deed, this is not a forced construction, tended to all railroad vehicles used 
 but is one of the natural constructions upon railroads engaged in interstate 
 which the words actually used would commerce, and to all other vehicles 
 bear, for 'engaged' might, with equal used in connection with them, as far 
 propriety, utUtr to a continuous as the respective devices and stand- 
 period or to a definite time. And ards are capable of being installed 
 this would fo>ind the duty of adopting upon the respective vehicles." South- 
 the lrttt<T dcfinilion. And so con- ern U. Co. v. Crockett. 234 U. S. 725; 
 Btrucd the statute is relieved of the 34 Sup. Ct. 897; 58 L. Ed. 1564. 
 objection that Congress has no power '^t Louisville & N. R. Co. v. United 
 to regulate the domestic commerce States, 186 Fed. 280.
 
 USE IN INTERSTATE TRAFFIC. 363 
 
 in the train with automatic couplers to escape the penalty 
 inflicted by the act of Congress. "But although the express 
 company," said Judge Sanborn, ''was not one of the com- 
 mon carriers engaged in interstate commerce to which the 
 original interstate commerce act applied,^" the box of liquor 
 it caused to be transported from Missouri to Colorado was 
 an article of interstate commerce, its carriage was a trans- 
 action of that commerce, and the express company's partici- 
 pation in its transportation was engaging in interstate 
 commerce.^" Moreover, the interstate commerce act had been 
 so amended that express companies were subject to its pro- 
 visions before the transportation here in issue wag con- 
 ducted.^^ The Safet}^ Appliance Act declares that 'it shall 
 be unlawful for any common carrier engaged in interstate 
 commerce by railroad,'^'' 'to haul or permit to be hauled or 
 used on its line any car' (or engines)-" — except four- 
 wheeled cars and certain logging cars ^^ — 'and in moving 
 interstate commerce traffic unequipped with couplers coup- 
 ling automatically by impact, ' ^- and that every such carrier 
 shall be liable to a penalty of one hundred dollars for each 
 violation of the statute. The Northwestern Company ^^ trans- 
 ported the box of liquor upon its railroad from Boulder to 
 Sunset for the express company, on its continuous passage 
 from its origin in one state to its prescribed destination in 
 another, and evidence was rejected upon the trial that it was 
 a daily occurrence for this railroad to carry express matter 
 in its cars which had been consigned from points without 
 
 « Citing United States v. Mors- Rep. 229; 47 L. Ed. 336; revers- 
 
 man, 42 Fed. Rep. 448; Southern ing 127 X. C. 521; 37 S. E. Rep. 
 
 Indiana Exp. Co. v. U. S Exp. Co. 138. 
 
 88 Fed. Rep. 659. "Act June 29, 1906, S. 3591, 
 
 " Citing Crutcher v. Kentucky, Sees. 1 and 11; 34 Stat, at L. 
 
 141 U. S. 47; 11 Sup. Ct. Rep. 584, 595. 
 
 851; 35 L. Ed. 649; reversing 89 "27 Stat, at Large, 531, Sec. 1. 
 
 Ky. 6; 12 S. W. Rep. 141; Os- ^Citing Johnson v. Southern 
 
 boVne V. Florida, 164 U. S. 650; Pae. R. Co. 19G U. S. 1 ; 25 Sup. 
 
 17 Sup. Ct. Rep. 214; 41 L. Ed. Ct. Rep. 158; 49 L. Ed. 3o^; re- 
 
 586; ai!irming 33 Fla. 162; 25 L. versing 54 C. C. A. 508; 117 Fed. 
 
 R. A. 120; 4 Interst. Com. Rep. Rep. 462. 
 
 731; 14 So. Rep. 588; 39 Am. St. =' Citing Sec. 6 of Act. 
 
 Rep. 90 ; Caluwen v. North Caro- ^ Citing Sec. 2 of Act. 
 
 Una, 187 U. S. 622; 23 Sup. Ct. ^^The defendant.
 
 364 FEDERAL SAFETY APPLIANCE ACT. 
 
 to places within the state of Colorado. That rejected evi- 
 dence should have been received because it had a tendency 
 to show that the railroad company was engaged in inter- 
 state commerce, and if the testimony had fulfilled the prom- 
 ise of the question propounded to elicit it, and had been 
 uncontradicted, the fact would have been established that 
 the company was thus engaged within the meaning of the 
 Safety Appliance Act. The transportation by a common 
 carrier by railroads of articles of interstate commerce for 
 an independent express company is engaging in interstate 
 commerce by railroad as effectually as their carriage by it 
 for the vendors or consignors." "Our conclusion is that 
 a common carrier which operates a railroad entirely within 
 a single state and transports thereon articles of commerce 
 shipped in continuous passage from places without the state 
 to stations on its road, or from stations on its road to points 
 without the state, is subject to the provisions of the Safety 
 Appliance Acts, although it carries the property free from 
 a common control, management or arrangement with an- 
 other carrier for continuous carriages or shipments of the 
 goods."-'' 
 
 § 245. Distance defective car hauled. — It is immaterial 
 how short a distance the defective ear is hauled; if hauled 
 at all the railroad company is liable.^** This is particularly 
 true of terminal railroads.-^ In fact the defective car need 
 not be moved at all, if it is "used" in interstate commerce.-^* 
 
 2< United States v. Colorado, etc., Rep. 403; United States v. Chicago, 
 
 R. Co. 157 Fed. Rep. 321, 342. etc., R. Co. 143 Fed. 353; United 
 
 This Colorado railroad was cer- States v. Southern Ry. Co. 135 Fed. 
 
 tainly "a highway of interstate com- 122; Crawford v. New York, etc., R. 
 
 merce" for it was devoted to carrying Co. 10 Am. & Eng. R. Cas. 166; 
 
 such parcels or packages within the United States v. Pittsburg, etc., R. 
 
 interpretation of the Supreme Court Co. 143 Fed. 360; United States v. 
 
 of the United States in the recent Union Stockyards & T. Co. 192 
 
 decision explained in section 243. Fed. 330; United States v. Erie R. 
 
 "•United States v. Denver & R. Co. 35 Sup. Ct. 621; 212 Fed. 853; 
 
 G. R. Co. 163 Fed. 519; United 129 C. C. A. 307. 
 States V. Central of Georgia Ry. Co. A movement of a car not exceeding 
 
 157 Fed. 893; United States v. twenty feet, resulting in injuring an 
 
 Southern Pacific Co. 167 Fed. 099; employee, was held to be a violation 
 
 T'nited States v. Southern Pacific Co. of the statute. Chicago, etc., R. Co. 
 
 154 Fed. 897. v. King, 169 Fed. Rep. 372 (decided 
 
 "United States v. Northern Pac. February 3, 1909); Donegan v. Balti- 
 
 Terminal Co. 144 Fed. Hep. 861; more, etc., R. Co. 105 Fed. Rep. 869. 
 United States v. Pliiladclphia, etc., -''• See section 250. 
 
 R. Co. 16(J Fed. Rep. 696; 162 P'ed.
 
 USE IN INTERSTATE TRATPIC. 
 
 365 
 
 § 246. Switching car. — The statute applies to a car while 
 being used in switching movements.-'^ Thus a ear, having 
 a defective coupler, was one belonging to the Wabash Rail- 
 road Company, and was known and designated as a foreign 
 car. It was brought into Minneapolis, Minnesota, from 
 Wisconsin by the Soo Railroad, delivered by it to the Great 
 Northern Railway Company, the defendant, loaded with 
 coal, and by the defendant delivered to the consignee. It 
 was then unloaded and placed on a switch of the defendant 
 for the purpose of redelivery to the Soo Railroad. It was 
 delivered to that railroad, and afterwards loaded with 
 shingles in Minnesota, and taken by the Soo road thus 
 loaded into Wisconsin on its return home. While it was 
 standing on the defendant's track, and before its delivery 
 to the Soo road, an employee of the defendant was injured 
 because of a defective coupling; and it was held that the 
 
 -« United States v. Pittsburg, etc., 
 R. Co. 143 Fed. Rep. 360; Craw- 
 ford V. New York, etc., R. Co. 10 
 Am. & Eng. Neg. Cas. 166; United 
 States V. Northern Pacific T. Co. 
 144 Fed. Rep. 861; United States v. 
 Pittsburg, etc., R. Co. 143 Fed. Rep. 
 360; United States v. Chicago, etc., 
 Ry. Co. 143 Fed. Rep. 353; Chicago, 
 etc., R. Co. V. United States, 165 Fed. 
 Rep. 425. United States v. Phila- 
 delphia, etc., Ry. Co. 160 Fed. Rep. 
 696, and 162 Fed. Rep. 403; United 
 States V. Lehigh Valley R. Co. 162 
 Fed. Rep. 410; United States v. 
 Philadelphia, etc., R. Co. 162 Fed. 
 Rep. 405; United States v. Penn- 
 sylvania R. Co. 102 Fed. Rep. 408; 
 Elgin, etc., R. Co. v. United States, 
 168 Fed. Rep. 1 (decided February 3, 
 1909); Wabash R. Co. v. United 
 States, 168 Fed. Rep. 1 (decided 
 February 3, 1909); United States v. 
 Southern Ry. Co. 167 Fed. 699; 
 Appendix G; Johnson v. Great 
 Northern Ry. Co. 178 Fed. 643; 
 Erie R. Co. v. Russell, 183 Fed. 722; 
 Siegel V. N. Y. Central R. Co. 178 
 Fed. 873; Chicago, M. & St. P. Ry. 
 Co. V. United States, 165 Fed. 423; 
 Patten v. Faithorn, 152 111. App. 426. 
 
 The rule laid down in this section is 
 adopted by the Supreme Court. 
 Delk V. St. Louis & S. F. R. Co. 220 
 U. S. 580; 31 Sup. Ct. 617; 55 L. 
 Ed. 590, reversing 158 Fed. 931; 86 
 C. C. A. 95; 14 A. & E. Ann. Cas. 
 233; Union Stock Yards v. United 
 States, 169 Fed. 409; United States v. 
 Southern Pacific Co., Appendix G; 
 Mobile, J. & K. C. Co. v. Bromberg, 
 141 Ala. 258; 37 So. 395; United 
 States V. Chesapeake & Ohio Ry. 
 Co. 213 Fed. 748; Erie R. Co. v. 
 United States, 197 Fed. 287; United 
 States v. Atlantic Coast Line R. Co. 
 214 Fed. 498; United States v. Pere 
 Marquette R. Co. 211 Fed. 220; 
 Atchison, T. & S. F. Ry. Co. v. 
 United States, 198 Fed. 637; 117 C. 
 C. A. 341; United States v. Grand 
 Trunk, 203 Fed. 775; La Mere v. Ry. 
 Trans. Co. 125 Minn. 526; 145 N. W. 
 1068; Stearns v. Chicago, R. I. & 
 P. R. Co. 148 N. W. 128; Chicago, 
 B. & Q. R. Co. v. United States, 211 
 Fed. 12; 127 C. C. A. 438; Per Contra 
 Erie R. Co. v. United States, 197 
 Fed. 287; 116 C. C. A. 649; United 
 States v. Erie R. Co. 212 Fed. 853; 
 United States v. New York Central & 
 H. R. R. Co. 205 Fed. 428.
 
 366 FEDERAL SAFETY APPLIANCE ACT. 
 
 car at the time was used in interstate commerce.^ The stat- 
 ute applies to the moving of a car on a private switch in 
 connection with a car loaded with interstate traffic ;^ or in 
 a foundry yard.^ So where the Erie Railroad Company had 
 a yard at Jersey City and another at Weehawken and a 
 third at Bergen, the two former yards connected by double 
 tracks running over a distance of two miles in one instance 
 and three and a half in another with the latter yard, passing 
 through a very dark tunnel almost a mile long (only a sin- 
 gle track through the tunnel), the greater part of the 
 freight being carried from Jersey City and Weehawken to 
 Bergen in transfer trains, usually of about 25 cars run at 
 irregular intervals, it was held that cars thus hauled must 
 both have proper automatic couplers and grabirons, and the 
 trains must be equipped with automatic brakes. "We can- 
 not assent to the view," said Justice Van Devanter, "that 
 the yards at Jersey City, Weehawken and Bergen are but 
 a single yard. They doubtless are important accessories to 
 the defendant's eastern terminal, but that does not make 
 them one yard. They lie from two to three and one-half 
 miles apart, are not so linked together that cars may be 
 moved upon one to another with the freedom which is usual 
 and essential in intrayard movements, and are in actual 
 practice treated as separate yards."* 
 
 * Johnson v. Great Northern Ry. = Gray v. Louisville & N. R. Co. 
 
 Co. 178 Fed. 643. The court relied 197 Fed. 874. 
 
 upon Johnson v. Southern Pacific ^ Devine v. Chicago & C. R. Co. 
 
 Co. 196 U. S. 1; 25 Sup. Ct. 158; 259 111. 449; 102 N. E. 803, reversing 
 
 49 L. Ed. 363 and Voelker v. Chicago, 174 111. App. 324. 
 
 M. & St. P. Ry. Co. 116 Fed. 867; ^United States v. Erie R. Co. 35 
 
 same case on appeal, 129 Fed. 522; Sup. Ct. 621, reversing 212 Fed. 853; 
 
 65 C. C. A. 226; 70 L. R. A. 264. 129 C. C. A. 307, on first appeal 197 
 
 Fed. 287; 116 C. C. A. 649.
 
 USE IN INTERSTATE TRAFFIC. 367 
 
 § 247. Belt railroad — Terminal road.— The statute ap- 
 plies to cars hauled on a belt railroad, used as a link be- 
 tween railroads engaged in interstate commerce.-^ So it 
 applies to a terminal road, and to those delivering to and 
 receiving cars from it.-® "When, therefore, the terminal 
 company is engaged in effecting a transfer of one of those 
 cars from one line of railway to another, it is itself engaged 
 in handling a car used in moving interstate traffic. Thus 
 far there can be absolutely no evil. But what is the differ- 
 ence if it takes the car from one of the lines and moves it 
 to its own team track, there to be unloaded, or moves it 
 back empty and places it in one of the lines again to be for- 
 warded elsewhere? In either event it handles a car used 
 in the designated traffic. So it does with equal fault when 
 it moves a car used for moving interstate traffic set in by one 
 of the lines to a convenient engine upon the yard, to be 
 unloaded of its coal designed for use by such engine. It is 
 hauling or using a car, the particular use of which is in- 
 hibited by the statute."^® "It must be conceded that the 
 Stockyards Company would not be a common carrier, nor 
 the property used by it a railroad, if its operations were 
 confined to maintaining the sheds or pens, to unloading 
 shipments thereto, to loading shipments therefrom, and to 
 
 27 Interstate Stock Yards v. In- United States v. Union Stock 
 dianapolis Union Ry. Oo. 99 Fed. Yards Co. UGl Fed. Eep. 919; 
 Rep. 472; United States v. Union affirmed, 169 Fed. 404; Belt R). 
 Stock Yards Co. IGl Fed. Rep. Co. v. United States, 168 Fed. 542; 
 919; Belt Ry. Co. v. United States; see Appendix G; Chicago, B. & Q. R. 
 see Appendix G; Belt Rv. Co. v. Co. v. United States, 211 Fed. 12; 
 United States, 168 Fed. Rep. 542 127 CO. A 438; United States v. 
 (decided February 3, 1909) . Pere Marquette R. Co. 211 Fed, 220. 
 ^ \^ ., , c.^ X /~ii • 4- It may be questioned whether a 
 
 28 L mted States v. Chicago etc., ^^^^^^^ /J ^^^^^ ^^ ^ ^^^^^^ 
 
 R. Co. 143 Fed. Rep. 353; United ^^^^.^^ ^^ ^^^^^ ^^ ^^-^^ i^. ^.^^^^^ 
 
 States V. Southern Pac. Co. 15}- ^.j^gg^ ^^.^g^ gjuce the amendment 
 
 Fed. Rep. 8'97; United States v. approved March 2. 1903, makes the 
 
 Northern Pac. T. Co. 144 Fed provisions and requirements of that 
 
 Rep. 861; United States v. Union amendatory act, as well as of the 
 
 Stockyards & T. Co. 192 Fed. 330. original, apply to all 'cars and similar 
 
 29 United States v. Northern vehicles used on any railroad en- 
 Pacific Terminal Co. 144 Fed. Rep. gaged in interstate commerce.' " 
 861; Chicago, etc., R. Co. v. United States v. Union, etc., Co. 
 United States, 165 Fed. Rep. 423; 161 Fed. Rep. 919.
 
 ggg FEDERAL SAFETY APPLIANCE ACT. 
 
 feeding, watering, caring for, and otherwise handling live 
 stock therein. But its operations are not thus confined. 
 On the contrary, they include the maintenance and use of 
 railroad tracks and locomotives, the employment of a corps 
 of operatives in that connection, and the carriage for hire 
 over its tracks of all live stock destined to or from sheds 
 or pens, which, in effect, are the depot of the railroad com- 
 pany for the delivery and shipment of live stock at South 
 Omaha. The carriage of these shipments from the transfer 
 track to the sheds or pens, and vice versa, is no less a part 
 of their transit between their points of origin and destina- 
 tion than is their carriage over any other portion of the 
 route. * * * In those circumstances controlling decisions 
 leave no room to doubt that it is a common carrier engaged 
 in interstate commerce by railroads within the meaning of 
 the Safety Appliance Law. ' ' ^^^ 
 
 § 248. Car on spur track.— In a case in Alabama the evi- 
 dence showed that the defendant operated a railroad running 
 between Birmingham of that state and Memphis in the state 
 of Tennessee. The plaintiff was in its employ and service at 
 the time he received his injuries as brakeman, and was in- 
 jured while in the act of coupling a car to a switch engine 
 on a spur track a mile from the main track, this spur track 
 joining the main track at Carbon Hill, a station of the defend- 
 ant. At the time of the injury the car was being switched 
 on the spur at a coal mine preparatory to being carried to 
 Carbon Hill by defendant's switch engine in charge of its 
 employes, to be then shipped over its main line. The switch 
 engine never went further than Carbon Hill, and was used 
 for no other purpose than switching, not being used on the 
 main line, but being used merely for carrying cars to the 
 station from the mines, and then placing the cars on a 
 special siding at the station, Carbon Hill, from which tney 
 were taken by regular trains to the point of destination 
 
 2ba United States v. Union Stock Yards Co., 169 Fed. 404.
 
 USE IN INTERSTATE TRAFFIC. 359 
 
 After the car had been loaded at the mines and put on the 
 storage track or special siding at Carbon Hill, it was there- 
 after billed and shipped from Carbon Hill to Aberdeen, 
 Mississippi, by the company owning the coal mines. Some- 
 times, also, cars were billed from the mines. There was 
 nothing to show that any instructions whatever had been 
 given by the shipper before the car reached Carbon Hill as 
 to its destination or intended destination ; but after being 
 placed on the storage track at Carbon Hill it was picked up 
 by a regular train and carried to Aberdeen. So far as the 
 evidence showed, the oar at the time of the accident, while 
 still at the mines, might have been intended for shipment 
 by the mine owner to some point within the state. Upon 
 these facts the court refused to disturb the verdict of the 
 jury to the effect that the car was engaged in interstate com- 
 merce at the time the defendant was injured by a defective 
 coupling on the car.^° 
 
 § 249. ' ' Used in moving interstate traffic ' ' — Sending car 
 to repair shop — Making up train.— The phrase "used in 
 moving interstate traffic" does not mean that a car must 
 be actually loaded and on its journey from one state to an- 
 other in order to be within the provisions of the statute; 
 but only that it has been intended and is intended to be so 
 used whenever required ; and it is a violation of the statute 
 to move such a car, if not equipped with automatic brakes, 
 from one state to another as a part of a train, although it 
 is empty at the time; nor is the mere fact that it is destined 
 for a repair shop a defense.^^ The statute applies to making 
 
 30 Kansas City, etc., R. Co. v. Ey. Co. 145 Fed. Rep. 438; Elgin, 
 
 Flippo, 138 Ala. 487; 35 So. Rep. 457; etc., R. Co. v. United States, 168 
 
 Chicago, etc., R. Co. V. United States, Fed. Rep. 1 (decided February 3, 
 
 165 Fed. Rep. 423; Gray V. Louisville 1909) ; United States v. Philadel- 
 
 ^^■]^-C^^-^^'^^^^-f'^'^: ^ ^^ pMa, e.tc., R. Co. 160 Fed. Rep. 
 
 Under the recent decision of the gg jg^ ^^^ ^ 4^3 United 
 
 Supreme Court of the United States c. 2 -n 1 • -o /~i i^r. 
 
 this decision is correct in its general states v. Pennsylvanm R. Co. 162 
 
 result. See section 159. Fed. Rep. 408 (see Appendix G) ; 
 
 =' United States v. St. Louis, United States v. Philadelphia, etc., 
 
 etc., R. Co. 154 Fed. Rep. 516; R. Co. 162 Fed. Rep. 405 (see 
 
 United States v. Great Northern Appendix G) ; United States v.
 
 370 FEDERAL SAFETY APPLIANCE ACT. 
 
 up the train for the purpose of moving interstate traffic.^^ 
 And so it applies to a dining ear standing on a side track 
 waiting to be hitched onto its regular train.^^ 
 
 § 250. Hauling car not essential to commission of offense 
 — Use of car.— If a car is used in interstate commerce the 
 statute is violated, and it is not necessary that it be hauled 
 to constitute its violation. "In section two it is the hauling 
 or using of the car that is condemned. In section four it 
 is the using alone that is condemned. The former section 
 reads, it shall be unlawful to 'haul or permit to be hauled 
 or used, ' etc. ; the latter reads, it shall be unlawful for any 
 railroad 'to use any car,' etc. The penalty is imposed in 
 section six, when the car is 'hauled or used.' Is the de- 
 fendant 's contention true, that a hauling is absolutely neces- 
 sary to complete the offense? The statute forbids hauling 
 and using. Why are both words used? If the car was 
 fully loaded and on the track ready to be started as a part 
 of an interstate train, with the engine attached and fired, 
 and requiring only the touch of the engineer to start, would 
 not the car be 'used' or in use, within the statute, before 
 it was hauled ? If it were without an automatic coupler, so 
 that the brakeman would have to go between the cars to 
 couple them, it would clearly be wdthin the mischief the 
 statute was intended to prevent. 'Used' has other mean- 
 ings than 'hauled.' It is a broader word."^^* In another 
 case it was said "After the coupler became defective, and 
 could not be coupled without going between the ends of 
 
 Lehigh Valley R. Co. 162 Fed. Rep. Co. 19G U. S. 1; 25 Sup. Ct. Rep. 158, 
 
 410 (see 160 Fed. 696, Appendix G); reversing 117 Fed. Rep. 462; 54 C. 
 
 United States v. Louisville, etc., R. C. A. 508; Chicago, etc., R. Co. v. 
 
 Co. 162 Fed. Rep. 185; Chicago, United States, 165 Fed. Rep. 423; 
 
 M. & St. P. Ry. Co. 165 Fed. 423; United States v. Erie R. Co. 35 Sup. 
 
 91 C. C. A. 373. But as to hauling Ct. 621, reversing 212 Fed. 853; 129 
 
 to a repair shop, see now section 206. C. C. A. 307; on first appeal 197 Fed. 
 
 But not under the Mas.sachusetts 287; 116 C. C. A. 649. 
 
 state statute. Taylor v. Boston, etc., ^^' United States v. St. Louis S. 
 
 R. Co. 188 Mass. 390; 74 N. E. Rep. W. Ry. Co., Appendix G; United 
 
 591. States v. International & G. W. Ry. 
 
 '2 Mobile, etc., R. Co. V. Bromberg, Co. 174 Fed. 638; 98 C. C. A. 392; 
 
 141 Ala. 258; 37 So. Rep. 395; United United States v. St. Louis, I. M. & S. 
 
 States V. Northern Pacific T. Co. Ry. Co. 154 Fed. 516; United States 
 
 144 F(-d. Rep. 861. v. Spokane & I. E. R. Co. 206 Fed. 
 
 " Johnson v. Southern Pac. Ry. 988.
 
 USE IN INTERSTATE TRAFFIC. 37I 
 
 the cars, it became unlawful for the railroad company to 
 haul it, or permit it to be hauled, or used on its line. It 
 then became the duty of the railroad company to withdraw 
 the ear from use, and have it repaired to conform with the 
 law before using it further. " ^^'^ 
 
 § 251. Car not used in interstate commerce. — Of course, 
 a car not used iu interstate commerce does not come within 
 the provisions of the statute ; but if it is hauled in an inter- 
 state train of cars it does; because the danger to employes 
 engaged in transportation of interstate traffic — whom it was 
 the design of Congress to protect — is just as imminent as if 
 the car was used in interstate commerce.^* And so the same 
 is true if it be hauled over a railroad devoted as a highway 
 of interstate commerce.^*"^ 
 
 §252. Interstate car in "connection" with intrastate 
 car. — ^Under the recent decision of the Supreme Court of 
 the United States ^^'^ it is now immaterial whether the car 
 out of repair was or was not used in immediate ** connec- 
 tion" with an interstate car. The amendment of 1903 
 provides that the Act of 1893 "shall be held to apply to all 
 trains, locomotives, tenders, cars and similar vehicles used 
 on any railroad engaged in interstate commerce" "and to 
 all other locomotives, tenders, cars and similar vehicles 
 used in connection therewith." Before the decision of the 
 Supreme Court above referred to, in a case in the Sixth 
 District it appeared that * ' Near to the forward end of it was 
 a car loaded with freight, some of which was consigned to 
 a point or points" in another state. It was "not charged 
 
 33b St. Louis & S. F. Ry. Co. v. Atl. Rep. 90; Elgin, etc., R. Co. v. 
 
 Delk, 158 Fed. 931; 86 C. C. A. United States, 168 Fed. Rep. 1 
 
 95; 14 A. & E. Amu Cas. 233; (decided February 3, 1909); United 
 
 reversed in Delk v. St Louis & S. States v. Chicago, etc., R. Co. 162 
 
 F. R. Co. 220 U. S. 580; 31 Sup. ™ ^''P- '(^- . „ , . 
 
 r<4. CT7 EC T TTij coA 1, i A CoHgrcss has no power to regulate 
 
 Ct. 617; 55 L Ed. 590 but not on ^^^ ^^^ ^^ ^^^^ ^^^ employed in 
 
 this point which was expressly interstate commerce, and the Safety 
 approved by the Supreme Court. Appliance Act cannot be so con- 
 United States V. Southern Pacific strued. United States v. Erie R. 
 Co. Appendix G. Co. 106 Fed. Rep. 352. 
 
 34 Winkler v. Philadelphia, etc., »** See section 243; United States 
 
 R. Co. 4 Penn. (Del.) 387; 53 v. International & G. N. R. Co. 174 
 
 Fed. 638; 98 C. C. A. 392; Chi-^ago 
 
 Junction Ry. Co. v. King, 169 Fed. 
 
 372; 94 C. C. A. 652; Chicago & N. 
 
 W. Ry. Co. v. United States, 168 
 
 Fed. 236.
 
 3J2 FEDERAL SAFETY APPLIANCE ACT. 
 
 that this car was not equipped with the proper couplings 
 and handholds. Toward the rear end of the train were the 
 four freight cars in question, not alleged to be carrying 
 interstate freight, which were not equipped with the re- 
 quired couplings as to the two cars, nor with proper hand- 
 holds as to the other two. Between these and the car carrying 
 interstate freight were other cars not alleged to be carry- 
 ing interstate freight and not alleged to be without the 
 required couplings or handholds." As the cars out of 
 repair were not alleged to be in interstate commerce they 
 were considered to be intrastate cars; and as there was a 
 car not alleged to be out of repair between them and the 
 interstate car, it was considered that such car must also 
 be regarded as an intrastate car; and, therefore, as there 
 was an intrastate car, not out of repair, between the inter- 
 state car and the intrastate car out of repair (and which 
 was the basis of the action on the part of the government), 
 it was claimed that such out-of-repair cars were not "used 
 in connection" with the interstate car, it being argued "that 
 the 'connection' of the ear carrying interstate freight which 
 the act intends is an immediate connection with the cars 
 not properly equipped. ' ' But the court, although admitting 
 "there was some ground for argument that the law should 
 have such restricted operation," because of its penal char- 
 acter, considered that "the trend of decisions of circuit 
 courts and the circuit courts of appeal had been the other 
 way, and is to the effect that the connection of the cars in 
 the trains is not required to be immediate, and we are not 
 so far convinced that those decisions are wrong as to justify 
 us in holding to the contrary."^ Exactly the opposite had 
 been held in the Seventh Circuit.- Of course, as we have 
 above stated, these cases need not now, upon this point, 
 be considered.^ "Every railroad company engaged in inter- 
 
 • Louisville & N. R. Co. v. United R. Co. 166 Fed. 997. See also Siegel 
 
 States, 186 Fed. 2S0; Norfolk & W. v. New York Central & H. R. R. Co. 
 
 Ry. Co. V. United States, 177 Fed. 178 Fed. 873. 
 
 623; 101 C. C. A. 249; Louisville ' gge United States v. International 
 
 & N. R. Co. V. United States. 186 & G. N. R. Co. 174 Fed. 638; Wabash 
 
 Fed. 280; 108 C. C. A. 326; United R. Co. v. United States, 168 Fed. 1; 
 
 States V. Western & A. R. Co. 184 ChicaRo Junction Ry. Co. v. King, 
 
 Fed. 336. 169 Fed. 372; Chieago & N. W. Ry. 
 
 2 United States v. Illinois C;eiitr:il Co. v. United States, 168 Fed. 236;
 
 USE IN INTERSTATE TRAFFIC. 373 
 
 state commerce must equip with safety appliances all of its 
 cars aud all of its trains, regardless of the service in which 
 they are employed,"* 
 
 § 253. Use of car in interstate commerce. — Since the mere 
 use of an improperly eciuipped car in interstate commerce 
 is an offense under the Federal Safety Appliance Act, the in- 
 quiry naturally arises, "What is the use that the statute 
 lorhids?" Of course, if a car is loaded with interstate 
 traffic and hauled in a train of cars it is "used." If it is 
 empty and hauled in an interstate train it is also in "use"; 
 for an offense is committed. Under the recent decision of 
 the Supreme Court of the United States^ whether loaded 
 or unleaded, even if it be an intrastate car hauled in an 
 intrastate train, yet if it be hauled over a railroad that is 
 "a highway of interstate commerce" it is an offense whether 
 we regard it as either hauled or "used." Under the de- 
 cision cited in the next previous section'' if the car be merely 
 loaded with interstate traffic it is "used" in interstate com- 
 merce ; and applying the reasoning of the Supreme Court 
 above referred to^ it would seem that if it be merely loaded 
 for removal with intrastate commerce it is "used" within 
 the prohibition of the statute ; indeed, combining that de- 
 cision with the decision concerning empty cars, it would 
 seem to be a logical result of their trend that an empty 
 intrastate car designed or intended to be hauled on a rail- 
 road which is "a highway of interstate commerce" is also 
 "used" within the prohibition of the statute. But it is 
 readily seen that here we are treading upon dangerous 
 ground and practically losing sight of those instances wholly 
 under the control of a state. At this point courts are 
 bound, in all likelihood, to differ, and only the commanding 
 decision of the Federal Supreme Court can settle the ques- 
 tion.'^ 
 
 United States v. Southern Pacific, 169 & R. G. R. Co. 48 Colo. 249; 110 Pac. 
 
 Fed. 407; United States v. Chicago & 215. 
 
 N. W. Ry. Co. 157 Fed. 616; United * United States v. Pere Marquette 
 
 States V. Chicago G. W. Ry. Co. 162 R. Co. 211 Fed. 220; Southern Ry. 
 
 Fed. 775; United States V.Chesapeake Co. v. United States, 222 U. S. 20; 
 
 & O. Ry. Co., Appendix G; United 32 Sup. Ct. 2; 56 L. Ed. 72; Wabash 
 
 States V. Southern Pacific Co. 167 R. Co. v. United States, 168 Fed. 1; 
 
 Fed. 699; United States v. Southern 9-3 C. C. A. 393; Lucas v. Peoria & E. 
 
 Ry. Co., Appendix G; United States Ry. Co. 171 111. App. 1; Daly v. 
 
 V. Toledo Terminal R. Co., Appendix Illinois Central R. Co. 170 111. App. 
 
 G; United States v. Southern Pacific 185; Southern R. Co. v. Crockett. 
 
 Co., Appendix G; Wabash R. Co. v. 234 U. S. 725; 34 Sup. Ct. 897; 58 
 
 United States, 168 Fed. 1; 93 C. C. A. L. Ed. 1564. 
 
 393; United States v. Southern Pacific ^ Section 243. 
 
 Co. 177 Fed. 796; Campbell v. Spo- « Section 249. 
 
 kane & I. E. R. Co. 188 Fed. 516; ' It may be noted that in a number 
 
 Southern Ry. Co. v. Snyder, 205 Fed. of the more recent decisions the word 
 
 868; 124 C. C. A. 60; Felt v. Denver "commercial" is occasionally applied
 
 374 FEDERAL SAFETY APPLIANCE ACT. 
 
 § 254. Temporary suspension of tra:isportation.— The 
 
 temporary suspension of the transportation of a oar does 
 not take it out of the statute. "Whether that [the ultimate 
 destination] was nearby or remote is not material, because 
 the shipment had originated in another state and was al- 
 ready impressed with the character of interstate traffic, 
 which w^ould follow it at least until the actual transit 
 ceased. ' ' ^^ 
 
 § 255. Permitting cars to be hauled over its lines. — It is 
 
 immaterial not only what company owns the ears but it is 
 also immaterial what company hauls so far as the company 
 owning the line over which they are hauled commits an of- 
 fense. ]\Ierely permitting cars improperly equipped to be 
 hauled by another company over its line of railroad is an 
 offense in the company owning the railroad and permitting 
 the hauling to be done. "It does not matter whether the 
 defendant was the owner or not, because the statute pro- 
 hibits the use on the line of the road or the permitting to 
 be hauled on the line of the roiad, any of these cars not 
 equipped as the statute provides. So that if they permitted 
 to be hauled or used on their roads any such cars, even 
 though they belonged to other companies, they would offend 
 against this provision of the statute. "^"^ 
 
 to the cars drawn in question in the ^^ Crawford v. New York, etc., R. 
 cases wherein such decisions are ren- Co. 10 Am. & Eng. Neg. Cas. 166; 
 dered, as "commercial use." Whether United States v. Chicago, M. & St. 
 or not the courts will seize upon the P. Ry. Co. 149 Fed. 486. The re- 
 word "commercial" and apply it in ceiving company must ascertain at 
 an interpretation of the word "used" its peril that each car it receives from 
 is not to be foretold. Touching the another railroad company is properly 
 use of the word "commercial," see equipped with safety appliances. 
 Southern Ry. Co. v. Snyder, 187 Fed. United States v. Chicago, etc., R. Co. 
 492; Chicago & N. W. Ry. Co. v. 162 Fed. Rep. 775; Devine v. Chicago 
 United States, 168 Fed. 236; United & C. R. Co. 259 111. 449; 102 N. E. 803, 
 States V. Southern Pacific Co., 169 reversing 174 111. App. 324 (receiving 
 Fed. 407. interstate cars at the gates of a 
 
 Where a railroad was engaged in foundry and transporting them to 
 
 interstate commerce and con.stantly their proper place in the yard); 
 
 used an engine in the regular course United States v. Southern Pac. Co. 
 
 of its interstate business, it was held (.see Appendix G; 167 Fed. 699). 
 
 that the Safety Appliance Act applied What is the receipt of a car, see 
 
 to it. Daly v. Illinois Central R. Chicago, etc., R. Co. v. United States, 
 
 Co. 170 III. App. 185. 165 Fed. Rep. 423; United States v. 
 
 " Chicago, etc., Ry. Co. v. Voelker, Union Stock Yards & T. Co. 192 Fed. 
 
 129 Fed. Rep. 522; 65 C. C. A. 65; 330. 
 
 70 L. R. A. 264; Chicago, etc., R. Co. Section 2 makes it unlawful for 
 
 V. United States, 165 Fed. Rep. 423. a railroad company to "haul or per-
 
 USE IN INTERSTATE TRAFFIC. 375 
 
 § 256. Defendant hauling car over another company's 
 line of railway. — The statute makes it an offense for any 
 railway company to run or haul or permit to be hauled or 
 used "on its line" any ear in violation of its provisions; 
 and the question has been presented whether an interstate 
 commerce railway company hauling its train of cars over 
 another company's line of railroad track incurred the pen- 
 alty of the statute. In one case the charge was that the 
 defendant hauled a defective car "over its line of railroad" 
 from one place in New Jersey to another in Pennsylvania. 
 The defendant had an agreement with another railroad 
 company by which it was enabled to haul its trains over 
 such other company's tracks between the two points desig- 
 nated, but subject to the rules of such other company. The 
 defendant was held liable, the court saying : ' ' The fact that 
 in conducting its train over these tracks the defendant 
 company did so, subject to such rules and regulations of 
 the other company as were necessary for the safe and 
 convenient conduct of its business, in nowise militates 
 against the proposition that the defendant company had a 
 legal right to the use of these tracks, and that during such 
 use they were properly the line of the defendant company, 
 within the meaning of the 'Safety Appliance Act.' It was 
 therefore in violation of the act that it allowed the car in 
 question to be hauled in its own train, in the control of its 
 own employees, over a line upon which it had a legal right 
 to conduct its interstate traffic. Such contracts are not 
 unusual, since we find cases in the books arising out of 
 litigation concerning such agreements. The fact, if it be a 
 fact, that in this case the inspection of the cars was made 
 by the servants of the Central Railroad of New Jersey, can- 
 not relieve the defendant from the liability imposed by the 
 
 mit to be hauled or used" a defective although the case was reversed by 
 
 car "on its line." St. Louis, S. & F. the Supreme Court. Delk v. St. 
 
 R. Co. V. Delk, 158 Fed. 931; 86 Louis, S. & F. R. Co. 220 U. S. 580; 
 
 C. C. A. 95; 14 A. & E. Ann. Cas. 31 Sup. Ct. 617; 55 L. Ed. 590. 
 233. This point was approved,
 
 376 FEDERAL, SAFETY APPLIANCE ACT. 
 
 act. It can not by contract dispense with any care required 
 of it by law, and the most that could be said of such a 
 situation would be that it had voluntarily made the in- 
 spectors of the other company its own. ' ' ^^* 
 
 § 257. Freight designed for another state — Not yet left 
 the first state. — It matters not that the freight designed for 
 another state has not yet left the state from which it is in- 
 tended for such other state, if it has been placed aboard the 
 cars ready for transportation to such other state. In one case 
 the following language was used: "It has been proven in 
 this case * * * that both of the cars in question were 
 carrying traffic consigned from a point in one state to a 
 point in another state. This makes such traffic interstate 
 commerce. While the evidence does not show that the de- 
 fendant hauled the car across the state line, still the defend- 
 ant is engaged in interstate traffic no matter how short the 
 movement, if the traffic hauled is in course of movement 
 from a point in one state to a point in another, "^^ 
 
 § 258. Intrastate traffic — Narrow gauge railroad wholly 
 within state. — A company owned and operated a narrow 
 gauge road that lay wholly within the state of Ohio, and was 
 about one hundred miles long, terminating at Bellaire on 
 the Ohio river. At Bellaire it connected with the Baltimore 
 & Ohio Railroad in the sense that it received from that 
 railroad freight from other states marked for points on its 
 line, and delivered to it freight from points on its own line 
 marked for other states in the following manner: There 
 
 " United States v. Central of Ga. phase of the question discussed in 
 
 Ry. Co. 157 Fed. Rep. 893; United this section is now academic in view 
 
 States V. Northern, etc., Ry. Co. 144 of the recent decision of the United 
 
 Fed. Rep. 801; United States v. States Supreme Court. See section 
 
 St. Louis, etc., R. Co. 1.54 Fed. Rep. 24.3. 
 
 .010. Lucas V. Peoria & E. Ry. Co. "• Philadelphia & R. Ry. Co. v. 
 
 171 111. App. 1. It must be apparent United States, 191 Fed. 1; 111 C. C. 
 
 to the reader that the particular A. 001.
 
 USE IN INTERSTATE TRAFFIC. 377 
 
 was no interchange of cars because of the different gauges 
 of the two roads, the defendant's ears being used only on 
 its own road. A transfer track ran from its terminal sta- 
 tion to the Baltimore and Ohio road, so the freight cars of 
 the two roads could be placed alongside of adjoining plat- 
 form, and the transfer of freight made from the cars of one 
 road to those of the other. Neither road issued through 
 bills of lading for the freight transferred ; and no through 
 rate for freight was fixed by mutual arrangement, nor was 
 there a division of freight charges for through freight car- 
 ried by both roads. Freight transported to Bellaire by the 
 narrow gauge road and marked for a point in another state 
 was delivered to the agents of the Baltimore and Ohio with 
 an expense or transfer bill that stated the original point of 
 the shipment, the consignee and place of consignment, and 
 the freight charges of the delivering road. The usual way- 
 bills accompanied this traffic. On taking charge of freight 
 thus delivered to it, the Baltimore and Ohio assumed the 
 payment of the narrow gauge road's freight charges, and 
 collected the entire charges of the transportation on deliver- 
 ing the freight at its destination. Incoming freight was 
 handled in the same manner, except that the agents of the 
 Baltimore and Ohio at Bellaire would bring the traffic to 
 and put it in cars of the narrow gauge road. When it 
 received freight with the expense or transfer bill, the nar- 
 row gauge road w^ould assume the charges of the other road, 
 and collect the entire freight charges at its destination. 
 There were weekly settlements betw^een the two roads of 
 freight charges, and balances paid when found due ; but each 
 road became responsible for the freight charges of the other, 
 whether the consignee paid them or not. Such transfers oc- 
 curred daily, and each company's charges were in accord- 
 ance with its own rates. The acts upon which the suit was 
 based were hauling in a car not equipped as the act of 
 Congress required, cases of eggs destined for a point in 
 Pennsylvania and delivered at Bellaire to the Baltimore and
 
 378 FEDERAL SAFETY APPLIANCE ACT. 
 
 Ohio for shipment to the point of destination ; and also the 
 hauling of certain freight in ears not properly equipped 
 from Bellaire to a station over the narrow gauge road, which 
 freight had been shipped from Philadelphia, in Pennsyl- 
 vania, and consigned to a point on the latter road. It did 
 not appear there was any through bill of lading; but the 
 form of the bill of lading used by the defendant, the narrow 
 gauge road, provided as follows: "This blank must in no 
 case be tilled with the name of any station or place beyond 
 the line of this company's road." Upon these facts it was 
 held that the car carrying the eggs and those carrying the 
 freight from Philadelphia were not used in interstate com- 
 merce, and so need not be equipped with automatic brakes.'^ 
 
 § 259. Intrastate railroad engaged in carrying interstate 
 commerce articles.— This statute has been held to applj^ to a 
 railroad company operating wholly within a state, inde- 
 pendently of all other carriers, but which receives and trans- 
 ports to their destination articles, in a continuous trip, 
 brought from another state Thus, a narrow gauge railroad 
 was operated wholly within the state of Colorado. A ship- 
 ment of hardware was carried by an interstate wide gauge 
 railroad from Omaha, Nebraska, to a station on this narrow 
 gauge road and delivered to it for carriage to a station on 
 the main line a few miles farther on, to which place it 
 had been consigned from Omaha. This shipment was not 
 carried upon a through h\\] of lading, but it was consigned 
 
 38 United States v. Geddes, 131 road company upon exactly similar 
 
 Fed. Rep. 452; 65 C. C. A. 320. facts. United States v. Geddes, 
 
 See also Belt Ry. Co. v. United States, ISO Fed. 480. In this case the court 
 
 168 Fed. 542; 93 C. C. A. GG6; United distinfiuishes it from the case of Cin- 
 
 States V. Chicago, etc., R. Co. 81 cinnati, N. O. & T. P. Ry. Co. v. 
 
 Fed. Rep. 783, and Interstate Com- Inter. Com. Commission, 162 U. S. 
 
 merce Commission v. Bellaire, etc., 193; 16 Sup. Ct. 700; 40 L. Ed. 935. 
 
 R. Co. 77 Fed. Rep. 942. At a latter The case of United States v. Ged- 
 
 date the same result was reached in des, supra, is discussed and denied 
 
 another case against the same rail- in section 260.
 
 USE IN INTERSTATE TRAFFIC. 379 
 
 and carried upon a continuous passage from the point of 
 origin to its destination at the station of the narrow gauge. 
 The shipment was re-billed by the narrow gauge road from 
 the point it received it to its place of destination on its line, 
 and it advanced the freight charges for the previous 
 transportation, collecting them of the consignee on deliver- 
 ing the goods. The broad gauge and narrow gauge roads, at 
 their point of contact, had a platform for their common use, 
 for the purpose of receiving goods on one side of it and 
 loading on the other, in this way making an exchange of 
 goods carried by them respectively. It was held that this 
 narrow gauge road was subject to the federal statute and 
 must equip its cars with automatic brakes. Judge Sanborn 
 relied upon the celebrated case of The Daniel Ball.^^ That 
 was a case to recover a penalty in a suit brought by the 
 United States for navigating Grand river in the sta,te of 
 Michigan without a license. The defense was that the boat 
 was not engaged in trade or commerce between two or more 
 states, but was employed solely in intrastate commerce. It 
 was agreed that the vessel was operated entirely within the 
 state of Michigan between Grand Rapids and Grand Plaven, 
 and that it did not run in connection with, or in continua- 
 tion of, any line of steamers or vessels on the lake, or any 
 line of railway in the state, but that it was a common carrier 
 between these two cities, and "that some of the goods that 
 she shipped to Grand Rapids and carried to Grand Haven 
 were destined and marked for places in other states than 
 Michigan, and that some of the goods which she shipped at 
 Grand Haven came from other states and were destined for 
 places within that state." Judge Sanborn, from this ques- 
 tion, reached the conclusion that "the power to regulate 
 interstate commerce is as complete upon the land as upon the 
 navigable waters of the nation, and congressional regulation 
 
 39 10 Wall. 557; 19 L. Ed. 9m; reversing Brown, Admr., Ca3. 193; 
 Fed. Cas. No. 3564.
 
 380 FEDERAL SAFETY APPLIANCE ACT. 
 
 upon the former must be interpreted by the same rules and 
 enforced with the same efficiency as like regulations upon 
 the latter.*° The plain and specific declaration of the acts 
 of Congress before us, which have been recited,*^ and the 
 familiar rule that where the terms of a statute are unam- 
 biguous and their meaning is plain there is no room for 
 construction, and the apt and controlling opinion of the Su- 
 preme Court in the Daniel Ball case ■*- which decided, in a 
 case strictly analogous, the material legal questions in this 
 case, urgently persuade that the Northwestern Company*^ was 
 a common carrier engaged in interstate commerce by railroad 
 within the meaning of the Safety Appliance Acts, and was 
 thereby required to equip its cars with automatic couplers." ** 
 Nor can a railroad urge that it hauled the car the distance 
 it did in order to reach its general repair shops, if it could 
 have repaired the car at nearby points.*^ 
 
 § 260. United States against Geddes denied.— In the case 
 of the United States against Colorado and Northwestern 
 
 40 Citing In re Debs, 158 U. S. nation from San Jose to Oareaga. 
 564; 15 Sup. Ct. Rep. 500; 39 L. It was held that the traffic being 
 Ed. 1092. carried from Sa,n Jose to Careaga 
 
 41 Safety Appliance Act, p. 264. was interstate. United States v. 
 
 42 10 Wall. 557. Pacific Ry. Co. (see Appendix G). 
 
 43 The narrow gauge railroad. The statute applies to a rail- 
 
 44 United States v. Colorado, etc., road in South Carolina author- 
 R. Co. 157 Fed. Rep. 321; United ized by its special charter to 
 States V. Colorado, etc., R. Co. "farm out" the rights of transpor- 
 157 Fed. Rep. 342. tation. Harden v. North Carolina 
 
 45 United States v. Chicago, etc., R. Co. 129 N. C. 354 : 40 S. E. 
 Ry. Co. 149 Fed. Rep. 486. See Rep. 184; 55 L. R. A. 784. 
 
 also Pacific Coast Ry. Co. v. United Under tlie Massachusetts stat- 
 
 States, 173 Fed. 448. ute, a car en route to a rej>air 
 
 A shipment from a point with- shop does not come within the 
 
 out the State of California was statute prohibiting the "moving 
 
 consigned to San Jose in that of traffic" in ears not equipped 
 
 state. Before the shipment reached with automatic couplers. Taylor 
 
 the state, and wliile in transit, the v. Boston, etc., R. Co. 188 Mass. 
 
 consignor, by agreement with one 390; 74 N. E. Rep. 591. 
 of the carriers, changed the desli-
 
 USE IN INTERSTATE TRAFFIC. 33^ 
 
 Eiailroad Company/" Judge Sanborn of the Circuit Court 
 of Appeals of the Eighth Circuit examines at length the case 
 of the United States against Geddes *' of the Circuit Court 
 of Appeals of the Sixth Circuit and declines to follow it. 
 We set out the review of that case to the full extent as made 
 by Judge Sanborn, viz : ' ' The argument of counsel for the 
 company, in support of the construction adopted by the 
 Court of Appeals of the Sixth Circuit, is (1) that the part 
 of the first section of the 'interstate commerce act' quoted 
 above, constituted a new and exclusive definition of carriers 
 engaged in interstate commerce; (2) that Mr. Justice Shiras 
 in Texas and Pacific Ry. Co. v. Interstate Commerce Com- 
 mission,*^ in speaking of this act, said: 'It would be diffi- 
 cult to use language more unmistakably signifying that 
 Congress had in view the whole field of commerce (except- 
 ing that wholly within a state) as well that between the 
 states and territories as that going to or coming from foreign 
 countries'; (3) that if that statement was accurate, then to 
 be a 'common carrier engaged in interstate commerce by 
 railroad' within the meaning of the Safety Appliance Act of 
 1893, which was enacted six years later, a railroad must be 
 'engaged in the transportation of passengers or property 
 wholly by railroad or partly by railroad and partly by 
 water when both are used, under a common control, man- 
 agement or arrangement for a continuous carriage or ship- 
 ment' from one state to another; (4) that Congress sought 
 to regulate interstate commerce by each act and that having 
 defined interstate commerce m the first act, the words 'any 
 common carrier engaged in interstate commerce' in the sub- 
 sequent Safety Appliance Acts were restricted to those car- 
 riers specified in that definition, and included only such as 
 were so engaged with others under a common control, man- 
 
 "157 Fed. Rep. 321. 1G2 U. S. 197, at p. 212; 16 Sup. 
 
 "131 Fed. Rep. 452; G5 C. C. Ct. 66G, at p. 672 (40 L. Ed. 
 
 A. 320. 040 ) ; reversing 4 Inter. St. Com. 
 
 « Texas & Pacific Ry. Co. v. In- Rep. 408; 6 C. C. A. 653; 20 
 
 terstate Commerce Commission, U. S. App. 1 ; 57 Fed. Rep. 948.
 
 382 FEDERAL SAFETY APPLIANCE ACT. 
 
 agement or arrangement for a continuous passage or 
 shipment; and (5) that any other construction would compel 
 railroad companies operating in single states, to which arti- 
 cles of interstate commerce that they might not lawfully 
 refuse to carry were tendered for transportation, to comply 
 with the Safet}" Appliance Acts, and would thereby draw 
 all commerce under national regulation. A careful study 
 of this argument in all its branches has brought to mind 
 some reasons why it is not convincing, which will be briefly 
 stated. The major premise of the argument is that Con- 
 gress by the act of 1887, made an authoritative definition of 
 carriers engaged in interstate commerce by railroad and 
 partly by railroad and partly by water, to which subsequent 
 legislation and decision is subject; that after the passage 
 of that act no carrier by railroad and no carrier partly by 
 railroad and partly by Avater, who conducted within a single 
 state a part of the continuous transportation of articles of 
 interstate commerce, was engaged in that commerce, unless 
 it conducted that carriage with some other carrier under a 
 common control, management or arrangement for a con- 
 tinuous carriage or shipment. Is this the true construction 
 and effect of the first section of the interstate commerce act 
 of 1887 ? When Congress passed that statute, conclusive de- 
 cisions and universal assent had established the rule of law 
 that common carriers engaged entirely within a single state 
 in the transportation of articles of interstate commerce in- 
 cluded two classes: (a) Those who conducted that trans- 
 portation with another or other carriers under a common 
 control, management or arrangement for a continuous car- 
 riage or shipment; and (ft) those who conducted such trans- 
 portation alone, or with other carriers without any common 
 control, management or arrangement for such a carriage or 
 shipment. The (piestion whether or not carriers of the sec- 
 ond class were engaged in interstate commerce was settled."*^ 
 It was not acute, debatable or open, and the purpose of the 
 
 «The Daniel Ball, 10 Wall. Brown, Admr., Cas. 193; Fed. Cas, 
 55 5(J5; 1!) L. Kil. !»!)!»; rovershig No. 3,564.
 
 USE IN INTERSTATE TRAFFIC. 
 
 383 
 
 act of 1887 was not to answer it. If it had been the inten- 
 tion of Congress and the meaning of that act that the 
 established rule of law upon that question should be abro- 
 gated, that a new definition of carriers engaged in inter- 
 state commerce should be made w^hich would imperatively 
 exclude the second class from interstate commerce, it is rea- 
 sonable to believe that the law making body would have 
 made this purpose to cause so radical a departure from the 
 law of the land clear and indisputable by a direct declara- 
 tion and enactment Avhich could easily have been written in 
 a few lines, that henceforth carriers engaged in interstate 
 commerce by railroad should include those of the first class 
 only, or that they should exclude those of the secund class. 
 But the act contains no such declaration or provision. On 
 the other hand, in the face of the established rule of law 
 that carriers by railroad engaged in interstate commerce 
 consisted of both classes, the Congress enacted that 'the pro- 
 visions of this act shall apply to' the members of the first 
 class, and there it stopped and enacted nothing more perti- 
 nent to this issue. The existence of the two well known 
 classes of carriers engaged in interstate commerce, the ab- 
 sence of any declaration or enactment that the rule which 
 included the members of both classes among such carriers 
 should be abrogated or in any way modified, and the simple 
 declaration of the act that its provisions should apply to the 
 members of the first class without more upon this subject, 
 render it difficult to believe that the purpose or effect of the 
 first section of this statute was any other than to select out 
 of all the carriers engaged in interstate commerce by rail- 
 road or partly by railroad and partly by water, and to speci- 
 fy, as its clear and certain w^ords purport to do, the class 
 of those carriers to which its provisions apply. The 
 remark of i\Ir. Justice Shiras in Texas and Pacific Ry. Co. 
 V. Interstate Commerce Commission,^" with reference to the 
 interstate commerce act. that 'It would be difficult to use 
 
 »»162 U. S. 212; 16 Sup. Ct. 672 (40 L. Ed. 940).
 
 384 FEDERAL SAFETY APPLIANCE ACT. 
 
 language more unmistakably signifying that Congress had 
 in view the whole field of commerce, excepting commerce 
 wholly within a state,' is not persuasive upon the legal issue 
 before us (a) because this question Avas not presented, dis- 
 cussed, or decided in that case, wherein the court was con- 
 sidering only the relation of the circumstances, conditions 
 and rates of transportation of foreign commerce to the cir- 
 cumstances, conditions and rates of transportation of inter- 
 state commerce under the act of 1887, and expressions in 
 the opinion of courts are not authoritative beyond the ques- 
 tions which they were considering and deciding when they 
 used them.^^ (&) Because the statement that Congress had 
 in view the whole field of interstate commerce when it passed 
 this act is far from an assertion, and could never have been 
 intended to be a declaration that Congress had regulated, or 
 had intended by that act to regulate, every carrier engaged 
 in interstate commerce within its regulating power, for that 
 was obvioush^ not the fact. It did not regulate and evi- 
 dently did not intend to regulate carriers engaged in the 
 transportation of subjects of interstate commerce by stage 
 coach, by wagon, entirely by water, or such carriers partly 
 by water and partly by railroad, when they were not oper- 
 ating with other carriers under a common control, manage- 
 ment or arrangement; (c) because the statute expressly 
 declared that the provisions of the act should apply to the 
 members of a specific class of carriers engaged in interstate 
 commerce, and omitted, and thereby excluded from subjec- 
 tion to its provisions, those of other classes. The amenda- 
 tory act of June 29, 1906,^- is a demonstration that the 
 original act was not intended to and did not regulate all 
 common carriers engaged in interstate commerce by railroad 
 within the power of Congress, for the amendment applies 
 the provisions of the act to common carriers engaged in in- 
 terstate commerce wholly ])y railroad who are exempt from 
 
 oi Cohens v. Virginia, Wheat- "34 Stat. 584, c. 3501, See. 1 
 
 on, 204, 299; 5 L. Ed. 257. (U. S. Conip. St. Supp. 1907, p. 
 
 892).
 
 USE IN INTERSTATE TRAFFIC. 335 
 
 any common control, management or arrangement with other 
 carriers, and applies its provisions to nuiny other carriers 
 not subject to the terms of the original act. The rule in 
 pari materia, which counsel for the company invoke, the nile 
 that the similar terms of statutes enacted for like purposes 
 should receive like interpretations, is inapplicable to the in- 
 terstate commerce act and the Safety Appliance Acts, be- 
 cause the provision of the latter relative to the question 
 before us, is plain and explicit, and a statute falls under 
 that rule only when its terms are ambiguous or its signifi- 
 cance is doubtful,'^^ and because the evils to be remedied, the 
 objects to be accomplished, and the enactments requisite to 
 attain them are radically different. It is true that each act 
 was a regulation of interstate commerce, but so are the Sher- 
 man anti-trust act, the employers' liability act, the vari- 
 ous acts regulating the inspection of steamboats, and the 
 navigation of the inland rivers, lakes and bays, and many 
 other acts, too numerous to mention or review. It does not 
 follow from the facts that the interstate commerce act was 
 first passed, and that it regulates commerce among the states, 
 and declares that its provisrons shall apply to the mem- 
 bers of a certain class of carriers engaged therein, that the 
 Sherman anti-trust act, the Safety Appliance Acts, and other 
 subsequent acts regulating commerce apply to the members 
 of that class only, in the face of the positive declarations 
 of the later acts that they shall govern other parties and 
 Other -branches of commerce. The subject of the first act 
 was the contracts, the rates of transportation of articles of 
 interstate commerce ; the subject of the Safety Appliance 
 Acts was the construction of the vehicles, the cars, and 
 engines which carry that commerce. The evils the former 
 was passed t'o remedy were discrimination and favoritism in 
 contracts ami rates of carriage; the evils the latter was 
 enacted to diminish were injuries to the employes of car- 
 riers by the us© of dangerous cars and engines. The remedy 
 
 ^'Endlich 011 Interpretation of Statutes, Sec. 5S p. 67.
 
 38g FEDERAL SAFETY APPLIANCE ACT. 
 
 for the mischiefs which induced the passage of the former 
 act was equality of contracts and rates of transportation ; 
 the remedy for the evils at which the latter act was leveled 
 was the equipment of cars and engines with automatic 
 couplers. Neither in their subjects, in the mischiefs they 
 were enacted to remove, in the remedies required, nor in tJie 
 remedies provided, do these acts relate to similar matters, 
 and the rule that the words or terms of acts in pari materia 
 should have similar interpretations ought not to govern their 
 construction. The contention that if a railroad company 
 conducting the transportation of articles of interstate com- 
 merce entirely within a single state and independent of other 
 carriers, is held to be subject to the Safety Appliance Acts, 
 it must receive articles of interstate commerce for trans- 
 portation, and all carriage, both interstate and intrastate, 
 will thus become subject to national regulation, neither ter- 
 rifies nor convinces. The constitution reserved to the nation 
 the unlimited power to regulate interstate and foreign com- 
 merce, and if that power cannot be effectually exercised 
 without affecting intrastate commerce, then Congress may 
 undoubtedly in that sense regulate intrastate commerce so 
 far as necessary, in order to regulate interstate commerce 
 fully and effectually. The peaple of the United States 
 carved out of their sovereign power, reserved from the states, 
 and granted to the Congress of the United States exclusive 
 and plenary power to regul.ate eom-merce among the states 
 and with foreign nations. That pjower is not subordinate, 
 but it is paramount to all the powers of the states. If its 
 independent and lawful exercise of this congressional power 
 and the attempted exercise by a state of any of its powers 
 impinge or conflict, the former must prevail and the latter 
 must give way. The constitution and the acts of Congress 
 passed in pursuance thereof are th'e supreme law of the land. 
 'That which is not supreme must yield to that which is su- 
 prcnic' ■'■' It was the evident and declared purpose of the 
 
 "Brown v. Maryland, 12 Whoat. v. O^don, Whoat. 1, 200, 210; 
 419, 448; 6 L. Ed. 078; Gibbons 6 L. Ed. 23; Gulf, Colorado, etc..
 
 USE IN INTERSTATE TRAFFIC. 387 
 
 Safety Appliance Acts to require every common carrier en- 
 gaged in interstate commerce, and hence every common car- 
 rier so engaged independently in a single state, to comply 
 with the requirements of the statute. No greater ourden is 
 thereby imposed upon a company engaged in such commerce 
 within one state than upon one so engaged in more than one 
 state. There was as urgent a demand, and as much reason 
 and necessity, for the protection of the lives a.nd limbs of 
 the servants of railroad companies operating in a single 
 state, as of preserving the lives and limbs of the servants of 
 such companies operating across state lines. The Safety 
 Appliance Acts might be practically evaded and thus ren- 
 dered futile if companies independently transporting articles 
 of interstate commerce in single states could exempt them- 
 selves from their provisions by conducting all such transpor- 
 tation, except that across the imaginary lines which divide 
 the states, by means of corporations operating in single states 
 only, aud finally the objection here under consideration was 
 determined to be untenable by the controlling opinion of the 
 Supreme Court in the Daniel Ball case,^^ where it was equally 
 available, was considered and overruled, for Congress has the 
 
 Ry. Co. V. Hefley, 158 U. S. 98; 125 U. S. 4G5, 479, 480, 481. 484, 
 
 15 Sup. Ct. 802; 39 L. Ed. 910; 485, 488, 489, 490, 491, 507, 508; 
 
 Int. State Commerce Com. v. De- 8 Sup. Ct. 689, 1062; 31 L. Ed. 
 
 troit, etc., Ry. Co. 167 U. S. 633, 700; Welton v. Missouri, 91 U. S. 
 
 642; 17 Sup. Ct. 986; 42 L. Ed. 275, 280; 23 L. Ed. 347; Lyng v. 
 
 306; State Freight Tax Case, 15 Michigan, 135 U. S. 161, 166; 10 
 
 Wall. 232, 275, 280; 21 L. Ed. Sup. Ct. 725; 34 L. Ed. 150; Nor- 
 
 146; Pensacola Telegraph Co. v. folk, etc., Ry. Co. v. Pennsylvania, 
 
 Western Union Telegraph Co., 96 136 U. S. 114, 115, 118, 120; 10 
 
 U. S. 1, 8; 24 L. Ed. 708; Chy Sup. Ct. 958; 34 L. Ed. 394; 
 
 Lung V. Freerian, 92 U. S. 275, Crutcher v. Kentucky, 141 U. S. 
 
 280; 23 L. Ed. 550; Ry. Co. v. 47, 57, 58, 59; 11 Sup. Ct. 851; 
 
 Husen, 95 U. S. 465, 471, 472, 473; 35 L. Ed. 649; Osborne v. Flor- 
 
 24 L. Ed. 527; Hall v. De Cuir, 95 ida, 164 U. S. 650, 655; 17 Sup. 
 
 U. S. 485, 488-490. 497, 498-513; Ct. 214; 41 L. Ed. 586; Caldwell 
 
 U. S. 485,488-490.497,408-513; 24 v. North Carolina, 187 U. S. 622, 
 
 L. Ed. 547; Cooper Mfg. Co. v. 623; 23 Sup. Ct. 229; 47 L. Ed. 
 
 Ferguson. 113 U. S. 727, 736, 737; 336. 
 
 5 Sup. Ct. 739; 28 L. Ed. 1137; "10 Wall. 565; 19 L. Ed. 999. 
 Bowman v. Chicago, etc., Ry. Co.
 
 388 FEDERAL. SAFETY APPLIANCE ACT. 
 
 same 'fulness of control' over interstate commerce carried 
 upon railroads and other artificial highways upon the land 
 that it has over that borne upon the navigable waters of the 
 nation.'^'' Some of the reasons why the argument of counsel 
 in support of the construction of these acts which they seek, 
 has not proved convincing, have now been stated. There are, 
 however, other and controlling considerations which deter us 
 JVom the conclusion they urge. Congress enacted that 'it 
 shall be unlawful for any common carrier engaged in inter- 
 state commerce by railroad' to haul any car on its line, used 
 in moving interstate traffic, unequipped with automatic 
 couplers, except four-wheeled cars and certain logging cars 
 and the engines which draw them. The construction of this 
 enactment sought in effect amends this positive declaration 
 by importing into it the exception which appears in italics 
 below, so that it would read, 'it shall be unlawful for any 
 common carrier engaged in interstate commerce by railroad, 
 * * * except a common carrier engaged in interstate com- 
 merce hy railroad wholly tvitkin a single state and not under 
 a common control, ^naiiagonent or arrangement with any 
 other carrier for a continuous carriage or shipment' to haul 
 any car on its line used in moving interstate traffic un- 
 equipped with automatic couplers, except four-wheeled cars 
 and certain logging cars and the engines used to haul them. 
 But where the Congress makes no exception from the clear 
 and certain declaration of a statute, there is ordinarily a 
 presumption that it intended to make none.^^ By so much 
 the more is it true that where the lawmaking body has made 
 exceptions to the general terms of an act, as in this instance, 
 the presumption is that it intended to make no more. Again, 
 if Congress intended to make this exception, it was a secret 
 intention which the Safety Appliance Acts not only failed to 
 
 '"In re Debs, 158 U. S. 590, Ed. 242; Vance v. Vance, 108 U. 
 
 5!)1; 15 Sup. Ct. 900; 39 L. Ed. S. 514, 521; 2 8up. Ct. 854; 27 
 
 1092. E. Ed. 808; Railway Co. v. 
 
 "Mr-Tver v. En<r:in, 2 Wliei.l. li'Sliears. 59 Ark. 237, 244; 27 
 
 25, 29; 4 E. Ed. 175: liaiik v. S. W. 2. 
 Daltxjn, 9 How. 522, 528; 13 L.
 
 USE tN INTERSTATE TRAFFIC. 339 
 
 express, but which their terms expressly negatived It is the 
 intention expressed, or necessarily^ implied, in the law, and 
 that alone, to which courts may lawfully give effect. They 
 may not assume or presume purposes and intentions that are 
 neither expressed or implied, and then construe into the law 
 the provisions to accomplish these assumed intentions. A 
 secret intention of the lawmaking body cannot be legally in- 
 terpreted into a statute which is plain and unambiguous, and 
 which does not express or imply it."^^ The principal reasons 
 which have been persuasive in the determination of the ques- 
 tion in hand have now been stated. They have been pre- 
 sented at considerable length in deference to the opinion of 
 the Court of Appeals of the Sixth Circuit in the Geddes case, 
 which it would have been a pleasure to follow, if the proper 
 result^ had been doubtful in our opinion. But this case has 
 been presented to this court for decision. The exercise of its 
 independent judgment has been invoked, and it may not be 
 lawfu'lly denied. The positive and explicit declaration of the 
 first section of the Safety Appliance Act of 1893 that 'it shall 
 be unlawful for any common carrier engaged in interstate 
 commerce by railroad' to use any cars unequipped with auto- 
 matic couplers except four-wheeled cars and logging cars in 
 moving interstate traffic, the clearness and certainty of this 
 language which prohibits interpretation, the absence of any 
 expression of the exception which the court is asked to im- 
 port into this statute, the presumption from the plain lan- 
 guage of the law that the Congress intended to make no such 
 exception, the rule that the courts may not insert in a statute 
 an enactment of an assumed secret intention of the lawmaking 
 body which is not expressed therein or necessarily implied, 
 the fact that the interstate commerce act does not appear to 
 us to define common carriers engaged in interstate commerce 
 by railroad, but simply to apply the provisions of that act to 
 
 ^V. S. V. Wiltberger. 5 Wheat. 95 Am. Dec. 152; Smith v. State, 
 
 70: 5 L. Ed. 37: Bennett v. 66 Md. 215; 7 Atl. 40; Railway 
 
 Worthington. 24 Ark. 487. 404; Co. v. Bagley. 60 Kan. 424; 56 
 
 Tynan v. Walker, 35 Cal. 634; Pac. 759.
 
 390 FEDERAL SAFETY APPLIANCE ACT. 
 
 the members of a specified class of these carriers, the fact 
 that the interstate commerce act is not in pari materia with 
 the Safety Appliance Acts, either in its subject-matter, in the 
 evils it assails, or in the remedies it provides, so that neither 
 its language nor the construction thereof is apposite to or 
 controlling of the terms or of the interpretation of the latter 
 act, the reason of the case which as imperatively requires the 
 protection from dangerous vehicles of the employes of com- 
 panies independently engaged in interstate commerce by 
 railroad entirely within single states, as it does the protection 
 of the servants of other companies employed in the trans- 
 portation of articles of interstate commerce by railroad, all 
 these and other facts, 'rules and reasons to which reference 
 has been made, have converged upon our minds with com- 
 pelling power, and forced them to the conclusion that 
 Congress did not intend to, and did not except from the pro- 
 visions of the Safety Appliance Acts common carriers en- 
 gaged in the transportation of articles of interstate commerce 
 entirely within single states respectively, and exempt from 
 any common control, management or arrangement with other 
 carriers for a continuous carriage or shipment, but that it in- 
 tended to, and did, expressly include them therein and sub- 
 ject them thereto. ' ' ^^ 
 
 § 261. Effect of the case of Southern Railway Co. against 
 United States on Geddes and Colorado cases. — Naturally 
 one inquiries how far the case of Southern Railway Com- 
 pany^''^ has affected either the case of United States 
 against Geddes^''- or that of United States against Colorado, 
 etc., Railway Company,'^°^ or whether that case has any 
 bearing upon the other two. The sole question is whether 
 or not the facts, which are practically identical, detailed 
 in the tw^o cases show a transaction in interstate commerce. 
 
 '" United States v. Colorado, etc., ^ <•" Discussed at length in section 
 
 Ry. Co. 157 Fed. .T21. In this case a 243. 
 
 crrliorari was denied to the defendant. ''"^ Discussed in section 259. 
 
 209 U. S. 544. liw Discussed in section 260.
 
 USE IN INTERSTATE TRAFFIC. 39;!^ 
 
 In the one case the court says they do not, in the other that 
 they do. That is the only (luestion at issue between them. 
 In a later case (or perhaps the same case), the Federal 
 Court for one of the districts of Ohio admits that if the 
 traffic had been carried over the narrow gauge road by 
 through waybills, and it had received its due proportion 
 of the freight charges for the entire distance carried, the 
 transaction would have been one of interstate commerce.'*®'^ 
 Did the break in the transportation of the traffic, after it 
 had reached the state of its destination, change an inter- 
 state carriage into an intrastate carriage was the question 
 at issue between these two cases. But the United States 
 Supreme Court has in a way solved the question. If the 
 company owning the narrow gauge railroad had so used it 
 that it had become "a highway of interstate commerce," 
 then it is immaterial that the particular transaction under 
 consideration was or was not an instance of interstate com- 
 merce. Proof of that particular transaction would only be 
 for the purpose of showing that it was "a highway of inter- 
 state commerce," or devoted to the business of carrying 
 traffic in interstate commerce. But if the only instances 
 shown were the two detailed in the two opinions in those two 
 cases, then the question would still remain whether or not 
 the evidence was sufficient to show that the railroad line 
 was "a highway of interstate commerce," — whether a single 
 transaction in interstate commerce over a line of railroad is 
 sufficient to show ^^^ that it is **a highway of interstate com- 
 
 B9d United States v. G^ddes, 180 injury to hold the railroad corn- 
 Fed. 480, following in this conclu- pany amenable to the Fedei^al Safe- 
 sion, Oincinnati, N. 0. &> T. P. Ry. ty Appliance Act. Felt v. Denver 
 Co. V. Interstate Commerce Com- & R. G. R. Co. 48 Colo. 249; 110 
 mission, 1G2 U. S. 193; 16 Sup. Pae. 215. T!he soundness of this 
 Ct. 700; 40 L. Ed. 935. case, however, is verj' questionable, 
 
 •■"'Se It has been held by a state for by such use of the railroad line 
 
 court that the mere fact a railroad did not the company make it "a 
 
 has frequently hauled interstate highway of interstate commerce?" 
 
 traffic is not sufficient in an action Of course the Colorado case just 
 
 to recover damages for a personal cited was decided before the rece it
 
 392 FEDERAL SAFETY APPLIANCE ACT. 
 
 merce. " There are a number of decisions which prac- 
 tically hold, and it is usually admitted, under the old 
 interpretation of the statute, that a single package of interstate 
 traffic put aboard a loaded or unloaded freight train will 
 convert the whole train into one of interstate commerce ; 
 and if that be true, it is difficult to see why proof of a 
 single transaction of interstate commerce, or carriage of 
 traffic in interstate commerce, is not sufficient to show that 
 the line of railroad was not "a highway of interstate com- 
 merce," if the carriage occurred shortly before the date of 
 the commencement of the action w^herein it is necessary to 
 show that the railroad line falls within the provisions of the 
 Safety Appliance Act. 
 
 § 262. Burden — Reasonable doubt. — The person alleging 
 that the car causing the injury by reason of defective 
 coupling, or rather by a failure to comply with the statute 
 with regard to automatic coupling, has the burden to prove 
 that the car at the time was used in interstate commerce,®" 
 
 case of the Supreme Court of the 408; United States v. Philadelphia, 
 United States as set forth in section etc., R. Co. 162 Fed. Rep. 405; United 
 159. In the hght of this recent case States v. Lehigh Valley R. Co. 162 
 of the United States Supreme Court, Fed. Rep. 410; United States v. 
 the soundness of the case of Campbell Illinois Central R. Co. 166 Fed. 997; 
 V. Chicago, R. I. & P. Ry. Co. 149 111. United States v. Southern Pacific Co. 
 App. 120, afTirmed 243 111. 620; 90 167 Fed. 699; United States v. South- 
 N. E. 1106 is doubtful. ern Ry. Co. 170 Fed. 1014; United 
 <"> United States v. Illinois Central States v. Montpelier & W. R. Co. 
 R. Co. 156 Fed. Rop. 182; United 175 Fed. 874; United States v. Kan- 
 States V. Central of Ga. Ry. 157 Fed. sas City Southern Ry. Co. 202 Fed. 
 Rep. 893; Kansas City, etc., R. Co. 828. 
 
 V. Flippo, 138 Ala. 487; 35 So. Rep. In a prosecution to recover the 
 
 457; Missouri Pacific R. Co. v. Ken- penalty for the violation of the statute 
 
 net, 79 Kan. 232; 99 Pac. Rep. 263; within a territory, it is not necessary 
 
 United States v. Chicago, etc., R. Co. to prove that the defendant was en- 
 
 162 Fed. Rep. 775; United States v. gaged in interstate commerce, neither 
 
 Louisville, etc., R. Co. 162 Fed. Rop. is it necessary to show that the car 
 
 185; United States v. Philadelphia, itself was engaged in such commerce, 
 
 etc., R. Co. 160 Fed. Rep. 696; 162 United States v. Atchison, etc., R. 
 
 Fed. Rep. 403; United States v. Co. (see Appendix G). 
 Pennsylvania R. Co. 162 Fed. Rep.
 
 USE IN INTERSTATE TRAFFIC. 393 
 
 or was hauled in an interstate commerce train.*"^* In 
 the case of an empty ear hauled in a train, it must be shown 
 that it was used or was intended to be used in moving inter- 
 state traffic. In a criminal case it has been held that this 
 must be shown beyond a reasonable doubt.*" Of course, 
 in a civil case the doctrine of reasonable doubt is 
 not involved. Nearly three years before these cases 
 first cited had been decided the Supreme Court of 
 the United States had said in a civil case : ' ' But 
 the design to give relief was more dominant than to in- 
 flict punishment, and the act might be held to fall within 
 the rule applicable to statutes to prevent fraud upon the 
 revenue, and for the collection of customs, that rule not re- 
 quiring absolute strictness of construction. ' ' *'- The first 
 case cited in this section was in the District Court for the 
 Western District of Kentucky. A month before it was de- 
 cided the judge of the District Court for the Northern Dis- 
 trict of Alabama charged the jury as follows: "The burden 
 is upon the government to make out its case to a reasonable 
 certainty — that is, to your reasonable satisfaction— by a pre- 
 ponderance of the evidence. If you find, therefore, from a 
 preponderance of the evidence in this case that the defendant 
 was a common carrier engaged in interstate traffic by rail- 
 road, and that it hauled in interstate traffic the cars named 
 in the petition, when said cars were in such condition that, 
 in order to operate the coupling or uncoupling mechanism 
 thereon, it was necessary for an employe to go between the 
 ends of the cars, you will render your verdict for the plain- 
 tiff. If you do not so find, you will render your verdict for 
 
 60* Elgin, etc., R. Co. v. United 158, reversing 117 Fed. Kep. 402; 
 
 States, "168 Fed. Rep. 1 ( de- 54 C. C. A. 508; citing Taylor v. 
 
 cided February 3, 1909); United United States, 3 How. 197; 11 L. 
 
 States V. Chicago, etc., R. Co. 162 Ed. 559; United States v. Stow- 
 
 Fed. Rep. 775. ell, 133 U. S. 1 ; 10 Sup. Ct. Rep. 
 
 "United States v. Illinois Cent. 244; 33 L. Ed. 555; Farmers, etc., 
 
 R. Co. 156 Fed. Rep. 182. Bank v. Dearing, 91 U. S. 29; 23 
 
 «= Johnson v. Southern Pac. Ry. 1- Ed. 196; Gray v. Bennett, 3 
 
 Co. 196 U. S. 1; 25 Sup. Ct. Rep. Met. 522.
 
 394 
 
 FEDERAL, SAFETY APPLIANCE ACT. 
 
 the defendant. By a preponderance of the evidence, you are 
 not to understand that the government must make out its 
 case beyond a reasonable doubt. It is sufficient if you are 
 satisfied in your own mind from all the evidence that the de- 
 fendant did the act complained of.'"^^ In other cases it has 
 been held that the government must prove its case beyond a 
 reasonable doubt.*^* But now the great weight of authority 
 is that the government need not prove the case beyond a 
 reasonable doubt, it being sufficient if it furnishes cl'ear and 
 satisfactory evidence of all the necessary facts.^^ In all the 
 later cases it is held that the action to recover the penalty in- 
 curred by a failure to properly tquip a ear is a civil and 
 not a criminal action ; and now it is the accepted rule that 
 in an action to recover the penalty provided by the statute, 
 the case may be made out by the government by a mere 
 preponderance of the evidence.'^'* 
 
 ^^ United States v. Central of Ga. 
 Ry. Co. 157 Fed. Rep. 893. 
 
 ** United States v. Louisville, etc., 
 R. Co. 156 Fed. Rep. 193; United 
 States V. Louisville, etc., R. Co. 156 
 Fed. Rep. 195; United States v. 
 Illinois Cent. R. Co. 156 Fed. Rep. 
 182. 
 
 Of course the government must 
 show that the defective car was used 
 in interstate commerce. Rosney v. 
 Erie R. Co. 135 Fed. Rep. 314; 68 
 C. C. A. 155, or upon a railroad de- 
 voted to a highway of interstate com- 
 merce, section 159. 
 
 "* United States v. Lehigh Valley 
 R. Co. 162 Fed. Rep. 410 (see Ap- 
 pendix G, p. 311); United States v. 
 Philadelphia, etc., R. Co. 162 Fed. 
 Rep. 405 (Appendix G, p. 315) ; United 
 States v. Pennsylvania R. Co. 162 
 Fed. Rep. 408; United States v. 
 Philadelphia R. Co. 160 Fed. Rep. 
 
 696: 162 Fed. Rep. 403; United States 
 V. Louisville, etc., R. Co. 162 Fed. 
 Rep. 185; United States v. Boston & 
 Maine R. Co. 168 Fed. 148, and 
 Appendix G; United States v. Chi- 
 cago, etc., R. Co. 173 Fed. 684 (see 
 Appendix G); United States v. 
 Atchison, etc., R. Co. 167 Fed. 696 
 (see Appendix G); United States v. 
 Terminal R. Assn. (see Appendix G); 
 United States v. Nevada, etc., R. Co. 
 167 Fed. 695 (Appendix G). 
 
 «« United States v. Nevada County 
 N. G. R. Co. 167 Fed. 695; United 
 States v. Southern Ry. Co. 170 Fed. 
 1014; United States v. Atchison, T. 
 & S. F. Ry. Co. 168 Fed. 696; United 
 States V. Baltimore & O. R. Co. 
 176 Fed. 114; WheeUng Terminal Ry. 
 Co. V. Russell, 209 Fed. 795; 126 C. 
 C. A. 519; United States v. Central 
 of Georgia Ry. Co. 157 Fed. 893.
 
 CHAPTER XVI. 
 CARS AND THEIR EQUIPMENT. 
 
 SECTION 
 
 263. What 
 
 264. 
 265. 
 
 266. 
 
 267. 
 
 268. 
 269. 
 
 270. 
 
 271. 
 272. 
 
 273. 
 274. 
 
 275. 
 
 is a "car" within the 
 meaning of the statute. 
 
 Electric cars. 
 
 Empty car — Car used in mov- 
 ing interstate commerce. 
 
 Empty car used in interstate 
 train. 
 
 Proviso to section 6 — Four- 
 wheeled and logging cars. 
 
 Kind of couplers to be used. 
 
 Without the necessity of men 
 going between the ends of 
 cars. 
 
 Both ends of every car must 
 be equipped with automatic 
 couplers. 
 
 Uncoupling. 
 
 Erroneous instructions concern- 
 ing height of draw bars. 
 
 Construction of section 5. 
 
 Insufficient operation of coup- 
 lers. 
 
 Improperly operated if suf- 
 ficient couplers. 
 
 SECTION 
 
 276. Preparation of coupler for 
 coupling. 
 
 M. C. B. defect cord. 
 
 Receiving an improperly equip- 
 ped car. 
 
 Question for jury. 
 
 When a Federal question is 
 presented. 
 
 State statute on same subject 
 applicable to intrastate com- 
 merce. 
 
 Handholds — Through trains. 
 
 Handholds on roof of car — 
 Sill steps — Handbrakes — 
 Ladders — Running boards. 
 
 Air hose, coupling chains and 
 appliances obviating neces- 
 sity for handholds. 
 
 What is and what is not a 
 handhold a question for the 
 jury — Expert testimony — 
 Personal examination by 
 jury. 
 
 277. 
 278. 
 
 279. 
 280. 
 
 281. 
 
 282. 
 283. 
 
 284. 
 
 285. 
 
 § 263. What is a "car" within the meaning of the stat- 
 ute. — The statute prohibits the use of "any ear used in 
 moving interstate traffic not equipped with couplers coupling 
 automatically^ by impact, ' ' and the question has several times 
 come before the courts, "What is a car within the meaning 
 and import of the statute?" This question has been answered 
 by the Supreme Court of the United States where it was asked 
 with reference to a locomotive not having automatic couplers. 
 It will be noted that the first section of the statute requires 
 locomotives to be equipped with power driving-wheel brakes, 
 and says nothing about automatic couplings. From this it 
 was argued that the statute did not require such couplers 
 
 395
 
 396 
 
 FEDERAL. SAFETY APPLIANCE ACT. 
 
 upon a locomotive, because it was not a ear, the statute having 
 referred to locomotives in one section and cars in another. 
 But the Supreme Court denied this contention. "It is not to 
 be successfully denied," said Chief Justice Fuller, "that 
 they [locomotives] are so required if the words 'any car' of 
 the said section were intended to embrace, and do embrace, 
 locomotives. But it is said that this cannot be so because loco- 
 motives were elsewhere in terms required to be equipped with 
 power driving-wheel brakes, and that the rule that the expres- 
 sion of one thing excludes another applies. This, however, is 
 a question of intention, and as there was special reason for 
 requiring locomotives to be equipped with power driving- 
 wheel brakes, if it were also necessary that locomotives should 
 be equipped with automatic couplers, and the word 'car' 
 would cover locomotives, then the intention to limit the equip- 
 ment of locomotives to power driving-wheel brakes, because 
 they were separately mentioned, could not be imputed. Now, 
 as it was necessary for the safety of employes in coupling and 
 uncoupling that locomotives should be equipped with auto- 
 matic couplers as it was that freight and passenger and din- 
 ing cars should btr, perhaps more so, as Judge Thayer suggests, 
 'since engines have occasion to make couplings more frequent- 
 ly.' And manifestly the word 'car' was used in its generic 
 sense. There is nothing to indicate that any particular kind 
 of car was meant. Tested by context, subject-matter and ob- 
 ject, 'any car' meant all kinds of cars running on the rails, 
 including locomotives. And this view is supported by the dic- 
 tionary definitions and by many judicial decisions, some of 
 them having been rendered in construction of this act.^ The 
 result is that if the locomotive in question was not equipped 
 with automatic couplers the company failed to comply with 
 
 ' Citinp Winkler v. Fliiladcl- Co. v. trockor, Ho Ala. 412; 
 
 pliia, otc, 11. Co. 4 Penn. (Del.) Thomas v. Georgia, etc., Co. 38 
 
 387; 53 Atl. Rep. 00; Fleming v. Ga. 222; Mayor, etc., v. Third 
 
 Southern Ry. Cfl. 131 N. C. 470; Ave. R. Co. 117 X. Y. 404, 666; 
 
 East St. Loni.s, etc., Ry. Co. v. 22 N. E. Rep. 755; Benson v. Ry. 
 
 OTfarii, 150 III. 580; 37 N. E. Co. 75 Minn. 163; 77 N. W. Rep. 
 
 Rep. !)17; Kansas City, etc., R. 798.
 
 CARS AND THEIR KQUIPMENT. 
 
 397 
 
 the provisions of the act."^ So the act applies to a dining 
 car standing on a side track waiting to be hitched to a 
 through train ;^ and also to a locomotive tender.^ So the 
 statute applies to empty cars hauled in trains engaged in 
 interstate commerce.'^ It also applies to a steam shovel car 
 while in transportation from one state to another ;" and to a 
 "shanty" car/ but not to a locomotive crane/* nor to the 
 coupling between the engine and tender.'^t 
 
 ^ Johnson v. Southern Pac. Co, 
 196 U. S. 1; 25 Sup. Ct. Rep. 158, 
 reversing 117 Fed. Rep. 462; 54 C. 
 C. A. 508; United States v. St. Louis 
 S. W. Ry. Co. 184 Fed. 28; Central 
 Vermont Ry. Co. v. United States, 
 205 Fed. 40; 123 C. C. A. 308; 
 Southern Ry. Co. v. Crockett, 234 
 U. S. 725; 34 Sup. Ct. 897; 58 L. 
 Ed. 1564; United States v. Central of 
 Ga. Ry. Co. 157 Fed. Rep. 616; 
 United States v. Southern Pacific Co. 
 167 Fed. 699; United States v. 
 Southern Ry. Co. 170 Fed. 1014; 
 Schlemmer v. Buffalo, R. & P. Ry. Co. 
 205 U. S. 1; 27 Sup. Ct. 405; 51 L. 
 Ed. 68; Chicago, M. & St. P. Ry. 
 Co. V. United States, 165 Fed. 423; 
 United States v. Chicago, M. & St. 
 P. Ry. Co. 149 Fed. 486; United 
 States V. Philadelphia & R. Ry. Co. 
 223 Fed. 215. 
 
 Where a railroad company was 
 engaged in interstate commerce and 
 constantly used an engine in the 
 regular course of its interstate com- 
 merce business, it was held that the 
 Safety Appliance Act applied to the 
 engine. Daly v. Illinois Central R. 
 Co. 170 111. App. 185. 
 
 But it has been held that a loco- 
 motive need not have an automatic 
 coupling at its front end. Wabash 
 R. Co. V. United States, 172 Fed. 864. 
 See Briggs v. Chicago & N. W. Ry. Co. 
 125 Fed. 745. Contra, Chicago, M. 
 & P. S. Ry. Co. 196 Fed. 882. 
 
 ^ Johnson v. Southern Pac. Ry. 
 Co. supra, reversing 117 Fed. 462; 
 54 C. C. A. 508; Winkler v. Phila- 
 delphia, etc., R. Co. 4 Penn. (Del.) 
 80; 53 Atl. Rep. 90; Philadelphia, 
 etc., R. Co. V. Winkler, 4 Penn. (Del.) 
 387; 56 Atl. Rep. 112. 
 
 MVinkler v. Philadelphia, etc., R. 
 Co. 4 Pennewill (Del.) 80; 53 Atl. 
 Rep. 90; Philadelphia, etc., R. Co. 
 V. Winkler, 4 Penn. (Del.) 387; 56 
 Atl. Rep. 112; Fleming v. Southern 
 Ry. Co. 131 N. C. 476; 42 S. E. 
 Rep. 905; 132 N. E. 714; 44 S. E. 
 Rep. 551; United States v. Central 
 of Georgia Ry. Co. 157 Fed. Rep. 616; 
 United States v. Southern Ry. Co. 
 170 Fed. 1014; United States v. 
 Baltimore & Ohio R. Co. 184 Fed. 
 
 94; Johnson v. Southern Pacific, 
 196 U. S. 1; 25 Sup. Ct. 158; 49 L. 
 Ed. 363. 
 
 A "tender" is not a "car" under the 
 Michigan statute. Blanchard v. 
 Detroit, etc., R. Co. 139 Mich. 694; 
 103 N. W. Rep. 170; 12 Det. Leg. 
 N. 30; nor under the Massachusetts 
 statute. Larabee v. New York, 
 N. H. & H. R. Co. 182 Mass. 348; 
 66 N. E. 1032. 
 
 <* Malott V. Hood, 201 111. 202; 66 
 N. E. Rep. 247, affirming 99 111. App. 
 360; Voelker v. Chicago, etc., R. Co. 
 116 Fed. Rep. 867; United States v. 
 St. Louis, etc., R. Co. 154 Fed. Rep. 
 516; United States v. Illinois Cent. R. 
 Co. 156 Fed. Rep. 182; United States 
 v. Chicago, etc., Ry. Co. 156 Fed. 
 Rep. 616. 
 
 « Schlemmer, 205 U. S. 1; 27 
 Sup. Ct. Rep. 407; 51 L. Ed. 681, 
 reversing 207 Pa. St. 198; 56 Atl. 
 Rep. 417; Chicago, M. & St. P. Ry. 
 Co. V. United States, 165 Fed. 423; 
 United States v. Chicago & N. W. 
 Ry. Co. 157 Fed. 616. 
 
 ' Harden v. North Carohna R. 
 Co. 129 N. C. 354; 40 S. E. Rep. 184; 
 55 L. R. A. 784. 
 
 All cars used must be so equipped. 
 Devine v. Illinois Central R. Co. 156 
 111. App. 369. 
 
 '*Lake Shore & M. S. R.^Co. v. 
 Benson, 97 N. E. 417. 
 
 It applies to caboose cars. Suttle 
 V. Choctaw, O. & G. R. Co. 144 Fed. 
 668; Chicago, M. & P. S. Ry. Co. v. 
 United States, 196 Fed. 882; Mobile 
 J. & K. C. R. Co. V. Bromberg, 37 
 So. 95; and passenger cars, Norfolk 
 & W. Ry. Co. V. United States, 
 177 Fed. 623; United States v. Nor- 
 folk & W. Ry. Co. 184 Fed. 99; and 
 dining cars, Johnson v. Southern 
 Pacific Co. 196 U. S. 1; 25 Sup. Ct. 
 158; 49 L. Ed. 363, reversing 117 Fed. 
 462; 54 C. C. A. 580; Snead v. Central 
 of Georgia Ry. Co. 151 Fed. 608; 
 Chicago, M. & St. P. Ry. Co. v. 
 United States, 165 Fed. 423. 
 
 't Pennell v. Philadelphia & R. Ry. 
 Co. 231 U. S. 675; 34 Sup. Ct. 220; 
 58 L. Ed. 430, affirming 203 Fed. 681; 
 122 C. C. A. 77.
 
 398 FEDERAL, SAFETY APPLIANCE ACT. 
 
 § 264. Electric cars. — It has been held that an electric 
 railroad running its cars from one state to another were 
 not bound to equip the front end of its cars with automatic 
 couplers, unless it intends to couple or uncouple cars at that 
 end;^* but this decision is not sound, and diametrically the 
 opposite has been held.®^ 
 
 § 265. Empty car — Car used in moving interstate com- 
 merce. — To come within the provisions of the statute it is 
 aiot necessary that the car to be equipped was loaded with 
 interstaite freight at the time the offense was comonitted or 
 injury inflicted. "The statutes, state and federal," said Jus- 
 tice Shiras^ "requiring railway companies to equip their ears 
 with automatic couplers were not enacted to protect freight 
 transported therein, but for the protection of the life and limb 
 of the employes who were expected to haul those cars. The 
 beneficent purposes of these statutes are defeated if the em- 
 ployes are required to handle ears not equipped as required 
 by the statutes, without regard to the question whether the 
 cars are loaded or not. Legislation on this matter of the use 
 of automatic couplers was sought and obtained from Congress, 
 as well as from the state legislature, so that companies 
 would not be afforded a loophole for escape from liability 
 on the theory that the agencies used in interstate commerce 
 are without the control of the state legislatures. When com- 
 panies, like the defendant in this case, are engaged in inter- 
 state traffic, it is their duty, under the act of Congress, not 
 to use, in connection with such traffic, cars that are not 
 equipped as required by that act. This duty of proper equip- 
 ment is obligatory upon the company before it uses the car in 
 connection with interstate traffic, and it is not a duty which 
 only arises when the car happens to be loaded with in- 
 terstate traffic. It frequently happens that the railway 
 companies load cars with live stock or farm produce in the 
 
 '• Campbell v. Spokane & I. E. of a statute of the state regulating 
 
 R. Co. 188 Fed. 51(5. tlie liabilitj' of railroad companies for 
 
 In Taylor v. Prairie Peobic Pho.s- injuries to their employees, 
 phate Co. 01 Fla. 45."); .'34 So. 904, «t Spokane & I. E. R. Co. v. United 
 it wa.s held that a corporation en- States, 210 Fed. 243; 127 C. C. A. 
 gaged in phosphate mining, and as Gl, affirming 200 Fed. OSS. 
 an incident thereto operates trolhsy The act does not apply to street 
 engines and cars for hauling the railways. Southern R. Co. v. Crock- 
 phosphate, is not "a railroad corn- ett, 2'M U. S. 725; 34 Sup. Ct. 897; 
 pany" within the terms and rruianing 58 L. Ed. 1507.
 
 CARS AND THEIR EQUIPMENT. 
 
 399 
 
 western states and carry the same to eastern markets, and then 
 return those cars without a h)ad; but it cannot be true that 
 on the eastern trip the provisions of the act of Congress would 
 be binding upon the company, because the cars were loaded, 
 but would not be binding upon the return trip, because 
 the cars are empty. "Whatever cars are designed for inter- 
 state traffic, the company owning or using them is bound to 
 equip them as required by the act of Congress; and when it 
 is showTi, as it was in this case, that a railway company is 
 using a car for transportation purposes between the two 
 states, sufficient is shown to justify the court in ruling that 
 the act of Congress is applicable to the situation." « 
 
 § 266. Empty car used in interstate train.— It has been 
 laid down that in order to inflict a penalty for the use of an 
 empty car hauled in an interstate train it must be shown that 
 the car was used (or intended, perhaps, to be used) in moving 
 interstate traffic.** The mere hauling of an empty ear from 
 
 8 Voelker v. Chicago, etc., Ry. Co. 
 116 Fed. Rep. 867; Malott v. Hood, 
 201 111. 202; 66 N. E. Rep. 247 
 (affirming 99 111. App. 360); United 
 States V. St. Louis, etc., Ry. Co. 154 
 Fed. Rep. 516; United States v. 
 Illinois Cent. R. Co. 156 Fed. Rep. 
 182; United States v. Chicago, etc., 
 R. Co. 156 Fed. Rep. 616; United 
 States V. Northern Pac. T. Co. 144 
 Fed. Rep. 861; Johnson v. United 
 States, 196 U. S. 1; 25 Sup. Ct. Rep. 
 158, reversing 54 C. C. A. 508; 117 
 Fed. Rep. 462; Elgin, etc., R. Co. 
 V. United States, 168 Fed. Rep. 1 
 (decided February 3, 1909). 
 
 United States v. International & 
 G. N. R. Co. 174 Fed. 638; Chicago, 
 M. & St. P. Ry. Co. V. United States, 
 165 Fed. 423; Chicago, M. & St. P. 
 Ry. Co. 168 Fed 236; United States 
 V. Louisville & N. R. Co. 162 Fed. 
 185; United States v. Wheeling & 
 L. E. R. Co. 167 Fed. 198; United 
 States V. Atchison, T. & S. F. Ry. 
 Co.; Appendix G; United States v. 
 Chesapeake & 0. Ry. Co., Appendi.x 
 G; United States v. Southern Ry. 
 Co. 170 Fed. 1014. 
 
 The cases squarely hold that the 
 hauling of an empty car from one 
 point in a state to another in the 
 same state in a train where cars are 
 loaded with interstate commerce 
 
 is a violation of the statute. Phila- 
 delphia & R. Ry. Co. V. United 
 States, 191 Fed. 1; 111 C. C. A. 661; 
 Gray v. Louisville & N. R. Co. 
 197 Fed. 874; United States v. Inter- 
 national & G. N. R. Co. 174 Fed. 638; 
 98 C. C. A. 392; Belt Ry. Co. v. United 
 States, 168 Fed. 542; 93 C. C. A. 666; 
 United States v. Chicago G. W. Ry. 
 Co. 162 Fed. 775; United States v. 
 Southern Ry. Co. 164 Fed. 347. 
 
 Such is the Illinois statute. Devine 
 V. Chicago & C. R. Co. 168 111. App. 
 450; Leuken v. Lake Shore & M. S. 
 Ry. Co. 248 111. 377; 94 N. E. 175; 
 
 140 Am. St. 220; 21 Am. Cas. 82; 
 Wabash Ry. Co. v. United States, 
 168 Fed. Rep. 1 (decided February 
 3, 1909); United States v. Atlantic 
 Coast Line R. Co., Appendix G; 
 Chicago, etc., R. Co. v. United States, 
 168 Fed. Rep. 236 (decided March 10, 
 1909); United States v. Southern 
 Ry. Co., Appendix G. See section 
 241. 
 
 ^ LTnited States v. Chicago Ry. Co. 
 156 Fed. Rep. 182; United States v. 
 Great Northern Ry. Co. 145 Fed. 
 Rep. 438; United States v. St. Louis, 
 etc., Ry. Co. 154 Fed. Rep. 516; 
 Mobile, etc., R. Co. v. Bromberg, 
 
 141 Ala. 258; 37 So. Rep. 395; see 
 note 8 above.
 
 400 FEDERAL, SAFETY APPLIANCE ACT. 
 
 one state to another, though it may be for repairing a defect 
 in it, is engaging in interstate commerce;^" and there is no 
 distinction between hauling a car actually engaged in inter- 
 state commerce and hauling one that is generally used in 
 moving interstate traffic, although not actually so engaged at 
 the time when the offense is charged as being committed.'^ 
 
 § 267. Proviso to Section 6 — Four-wheeled and logging 
 cars. — The plaintiff, nor the government, need not negative 
 the provisions contained in the proviso of Section 6 relating 
 to four-wheeled and logging cars. If the cars that were not 
 properly equipped were of that class it is a matter of de- 
 fense.^^ The burden is also upon the defendant to show that 
 the cars were of that kind.^' 
 
 § 268. Kind of coupler to be used. — No particular kind of 
 coupler need be used. The sole requirement is that couplers 
 must be used that will couple "automatically by impact, and 
 which can be uncoupled without the necessity of men going 
 
 " United States v. Chicago, etc., v. Southern Pacific Co. 177 Fed. 796; 
 
 Ry. Co. 157 Fed. Rep. 616. Southern Ry. Co. v. Snyder, 187 Fed. 
 
 " United States v. Chicago, etc., 492; Felt v. Denver & R. G. R. Co. 
 
 Ry. Co. 157 Fed. Rep. 616; see also 48 Colo. 249; 110 Pac. 215. 
 
 section 243; Johnson v. Southern '- Schlemmer v. Buffalo, etc., R. 
 
 Pacific Co. 196 U. S. 1; 25 Sup. Ct. Co. 205 U. S. 1; 27 Sup. Ct. Rep. 407; 
 
 158; 49 L. Ed. 363; North Carolina 51 L. Ed. 681, reversing 207 Pa. St. 
 
 R. Co. V. Z.achary, 232 U. S. 248; 198; 56 Atl. Rep. 417; United States 
 
 34 Sup. Ct. 305; 58 L. Ed. 519; Voelker v. Atlantic, etc., R. Co. 153 Fed. Rep. 
 
 V. Chicago, M. & St. P. Ry. Co. 116 918; Ryan v. Carter, 93 U. S. 78; 
 
 Fed. 867; United States v. Northern United States v. Dixon, 15 Pet. 141; 
 
 Pacific Terminal Co. 144 Fed. 861; Interstate Commerce Commission 
 
 United States v. Chicago & N. W. v. Baird, 194 U. S. 25; 24 Sup. Ct. 
 
 Ry. Co. 157 Fed. 616; United States Rep. 563; 48 L. Ed. 860, reversing 123 
 
 v. Louisville & N. R. Co. 102 Fed. Fed. Rep. 969. 
 
 185; Chicago, M. & St. P. Ry. Co. v. '^ Schlemmer v. Buffalo, etc., R. 
 
 United States, 165 Fed. 423; United Co. supra; I'nited States v. Cook, 
 
 States V. Wheeling & L. E. R. Co. 17 Wall. 16S; 21 L. Ed. 538; Common- 
 
 167 Fed. 198; Wabash R. Co. v. wealth v. Hart, 11 Cush. 130; United 
 
 United States, 168 Fed. 1; Chicago States v. Denver, etc., R. Co. 163 
 
 & N. W. Ry. Co. v. United States, Fed. Rep. 519; Smith v. United States, 
 
 108 Fed. 236; United States v. 157 Fed. Rep. 721; 85 C. C. A. 353; 
 
 Southern Ry. Co. 170 Fed. 1014; Ignited States v. Atlantic, etc., R. 
 
 United States v. International A: G. Co. 153 Fed. Rep. 918. 
 N. R. Co. 174 Fed. 638; Hohenleitner
 
 CARS AND THEIR EQUIPMENT. 4OI 
 
 between the ends of the cars" to uncouple them."* This is 
 the use. Thus, the court in one case charged the jury as fol- 
 lows: "Should you find the tender at the time of accident 
 was equipped with automatic couplers, but that it was so 
 connected with the 'bull-nose' coupler that the coupling with 
 other cars was not made automatically by impact, but so 
 equipped that it made it necessary for men to go between 
 the ends of the cars to couple and uncouple, then such coup- 
 ling did not comply with the acts of Congress, and was 
 unlawful;"^'* the instruction was held to be a correct state- 
 ment of the requirement of the statute, the court saying: 
 "The true intent and meaning of the statute is not merely 
 that the cars, etc., used in moving interstate commerce shall 
 be equipped with automatic couplers of the description 
 therein mentioned, but also that such couplers shall be in 
 such condition as to be used automatically while such cars 
 are so engaged. "^^ "What the act plainly forbade was the 
 use of cars which would not be coupled together auto- 
 es* Southern R. Co. v. Crockett, 234 G. R. Co. 167 Fed. 696; United States 
 U. S. 725; 34 Sup. Ct. 897; 58 L. v. Baltimore & 0. R. Co. 170 Fed. 456; 
 Ed. 1564; Minneapolis, St. L. & S. M. United States v. Southern Ry. Co. 
 Ry. Co. V. Popplar, 35 Sup. Ct. 609, 170 Fed. 1014. 
 
 affirming 121 Minn. 413; 141 N. W. It has been said that the phrase 
 
 798; Ann. Cas. 1915 D 383. "cars be uncoupled without the neces- 
 
 '* Winkler v. Philadelphia, etc., sity of men going between the ends 
 Ry. Co. 4 Penn. (Del.) 80; 53 Atl. of the cars" was merely descriptive 
 Rep. 90; United States v. Southern of the equipment required, and does 
 Ry. Co. 135 Fed. Rep. 122; United not import that it is the duty of the 
 States V. Louisville, etc., R. Co. 162 carrier to keep such equipment in 
 Fed. Rep. 185; United States v. repair at all events. United States 
 Philadelphia, etc., R. Co. 100 Fed. v. Illinois Central, 170 Fed. 542. 
 Rep. 696; 162 Fed. Rep. 403; United '' Philadelphia, etc., R. Co. v. 
 
 States V. Pennsylvania R. Co. 162 Winkler, 4 Penn. (Del.) 387; 112 Atl. 
 Fed. Rep. 408; United States v. Rep. 56; Voelker v. Chicago, etc., R. 
 Philadelphia, etc., R. Co. 162 Fed. Co. 116 Fed. Rep. 867; Southern Ry. 
 Rep. 405; United States v. Lehigh Co. v. Simmons, 105 Va. 651; 55 
 Valley, 162 Fed. Rep. 410; United S. E. Rep. 459; 44 Am. & Eng. R. 
 States v. Atchison, etc.. R. Co. 167 Cas. 572; United States v. El Paso, 
 Fed. 696 (Appendix G); United States etc. (see Appendix); Johnson v. 
 v. Chesapeake & Ohio Ry. Co. (see Southern Pac. Co. 196 U. S. 1; 25 
 Appendix G); United States v. South- Sup. Ct. Eep. 158; 49 L. Ed. 363, 
 ern Pacific Co. 167 Fed. 699 (see reversing 54 C. C. A. 508; 117 Fed. 
 Appendix G); United States v. Den- Rep. 462; United States v. Chicago, 
 ver & R. G. R. Co. 163 Fed. 519; etc., R. Co. 149 Fed. Rep. 486; Wink- 
 United States V. Nevada County, N. ler v. Philadelphia, etc., Ry. Co. 4
 
 402 FEDERAL SAFETY APPLIANCE ACT. 
 
 matically by impact by means of the couplers actually used 
 on the cars to be coupled."^ Such is the case where the 
 couplers will not work effectively by reason of a clevis pin 
 having been removed,- or by reason of its having been worn 
 out,^ or the uncoupling chain being kinked in the coupler 
 head,'* or the cars will not couple because of the curvature 
 of the track on which the cars in question are attempted to 
 be coupled;^ or the cars are so laden with lumber or other 
 material projecting beyond their ends as to preclude the 
 automatic operation of such couplers." The statutes forbid 
 the use of a car on which the coupler is in operation even 
 though the defect may be so obvious that no reasonably pru- 
 dent employee would attempt to use such a coupler." The 
 use of a car on which a coupler is inoperative is the same 
 in legal effect as if such car had never been equipped with 
 automatic couplers.* A carrier is liable under the statute 
 for the failure of an employee to connect an uncoupling 
 chain as well as for allowing such a chain to become dis- 
 connected.^ The statutes do not require cars to be equipped 
 with double levers, though they permit it ;^° yet if they be 
 
 Penn. (Del.) 387; 53 Atl. Rep. 90; Co. 177 Fed. 796; Willett v. Illinois 
 Tnited States v. Atchison, T. & S. Central R. Co. 122 Minn. 513; 142 
 
 F. Ry. Co. 167 Fed. 696; United N. W. 883. 
 
 States V. Southern Ry. Co. 167 Fed. ^ United States v. Illinois Central 
 
 699. R. Co. 177 Fed. 801. 
 
 ' Johnson v. Southern Pacific Co. ' Chicago, M. & P. S. Ry. Co. v. 
 196U.S. l;25Sup.Ct.l58;363L.Ed. United States, 196 Fed. 882; 101 C. 
 49; United States v. Southern Ry. C. A. 15. Cited with apparent ap- 
 Co. 170 Fed. 1014; United States v. proval in Southern Ry. Co. v. Crock- 
 Rio Grande W. Ry. Co. 174 Fed. 399; ett, 234 U. S. 725; 34 Sup. Ct. 897; 
 United States v. Nevada County N. 58 L. Ed. 1564. 
 
 G. R. Co. 167 Fed. 695. » Taggert v. Republic Iron & Steel 
 2 United States v. Indiana Harbor Co. 141 Fed. 910; 73 C. C. A. 144; 
 
 R. Co. 157 Fed. 565. Contra, United Elmore v. Seaboard Air Line Ry. 
 
 States V. Illinois Central R. Co. 156 Co. 130 N. C. 506; 41 S. E. 786; 
 
 Fed. 182. Luken v. Lake Shore & M. S. Ry. Co. 
 
 ■' Voelker v. Chicago, M. & St. P. 154 111. App. 550. 
 
 Ry. Co. 116 Fed. 867; United States "United States v. Great Northern 
 
 V. Illinois Central R. Co. 177 Fed. Ry. Co. 150 Fed. 229; United States 
 
 801. V. Atchison, T. & S. F. Ry. Co. 167 
 
 * United States v. Denver & R. G. Fed. 696. Contra, United States v. 
 
 R. Co. 163 Fed. 519; United States Illinois Central R. Co. 156 Fed. 182. 
 
 V. Southern Pacific Co. 167 Fed. 699. '» United States v. Philadelphia & 
 
 » Hohenleitner v. Southern Pacific R. Ry. Co. 160 Fed. 696; Norfolk &
 
 CARS AND THEIR EQUIPMENT. 
 
 403 
 
 provided they must be operative from either side of the ears 
 to which they are attached.'^ The use by a railway com- 
 pany of a switch engine having no uncoupling levers does 
 not constitute a violation of the statutes unless it be shown 
 that such levers are necessary to enable the engine to be 
 coupled automatically by impact and to be uncoupled with- 
 out the necessity of men going between such engine and the 
 vehicle from which it is to be coupled/^ But the fact that 
 the couplers have too much play is not a violation of the 
 statute, if they are otherwise in compliance with it/^ The 
 fact that the couplers must be placed in position so they will 
 strike together when in the act of coupling does not render 
 them defective under the statute.^* Of course, the person 
 alleging that a car was inadequately equipped has the bur- 
 den to show that as a fact;^^ and evidence merely of a 
 defect in the coupler will not sustain the averment that the 
 cars were not equipped with automatic couplers. ^^ If the 
 lever of a car coupler will not lift the pin from the socket, 
 
 W. Ry. Co. V. United States, 177 
 Fed. 623; 101 C. C. A. 249. 
 
 " Norfolk & W. Ry. Co. v. United 
 States, 177 Fed. 623; 101 C. C. A. 249. 
 
 '2 United States v. Montpelier & 
 W. R. Co. 175 Fed. 874. 
 
 13 Morris V. St. Louis & S. W. R. 
 Co. (Tex. Civ. App.) 158 S. W. 1055. 
 
 1* Morris V. St. Louis, S. W. Ry. 
 Co. (Tex. Civ. App.) 158 S. W. 1055. 
 In this case tiie plaintiff was endeavor- 
 ing to couple a switch engine with 
 a flat car, both equipped with auto- 
 matic couplers. After the coupling 
 was not made the first time they 
 come together, he pulled the draw 
 bar toward him as far as he could, 
 gave the engineer the signal to ad- 
 vance, and just before the couplings 
 came together he saw that the draw 
 bar on the car v,-as not in proper posi- 
 tion and kicked the bar over as far 
 as he could. The knuckle of the 
 engine caught the sole of his shoe and 
 dragged his foot into the coupling 
 which was then made. It was held 
 that the fact that the coupler on the 
 car was not properly adjusted in that 
 it had too much play did not con- 
 
 stitute a violation of the Safety 
 Appliance Act. 
 
 While a car was several times 
 "kicked" so as to make a coupling, 
 an employee to secure the coupling as 
 often tried to lift the automatic 
 coupler by pulling it, but finally 
 stepped between the cars and was 
 killed. His conductor said he would 
 have reported it as a "bad coupler" if 
 he had known of it. This was held 
 sufficient evidence to take the case 
 to the jury. Minneapolis, St. P. & 
 S. M. Ry. Co. v. Popplar, 35 Sup. 
 Ct. 699, affirming 121 Minn. 413; 141 
 N. W. 798; Ann. Cas. 1914 D 383. 
 
 "Philadelphia, etc., Ry. Co. v. 
 Winkler, 4 Penn. (Del.) 387; 56 Atl. 
 Rep. 112; United States v. Louisville 
 & N. R. Co. 162 Fed. 185; United 
 States V. Atchison, T. & S. F. Ry. 
 Co., Appendix G; United States v. 
 IlHnois Central R. Co. 166 Fed. 997; 
 United States v. Southern Ry. Co. 
 170 Fed. 1014; Hench v. Pennsylvania 
 R. Co. (Pa.) 91 Atl. 1056. 
 
 " Kansas City, etc., R. Co. v. 
 Flippo, 138 Ala. 487; 35 So. Rep. 457.
 
 404 
 
 FEDERAL SAFETY APPLIANCE ACT. 
 
 and the Imnelde cannot hp rlra-wn open "Hy Ipnm'nsr lo'warrl the 
 coupler and using one hand, hut to open it requires the pres- 
 ence of the employes hetween the ends of the cars, and the 
 use of both hands, thereby neeessitatinc? the -nlacinfr of the 
 entire body of the employe between the draw bars of the car, 
 the coupler does not comply with the statute.^^ It is no de- 
 fense, if a car is not properly equipped, to show that the 
 adjoining car was not, thereby rendering it impossible to use 
 the couplings.^^* But the statute does not require auto- 
 matic couplers between the engine and the tender. ^^' 
 
 18 Chicago, etc., Ry. C5o. v. Voel- 
 ker, 129 Fed. Rep. 522; 65 C. C. 
 A. 6,5; 70 L. R. A. 264; s. c. 116 
 Fed. Rep. 867; United States v. 
 El Paso R. Co. (Appendix G, 
 pp. 274, 279) ; United States v. 
 Nevada, etc., R. Co. 167 Fed. 695; 
 Appendix G; United States v. 
 Atchison, T. & S. F. Ry. Co. Ap- 
 pendix G ; United States v. Indiana 
 Harbor R. Co. 157 Fed. 565. 
 
 The Canadian statute (55 Vict. 
 Ch. 30, Sec. 3) prohibits cars 
 having buffers of different heights, 
 so that in coupling they overlap 
 and afford no protection to the 
 person making the coupling, being 
 a "defect in the arrangement of 
 the plant." Board v. Toronto Ky. 
 Oo. 22 Ont. App. 78, affirming 24 
 Can. Sup. Ct. 715. See, also, the 
 Michigan statute. Betterly v. 
 Boyne City, G. & A. R. Co. 158 
 Mich. 385; 122 N. W. 635; 16 
 Det. Leg. N. 628. 
 
 Where the chain which con- 
 nected the lock pin to the uncoup- 
 ling lever was not attached and 
 only need to be connected to make 
 the appliance available, it was held 
 that the car in such condition was 
 out of repair, as it was not le- 
 gally equipped until the chain 
 v/as connected; and in the ab- 
 sence of evidence showing that 
 tiie chain was ever attached, it 
 was preanmod, since the working 
 parts were in perfect order, that 
 
 the apparatus was only partially 
 completed and that it was the 
 ultimate intention to connect the 
 parts and to thereby comply with 
 the provisions of the statute. 
 United States v. Great Northern 
 Ry. Co. 150 Fed. Rep. 229; 
 United States v. Chicago, etc., ii. 
 Co. 149 Fed. Rep. 486; Donegan 
 V. Baltimore, etc., R. Co. 165 Fed. 
 Rep. 869. Clevis pin absent, pre- 
 sumption. United States v. Atchi- 
 son, T. & S. F. Ry. Cb. Appendix 
 G. Bull nose coupler. Philadel- 
 phia & R. Ry. Co. V. Winkler, 4 
 Penn. (Del.) 387; 56 Atl. 112. 
 Kinked chains. United States v. 
 Denver & R. G. R. Co. 163 Fed. 
 510; United States v. Southern 
 Pacific Co. 167 Fed. 699; Norfolk 
 & W. Ry. Co. V. U. S., 191 Fed. 
 302. Chain connected with hand 
 rail. United States v. Toledo Ter- 
 minal R. Co. Appendix G. Worn 
 out coupler. Voelker v. Chicago, 
 M. & St. P. Ry. Co. 116 Fed. 867. 
 Inoperative coupler. Taggert v. 
 Republic Iron & Steel Co. l41 Fed. 
 910. 
 
 18* United States v. Atchison? 
 etc., R. Co. (see Appendix G ) . If 
 a servant of the company dclibci'- 
 ately puts on an imperfect coup- 
 ling the company is still liable. 
 Ignited .States v. Southern Pac. 
 Co. 167 Fed. 699 (see Appen- 
 dix G) ; Chicago, etc.. R. Co. v. 
 King. 169 Fed. Rep. 372 (decided 
 February 3, 1909). 
 
 ■"t Penncll v. Philadelphia & R. 
 Ry. Co. 2:n IT. S. (ufy, 34 Sup. Ct. 
 220; 58 L. l':d. 430, affirming 203 Fed. 
 (3S1; 122C. C. A.77.
 
 CARS AND THEIR EQUIPMENT. 4Q5 
 
 § 269. "Without the necessity of men going between the 
 ends of cars." — The words "without the necessity of men 
 going between the ends of cars" applies more than to the 
 act of coupling. "The phrase literally covers both coupling 
 and uncoupling, and if read, as it should be, with a comma 
 after the word 'uncoupled,' this becomes entirely clear." 
 "In the present case the couplings would not work together, 
 Johnson was obliged to go between the cars, and the law 
 was not complied with. "^® So the car must be equipped 
 that it can be coupled from either side without going be- 
 tween them to couple them; and if so equipped that they 
 can be coupled from one side without going between them 
 and not from the other, the statute is not complied with.^° 
 If the tracks are so uneven or curved that two cars coming 
 together will not couple by compact, then they are not 
 equipped as the statute requires, although upon a level or 
 straight track they would readily so couple.^^^ The coup- 
 lings must be suiHcient so the cars can be both coupled and 
 uncoupled without the trainmen being under the necessity 
 of going between the cars.-°^ If the cars be so loaded that 
 
 19 Jolinson V. Southern Pac. Ry. Gauge Co. 167 Fed. 695; Blackburn v. 
 
 Co. 196 U. S. 1; 25 Sup. Ct. Rep. Cherokee Lumber Co. 152 N. C. 361; 
 
 158; reversing 117 Fed. Rep. 67 S. E. 915; McGarvey v. Detroit, 
 
 462; United States v. Central of J; * ^-..^y;^/?- ^^, 9^^ ^> ^P' ^* 
 
 Ga. Ry. Co. 157 Fed. Rep. 893; JJ' ^'^f ^^^j° ^*^*^*^) ^°^^°" ^; 
 .^T 1 >T vt /-, 1- -r, ^ New Orleans & G. N. R. Co. I60 
 Harden v. North Carolina R. Co. l^ 735 54 g^ ioi4; San Antonio 
 129 N. C. ^54: 40 S. E. Rep. 184; & a. P. Ry. Co. v. Wagner (Tex. Civ. 
 55 L. R. A. 784; Chicago, etc., Ry, App.) 166 S. W. 24. 
 Co. V. Voelker, 129 Fed. Rep. 20 United States v, Central~bf 
 522; 65 C. C. A. 65; 70 L. R. A. Ga. Ry. Co. 157 Fed. Rep. 893; 
 264; United States v. Chicago, Southern Ry. Co. v. Simmons, 105 
 etc., Ry. Co. 149 Fed. Rep. 4)86; Va. 651; 55 S. E. Rep. 459; 44 
 Schlemmer v. Buffalo, etc., Ry. Am. & Eng. R. Cas. 572; United 
 Co. 205 U. S. 1; 27 Sup. Ct. Rep. States v. Atchison, etc., R. Co. 
 407 ; United States v. El Paso, ( Appendix G ) ; United States v. 
 etc., R. Co. (Appendix G). As to Louisville & N. R. Co. 162 Fed. 
 the use of the comma in the stat- 185 (see Suttle v. Choctaw, 0. 
 ute, see also, L^nited States v. Erie & G. R. Co. 144 Fed. 668; 75 
 R. Co. 166 Fed. 352. See, also, c. C. A. 470) ; Norfolk & W. Ry. 
 Norfolk & W. Ry. Co. v. United Co. v. United States, 177 Fed. 623. 
 States, 177 Fed. 623 ; United 20a Hohenleitner v. Southern Pa- 
 States v. Nevada County NaiTOw cific Co. 177 Fed. 796. 
 
 20b Southern Railway Co. v. Sim- 
 mons, (S. C.) ; 55 S. E. 459.
 
 406 
 
 FEDERAL SAFETY APPLIANCE ACT. 
 
 they cannot come together so as to couple by compact, they 
 are not properly equipped. -°* The statute requires that 
 couplers shall be operative in an ordinary and reasonable 
 manner.^ "If a coupler fails to work when an honest and 
 reasonable effort is made to operate it, under circumstances 
 and in the manner it is designed to be operated, we conclude 
 the law is not complied with. "^ Repeated unsuccessful 
 efforts to operate a coupler in an ordinary and reasonable 
 manner afford some evidence that it is defective.^ Couplers 
 actually used or attempted to be used at any given time 
 must be operative of their own mechanism.* If the coupler 
 is in fact defective, it is not necessary that it shall be actu- 
 ally used or attempted to be used in order to constitute a 
 violation of the statutes,^ The statutes do not contemplate 
 that the employees shall be required to go around, over or 
 under the cars to operate couplers by means of the levers 
 on the opposite sides of cars." The preparation of a coup- 
 ler for impact is a part of the coupling operation within 
 the purview of the statutes;' though the coupling of air hose 
 
 ^o* United States v. Illinois Central 
 R. Co. 177 Fed. 801. 
 
 ' Burho V. Alinneapolis & St. L. 
 Ry. Co. 121 Minn. 326; 141 N. W. 
 300. 
 
 - Burho V. Minneapolis & St. L. Ry. 
 Co. 121 Minn. 326; 141 N. W. 300; 
 Popplar V. Minneapolis, St. P. & S. S. 
 M. Ry. Co. 121 Minn. 413; 141 N. W. 
 798; Willett v. Illinois Central R. Co. 
 122 Minn. 532; 142 N. W. 883; 
 Johnston v. Chicago G. W. R. Co. 
 (Mo. App.) 164 S. W. 260 (dust in 
 pin hole). 
 
 ^ Nichols V. Chesapeake & O. Ry. 
 Co. 195 Fed. 913; 115 C. C. A. 601; 
 Montgomery v. Carolina & N. W. 
 R. Co. 80 S. E. 83; Nashville, C. & 
 St. L. Ry. Co. V. Henry, 158 Ky. 88; 
 164 S. W. 310. 
 
 * Johnson v. Southern Pacific Co. 
 196 U. S. 1; 25 Sup. Ct. 158; 49 L. 
 Ed. 363; United States v. Louisville 
 & N. R. Co. 162 Fed. 185; United 
 States V. Illinois Central R. Co. 147 
 Fed. 801; 101 C. C. A. 15; Chicago, 
 M. & P. S. Ry. Co. V. United States, 
 196 Fed. 882; 116 C. C. A. 444; 
 Hohenloitner v. Southern Pacific Co. 
 177 Fed. 796. 
 
 ' United States v. Denver & R. G. 
 R. Co. 163 Fed. 519; 9() C. C. A. 329. 
 
 « Central Vernnont Ry. Co. v. 
 United States, 205 Fed. 40; 123 C. 
 
 C. A. 308; Donegan v. Baltimore & 
 N. Y. Ry. Co. 165 Fed. 869; 91 C. C. 
 A. 555; Nichols v. Chesapeake & O. 
 Ry. Co. 195 Fed. 913; 115 C. C. A. 
 601; United States v. Denver & R. 
 G. R. Co. 163 Fed. 519; 90 C. C. A. 
 329; Norfolk & W. Rv. Co. v. Hazel- 
 rigg, 184 Fed. 828; 107 C. C. A. 66; 
 United States v. Southern Pacific Co. 
 167 Fed. 699; United States v. Chi- 
 cago, M. & S. P. Ry. Co. 149 Fed. 
 486; United States v. Central of 
 Georgia, 157 Fed. 893; Norfolk & W. 
 R. Co. V. United States. 177 Fed. 623; 
 101 C. C. A. 249; Norfolk & W. Ry. 
 Co. V. Hazclrigg, 184 Fed. 828; 107 
 C. C. A. 66; Chicago, R. I. & P. Ry. 
 Co. V. Brown, 185 Fed. 80; 107 C. C. 
 A. 300; Chicago, B. & 0. Ry. Co. v. 
 United States, 211 Fed. 12; 127 C. 
 C. A. 428; St. Louis, I. M. & S. W. 
 R. Co. V. York; 123 S. W. 376; Popp- 
 lar V. Minneapolis. St. P. & S. S. M. 
 Ry. Co. 121 Minn. 413; 141 S. W. 
 798. Per contra to the extent of 
 defeating a recovery in an action for 
 per.sonal injury. Gilbert v. Bur- 
 lington, C. R. & N. Ry. Co. 128 
 Fed. 529; Suttle v. Choctaw, O. & 
 G. R. Co. 144 Fed. 668; Union 
 Pacific R. Co. V. Brady, 161 Fed. 719; 
 Norfolk & W. Ry. Co. v. Hazelrigg, 
 170 Fed. 551, 95 C. C. A. 637. 
 
 'Chicago, M. & St. P. Ry. Co. v.
 
 CARS AND THEIR EQUIPMENT. 
 
 407 
 
 is no part of the coupling.^ The statutes prohibit the use of 
 a coupler operative only by means of a chain connecting 
 with the platform hand rail.^ 
 
 § 270. Both ends of every car must be equipped with au- 
 tomatic couplers. — A car is not properly equipped unless it 
 is equipped on both ends with automatic couplers. "The 
 Safety Appliance Act requires that each coupler on a car 
 be operative in itself, so an employee will not have to go to 
 another car to couple or uncouple the car in question. The 
 provisions as to coupling and uncoupling apply to the coup- 
 ler on each end of every car subject to the law. It is wholly 
 immaterial in what condition was the coupler on the adjacent 
 car or any other car or cars to which each car sued upon was, 
 cr was to be, coupled. The equipment on each end of these 
 two cars must be in such condition that whenever called 
 upon for use it can be operated without the necessity of 
 going between the ends of the cars. This is the plain and 
 unambiguous meaning of the statute."-^ And the same is 
 true of a locomotive — the front end must be equipped with a 
 coupler as well as the rear end of the tender.-^* 
 
 Voelker, 129 Fed. 522; Daly v. Illinois 
 Central R. Co. 170 111. App. 185; 
 United States v. Nevada County N. 
 G. R. Co. 167 Fed. 695. 
 
 8 Yost V. Union Pacific R. Co. 142 
 S. W. 577. But see Johnson v. 
 Great Northern Ry. Co. 178 Fed. 
 643; United States v. Boston & M. 
 R. Co. 168 Fed. 148. 
 
 ' United States v. Toledo Terminal 
 R. Co. (unreported) United States v. 
 Southern Pacific Co. (unreported.) 
 
 =1 Chicago, etc., Ry. Co. v. Voelker, 
 129 Fed. Rep. 522; 65 C. C. A. 65; 
 70 L. R. A. 264; {Contra, United 
 States V. Philadelphia & R. Ry. Co., 
 223 Fed. 215, unless the front end is 
 designed for coupling:) United States 
 V. Philadelphia & R. Ry. Co. 160 Fed. 
 696; United States v. Central of 
 Georgia, 157 Fed. 893; United States 
 V. Southern Pacific Co. 167 Fed. 699 
 United States v. Baltimore & O. R 
 Co. 170 Fed. 456; United States v 
 Denver & R. G. Co. 163 Fed. 519 
 United States v. Wabash R. Co 
 Appendix G; United States v. Phila- 
 delphia & R. Ry. Co., Appendix G 
 United States v. Lehigh Valley R 
 Co., Appendix G; United States v 
 Pennsylvania R. Co., Appendix G 
 United States v. Louisville & N. R, 
 Co. 162 Fed. 185; United States v 
 
 Chicago Great W. Ry. Co. 162 Fed. 
 775; United States v. Atchison, T. 
 & S. F. Ry. Co., Appendix G; United 
 States V. Nevada County, N. G. R. 
 Co. 167 Fed. 695; United States v. 
 Atchison, T. & S. F. Ry. Co. 167 Fed. 
 696; United States v. Chesapeake & 
 O. Ry. Co., Appendix G; United 
 States V. Southern Pacific Co. 167 
 Fed. 699; United States v. Southern 
 Ry. Co. 170 Fed. 1014; United States 
 V. Baltimore & O. R. Co. 170 Fed. 
 456; United States v. Pennsylvania 
 R. Co., Appendix G; United States v. 
 Southern Pacific Co., Appendix G; 
 United States v. Denver & R. G. 
 R. Co. 163 Fed. 519. 
 
 A man engaged in connecting or 
 disconnecting air hose between the 
 cars is engaged in coupling or un- 
 coupling cars within the meaning of 
 the statute, if it is necessary for him 
 to connect or disconnect that hose 
 in order to connect or disconnect the 
 cars. United States v. Boston, etc., 
 R. Co. 168 Fed. 148 (see Appendix G). 
 
 The couphng must be in such a 
 condition that it can be operated 
 with a reasonable effort, and not 
 by a great effort without going 
 between the cars. L^nited States 
 v. Atchison, etc., R. Co. 167 Fed. 
 696 (see Appendix G).
 
 408 FEDERAL SAFETY APPLIANCE ACT. 
 
 § 271. Uncoupling. — The coupler must be sufficient to 
 enable the employee to uncouple the car without going be- 
 tween the cars coupled, for that purpose.-^ If, therefore, a 
 coupler couples by impact, but cannot be uncoupled without 
 the employee going between the cars, it is not sufficient.^^ 
 
 § 272. Erroneous instructions concerning heighth of draw 
 bars.— An instruction is erroneous which declares that the 
 law requires draw bars of a fully loaded car to be of the 
 height of thirty-one and one-half inches, and that if either of 
 the cars causing the injury to the emploj^e varied from the 
 requirement the defendant railroad had failed in the perform- 
 ance of its duty; especially where the evidence of the rail- 
 road company showed that the draw bar of the fully loaded 
 car was thirty-two and one-half inches in height. A verdict 
 for the plaintiff on such a condition of the record cannot 
 stand. And so it is error to refuse to charge the jury "that 
 when one car is fully loaded and another car in the same 
 train is only partially loaded, the law allows a variation of 
 
 •-'•Southern R. Co. v. Crockett, Co. 162 Fed. R«p. 410 (Appen- 
 
 OQ4 TT a 79-. -iA cj„r, Pt QQ7 • KSi ^^^ ^^ ' United States v. Chesa- 
 234 U. S. 72o; 34 Sup. Ct. 897; 58 ^^^j^^^ ^^^ ^^ ^^ (Appendix G) 
 
 L. Ed. 1564 United States v. Southern Pac. Ry 
 
 Co. 167 Fed. 699 (Appendix G) 
 
 22 United States v. Chicago, etc., United States v. Atchison, etc. 
 Ry. Co. 149 Fed. Rep. 486; United R. Co. 167 Fed. 696 (see Appen 
 States V. Great Northern Ry. Co. dix G) ; Norfolk & W. Ry. Co 
 150 Fed. Rep. 229; United States v. United States, 177 Fed. 623 
 V. Southern Ry. Co. 135 Fed. Rep. United States v. Denver & R. G 
 122; United States v. El Paso, Co. 163 Fed. 519; 90 C. C. A. 329 
 etc., R. Co. Appendix G. Johnson v. Southern Pacific, 196 
 
 23 United States v. Central of U. S. 1; 25 Sup. Ct. 158; 49 
 Ga. Ry. CV>. 157 Fed. Rep. 893; L. Ed. 363; Chicago, M. & St. P. 
 United" btateg v. Pennsylvania R. Ry. Co. v. Voelker, 129 Fed. 522; 
 Co. 162 Fed. Rep. 408 (Appen- United States v. Chicago, M. & 
 dix G) ; United States v. Philadel- St. P. Ry. Oo. 149 Fed. 486; 
 phia, etc., R. Co. 162 Fed. Rep. United iStates v. Nevada, Co. N. G. 
 408 (Appendix G) ; United States Ry. Co. 167 Fed. 695; Southern 
 V. Philadelpliia, etc., R. Co. 162 Ry. Co. v. Simmons, 105 Va. 651; 
 Fed. Rep. 405 (Appendix G) ; 55 S. E. 459. 
 
 United States v. Leliigh Valley R.
 
 CARS AND THEIR EQUIPMENT. 409 
 
 full three inches between the center of the draw bars of such 
 cars, without regard to the amount of weight in the partially 
 loaded car."-* So an instruction as follows is erroneous: 
 "The court charges you that the act of Congress allows a 
 variation in height of three inches between the centers of 
 draw bars of all cars used in interstate commerce, regardless 
 of whether they are loaded or empty, the measurement of 
 such height to be made perpendicularly from the top of the 
 rail to the center of the draw bar shank or draft line."^^ 
 The coupler on the front end of a locomotive must be of the 
 proper height.-^* 
 
 § 273. Construction of Section 5.— The Supreme Court of 
 the United States has thus construed Section 5 so far as it re- 
 lates to couplings: "We think that it [Section 5] requires 
 the center of the draw bars of freight cars used on standard 
 gauge railroads shall be, when the cars are empty, thirty- 
 four and one-half inches above the level of the tops of the 
 rails; that it permits, when a car is partly or fully loaded, 
 a variation in the height downward, in no case to exceed three 
 inches; that it does not require that the variation shall be 
 in proportion to the load, nor that a fully loaded car shall 
 exhaust the full three inches of the maximum permissible 
 variation and bring its draw bars down to the height of thirty- 
 one and one half inches above the rails. If a car, when 
 unloaded, has its draw bars thirty-four and one-half inches 
 above the rails, and, in any stage of loading, does not lower 
 its draw bars more than three inches, it complies with the 
 requirements of the law. If, when unloaded, its draw bars 
 are of greater or less height than the standard prescribed by 
 
 2^ This request, taken in con- Taylor, 210 U. S. 281; 28 Sup. Ct. 
 
 nection with the instruction that the Rep. 616; United States v. Atchison, 
 
 draw bar should be of the height pre- T. & S. F. Ry. Co., Appendi.x G; 
 
 scribed by this act, expressed the St. Louis, I. M. & S. Ry. Co. v. 
 
 true rule, and should have been Neal, 83 Ark. 591; 78 S. W. 220. 
 given." =5' Chicago, M. & P. S. Ry. Co. 
 
 -^ "It is based upon the theory v. United States, 196 Fed. 882; 
 
 that the height of the draw bars of 116 C. C. A. 444; Southern R. Co. v. 
 
 unloaded cars may vary three inches, Crockett, 234 U. S. 725; 34 Sup. Ct. 
 
 while the act, as we have said, re- 897; 58 L. Ed. 1564; Southern R. Co. 
 
 quires that the height of the draw v. United States, 222 U. S. 20; 32 
 
 bars of unloaded cars shall be uni- Sup. Ct. 2; 51 L. Ed. 681; 3 N. C. C. 
 
 form." St. Louis, etc., Ry. Co. v. 822.
 
 410 FEDERAL SAFETY APPLIANCE ACT. 
 
 the law, or if, when wholly or partially loaded, its draw bars 
 are lowered more than the maximum variation permitted, 
 the ear does not comply with the requirements of the law."-* 
 Not only do the provisions of the statutes apply to draw 
 bars or couplers, but also require them to be placed on 
 locomotive engines.-*'* The statute applies to the coupler 
 on the front end of a locomotive.-'^T 
 
 § 274. Insufficient operation of coupler. — The statute 
 applies to an instance of insufficient operation of a proper 
 coupler.-^ 
 
 § 275. Improper operation of sufficient coupler. — The 
 
 statute only makes it unlawful to use a car which is not 
 equipped with the required couplers, and it cannot be held 
 that it is unlawful for a carrier's employees to fail to adjust 
 the appliance with which the car has been, and at the time 
 is properly equipped. "The act requires equipment, and, 
 although there is no express language to that effect, the act 
 must be construed to mean equipment which, if there, is 
 capable of being operated; but no penalty is imposed, if, 
 being there, it is not in fact efficiently operated by those in 
 and not the proper manipulation of that equipment by the 
 employees."^* 
 
 -^ St. Louis, etc., Ry. Co. v. Tay- the lowered draw bar to the legal 
 
 lor, 210 U. S. 281; 28 Sup. Ct. Rep. standard. St. Louis, I. M. & S. Ry. 
 
 616; Atchison, T. & S. F. Rv. Co. Co. v. Taylor, 210 U. S. 281; 28 Sup. 
 
 V. United States, 198 Fed. 637; 117 Ct. 116; 52 L. Ed. 1061. 
 
 C. C. A. 341. " Taggert v. Republic Iron & Steel 
 
 2«' Southern Ry. Co. v. Crockett, Co. 141 Fed. 910; Elmore v. Seaboard 
 
 234 U. S. 725; 34 Sup. Ct. 899; 58 L. Air Line Ry. Co. 130 N. C. 506; 
 
 Ed. 1564. 41 S. E. 786; Burho v. Minneapolis 
 
 2«t Chicago, M. & P. S. Ry. Co. v. & St. L. Ry. Co. 121 Minn. 326; 
 
 United States, 196 Fed. 8S2; 116 C. 141 N. W. 300; United States v. 
 
 C. A. 444; Southern R. Co. v. Crock- Central of Georgia R. Co. 157 Fed. 
 
 ett, 234 U. S. 725; 34 Sup. Ct. 899; 893. Contra, Ignited States v. Illi- 
 
 58 L. Ed. 1564. nois Central R. Co. 156 Fed. Rep. 182. 
 
 "Shims" are metallic wedges of ^* United States v. Chicago, etc., 
 
 different thickness employed to raise R. Co. 156 Fed. Rep. 182; Popplar
 
 CARS AND THEIR EQUIPMENT. ^H 
 
 § 276. Preparation of coupler for coupling. — The act of 
 coupling and the preparation of the coupler for the impact 
 are not to be distinguished. Such preparation and impact 
 are so connected that they are indispensable parts of the 
 larger act to which the statute applies and regulates, the 
 performance of which Congress intended to be relieved from 
 unnecessary risk and danger to life and limb.-'' 
 
 § 277. "M. C. B. defect card."— The placing of a "M. C. 
 B. defect card" upon a car with an annotation thereon of 
 defects forbidden by the Safety Appliance Act, thereby in- 
 forming all companies receiving it that the company so 
 placing the card on the car sent such car out in a defective 
 condition and that the companies receiving and hauling the 
 car would not hav^ to account to the former company for 
 the particular defect noted on the car, is such a deliberate 
 violation of the statute as amounts to a defiance of the law.^" 
 
 § 278. Receiving an improperly equipped foreign car. — 
 If a foreign car be not equipped with automatic couplers, a 
 railroad company to whom it is tendered for transportation 
 
 V. Minneapolis, St. P. & S. S. M. G). A bad order card is placed on a 
 
 Ry. Co. 121 Minn. 413; 141 N. W. car by the company's inspector to 
 
 798; Willett v. Illinois Cent. R. Co. indicate that the car must be re- 
 
 122 Minn. 513; 142 N. W. 883. paired before moving. Such a card 
 
 -' Chicago, etc., Ry. Co. V. Voelker, is never employed as notice to con- 
 
 129 Fed. Rep. 522; 65 C. C. A. 65; necting lines. See United States v. 
 
 70 L. R. A. 264. See note 21 of this Southern Ry. Co. 135 Fed. 122, and 
 
 chapter; United States v. Nevada United States v. Chicago, R. I. & 
 
 Co. N. G. R. Co. 167 Fed. 695. P. Ry. Co. 173 Fed. 684. But where 
 
 '" United States v. Southern Ry. a bad order card was placed on a car, 
 
 Co. 135 Fed. Rep. 122; St. Louis & S. and it was then hauled with chains; 
 
 F. R. Co. V. Delk, 158 Fed. 931; 86 and the plaintiff was riding on the 
 
 C. C. A. 95; 14 Am. & Eng. Ann. Cas. engine which ran over the chain, 
 
 233, reversed, but not on this point; thereby injuring him, it was held that 
 
 Delk v. St. Louis & S. F. R. Co. 220 the Safety Appliance Act did not 
 
 U. S. 580; 31 Sup. Ct. 617; 55 L. Ed. apply to the case. Dodge v. Chicago, 
 
 590; United States v. Chicago, etc., G. W. R. Co. (Iowa) 146 N. W. 14. 
 R. Co. 173 Fed. 684 (see Appendix
 
 412 FEDERAL SAFETY APPLIANCE ACT. 
 
 by a connecting line is not bound to receive it for trans- 
 portation over its lines, and may lawfully refuse to accept 
 it until it is properly equipped.^^ But if it does receive it 
 and uses it or hauls it upon its tracks, the receiving com- 
 pany will be liable.^- 
 
 § 279. Question for jury. — It is a question for the jury 
 whether the tender and car between which the employee was 
 injured were at the same time engaged in interstate com- 
 merce ; and they may be instructed that if they so find, the 
 act of Congress was applicable,^^ and it is also a question 
 whether or not the coupler was in workable order.^^* It is 
 also a question for the jury whether a defect in the coupler 
 caused the injury of the plaintiff.^^"" 
 
 § 280. When a Federal question is presented. — Where the 
 question arose whether or not a Federal question was in- 
 volved in a case brought under the Saf et}^ Appliance Act, the 
 Supreme Court announced this rule: "Where a party to a 
 litigation in a state court insists, by way of objection to or 
 
 3' See section 3 of act. United & O. Ry. Co. 91 Kan. 684; 139 Pac. 
 
 States V. Southern Pacific Co. 167 410. 
 Fed. 699. Where couplings had been made 
 
 ^^ United States v. Chicago, etc., daily for more than a year on a cer- 
 
 E,y. Co. 149 Fed. Rep. 486; United tain curve without any failure to 
 
 States V. Chicago, G. W. Ry. Co. couple automatically on impact; and 
 
 162 Fed. 775; Crawford v. New York at the time of the accident the draw 
 
 Central & H. R. R. Co. 10 Am. Neg. bars of the cars to be coupled had 
 
 166; see, also, United States v. Chica- several inches of play or lateral 
 
 go, etc., Ry. Co. 143 Fed. Rep. 373. motion, and was so far out of line 
 
 '' Philadelphia, etc., R. Co. v. that the cars would not couple auto- 
 
 Winkler, 4 Penn. (Del.) 387; 56 Atl. matically on impact on the curve, it 
 
 Rep. 112, affirming 4 Penn. (Del.) was held that the court could not say 
 
 80; 53 Atl. Rep. 90; Voelkcr v. as a matter of law that the couplers 
 
 Chicago, etc., R. Co. 116 Fed. Rep. were defective within the meaning 
 
 867; Crawford v. New York, etc., of the statute, nor that the coup- 
 
 R. Co. 10 Am. & Eng. Neg. Cas. 166. ling was attempted at an improper 
 
 ''* Nashville, C. & St. L. Ry. v. place. Those were questions for 
 
 Henry, 158 Ky. 88; 164 S. W. 310. the jury. Willett v. Illinois Central 
 
 '•Of Thornbro v. Kansas City, M. R. Co. 122 Minn. 513; 142 N. W. 883.
 
 CARS AND THEIR EQUIPMENT. 4^3 
 
 requests for instructions, upon a construction of a statute of 
 the United States which will lead, or, on possible findings of 
 fact from the evidence may lead, to a judgment in his favor, 
 and his claim in this respect, being duly set up, is denied by 
 the highest court of the state, then the question thus raised 
 may be reviewed by this court. The plain reason is that in 
 all such cases he has claimed in the state court a right or 
 immunity under a law of the United States and it has been 
 denied him. Jurisdiction so clearly warranted by the con- 
 stitution and so explicitly conferred by the act of Congress 
 needs no justification. But it may not be out of place to say 
 that in no other manner can a uniform construction of the 
 statute laws of the United States be secured, so that they 
 shall have the same meaning and effect in all the states of 
 the Union. "^* But merely because an action for personal 
 injuries is based upon the Federal statute has been held not 
 enough to entitle the defendant to have the cause removed 
 to the United States Court.=^*^ 
 
 ^'St. Louis, etc., R. Co. v. Tay- St. Rep. 452; 84 Miss. 4G.5; 36 
 
 lor, 210 U. S. 281; 28 Sup. Ct. So. Rep. 689; reversing 84 Miss. 
 
 Rep. 616; 52 L. Ed. 1061. 465; 36 So. Rep. 689; Rector v. 
 
 The court said the above stated City Deposit Bank, 200 U. S. 405; 
 principles were derived from the 26 Sup. Ct. Rep. 289; 50 L. Ed. 
 following cases: IMcCormick v. 527; Eau Claire National Bank v 
 Market Bank, 165 U. S. 538; 17 527; Illinois Cent. R. Co. v. Mc- 
 Sup. Ct. Rep., 433. 41 L. Ed. 817; Kendree, 203 U. S. 514; 27 Sup. 
 affirming 162 111. 100; 44 N. E. Ct. Rep. 153; 51 L. Ed. 298; 
 Rep. 381; California Bank v. Eau Claire National Bank v. 
 Kennedy, 167 U. S. 362; 17 Sup. Jackman, 204 U. S. 522: 27 Sup. 
 Ct. Rep. 831; 42 L. Ed. 198, re- Ct. Rep. 391: 51 L. Ed. 596; 
 versing 101 Cal. 495; 40 Am. St. affirming 125 Wis. 465; 104 N. W 
 Rep. 69; 35 Pac. Rep. 1039; San Rep. 98; Hammond v. Whit- 
 Jose Land, etc.. Co. v. San Jose tredge, 204 U. S. 538; 27 Sup. 
 Ranch Co. 189 U. S. 177; 23 Sup. Ct. Rep. 396; 51 L. Ed. 606; 
 Ct. Rep. 487; 47 L. Ed. 765; affirming 180 Mass. 45; 75 N. E. 
 affirming 129 Cal. 673; 62 Pac. ^«P- 222. 
 
 Rep. 269; Nutt v. Ivnut, 200 U. 34a Myrtle v. Nevada, C. & 0. 
 
 S. 12; 26 Sup. Ct. Rep. 216; 50 %• Co. 137 Fed. 193; St. Louis, 
 
 L. Ed. 348; affirming 83 Miss. L M. & S. R. Cb. v. Neal. 83 
 
 365; 35 So. Rep. 686; 102 Am. Ark. 591; 98 S. W. 968; Inter-
 
 414 
 
 FEDERAL. SAFETY APPLIANCE ACT. 
 
 § 281. State statute on same subject applicable to intra- 
 state commerce. — Possibly a state statute requiring auto- 
 matic couplers upon cars used within a state might be en- 
 forced in a suit to recover damages caused by a failure to 
 equip cars used in interstate commerce.^^ 
 
 § 282. Handholds — Through train. — The statute requires 
 cars to be furnished with handholds. Cars in a train operated 
 by a railway company engaged in the transportation of 
 freight across a state and beyond its boundaries is a 
 "through train," and every car in it must be furnished with 
 "handholds." A failure to furnish them is negligence 
 -per se.^^ A brakeman using a defective handhold does not 
 assume the risk of defectiveness.^^ These handholds or grab- 
 irons must be at both ends of the car^* on its sides.^^* The 
 grabirons must be secure ; but if each end of the car has 
 some other appliance, such as a ladder or brake lever, which 
 affords the same security as if a grabiron were at that 
 point, the statute is not violated.^^ Passenger coaches must 
 have proper grabirons,*" "The purpose of requiring grab- 
 
 national & G. N. Ry. Co. V. Elder, 99 
 S. W. 856; Southern Ry. Co. v. Car- 
 son, 194 U. S. 137; 24 Sup. Ct. 609 
 48 L. Ed. 907, affirming 68 S. C. 55 
 46 S. E. 525. 
 
 ^^ See Voelker v. Chicago, etc., R 
 Co. 116 Fed. Rep. 867; Kansas City 
 etc., R. Co. V. Flippo, 138 Ala. 487 
 35 So. Rep. 457; contra, Rio Grande 
 So. R. Co. V. Campbell, 44 Colo. 1 
 96 Pac. Rep. 986; State v. Adams Exp 
 Co. 170 Ind. 138; 85 N. E. 337, 936 
 State V. Missouri Pac. Ry. Co 
 11 S. W. Rep. 500; Devine v 
 Chicago & C. R. Co. 168 111. App 
 450; Luken v. Lake Shore & M. S 
 Ry. Co. 248 III. 377; 94 N. E. 175 
 140 Am. St. 220; 21 Am. Cas. 82 
 But see Blanchard v. Detroit, etc. 
 R. Co. 139 Mich. 694; 103 N. W 
 Rep. 170; 12 Det. Leg. N. 30, and 
 Taylor v. Boston, etc., R. Co. 188 
 Mass. 390; 74 N. E. Rep. 591. See 
 section 1.50a. But a state statute 
 requiring handholds on the sides of 
 cars is supiTsedcd by the Federal 
 statute. Southern Ry. Co. v. ]{. R. 
 Com. rind.) 109 N. E. 759; Southern 
 R. R. Co. V. H. 1{. Com. 236 U. S. 
 439; 35 Sup. Ct. 301; .W L. Ed. — . 
 
 '• Malott V. Hood, 99 III. App. 360, 
 affirmed 201 III. 202; 66 N. E. Rep. 
 247; TInited States v. Boston & 
 Maine R. Co. (Appendix G); United 
 
 States V. Terminal, etc. (Appendix G); 
 Chicago, etc., R. Co. v. United States, 
 165 Fed. Rep. 423; United States 
 V. Southern Ry. Co. 167 Fed. 699 
 (see Appendix G); United States v. 
 Atlantic Coast Line R. Co. (see 
 Appendix G); Wabash Ry. Co. v. 
 United States, 168 Fed. Rep. 1 
 (decided February 3, 1909); see, also 
 section 251, note 34, and sections 
 299, 301. 
 
 " Coley V. North Carolina R. Co. 
 128 N. C. 534; 39 S. E. 43. 
 
 '8 United States v. Illinois Central 
 R. Co. 166 Fed. 997; United States v. 
 Chicago & N. W. Ry. Co. 157 Fed. 
 616. 
 
 "*• United States v. Baltimore & 
 Ohio R. Co. 184 Fed. 94; United 
 States V. Chicago & N. W. Ry. Co. 
 157 Fed. 616; Southern Ry. Co. v. 
 Railroad Commission, 179 Ind. 23; 
 100 N. E. 337. 
 
 ••"•United States v. Boston & M. 
 R. Co. 168 Fed. 148. 
 
 ^" Norfolk & W. Ry. Co. v. United 
 States, 177 Fed. 623.
 
 CARS AXD THEIR EQUIPMENT. ^-jC 
 
 irons or handholds to be placed at the end of the cars used in 
 interstate commerce seems to have been to afford greater 
 security for employees when they are in the act of coupling 
 or uncoupling cars."" No particular kind is required, if 
 those used are sufficient to protect persons coupling and un- 
 coupling cars.*^* 
 
 § 283. Handholds on roof of car — Sill steps — Hand- 
 brakes — Ladders — Running boards. — The handholds or 
 grabirons discussed in the next preceding section are those 
 at the end of the car so as to enable the brakemen to safely 
 couple the cars.^' The statute of 1910, supplemental to the 
 Safety Appliance Acts of 1893 and 1903, provides that "it 
 shall be unlawful for any common carrier subject to" their 
 provisions "to haul, or permit to be hauled or used, on its 
 line any car subject to" its provisions not "equipped with 
 secure sill steps and efficient hand brakes; all cars re- 
 quiring secure ladders and secure running boards" must 
 be "equipped with such ladders and running boards, and 
 all cars having ladders" must be "equipped with secure 
 handholds or grabirons on their roofs at the top of such 
 ladders." "In the loading and hauling of long commodi- 
 ties, requiring more than one car, the handbrakes may be 
 omitted on all save one of the cars while they are thus com- 
 bined for such purpose." The Interstate Commerce Com- 
 mission is required to "designate the number, dimensions, 
 location, and manner of application of the appliances 
 provided for" in the above quotation, and also in section 
 four of the Act of 1893, and to "give notice of such desig- 
 nation to all common carriers subject to the provisions" of 
 the statute by such means as they may deem proper. There- 
 after the number, location, dimensions, and manner of 
 application as designated by the Commission "shall remain 
 as the standards of equipment to be used on the cars subject 
 
 "Dawson v. Chicago, R. I. & v. Illinois Central R. Co. 170 III. 
 
 P. Ry. Co. 114 Fed. 870; United App. 185. As to grab irons under 
 
 States V. Illinois Central R. Co. 166 Indiana statute, see Southern Ry. 
 
 Fed. 997; United States v. Wabash Co. v. Railroad Commission, U9 
 
 Terminal Ry. Co., Appendix G; Ind. 23; 100 N. E. 337, and such is 
 
 United States v. Boston & M. R. the rule under the Federal Act. 
 
 Co. 168 Fed. 148. United States v. Baltimore & Ohio 
 
 ^'» Spokane & I. E. R. Co. v. R. Co. 184 Fed. 94. 
 United States, 210 Fed. 243; 127 « Dawson v. Chicago, R. I & P 
 
 CCA. 61. Ry. Co. 114 Fed. 870; section 4 of 
 
 The Illinois statute requires them Act of 1893. 
 to be on the end of tenders. Daly
 
 416 FEDERAL. SAFETY APPLIANCE ACT. 
 
 to the provisions of" the statute, "unless changed by an 
 order of said Interstate Commission, to be made after full 
 hearing and good cause shown." Failure to comply with 
 the requirements of this order is an offense. After hearing 
 the Commission is empoAvered to "modify or change, and 
 to prescribe the standard height of drawbars and to fix the 
 time within which such modification or change shall become 
 effective and obligatory."*^ 
 
 § 284. Air hose, coupling- chain and appliances obviating 
 necessity for handholds. — The necessity of handholds on 
 passenger equipment is not obviated by the presence there- 
 on of air, steam, or signal hose, coupling chains, handbrake 
 shafts, or other appliances affording some measure of se- 
 curity to employees "while coupling and uncoupling cars.** 
 The necessity of handholds in the sides near the rear ends 
 of tenders is not obviated by the fact that uncoupling levers 
 extend practically across the rear ends thereof, in such a 
 position and of such a character as to serve as handholds, 
 unless it be shown (and the burden is on the defendant to 
 do so) that handholds, if applied, would not contribute to the 
 greater security of employees in coupling and uncoupling 
 cars.*^ 
 
 § 285. What is and is not a handhold a question for the 
 jury — Expert testimony — Personal examination by jury. — 
 
 Since the statute does not definitely and distinctly define 
 what is a secure grabiron, it becomes a question for the jury 
 to determine whether or not the device provided for the 
 purpose of a grabiron was a secure grabiron or handhold 
 within the meaning of the statute.*^ Thus in one case the 
 court charged the jury as follow^s: "You have heard the 
 testimony in this case, and you have examined the hand- 
 holds in question, and it is for you to say from that testi- 
 mony and from your personal examination of the cars 
 whether the appliances provided l)y this company complies 
 v»'ith the act of Congress, whether it affords that safety 
 
 ♦3 For air brakes, 9e<» Section ^* United States v. Norfolk & W. 
 
 303. A. man enj^^ged in connect- R. Co. 184 Fed. 99. 
 ing tlie air hose between the cars " United States v. Baltimore & 0. 
 
 is enfraped in coupling or uncoup- ■^•, p°; }' , S,,\ ». , • n, 
 
 1- 41 ui ;„ +v,« ™«or,;J„ ^"United States v. Atchison, T. 
 
 Img the cars w.thm the meaning ^ ^ ^ ^^ (unreported); United 
 
 of the statute, if it is necessary .states v. Baltimore & Ohio R. Co. (un- 
 
 for him to connect or disconnect reported); United States v. Spokane 
 
 that ho.se in order to connect or & I. E. R. Co. (unreported). 
 disc/)nnect the cars. Ignited iStateq 
 V. Boston & M. R. Co. 168 Fed. 
 US.
 
 CARS AND THEIR EQUIPMENT. ^^J 
 
 and protection to employees wliicli tlic law contemplates and 
 requires." Of this instruction it was said on appeal: "We 
 are of the opinion that the plaintiff in error has no valid 
 ground of objection to those instructions and agree with 
 the trial judge that the question as to whether the openings 
 in the buffer on the ends of the cars afforded the security 
 intended by the act of Congress was not the subject of ex- 
 pert testimony, and that the personal inspection of such 
 openings by sensible jurors was a safer guide to the truth in 
 regard to the matter than the mere opinion of witnesses."*^ 
 
 ^' Spokane & I. E. R. Co. v. United 
 States, 210 Fed. 243; 127 C. C. A. 61.
 
 CHAPTER XVII. 
 REPAIES. 
 
 SECTION 
 
 286. Degree of diligence to make 
 repairs. 
 
 Use of diligence to discover 
 defects — Want of knowledge 
 of defect. 
 
 Duty to maintain car in re- 
 pair is an absolute one. 
 
 Presumption — Diligence to dis- 
 cover defects and make re- 
 pairs in transit. 
 
 Distinction between an action 
 to recover a penalty and to 
 recover damages. 
 
 Cars in transit — Construction 
 of statute. 
 
 Hauling car to nearest re- 
 pairing point. 
 
 Destination of car nearer than 
 repair shops. 
 
 Removal from repair point 
 without statutory repairs 
 being made. 
 
 Repairing cars in transit 
 
 Repairs during journey. 
 
 287. 
 
 288. 
 289. 
 
 290. 
 
 291. 
 292. 
 293. 
 
 294. 
 
 295. 
 296. 
 
 SECTION 
 
 297. Establishing repair shops and 
 
 material. 
 
 298. Knowledge of defect not an 
 
 element of the defense. 
 
 299. Failure to provide or repair 
 
 defective handholds. 
 
 300. Burden to show right to move 
 
 defective car. 
 
 301. Use of "shims" — Common-law 
 
 duty of master not appH- 
 cable — Fellow servant's neg- 
 lect — Construction of statute 
 — Hand grips. 
 
 302. Repairing couplers — Other act 
 
 of negligence aiding negli- 
 gence with reference to coup- 
 lers. 
 
 303. Failure to equip train with air 
 
 brakes. 
 303a. Air brakes on transfer trains 
 
 from one yard to another — 
 
 "Train" defined. 
 303b. Trains too long to be operated 
 
 alone with air brakes. 
 
 § 286. Degree of diligence to make repairs. — What de- 
 gree of diligence is necessary in making repairs has been 
 variou.sly decided. Thus^ in one case it was said: "The 
 utmo.st diligence does not seem to have been used to discover 
 and repair the defect in this car." ^ In another case the court 
 said : "If diligence is to be recognized as a defense, certainly 
 it must be the highest form of diligence. Without regard to 
 what the rule of liability may be, the exercise of the greatest 
 care in the matter of equipment and maintenance will keep 
 coupling appliances in such condition as to exclude, except 
 in very remote instances, the necessity of prosecutions for the 
 enforcement of the act." The facts in this case, recited in 
 the opinion, show why the court did not think a proper de- 
 
 ' United States v. 
 418 
 
 Louisville, etc., R. Co. 15(i Fed. Rop. 193.
 
 REPAIRS. 419 
 
 gree of diligence had been observed to discover the defect and 
 repair it. The defect was occasioned by the loss of a clevis 
 pin. "The car came to the Indiana Harbor Road," said 
 Judge Landis, "from another carrier at a junction point. 
 Here the defendant maintained a car inspector, who testified 
 that, before cars were moved from there by his company, he 
 'customarily,' or 'usually,' or 'generally,' made an examina- 
 tion of the coupling apparatus, which examination consisted of 
 looking at the coupler and lifting the lever. If such inspec- 
 tion disclosed no defect, the inspector passed the car, other- 
 wise he made a record of the fact in a book kept for that 
 purpose, and the repairs were made before the ear was moved. 
 The witness did not recall the particular car in question, but 
 his book contained no record of the car, which indicated that 
 his inspection showed the appliances to be in good condition. 
 Even assuming the government 's view of the law ^ to be 
 wrong, the finding in this case must be against the railway 
 company on the questions of fact. The distance traveled by 
 the car over defendant's track was but a few miles. If, at 
 the initial point, the pin had been in place and properly 
 fastened, it is not probable that it would have been displaced 
 by the ordinary handling of the car to destination. The 
 fact that the pin was missing at the end of the journey is 
 strongly indicative that the defect existed at the point of 
 origin, that is to say, that the pin either was not then present, 
 or was so badly worn or loosened, that proper inspection would 
 have disclosed the fact." The court, therefore, ordered a de- 
 cree entered against the railroad defendant thus found delin- 
 quent.^ 
 
 2 "That it is no defense to a 170 Fed. 542; United States v. Erie 
 pi-osecution of this character that R- Co. 166 Fed. 352; Chicago & N 
 the carrier exercised diligence to W. Ry^ Co. v. Umted States 168 
 
 ., J . , . ..^ „.^ Fed. 236; United States v. innity & 
 
 provide and maintain its equip- ^ ^ ' ^^ 21 1 Fed. 448; United 
 
 ment with safety appliances, as g^-^^^^ ^ Kansas City Southern Ry. 
 
 required by the act." q^ 202 Fed. 828; 121 C. C. A. 136; 
 
 3 United States v. Indiana Har- Chicago, B. & Q. R. Co. v. United 
 bor Co. 157 Fed. Rep. 565; see, States, 195 Fed. 241; 115 C. C. A. 193; 
 also, United .States v. Atlantic, United States v. Kansas City South- 
 etc, R. Co. (Appendix G). ern Ry. Co. 189 Fed 471. 
 
 The burden is upon the defend- It is not enough for a defense that 
 
 nnt to show an excuse for not the railway company equipped a car 
 ant to sho\\ an excuse lor no. ^ j jf ^^ becomes out of repair, 
 
 making the repairs in time. United ^^ ^^^^ ^^^.^-^ ^^^ ^^^^^^ United 
 States V. Illinois Central R. Co. g^^^^^g ^ ^.ne R. Co. 167 Fed. 352; 
 
 United States v. Great Western Ry. 
 
 Co. 174 Fed. 399; Chicago, B. & Q. 
 
 Rv. Co. V. United States, 170 Fed. 
 
 556.
 
 420 FEDERAL SAPETY APPLIANCE ACT, 
 
 § 287. Use of diligence to discover defects— Want of 
 knowledge of defect. — If a railroad company has properly 
 equipped its cars, still it will be liable if they become de- 
 fective, thereby causing an injury; and it is no defense that 
 the defendant company exercised reasonable care and dili- 
 gence to discover and repair the defect before placing the 
 car in service. "The statute says," said Justice Humphrey, 
 "that common carriers shall not haul or use cars in a certain 
 described condition. The defendant asks the court to hold, 
 in effect, that they cannot haul the ear in that condition, 
 provided, that they have failed to use diligence to discover 
 its defective condition, but that if they have used due dili- 
 gence they may haul the car in its defective condition. In 
 all such cases it would be impossible for the officers of the 
 government to determine in advance whether a statute has 
 been violated or not ; but before a prosecution could be prop- 
 erly instituted they should go to the defendant company, 
 ascertain what care it had used in regard to a certain car, de- 
 termine as a matter of fact and law whether the acts of the 
 defendant constituted due diligence, and from that determine 
 whether a prosecution might be safely instituted. It is evi- 
 dent that such a defense would take the very life out of the 
 act in question and render its enforcement impossible, except 
 in a few isolated cases. The courts cannot, by judicial legis- 
 lation, read into the act any language which will excuse of- 
 fenders any more than they can read into it language which 
 would increase their liability. Courts must enforce law as 
 they find it. * * * I have been unable to find that this 
 character of defense has been sustained in any case which 
 reached the courts of last resort. Counsel for defendant has 
 not cited any authority in support of this doctrine of due 
 diligence as a defense to a penal action. It is in the same 
 category with the question of intent under the revenue laws 
 and of good faith under statutes against handling adulterated 
 goods, drugs, etc. It is certainly well established that the 
 good intentions, or the lack of evil intent, on the part of a
 
 REPAIRS. 421 
 
 liquor dealer is no defense to a prosecution for the statutory- 
 penalty. If this is no defense in a quasi criminal action, 
 it certainly would be none in a civil action involving the 
 same facts." "The propositions of law submitted by the de- 
 fendant are, therefore, denied." * This case was approved in 
 a subsequent case in which it was said: "The railroad com- 
 panies are charged, as I have shown, with the duty of haul- 
 ing only such cars as are provided with automatic couplers 
 in suitable ^epair, so as to be operative without the necessity 
 of employees going between the cars ; and it would go far 
 to subvert the law and the purpose thereof if they were per- 
 mitted to say that they had no knowledge of the defect, and 
 that, therefore, they were not liable under the act. The com- 
 panies must ascertain for themselves and at their peril 
 whether or not they have taken up or are hauling cars with 
 defective couplers. Their intention to do right does not re- 
 lieve them.^ I hold, therefore, that want of knowledge of the 
 defects on the part of the defendant company does not con- 
 stitute a defense."*' Under the recent decisions knowledge 
 
 « United States v. Southern Ry. Co. Fed. 542 (Appendix G); Chicago B 
 
 135 Fed Ren 122. & Q- ^7- Co. v. United States, 220 
 
 5 Citing United States v. Great U. S. 559; 31 Sup. Ct. 619; 56 L. Ed. 
 Northern Ry. Co. 150 Fed. 229. 55; Delk v. St. Louis & S F. R Co 
 
 6 United States v. Southern Pac. 220 U. S. 580; 31 Sup. Ct. 61/; 57 
 Co 15-4 Fed Rep. 897; United States L. Ed. 590; United States v. Baltimore 
 V. Atlantic, etc., R. Co. 153 Fed. Rep. & Ohio Ry. Co. 170 Fed. 456; United 
 918. This is now the rule of the States v. Southern Pacific Co. 169 
 majority of the cases, especially those Fed. 407; Chicago, B. & Q. Ry. Co. 
 of a recent date. United States v. v. United States, 1/0 Fed. 556; 
 Atchison etc., R. Co. 167 Fed. 636 United States v. Southern Ry. Co. 
 (Appendix G); United States v. 170 Fed. 1014; Atchison, T. & S F. 
 Wabash R. Co. 168 Fed. 1 (Appendix Ry. Co. v. United States, 1/2 Fed. 
 G)- United States v. Atchison, etc., 1021; Norfolk & W. Ry. Co. v. United 
 Ry Co. 163 Fed. Rep. 517; United States, 177 Fed. 623; 101 C. C. A. 
 States V. Chicago, etc., R. Co. 163 249; Johnson v. Great Northern Ry. 
 Fed. Rep. 775; United States v. Co. 178 Fed. 643; Siegel v. New 
 Baltimore, etc., R. Co. (Appendix G); York Central & H. R. R- Co. 1/8 
 United States v. Erie R. Co. 166 Fed. Fed. 873; Galveston, H. & S. A. Ry. 
 Rep 352- United States v. Southern Co. v. United States, 183 Fed. o/9; 
 Ry Co. 167 Fed. 699, Appendix G; Norfolk & W. Ry. Co. v. United 
 Atlantic Coast Line R. Co. V. United States, 191 Fed. 302; Nichols v. 
 States, 168 Fed. Rep. 175; United Chesapeake & Ohio Ry. Co. 195 Fed. 
 States V. Atlantic Coast Line Co. 913; Galveston, H. & S A. Ry- Co. 
 (Appendix G); Chicago, etc., R. Co. v. United States, 199 Fed. 891; 
 V United States, 165 Fed. Rep. 423; United States v. Pere Marquette R. 
 Chicago, etc., R. Co. v. King, 169 Co. 211 Fed 220; United States v. 
 Fed. Rep. 372. But see United Trinity & B. \ . Ry. Co. 211 Fed. 448. 
 States v. Illinois Cent. R. Co. 170
 
 422 
 
 FEDERAL SAFETY APPLIANCE ACT. 
 
 is not an element of the defense."^ It therefore follows that 
 the use of diligence to discover and repair a defect is not 
 a defense.*'- But the exercise of such diligence on the part 
 of the carrier will, in a great measure, obviate occasion for 
 prosecutions.''^ A wilful intention on the part of carriers to 
 disregard the statutes is not an element of their violation.^* 
 Iiiconvenienee for the carrier to observe the statutes does 
 not excuse their violation.*'^ The duty to equip a car prop- 
 erly and repair it cannot be evaded by assignment or other- 
 wise.''® But there is no violation of the statutes arising 
 from the failure of an employee to efficiently operate an 
 equipment, if it be actually operative."^ 
 
 § 288. Duty to maintain car in repair is an absolute 
 one.* — Whether or not the duty of a railroad company to 
 
 ^' United States v. Chicago, etc., 
 R. Co. 156 Fed. Rep. 180; United 
 States V. Philadelphia, etc., R. Co. 
 160 Fed. 696 (Appendix G); United 
 States V. Pennsylvania R. Co. (Appen- 
 dix G); United States v. Baltimore, 
 etc., R. Co. (Appendix G); United 
 States V. Lehigh Valley R. Co. 160 
 Fed. 696 (Appendix G); United States 
 V. Chicago, etc., R. Co. 162 Fed. Rep. 
 775; United States v. Erie R. Co. 
 166 Fed. Rep. 352. 
 
 The inspectors of the government 
 are not required to notify the em- 
 ployees of the railroad company of 
 defects on cars. United States v. 
 Atchison, etc., R. Co. 167 Fed. 696 
 Norfolk & W. Ry. Co. v. United 
 States, 191 Fed. 302; 112 C. C. A. 46 
 Chicago, B. & Q. R. Co. v. United 
 States, 211 Fed. 12; 127 C. C. A. 438 
 United States v. Chicago, G. W. Ry 
 Co. 162 Fed. 775; United States v 
 Baltimore & O. R. Co. 170 Fed. 456 
 (Appendix G); United States v. 
 Southern Ry. Co. (Appendix G). 
 
 • This section is retained, although 
 it is, in its main point, in direct 
 conflict with the rule laid down in the 
 next preceding .section. 
 
 »2 Wabash R. Co. v. United States, 
 172 Fed. 864; United States v. South- 
 
 em Pacific Co. 169 Fed. 407; United 
 States v. Oregon Short Line R. Co. 
 180 Fed. 483; United States v. South- 
 ern Ry. Co. 170 Fed. 1014; Chicago, 
 B. & Q. Ry. Co. V. United States, 
 170 Fed. 556; United States v. Balti- 
 more & Ohio R. Co. 170 Fed. 456. 
 
 "^ United States v. Indiana Har- 
 bor R. Co. 157 Fed. 565. 
 
 «* Chicago, B. & Q. Ry. Co. v. 
 United States, 170 Fed. 556; United 
 States v. Southern Pacific Co. 154 
 Fed. 897; United States v. Baltimore 
 & Ohio R. Co. 170 Fed. 456; Luken 
 v. Lake Shore & M. S. Ry. Co. 248 
 111. 377; 94 N. E. 175. 
 
 ^^ Chicago Junction Ry. Co. v. 
 King, 169 Fed. 372; United States 
 v. Southern Pacific Co. 169 Fed. 407; 
 Siegel V. New York Central & H. R. 
 R. Co. 178 Fed. 873; United States 
 v. Grand Trunk Ry. Co. 203 Fed. 
 775; United States v. Pere Mar- 
 quette R. Co. 211 Fed. 220. 
 
 «« Philadelphia & R. Ry. Co. 191 
 Fed. 1; Chicago Junction Ry. Co. v. 
 King, 169 Fed. 372. 
 
 " United States v. Illinois Central 
 R. Co. 156 Fed. 182. But see Gilbert 
 V. Burlington, C. R. & N. Ry. Co. 
 128 Fed. 529.
 
 REPAIRS. 423 
 
 equip its ears with automati'e couplers as the statute requires, 
 and to maintain them in that condition, is an absolute one 
 or one merely requiring the exercise of reasonable diligence, 
 has recently been settled by the Supreme Court of the 
 United States. Under the interpretation of this court given 
 the statute, reasonable diligence to equip cars with auto- 
 matic couplings and to maintain them in repair is not a 
 defense, either in an action to recover the penalty pre- 
 scribed by the statute for a failure in this respect or to 
 recover damages sustained by an employee by reason of 
 their defective condition. The court discussed at great 
 length Taylor's case.^^ In that case the court used this 
 language: "In the case before us the liability of the de- 
 fendant does not grow out of the common law duty of 
 master to servant. The Congress, not satisfied with the 
 common law duty and its resulting liability, has prescribed 
 and defined the duty by statute. We have nothing to do 
 but to ascertain and declare the meaning of a few simple 
 words in which the duty is described. It is enacted that 'no 
 cars, either loaded or unloaded, shall be used in interstate 
 traffic which do not comply with the standard.' There is 
 no escape from the meaning of these words. Explanations 
 cannot clarify them, and ought not to be employed to con- 
 fuse them or lessen their significance. The obvious pur- 
 pose of the legislature was to supplant the qualified duty 
 
 «8 St. Louis, I. M. & S. R. Co. v. affirmed. St. Louis, I. M. & S. R. Co. 
 
 Taylor, 210 U. S. 281; 26 Sup. Ct. v. Neal, 83 Ark. 591; 98 S. W. 958. 
 
 616; 52 L. Ed. 1061. This case first And it was then appealed to the 
 
 appeared as Neal v. St. Louis, I. United States Supreme Court, but 
 
 M. & S. R. Co. 71 Ark. 445; 78 S. W. reversed 210 U. S. 281; 28 Sup. Ct. 
 
 220, where it was reversed. It was 616; 52 L. Ed. 1061. 
 again appealed and the judgment
 
 ^24 FEDERAL, SAFETY APPLIANCE ACT. 
 
 of the common law with an absolute duty deemed by it 
 more just. If the railroad does, in point of fact, use cars 
 which do not comply with the standard, it \dolates the plain 
 prohibition of the law, and there arises from that violation 
 the liability to make compensation to one who is injured by 
 it. It is urged that this is a harsh construction. To this 
 we reply that, if it be the true construction, its harshness is 
 no concern of the courts." In the first appeal, the Su- 
 preme Court of Arkansas had said: "The statute upon 
 which this case is based does not say that the company shall 
 use ordinary care to provide its cars with drawbars of a 
 certain height, but it imposes as a positive duty upon rail- 
 way companies that they shall do so. * * * The act of 
 Congress requiring railroad companies to equip their cars 
 with drawbars of standard and uniform heights, specifically 
 provides that an employee injured by failure of a com- 
 pany to comply with the act shall not be deemed to have 
 assumed the risk by reason of his knowledge that the com- 
 pany had not complied wdth the statute, and there is no 
 question of assumed risk presented. ' ' '^^ The Federal Su- 
 preme Court, in this recent case regarded the Taylor case 
 as having settled that it was the absolute duty of an inter- 
 state railway company to maintain its cars, after their 
 equipment, in a proper condition, and that it was no defense 
 that it had used reasonable diligence to keep them in re- 
 pair.*'^ The court quoted with approval the following lan- 
 guage used by ]\rr. Justice Van Devanter (now on the 
 Federal Supreme Court Bench), used in a Circuit Court of 
 Appeals : " It is now authoritatively settled that the duty of 
 the railway company in situations where the Congressional 
 law is applicable is not that of exercising reasonable care 
 in maintaining safety appliances in operative condition, but 
 is absolute. In that case the common law rules in respect 
 
 ebNeal v. St. Louis, I. M. & S. Sup. Ct. fil2; 55 L. Ed. 521; 
 
 R. Co. 71 Ark. 445; 78 S. W. 220. Southern Ry. Co. v. United iStates, 
 
 ecChif-apo, B. & Q. Ry. Co. v. 222 U. S. 20;»32 Sup. Ct. 2; 54 L. Ed. 
 
 United States, 220 U. S. 559; 31 868.
 
 REPAIRS. 425 
 
 of the exercise of reasonable care by the master, and of the 
 non-liability by the master for the negligence of a fellow- 
 servant, were involved by the railway company, and were 
 held by the court to be superseded by the statute. * * * 
 While the defective appliance in that case ^^ was a draw- 
 bar, and not a coupler, and the action was one to recover 
 damages for the death of an employee, and not a penalty, 
 we perceive nothing in these differences which distinguish 
 that case from this. As respects the nature of the duty 
 placed upon the railway company, section five, relating to 
 drawbars, is the same as section two, relating to couplers ; 
 and section six, relating to the penalty, is expressed in 
 terms which embrace every violation of any provision of 
 the preceding sections. Indeed, a survey of the entire 
 statute leaves no room to doubt that all violations thereof 
 are put in the same category, and that whatever property 
 would be deemed a violation in an action to recover for 
 personal injuries is to be deemed equally a violation in an 
 action to recover a penalty.'"^- On the same day the Su- 
 preme Court settled the question holding it was the abso- 
 lute duty of a railway company to equip its cars as the 
 statute required and to so maintain them without regard to 
 reasonable care or the degree of diligence, it reaffirmed the 
 rule it had approved.*^' 
 
 61 The Taylor case above re- 403: United States v. Lehisrh 
 ferred to. Valley E. Co. 162 Fed. 410; United 
 
 62 United States v. Atchison, T. States v. Denver & R. G. R. Co. 
 & S. F. R. Co. 163 Fed. 517; 90 163 Fed. .519; 90 C. C. A. 329; 
 C. C. A. 327. CliicajTO, M. & St. P. R. Co. 16.5 
 
 63Delk V. St. Louis & S. F. R. Fed. 423; 91 C. C. A. 371. 20 
 
 Co. 220 U. S. 580; 31 Sup. Ct. L. R. A. (N. S.) 473: Donegan 
 
 617; 55 L. Ed. -590; reversing 170 v. Baltimore & N. Y. R. Co. 165 
 
 Fed. 556: 95 C. C. A. 642; Vir- Fed. 689; 01 C. C. A. 555; United 
 
 ginia Rv. Co. v. United States, 223 States v. Erie R. Co. 166 Fed. 352; 
 
 Fed. 748. United States v. Wheeling & L. E. 
 
 The following cases in lower R. Co. 167 Fed. 198, 201; Atlantic 
 
 courts had accepted the rule laid Coast Line R. Co. v. United States, 
 
 down in the Taylor case and as 168 Fed. 175. 184: 94 C. C. A. 35: 
 
 subsequentlv affirmed by the Su- Chicago Junction R. Co. v. King, 
 
 preme Court: United ' States v. 169 Fed. 372, 377; 94 C. C. A. 
 
 Pliiladelphia & R. Ry. Co. 162 Fed. 652; United States v. Southern
 
 426 
 
 FEDERAL, SAFETY APPLIANCE ACT. 
 
 § 289. Presumption — Diligence to discover defects and 
 make repairs in transit.* — Not at one are courts with 
 respect to the degree of diligence that must be exercised to 
 discover defects in cars and make repairs. In some of the 
 cases little or no excuse is accepted as a defense, even in a 
 criminal case; while in others more leniency is shown, at 
 least in criminal cases. Such a case is one that arose in the 
 United States Court for the District of Nebraska. In that 
 case the testimony showed that the defective car had at one 
 time been equipped in the manner required by law, and 
 the court declared that it could not presume that any part 
 
 Pac. Co. 169 Fed. 407, 409; 94 C. C. 
 A. 629; Watson v. St. Louis, I. M. 
 & S. R. Co. 169 Fed. 942; Wabash R. 
 Co. V. United States, 172 Fed. 864; 
 97 C. C. A. 284; Atchison, T. & S. 
 F. R. Co. V. United States, 172 Fed. 
 1021; 96 C. C. A. 664; United States 
 V. Atchison, T. & S. F. R. Co. 163 
 Fed. 517; 90 C. C. A. 327; Norfolk 
 & W. R. Co. V. United States, 177 
 Fed. 623; 101 C. C, A. 249; United 
 States V. Illinois C. R. Co. 177 Fed. 
 801; 101 C. C. A. 15; Johnson v. 
 Great Northern R. Co. 178 Fed. 646; 
 102 C. C. A. 89; Siegel v. New York, 
 C. & H. R. R. Co. 178 Fed. 873; 
 Willett V. Illinois Central R. Co. 
 122 Minn. 513; 142 N. W. 883; 
 Nashville. C. & St. L. R. Co. v. 
 Henry, 158 Ky. 88; 164 S. W. 310; 
 St. Louis & S. F. R. Co. v. Conarty, 
 106 Ark. 421; 155 S. W. 93; Devine v. 
 Chicago & C. R. Co. 168 111. App. 450; 
 United States v. Pere Marquette 
 R. Co. 211 Fed. 220; Atlantic Coast 
 Line R. Co. v. Whitney, 62 Fla. 124; 
 56 Atl. 9.37; Chicago, B. & Q. Ry. 
 Co. V. United States, 220 U. S. 559; 
 31 Sup. Ct. 612; 55 L. Ed. 582. 
 
 The fact that it may be incon- 
 venient for carrier to observe the 
 statutes does not excuse their viola- 
 tion. Chicago Junction Ry. Co. v. 
 King, 109 Fed. 372; 94 C. C. A. 652; 
 United States v. Southern Pacific 
 Co. 169 Fed. 407; 94 C. C. A. 629; 
 Siegel V. New York Central & II. R. 
 R. Co. 178 Fed. 873; United States 
 V. Grand Trunk Ry. Co. 203 Fed. 
 775; United States v. Pere Marquette 
 R. Co. 211 Fed. 220. 
 
 In the following cases the same rule 
 was adopted: Chicago, B. & Q. Ry. 
 
 Co. V. United States, 170 Fed. 556; 
 United States v. Illinois Central R. 
 Co. 170 Fed. 542; United States v. 
 Philadelphia & R. Ry. Co. 160 Fed. 
 696; United States v. Southern Pacific 
 Co. 167 Fed. 699; United States v. 
 Louisville & N. R. Co. 156 Fed. 193; 
 Brinkmeir v. Missouri Pacific Ry. 
 Co. 81 Kan. 101; 105 Pac. 221; 224 
 U. S. 269; 32 Sup. Ct. 412; 56 L. 
 Ed. 758, overruling first paragraph 
 of syllabus in Missouri Pacific Ry. 
 Co. V. Brinkmeir, 77 Kan. 14; 93 
 Pac. 621. 
 
 Reasonable diligence to discover 
 defect is all that is necessary to be 
 used has been held in these cases: 
 Norfolk & W. Ry. Co. v. Hazelrigg, 
 170 Fed. 551; United States v. 
 Ilhnois Central R. Co. 156 Fed. 182; 
 United States v. Illinois Central R. 
 Co. 170 Fed. 542; Carson v. Southern 
 Ry. Co. 68 S. C. 55; 46 S. E. 525; 
 see St. Louis, I. M. & S. Ry. Co. v. 
 York, 92 Ark. 554; 123 S. W. 376. 
 
 The same degree of diligence i3 
 required under the Michigan statute. 
 Wight V. Michigan Central R. Co. 
 161 Mich. 216; 126 N. W. 414; 17 
 Det. Leg. N. 289, and under the 
 Ilhnois statute, Erlinger v. St. Louis 
 & O. Ry. Co. 152 111. App. 640; 245 
 111. 304; 92 N. E. 153. 
 
 In the construction of a state 
 statute regulating intrastate cars in 
 terms identical with the Federal 
 statute concerning the duty to equip 
 and keep couplers in repair, the state 
 court will follow the construction 
 placed upon the Federal statute. 
 Luken v. Lake Shore & M. S. Ry. Co. 
 248 111. 377; 94 N. E. 175.
 
 REPAIRS. 427 
 
 of the required equipment was imperfect when the alleged 
 defective cars had, some time previously to the discovery of 
 the defects, been started on their interstate journeys, for there 
 was no evidence whatever as to the effect that the safety ap- 
 Dliances were in any wise defective when they bearan their 
 journey. "The presumption of innocence," said the court, 
 "will leave no room for the inference that the cars were not 
 properly equipped when that journey was beerun, especially 
 as no intelligent person can shut his eyes to the fact that the 
 rapid motion, rough jostling and jolting of the trains, and 
 their immense weight may at some time result in injury to 
 such equipment. There cannot be much nicety in the move- 
 ments of freight trains. The only offenses," continued the 
 court, "imputed to the defendant in these cases is the use of 
 the various cars at the times specified in the pleadings and 
 covered by the evidence. Except these, no other offenses are 
 charged or attempted to be proved. The testimony on behalf 
 of the government shows that nearly every one of the cars 
 had started from the initial point of their respective jour- 
 neys at least one day. and usually longer, before the inspectors 
 of the United States discovered the defects at some inter- 
 mediate station. The testimony was very brief, and was di- 
 rected altogether to what the inspectors then saw. No 
 information was given which might enable the court to deter- 
 mine how long the defect existed. Obviously, under these 
 circumstances, we could not conclude that any defects existed 
 when the car started several days before. We must, on the 
 contrary, presume that the defects were in some way caused 
 during the long previous journey from the initial point to 
 the point of discovery, and therefore, presuming that no vio- 
 lation of the act occurred until after the cars had left the 
 original starting points, and having ascertained from the clear 
 and explicit evidence offered by the United States that de- 
 fects were found during the subsequent journey, we come to 
 the point where our greatest difficulty begins. We should 
 not lightly suppose that Congress intended, in case a prop- 
 erly equipped car started on its interstate journey with all
 
 428 FEDERAL SAFETY APPLIANCE ACT. 
 
 the required safety appliances in perfect condition, but some 
 part of which afterwards, in its rough and rapid journey, in 
 some unknown way and at some time when the fact was prac- 
 tically, if not actually, undiscoverable, was broken or other- 
 wise made defective, that the running of that car for the 
 least distance under those circumstances should be held to be 
 a criminal offense. Yet such is the contention for the United 
 States, and it is true that the act, literally construed, would 
 lead to that result and would embrace just such a case. To 
 make crimes out of such inevitable, unavoidable, and unin- 
 tentional acts, of the happening of which the carrier would 
 usually be unconscious, would obviously be unjust and op- 
 pressive, and in a certain sense absurd for that reason. It 
 would be shocking to any well-regulated moral sense to up- 
 hold the contention if only an individual citizen were in- 
 volved, and as we know of no rule that differentiates one sort 
 of person from another in the application of the rules of 
 criminal law, we cannot willingly hold that such was the in- 
 tention of Congress, even though the language used might 
 literally indicate it. We are not, however, permitted to de- 
 part from the words of the act of Congress, or to read 
 exceptions into it, unless upon established principles of 
 interpretation which would authorize it. Some departure 
 from a literal construction may be admissible in this instance ; 
 but, if so, we must not only find the principles upon which 
 that course may be justified, but also the points where we 
 may begin and where we must end; and this, we think, has 
 boon done in the authorities we have cited. It was insisted 
 on behalf of the government that the statute should be con- 
 strued with the utmost strictness, and so literally as to make 
 it a criminal offense under the statute if the car was used or 
 operated for one moment, even at night, after the breakage 
 <jf any part of the required equipment, even though such 
 breakage occurred Avhile the train was in rapid motion 
 between stations, when it was impossible for anybody 
 conneeted with i1s opcrjitioii lo ascertain the facts. In 
 siiort the contentiuii was that the act should be
 
 REPAIRS. 
 
 429 
 
 construed in the strictest and most literal manner, 
 without regard to any other consideration whatever. 
 If this contention be sound, nothing could be sim- 
 pler, and the government was accordingly content to prove, 
 as it did by two of its inspectors, that thej^ passed alongside 
 of the defendant's trains while at intermediate stations upon 
 the several occasions involved and discovered the defects 
 alleged in the respective paragraphs of the petition, and saw 
 the cars proceed on their journey in that condition. It was 
 also shown that this was done without in any wise informing 
 any of the employes of the defendant of the defects. This 
 was the course pursued in one instance at Fulton, Kentucky, 
 where at least seven separate couplings had been ascertained 
 to be out of repair in one train, although the defects may 
 have endangered the lives of the crew in charge 'of that train 
 during the trip to its destination, and although several of 
 these defects could have been very easily repaired at that 
 point if their existence had been disclosed. If the inspectors 
 had pointed out the defects, and if those defects had not been 
 repaired before the cars were moved (if under the circum- 
 stances that were reasonably possible), the offense would cer- 
 tainly have been complete. And if the repairs had then been 
 made the object of the law would have been accomplished, and 
 the protection of the train hands would have been cared for 
 so far as the safety appliances were concerned. The inspec- 
 tors, however, seem to have thought it to be their duty to 
 permit defectively equipped cars to move without giving any 
 information that would have enabled the defendant to remove 
 the dangers to the crew by supplying or repairing the defects. 
 On the other hand, it was insisted that the statute should be 
 so construed as not to visit criminal consequences upon a 
 defendant in cases where it had started its cars with the 
 proper equipment, but which, during the journey, had become 
 deficient from unavoidable occurrences and under circum- 
 stances, where the discovery of needed repairs was in most 
 instances impossible. It was urged that the construction con- 
 tended for by the government would lead to gross injustice
 
 430 FEDERAL SAFETY APPLIANCE ACT. 
 
 and oppression and to the absurd consequences of punishing 
 one for a wholly involuntary act, the doing of which could 
 not be discovered until a greater or less time had elapsed 
 after the offense had been completed. The defendant ac- 
 cordingly, while complaining of the impossibility of being 
 able to show the exact facts at all times in reference to the 
 innumerable couplings and handholds on the vast number of 
 cars hauled, offered evidence tending to show that it had in- 
 spected all its cars; that it had not discovered the defects 
 alleged, unless in one or two instances, in which the cars had 
 to be moved short distances in order to reach a point where 
 repairing was possible. And thus we are brought to the ques- 
 tion whether, if safety appliances, which are in good condi- 
 tion when the journey of a car on which interstate traffic is 
 being carried begins, afterwards, without the knowledge of 
 the carrier, get broken or otherwise out of repair, it is suffi- 
 cient proof of the violation of the law to show that fact sim- 
 ply, without showing also that the defendant had learned of 
 the defect or had had reasonable opportunity to do so. 
 Manifestly the act does not contain any words implying that 
 the use of the car without the required safety appliance equip- 
 ment shall be with intent to violate the statute, or be 
 knowingly and willfully done; nor, indeed, does the language 
 make any exceptions where an vinavoidable accident impairs 
 or destroys the operative powers of any of these appliances 
 while the train in which the car is placed is moving on its 
 journey. Speaking generally, the rule is that in such cases 
 we cannot by construction take from nor add to the language 
 used by Congress, but what we are to ascertain in these cases 
 is, not what general rules require, but whether there are any 
 exceptions to those rules, and, if any, what they are. The 
 authorities we have cited seem clearly to show that, if a strict 
 ■and literal construction would lead to manifest injustice and 
 oppression then the language used should be so construed as 
 to avoid those results. The defendant is a common carrier, 
 engatred in the performance of important duties to the public, 
 involving great and various oblifrntions. to which it is strictly
 
 REPAIRS. 43]^ 
 
 held. For the most part the several thingjs alle{?ed against it 
 in these cases, were the result of what had occurred while its 
 trains were in motion between stations on its railroad. Those 
 occurrences were practically inevitable in the ordinary opera- 
 tion of its trains. It was impossible to avoid them, or to 
 know of them until long afterwards; and, however it may 
 strike others, in the opinion of this court it would obviously 
 be unjust and oppressive to so construe the Safety Appliance 
 Act or to make such occurrences criminal offenses under its 
 provisions, unless the defendant had reasonable opportunity 
 to learn of them before it afterwards used the car in hauling 
 interstate traffic. For this reason the court readily yields to 
 those rules of construction fixed by the Supreme Court in the 
 cases cited,'' and by which it can properly construe the acts 
 upon canons of interpretation which justify and demand 
 the limitation of its general language within the bounds we 
 shall indicate. In support of these respective contentions 
 several opinions were cited upon the one side or the other.* 
 * * * While we have been instructed by those cases, we 
 have preferred to look at the question now in litigation from 
 
 ^Huntington v. Attrill, 146 U. 690; ChtiflFee v. United States, 18 
 
 S. 657; 13 Sup. Ct. Eep. 224; Wall. 545; 21 L. Ed. 908; revers- 
 
 36 L. Ed. 1123; reversing 70 ing Fed. Cas. No. 14,774; Clyatt 
 
 Md. 191; 2 L. R. A. 779; 14 v. United States, 197 U. S. 207; 
 
 Am. St. Rep. 344; 16 Atl. Rep. 25 Sup. Ct. Rep. 429; 49 L. Ed. 
 
 651; Johnson v. Southern Pac. Co. 726; Kirby v. United States, 174 
 
 196 U. S. 1; 25 Sup. Ct. Rep. U. S. 55; 19 Sup. Ct. Rep. 574; 
 
 162; 49 L. Ed. 363; reversing 54 43 L. Ed. 809; Agnew v. United 
 
 C. C. A. 508: 117 Fed. Rep. 462; States, 165 U. S. .50; 17 Sup. Ct. 
 
 United States V- Lacher 134 U. Rep. 235; 41 L. Ed. 624. 
 S. 629; 10 Sup. Ct. Rep. 625; 'These were United States v. 
 
 33 L. Ed. 1080; Carlisle v. United Southern Ry. Co. 135 Fed. Rep. 
 
 States, 16 Wall. 153; 21 L. Ed. 122; United States v. Pittsburg, 
 
 426; reversing 6 Ct. CI. 398; etc., Ry. Co. 143 Fed. Rep. 360; 
 
 United States v. Bell Telephone United States v. Northern, etc., 
 
 Co. 159 U. S. 548; 16 Sup. Ct. Co. 144 Fed. Rep. 861; United 
 
 Rep. 69 ; 40 L. Ed. 225 ; Mottley v. States v. Indiana, etc., R. Co. 
 
 Louisville, etc., R. Co. 150 Fed. 156 Fed. Rep. 565; United States 
 
 Rep. 406; The Burdett, 9 Pet. v. Chicago, etc., R. Co. 156 Fed.
 
 432 
 
 FEDERAL SAFETY APPLIANCE ACT. 
 
 a point of view somewhat different, and, without going into 
 much elaboration, will state the conclusions reached. It prob- 
 ably in this connection should not be forgotten that the 
 Safety Appliance Act was intended to promote the safety of 
 the very men who are in charge of the trains — men whose 
 duty and interest require them to discover any breakage or 
 defect that might occur ; and, if they could not do so, it seems 
 to the court that the literal construction contended for upon 
 the part of the United States would not be a sensible con- 
 struction, but would work out, probably in most instances, 
 the palpably unjust and oppressive result of inflicting a pun- 
 ishment for an unavoidable act of which the offender was at 
 the time of its commission necessarily unconscious and with- 
 out any sort of intention of doing a wrong. As Congress 
 must be presumed not to have intended such a result, we 
 should hold that it did not intend to punish the unavoidable 
 and unconscious doing even of an otherwise unlawful act. 
 This view is emphasized by the obvious facts that trains, es- 
 pecially on single-track railroads, could not, without great 
 danger to the traveling public, stop between stations to re- 
 adjust or put on, for example, a new handhold, or a new pin 
 or clevis, on some car in a freight train, even if the defect 
 were discovered ; that in respect to automatic couplers no very 
 great danger to train hands could arise until a point is 
 reached where coupling or uncoupling would be necessary; 
 and that the carrier's duty to the general public should not 
 altogether be forgotten. We cannot resist the conviction that 
 the most urgent insistence upon a literal construction of the 
 statute would balk in a case where a train running at speed 
 between stations in some Avay broke some part of the safety 
 
 180; United States v. Great, etc., etc., Ry. Co. 116 Fed. Rep. 867. 
 
 Ry. Co. 150 Fed. Rep. 229; "And the same case in the Circuit 
 
 United States v. Southern Pac. Court of Appeals. One of these 
 
 Co. 154 Fed. Rep. 807; United cases, it will be noted was an ac- 
 
 States V. Atchison, etc., Ry. Co. lion for damages by an individual, 
 
 150 Fed. Rep. 442; United States and the other was for the enforce- 
 
 V. St. Louis, etc., R. Co. 154 Fed. ment of the criminal provisions of 
 
 Rep. 516; Voelker v. Chicago, the statute."
 
 REPAIRS. 433 
 
 appliance equipment. The literal interpretation contended 
 for by the counsel for the United States demands, and coun- 
 sel insists upon, the conclusion that, if the train proceeds at 
 all for any distance (even the shortest) after the break occurs, 
 the offense is complete, and that it is not for the courts to 
 say that an oifense has not been committed, but that it is for 
 the executive officers to decide whether the government will 
 overlook the offense or prosecute it. The courts, however, if 
 appealed to, could hardly yield to a view which would exclude 
 them from the function and the duty of passing upon the 
 proper meaning of the act, and determining for themselves 
 whether a person accused was guilty of a public offense ; and 
 in the exercise of that duty they can scarcely fail to say that 
 common sense demands some relaxation from a literal con- 
 struction in the case supposed. If we relax from it at all, 
 we logically surrender it altogether, and thenceforward our 
 labors must be directed to finding the exact point where we 
 may begin and where we may end in order to reach a sen- 
 sible and just conclusion as to what should be done in such 
 cases. That some relaxation from the literal construction 
 contended for is unavoidable, is clear, and w^e think we may 
 best interpret the intention of Congress by holding that the 
 carrier should be made liable when it is shown that a safety 
 appliance equipment has become deficient and inoperative 
 after the interstate journey of the car had begun, if it does 
 not supply the deficiency at the first opportunity after it is 
 actually discovered, or after its discovery could have been 
 made by the use of the utmost care that a highly prudent 
 man would use under the circumstances of the case. The de- 
 termination of the question of that degree of care would, of 
 course, in some instances, depend upon complex conditions; 
 but the necessity for its determination would seem to be 
 unavoidable, unless we are to have a too literal or a too loose 
 construction of the act in applying it to practical affairs 
 in which the great questions of human safety and necessary 
 business are alike involved. This view seems to the court
 
 434 FEDERAL SAFETY APPLIANCE ACT. 
 
 to approximate as nearly as possible the presumed purpose 
 of Congress to punish intentional or avoidable acts, and not 
 those which were unknown and absolutely unavoidable when 
 they occurred. To impute to Congress an intent to do the 
 latter, would seem to be inadmissible, though we should prob- 
 ably punish in every instance where any deficiency in safety 
 appliances existed when the car was started on the interstate 
 journey. At that point, knowledge of the defect could in 
 most, if not in all, cases be discovered. But, if the operative 
 functions of such appliances become defective during that 
 journey, then punishment as for a criminal offense should 
 only be visited upon the carrier in cases where he, by the 
 use of the utmost degree of diligence which would be used 
 by a highly prudent person under the circumstances, could 
 have discovered and repaired the defect. A less stringent 
 rule should not, we think, be tolerated. Assuming, as we 
 must from the evidence and legal presumptions, that each 
 of the offenses alleged in these cases was committed, if at 
 all, while the car was upon an interstate journey, and not 
 before such journey began, we think the government, in 
 order to be entitled to recover the prescribed penalty for 
 the offense, must by the evidence show to the exclusion of 
 reasonable doubt the following facts: First, that the car 
 was used in hauling interstate traffic; second, that when so 
 used the car was either not equipped or provided with the 
 required safety appliances at all, or else that some part 
 of those appliances had become inoperative; and, third, if, 
 as must be presumed was the case with most of the cars now 
 involved, those appliances were all in good order and condi- 
 tion when the car was originally started on its interstate 
 journey, and afterwards became defective during the transit, 
 then, in order to convict, the evidence must show to the ex- 
 clusion of reasonable doubt that the alleged defects had 
 respectively been either in fact discovered by the carrier or 
 else that they could have been discovered and corrected by it 
 by the exercise of the utmost degree of care and diligence
 
 HE.PAIRS. 435 
 
 which could be expected at the hands of a highly prudent 
 man under similar circumstances.'"'^ 
 
 § 290. Distinction between an action to recover a penalty 
 and to recover damages. — In a recent case in the Circuit 
 Court of Appeals for the Sixth Circuit a distinction has 
 been drawn between an action to recover damages for an 
 injured employee occasioned by lack of proper equipment 
 and one to recover a penalty for the government, with re- 
 spect to a car becoming defective during its transit. In a 
 case of a prosecution to recover a penalty the rule is laid 
 down that if the railroad company has used the utmost 
 diligence in having a defect corrected it is excused and not 
 liable to the penalty.*'* But it cannot be serious contended 
 that there is one rule in an action by the government to 
 recover a penalty and another to recover damages to the 
 person.''^ 
 
 § 291. Cars in transit — Construction of statute. — A simi- 
 lar view was taken in another case to that taken in sec- 
 tion 203. Said the court: "The first rule of construc- 
 tion which occurs to us is that we are to have regard 
 to the scope and purpose of the statute, not so much 
 the general purpose, as the immediate purpose of this 
 particular enactment. For, if we look too intently upon 
 some ultimate good we would wish to accomplish, we are 
 very liable to distort the law or make out of it some other 
 enactment than that which the legislature has in fact passed. 
 "We think the immediate purpose of Congress in this enact- 
 ment, in the respect we are now considering it, is that dis- 
 
 9 United States v. Chicago, etc., Just how far it is not the law in view 
 
 R. Co. 156 Fed. Rep. 182, affirmed 170 of the recent decisions of the United 
 
 Fed. 556; 95 C. C. A. 642. States Supreme Court, section 288, 
 
 This court proceeded upon an it is quite difficult to determine, 
 
 entirely erroneous construction of the ^* United States v. Illinois Central 
 
 statute. It is held that the case was R. Co. 170 Fed. 542; 95 C. C. A. 628, 
 
 a criminal one, when it was a civil reversing 156 Fed. 182. Certiorari 
 
 one. It held that the case must be denied, 214 U. S. 520 (Appendix G). 
 
 proven bj-- the prosecution beyond a ^t Chicago, B. & Q. Ry. Co. 220 
 
 reasonable doubt, when a mere pre- U. S. 559; 31 Sup. Ct. 612; 55 L. 
 
 ponderance, but clearly showing the Ed. 582. 
 violation of the statute, was sufficient.
 
 436 FEDERAL. SAFETY APPLIANCE ACT. 
 
 closed by its title, wherein it is declared to be 'An act to 
 promote the safety of employes and travelers upon railroads, 
 by compelling common carriers engaged in interstate com- 
 merce to equip their cars with automatic couplers, etc. The 
 general purpose is to promote the safety of employes and 
 travelers; but the immediate purpose of the act is to pre- 
 scribe a way of doing this, namely, by compelling common 
 carriers to equip , their cars with automatic couplers. The 
 method or means by which the ultimate good is expected to 
 be accomplished is the subject of the enactment. The safety 
 of the employes, etc., is a thing beyond an expected result 
 of the enactment, which latter is the substantive thing be- 
 fore us for interpretation. True, we should have regard to 
 the result intended for it, but we cannot carry into it words 
 foreign to its meaning, or strain those used beyond their fair 
 import." "When we come to the enactment itself we find 
 that in the second section it corresponds with what the title 
 has heralded. It forbids the use of cars which have not been 
 equipped with automatic couplers, which are a little more 
 fully defined by adding that they are to be such as will ob- 
 viate the necessity of going between the cars to uncouple 
 them, or, as we are disposed to think, couple them. And this 
 is all there is of the statute which by direct language im- 
 poses the duty upon the carrier in respect to the use of 
 automatic coupling. But it is necessarily implied that the 
 railroad company shall keep up the equipment, for it forbids 
 the use of the cars without it. In this connection it seems 
 proper to refer to the last clause in section 2 which is: 
 'And which can be uncoupled without the necessity of men 
 going between the ends of the cars.' We understand this to 
 be a part of the description of the type of the automatic 
 couplings with which the cars must be equipped. And 
 further, we may here remark that the coupling with which 
 this car was equipped was of the kind required by the act. 
 Section 6 declares that the use of any car in violation of this 
 provision of the act shall constitute an offense punishable 
 by a fine of $100. And Section 8 declares that the employe
 
 REPAIRS. 437 
 
 sliajl not be deemed to have assumed the risk occasioned by 
 the failure of the railroad company to equip its cars as re- 
 quired by the second section. Now, the statute clearly and 
 positively devolves upon the railroad company the duty of 
 equipping its cars with those couplers, and makes it a penal 
 offense to use its cars without them. All this is simple 
 enough. The company could make no mistake about it. But 
 we can find no warrant for imposing such drastic conse- 
 quences upon the failure of the railroad company to at all 
 times and under all circumstances have the couplings in re- 
 pair. One of the recognized rules of construction of statutes 
 is that we are to look to the state of the law when the statute 
 was enacted in order to see for what it was intended as a 
 substitute, and another is that it is not to be presumed that 
 the statute was intended to displace the former law, whether 
 it be statute or common law, further than was fairly neces- 
 sary to give it place and operation. Now, prior to this enact- 
 ment, other methods were employed by railroad companies 
 for coupling their cars — generally, if not universally, by a 
 link and pins. And the law was that in respect of this 
 coupling the company was bound to exercise that reasonable 
 degree of diligence in keeping them in repair which was 
 proportionate to the danger of their use. The rule was ex- 
 pressed in various forms, but that was the substance. Con- 
 ceiving that the new form or method of automatic coupling 
 by impact would mitigate the danger to employes. Congress 
 enacted this statute to compel the carrier to substitute the 
 new form for the old in operating its cars; and, of course, 
 it is necessarily implied that it shall be done in good faith 
 as is always implied in the enactment of laws. If the carrier 
 does this, it has complied with the requirement of the stat- 
 ute, and the old method is displaced by the new. But it is 
 now proposed to add to the obligation of the carrier by 
 requiring that he shall be bound to see that the substituted 
 coupling shall at all times and places be in good order, a 
 burden well nigh to impossible. The coupling apparatus on 
 railroad cars is subject at all times while they are being oper-
 
 438 FEDERAL SAFETY APPLIANCE ACT. 
 
 ated. to almost constant wrench and strain and liability to 
 breakage. ]\Iuch of the time the cars are connected up in 
 trains running on the time schedules, and under orders of 
 train dispatchers which must be observed, or fatal and disas- 
 trous consequences ensue. Moreover, accidents to the coup- 
 lings or unknown defects appear at places more or less 
 remote from repair shops. It is reasonable and just to re- 
 quire that the carrier should exercise a high degree of care 
 to keep the couplings in proper condition. But it seems 
 unjust and unreasonable to say that having fulfilled its 
 utmost duty in this regard, it should be held responsible for 
 conditions which may occur without its fault. We do not 
 say that Congress has not the power to impose such an obli- 
 gation as it is contended this statute imposes but what 
 we mean to say is that if a statute seems to impose 
 obligations so extraordinary and difficult to perform the 
 courts would be bound to see whether the language 
 employed is not susceptible of a more reasonable 
 eonstructfon. Undoubtedly there are many cases in 
 the multitude of statutes where the command is so 
 imperative and unconditional that there is no escape from 
 an exact and literal observance. The industry of counsel 
 has accumulated a considerable number of them in his brief. 
 In such cases if the statute is within the power of the legis- 
 lature, there is. as the phrase goes, 'no room for construc- 
 tion,' and the business of the court is simply to administer 
 the law as it is written. But this in no wise relieves the 
 court from the duty of construing statutes which are not of 
 that character, but are subject to the amelioration which the 
 common law affords by its rules of construction. But with 
 regard to this statute, on turning back from the considera- 
 tion of the consequences to the language employed, we find 
 nothing which in terms imposes such an obligation. It is 
 Kaid to be implied; and the singular result is that instead of 
 shading down the express language of an act so that it shall 
 not have an effect which we canTiot suppose to have been in- 
 tended l)y tlie legislature, we should by implication infer an
 
 REPAIRS. 
 
 439 
 
 intent which, if seemingly expressed, we should be bound, if 
 fairly possible, to suppose did not exist. Then, again, the 
 statute is penal. The facts which would be necessary to 
 maintain a criminal prosecution are the same as those which 
 would support a private action. The only difference would 
 be in the greater certainty with which the facts should be 
 proven. And in the construction of such statutes the court 
 is not justified in extending their operation beyond the plain 
 meaning of the language used into regions of doubt and un- 
 certain implications. In this case we do not think it could 
 be held as matter of law that the railroad company was 
 guilty of a violation of the statute. In view of the evidence 
 given at the trial, it was a question for the jury to determine 
 as one of fact whether the railroad company should, if it 
 had used reasonable diligence, have put the coupling in re- 
 pair before the accident happened. "^° " It is urged that, if 
 
 ^° "As we have said, questions those decisions are tlie views ex- 
 have heretofore arisen in the pressed in United States v. Soutli- 
 courts upon the construction and ern Ry. Co. 135 Fed. Rep. 122, by- 
 application of this statute, among Judge Humphrey; by Judge Wliit- 
 them the question most fully con- son in United States v. Great, etc., 
 sidered here; and tliere is some Ry. Co. 150 Fed. Rep. 229, and 
 conflict in their decisions., In possibly for the Circuit Court of 
 United States v. Atchison, etc., R. Appeals for the Eighth Circuit, in 
 Co. 150 Fed. Rep. 442; Voelker v. Chicago, etc., Ry. Co. v. Voelker, 
 Chicago, etc., Ry. Co. 116 Fed. 129 Fed. Rep. 522: 65 C. C. A. 
 Rep. 867 : United States v. Illinois 226 ; 70 L. R. A. 264, where the 
 Cent. R. Co. 156 Fed. Rep. 185; court Avas reviewing the ruling of 
 Elmore v. Seaboard Air Line R. Judge Shiras in 116 Fed. Rep. 867, 
 Co. 130 N. C. 506; 41 S. E. Rep. supra. We say 'possibly,' because 
 786, and Missouri Pac. Ry. Co. v. there are several reasons for think- 
 Brinkmeier (Kan.) 93 Pac. Rep. ing that the Court of Appeals did 
 621; 50 Am. & Eng. R. Cas. 441; not intend to decide anything to 
 similar views in regard to this stat- the contrary of the construction of 
 ute to those we have indicated as the statute which we approve, 
 our own were expressed. It is There were two counts in the pe- 
 proper to observe that the views tition; one upon the statute, and 
 of Judge Shiras in the Voelker the other upon the common law 
 case, 116 Fed. Rep. 867, are not liability for negligence. Upon the 
 there so clearly stated as in his first count the court below liad 
 charge to the jury printed in the charged the jury in respect to the 
 record of that case, with which we statutory liability in accordance 
 have been supplied. Opposed to with the view we take of it, and
 
 440 
 
 FEDERAL, SAFETY APPLIANCE ACT. 
 
 the courts fail to give the statute the construction that it 
 imposes an absolute duty, it defeats the purpose of Congress 
 in enacting it, and leaves the obligation of the carrier as 
 vague as before. But we see no reason for this contention. 
 The benefit of the equipment of the cars with that kind of 
 'safety appliances' and the maintenance thereof, which, as 
 we think, was the purpose of the law, is secured. The ques- 
 tion about which the difference arises is simply whether, in 
 addition to supplying and maintaining the appliances, the 
 carrier is absolutely bound to insure their constant good 
 order, or whether it is bound only to the extent of its best 
 endeavor. The question whether it has fulfilled its duty in 
 the latter respect is no more difficult of determination than 
 such as are constantly arising in cases where negligence is 
 charged in other conditions. ' ' ^^ But this case was reversed 
 on appeal, and the rule here laid down expressly denied."^ 
 
 the Circuit Court of Appeals af- 
 firmed that ruling. It appears 
 from the report that the railroad 
 company made three points for 
 reversal, neither of which present- 
 ed the question here presented. 
 The court negatived each of them, 
 and naturally did not go into ques- 
 tions not raised. It reversed the 
 judgment upon another ground. 
 It seems obvious enough that it ia 
 not an adverse decision. If we had 
 thought it otherwise, we would 
 have more anxiety about the cor- 
 rectness of our view. rJudge 
 Humphrey expressed an adverse 
 opinion, but he finally rested his 
 judgment upon another ground. 
 But Judge Whitson cited Judge 
 Humphrey's opinion, and adopted 
 the view which 1 ad been expressed 
 by him but not made the final 
 ground of decision." 
 
 " St. Louis, etc., R. Co. v. Delk, 
 158 Fed. Rep. 0.31; 80 C. C. A. 05; 
 14 A. & E. Ann. Cas. 233; reversed 
 in 220 U. S. 578; 31 Sup. Ct. 017; 
 55 L. Ed. 590. 
 
 If aj)pliance3 are at liand so 
 tliat they ciin be readilj made, re- 
 
 pairs must be at once made. "But 
 if such means and appliances were 
 not at hand to so remedy the said 
 defects, the defendant would have 
 the right, without incurring the 
 penalty of the law, to have such 
 cars upon which said air brakes 
 so became defective or inoperative 
 hauled to the nearest repair point 
 on its line of railroad where such 
 defects could be repaired and the 
 cars and air brakes put in opera- 
 tive condition; but if such defecta 
 existed at a repair point or other 
 place where they could be repaired, 
 as before stated, then if the defend- 
 ant ran tlie train from such place 
 when 75 per cent, of the cars there- 
 in were not so equipped with oper- 
 ative air brakes as required by 
 law, it is liable for the penalty of 
 $100 for so running such train." 
 United States v. Chicago, etc., R. 
 Oo. 163 Fed. Rep. 775; United 
 States V. Atcliison, etc., R. Co. 167 
 Fed. 690 (Appendix G) ; United 
 Statas V. Southern Pac. Co. 167 
 Fed. 099 (Appendix G). 
 1 la See Section 288.
 
 KKPAIRS. 
 
 441 
 
 § 292. Hauling' car to nearest repairing point. — Much 
 •aonfusion having arisen in the courts, as shown in the suc- 
 ceeding sections, with reference to the duty of a railroad 
 to make immediate repair while cars were in motion or 
 transit, Congress took up the subject in 1910 and enacted 
 a statute covering that and other requirements with ref- 
 erence to the equipment of cars. According to that Act 
 "all cars must be equipped with secure sill steps and effi- 
 cient handbrakes; all cars requiring ladders and secure 
 running boards shall be equipped with such ladders and 
 running boards, and all cars having ladders shall shall also 
 be equipped with secure handholds or grabirons on their 
 roofs at the top of such ladder." "^ By section four of this 
 Act it is provided that if a car has been properly equipped 
 as above stated, **and such equipment shall become defective 
 or insecure while such car was being used by such carrier 
 upon its line of railroad, such car may be hauled from the 
 place where such equipment was first discovered to be de- 
 fective or insecure to the nearest available point where such 
 car can be repaired, without liability for the penalties im- 
 posed by section four of this Act or section six of the Act 
 of March 2, 1893, as amended by the Act of April 1, 
 1896,^^^= if such movement is necessary to make such repairs 
 and such repairs cannot be made, except that such repair 
 shall be at the sole risk of the carrier, and nothing in this 
 section shall be construed to relieve such carrier from lia- 
 bility in any remedial action for the death or injury of any 
 railroad employee caused to such employee by reason of 
 or in connection with the movement or hauling of such car 
 with such equipment which is defective or insecure, or which 
 is not maintained in accordance with the requirements of 
 this Act and ihe other Acts herein referred to ; and nothing 
 in this proviso shall be construed to permit the hauling of 
 defective cars by means of chains instead of drawbars, in 
 revenue trains or in association with other cars that are 
 
 lib This statute is set out in full "c The Safety Appliance Acts, 
 
 in Appendix D.
 
 442 FEDERAL, SAFETY APPLIANCE ACT. 
 
 eommereiallT used, unless such defective cars contain live 
 stock or ''perishable freight." As these provisions are in a 
 proviso, the burden is on the railway company to show that 
 it comes within its provisions. If a car becomes defective 
 while in transit, or while not in use in a switchyard, it may 
 be "hauled from the place where" it is "first discovered 
 to be defective or insecure to the nearest available point 
 where such ear can be repaired." But if the movement 
 is not necessary to repair it, that is, if the car can 
 be repaired at the place where it is discovered to be 
 cut of repair, then it must be repaired there without 
 its being moved. The statute only permits the movement 
 of the defective car when it cannot be repaired at the point 
 of discovery and it is necessary to take it to a repairing 
 point, and that point must be "the nearest available point." 
 In hauling the defective car "to the nearest available 
 point" for repairs it cannot be hauled "by means of chains 
 instead of drawbars, in revenue trains or in association 
 with other cars that are commercially used, unless" it con- 
 tains "live stock or 'perishable freight.' " These provi- 
 sions only excuse the railway company from the penalties 
 inflicted by the Safety Appliance Acts, and does not excuse 
 it "from liability in any remedial action for the death or 
 injury of any railroad employee caused to" him "by reason 
 of or in connection with the movement or hauUng of such 
 car with equipment which is defective or insecure or which 
 is not maintained in accordance with the requirements of" 
 the Act of 1910, or the Safety Appliance Acts. This Act of 
 1910 only applies to defects in the particulars specified in 
 that act and in the Safety Appliance Act; and if the car 
 is defective in other respects — that is, in those parts that 
 the statute makes no reference to — the car may be removed 
 without incurring any penalty, and without any liability to 
 an employee for injuries except such as. imder the particular 
 circumstances, the statute imposes. If a car cannot be re- 
 moved, except -with the use of chains, and it cannot be 
 repaired at the point of discovery, then it must be taken
 
 REPAIRS. 
 
 443 
 
 out of the "revenue" train in which it is being hauled, "or 
 in association with other cars that are commercially used," 
 and hauled separately to a repairing point, unless it con- 
 tain live stock or perishable freight. As the Supreme Court 
 of the United States has held that the Federal Appliance 
 Acts applies to defectively equipped cars hauled in intra- 
 state trains,^^* it necessarilj^ follows that a car cannot be 
 hauled with chains in such a train to a repairing point 
 unless loaded with live stock or perishable freight. It is 
 also to be observed that a defective car cannot be hauled to 
 a repairing point unless the "movement is necessary to 
 make such repairs and such repairs cannot be made at such 
 repair point." If the repairs can be made at the place 
 where the ear becomes defective (or its condition discov- 
 ered), then it must be repaired there before movement, even 
 if the car be loaded with live stock or perishable freight. 
 Of course, the question will arise whether or not the repairs 
 could have been made at the place where the defect was 
 discovered. If the repairs can there be made, the decisions 
 seem to contemplate it being made while the car is in the 
 train; and to move it for the purpose of putting it on a 
 switch or another track where it could be repaired would 
 seem to be an offense. In one case, decided before this 
 statute of 1910 was enacted, it was held error for the court 
 to say to the jury that a railway company can haul a car 
 to a place to be repaired if reasonably necessary."" The 
 railway company must make reasonable provisions and use 
 reasonable skill and exertions to repair defective cars at 
 the point where their condition is first discovered, but is not 
 
 "• Section 243. v. United States, 199 Fed. 891; 118 
 "» United States v. Southern Pacific C. C. A. 339; United States v. South- 
 Co. 169 Fed. 407. ern Pacific Co. 154 Fed. 897; United 
 That a defective car could be States v. Chicago G. W. Ry. Co. 162 
 hauled to a repair shop before the Fed. 775; United States v. T. & S. 
 enactment of this statute, see United F. Ry. Co. 167 Fed. 696; United 
 States V. Rio Grande Western Ry. States v. Southern Pacific Co. 167 
 Co. 173 Fed. 399; Chicago & N. W. Fed. 699; Chicago, M. & St. P. Ry. 
 Ry. Co. V. United States, 168 Fed. Co. v. United States, 165 Fed. 423; 
 236; 93 C. C. A. 4.50; 21 L. R. A. United States v. St. Louis, I. M. & 
 (N. S.) 690; Southern Ry. Co. v. S. Ry. Co. 154 Fed. 516. 
 Snyder, 187 Fed. 492; Southern Ry. Under the Illinois statute it is not 
 Co. V. Snyder, 205 Fed. 868; 124 an offense to take a defective car 
 C. C. A. 60; Siegel v. New York to a repair shop. Kelly v. Illinois 
 Central & H. R. R. Co. 178 Fed. Central R. Co. 140 III. App. 125. 
 873: Galveston, H. & S. A. Ry. Co.
 
 444 FEDERAL, SAFETY APl-LIANCE ACT. 
 
 bound to involve itself in an unusual expense or use unusual 
 exertions in order to then repair them/^* 
 
 § 293. Destination of car nearer than repair shop. — 
 
 Where the destination of a car was nearer than the repair 
 shops, to which, in order to repair it, it was necessary to 
 take the car, it was held that the company was not bound 
 to take the car to the repair shops to repair its coupler be- 
 fore delivering it at its destination, having it unloaded, and 
 then take it to the shops. "The court thinks that the testi- 
 mony fails to show beyond a reasonable doubt the existence 
 of every element necessary to constitute the offense alleged 
 in the petition, within the true intent and meaning of the 
 act of Congress, and will, therefore, find and adjudge that 
 the defendant is not guilty as charged in the petition. And 
 any other result would be obviously unjust and oppressive, 
 and not warranted, we think, by any sensil)le construction 
 of the statute. The only use of the car by the defendant 
 
 "* United States V. Northern Pac. Rv. Co, 162 Fed. 775; Unite;l 
 
 Ry. Co. (unreported) Dec. 6, 1913. States v. AtcMson, T. & S. F. Ry. 
 
 Before the enactment of this statute ^' Appendix G ; United States v. 
 
 . , „ ^ „ . Atchison, T. & S. F. Ry. €o. 167 
 
 it was said that a carrier may move ^ , „^/ tt -j. j oj. x o xi 
 
 , , , Fed. 696; United States v. South' 
 
 one or more cars by themselves to re- ^^.^ ^^^^^ ^^ ^^^ p^^^ ggg. 
 
 pair shops for the purpose of having i^jnited 'States v. Baltimore & 0. 
 
 them placed in a condition to conform r, (^ Appendix G : United States 
 
 to the Safety Appliance Acts without v. Ix)uis'ville & N. R. Co. 156 Fed. 
 
 being guilty of a violation of those j93_ 
 
 a.-ts while it is engaged in an honest r^'^g railway company must have 
 effort to meet their requirements. ^ ^^ repair' points materials and 
 Chicago & N. W. Ry. Co. v. I nited ,.,.,. ^ , , n 
 States, 168 Fed. 236; United States v. facilities necessary to make all re- 
 Rio Grande W. Ry. Co. 174 Fed. 399; pairs, and it must use reasonable 
 Chicago, M. & St. P. Ry. Co. v. foresight in providing the materials 
 United States, 165 Fed. 423; United and facilities for siicli purpose. 
 States v. St. Louis, I. M. & S. Ry. Co. United States v. Southern Pacific 
 154 Fed. 516. , ,, , Co. Appendix G; United States v. 
 A number of the cases hold that j^^^^^j^^^n Pacific Co. 167 Fed. 6-99; 
 they could be removed to the tt -i. i oi. x ax i • rr e a 
 "nearest repair point" in a train I^^n.ted States v. Atchison, T & S. 
 with other cars. United States v. ^- Rj- Co. 1(.7 l^ed. 696; United 
 Southern Patnfic Co. 154 Fed. 897; States v. Atdiison, T. & S. F. Ry. 
 United States v. Chicago G. W. Oo. Appendix G.
 
 REPAIKS. 445 
 
 was to get it as speedily as possible off the busy track and 
 to the place where the defects in the coupling could be sirp- 
 plied. Unloading it at Ewald's^- was an incident in the 
 accomplishment of this object. No course could well have 
 been more reasonable under the circumstances than the one 
 pursued, and there was no testimony offered by the govern- 
 ment tending to show that such defects could practically 
 have been remedied away from repairing points. It was not 
 the case of a handhold merely, as to which the case of putting 
 one on is obvious." ^^ 
 
 § 294. Removal from a repair point without statutory 
 repairs being made. — While the statute permits in certain 
 instances defective cars to be removed to repair points, yet 
 it does not permit the removal of a defective car from a 
 repair point without repairs of statutory defects being made. 
 Thus in one case it w^as said : ' ' But if such defective or 
 inoperative condition of the couplers and grabirons existed 
 at a repair point on defendant's line, or at a place where 
 such defects could have been remedied, then if it hauled the 
 car or cars from such place in such condition, it would do 
 so at its peril and be liable for the statutory penalty for so 
 
 12 The place of its destination, a the defect was discovered or was 
 yard in the same city with the ic- occasioned. The fact that it could 
 pair shops. not have been there repaired was a 
 
 13 United States v. Louisville, burden imposed upon the defendant 
 etc., R. Oo. 156 Fed. Rep. 195. to show. See United States v. 
 But the government was not re- Illinois Central R. Oo. 170 Fed. 
 quired to show the repairs could 542. 
 
 have been made at the point where
 
 446 FEDERAL SAFETY APPLIANCE ACT, 
 
 Lauling or using such car."^ And so it is clear that it can- 
 not be hauled from one repairing point to another.- 
 
 § 295. Repairing cars in transit.— If the couplers are 
 capable of repair, in respect that the law requires, without 
 the necessity of taking them to the repair shops, they must 
 be then repaired "before moving the cars farther upon their 
 journey. I say farther upon their journey, because the cars 
 were yet in transit; the point of destination had not been 
 reached, nor was it reached until they were set in at the 
 place of unloading. The chain coupling, the lock pin with 
 the lever, is a very simple device, consisting of a few links 
 of a small chain, easily attachable with the aid of light 
 tools, and there exists no reason why it should not be readily 
 repaired or replaced at any stage in the journey without 
 serious or material inconvenience or delay. In discussing 
 this phase of the question. Judge Wolverton of the District 
 Court for the District of Oregon said: 'But if I am in 
 error as to the fact of the readiness with which the repairs 
 can be made, then the other phase of the question arises, 
 which is, whether the cars should have been taken to the 
 car shops for repair before being carried on the terminal 
 
 ' United States v. Chicago G. W. Fed. 696; United States v. Southern 
 Ry. Co. 162 Fed. 775; United States Pacific Co. 167 Fed. 699. 
 V. Atchison, T. & S. F. Uy. Co. 167 - Snyder v. Southern Ry. Co. 
 
 (unreported).
 
 REPAIRS. 447 
 
 yards for nnloadinpr. It is urged that the court should take 
 into oonsideration the convenience and practicability of re- 
 pairing: the defects. To he understood, it should be said that 
 the term impracticable is not employed in the answer to in- 
 dicate thnt it wRs impossible to set the cars out and take them 
 to the repair shops before carrying them on their journey, 
 but that it was impracticable so to do in the sense that it 
 would unduly impede and interfere with the transportation 
 of freight by ears, and in special instances might result in loss 
 to either the shipper or carrier, or to both, as in the case 
 where pprishable sroods were being transported. While Con- 
 gress may have taken into consideration, and presumably 
 did, the inconvenience to railroad companies in providing 
 equipment of the character here under consideration, and in 
 keeping the same in repair, yet by its positive enactment it 
 manifestly considered the safety of the brakeman and em- 
 ployes who are charged with the duty of coupling and un- 
 coupling cars paramount; and, having made no exception in 
 terms, the natural conclusion is that the act was intended to 
 apply in all cases where the cars were being used in moving 
 interstate traffic. Admittedly, if a breakage occurs between 
 stations where repair shops are located, and the repair cannot 
 be made without taking the car to such a place, the company 
 cannot be held liable until it has had the opportunity of 
 making the repair, and in that event it would be justified in 
 hauling the car in the train to the succeeding station where 
 such repairs could be made. This does not, however, give to 
 the company the discretion of carrying the car forward to 
 repair shops at destination. If it were permissible to carry 
 the car by one repair shop to another, where the repair could 
 be more conveniently made, then it could, with equal pro- 
 priety, be claimed that the car might be carried by and be- 
 yond two or more of such stations, and, indeed, to cover an 
 entire journey from the Middle West to the Pacific seaboard. 
 This would detract vitally from the utility of the law, as 
 brakemen might, in the course of such a haul, be required 
 to pass many times between the cars for the coupling and
 
 448 FEDERAL SAFETY APPLIANCE ACT. 
 
 uncoupling of the particular car or ears with defective 
 equipment. An illustration is afforded by what was done in 
 this case. After the cars were taken into the terminal yards, 
 it was necessary to uncouple them to set them out for un- 
 loading and to couple them again for transportation to the 
 Southern Pacific Company's car shops, with possible other 
 couplings and uncouplings to be made. So that the danger 
 to the brakeman continued, and must needs have continued, 
 until relieved by the proper repairs being made. I am con- 
 strained to the view, therefore, that this is just the danger 
 that Congress intended to relieve against by the adoption of 
 the act. and that it is what the defendant's duty required it 
 to relieve against by making the repair of the defects prior 
 to taking the cars into the terminal company's yards. The 
 shortness of the haul does not alter the case. We may sup- 
 pose that a defect existed while the car was being carried 
 from beyond the Dalles, where the Oregon Railway & Navi- 
 gation Company has repair shops. It would have been a 
 violation of the act for that company to have hauled the cars 
 from the Dalles to Portland without correcting the defect; 
 and so it is, in like manner, a violation of the act for the 
 Southern Pacific Company to take up the cars at East Port- 
 land and haul them for the distance of only a half mile, 
 and there deliver them to a company whose duty it is to 
 transact terminal business, where the chief work is in shift- 
 ing cars from one train to another, and a vast amount of 
 coupling and uncoupling is done, and the greatest danger is 
 present. To hold otherwise would defeat in large measure 
 the paramount purpose and object of the law. The demurrers 
 to the answers should, therefore, be sustained, and it is so 
 ordered."'"* 
 
 14 United States v. Southern Pac. United States v. Oliicago Great 
 
 Co. 154 Fed. Rep. 897. See, also. Western Ry. Co. 162 Fed. 775; 
 
 United States v. Atlantic Ry. Co. Chicago, M. & iSt. P. Ry. Co. v. 
 
 15.3 Fed. Rep. 918; United States United States, Ifio Fed. 423; 
 
 V. Atchison, T. & S. F. Ry. Co. United States v. Chicago & N. W. 
 
 ^r,^ Fed. 696; United States v. Ry. Co. 157 Fed. 616. 
 Southern Pacific Co. 167 Fed. 699;
 
 KKPAIRS. ^^9 
 
 § 296. Repairs during journey. — Whenever repairs can 
 be made (or at least can be reasonably made according to 
 the reasoning of some of the cases) during the journey they 
 must be so made ; but if they cannot be so made, then they 
 must be done at the nearest repair shop ;^^ and a carrier can- 
 not excuse a failure to repair a statutory defect at the point 
 of its discovery by showing that the car involved was also 
 defective in other respects which could have been repaired 
 only at the point to which the car was moved.^ 
 
 §297. Establishing repair shops and material. — "It is 
 
 certainly reasonable that a railroad company should be re- 
 quired to maintain shops or repair material and make in- 
 spections and repairs at places within reasonable distance 
 of each other; that in establishing such repair points the 
 company has the right, in the ordinary operation of their 
 trains between those repair points, when a train is in opera- 
 tion and defects arise reasonably to carry the car the appli- 
 ances on which are broken or defective to the first repair 
 point, but they do not have the right, having carried it to 
 that point, to take it beyond that point without discovering 
 and making the necessary repairs to those safety appliances 
 attached to that car, and if they do carry it beyond that 
 point, they are liable to the penalty provided by this 
 law."^^* 
 
 § 298. Knowledge of defect not an element of the of- 
 fense. — It has been held that knowledge of the defective 
 coupling is not an element of the offense. In a charge to the 
 jury, Judge Hunger of the United States Court for the 
 District of Nebraska, said: "There is considerable con- 
 trariety of opinion between the different courts as to the 
 proper construction of this act. I have reached the conclu- 
 
 is United States v. Southern Co. v. United States, 165 Fed. Rep. 
 
 Pac. Ry. Co. 154 Fed. Rep. 897; 423; United States v. Southern 
 
 United "states v. Chicago, etc., Ry. Pac. Co. 167 Fed. 699 (Appen- 
 
 Co. 149 Fed. Rep. 486; Chicago, dix G) ; United States v. Atchi- 
 
 etc, R. Co. V. King, 169 Fed. Rep. son. T. & S. F. Ry. Co. 167 Fed. 
 
 372. 696; United States v. Baltimore 
 
 15* United States v. Baltimore, & 0. R. Co. Ap]>endix G: Unite-l 
 
 etc., R. Co. (Appendix G) ; United States v. Southern Pacific Co. Ap- 
 
 States V. Chicago, etc.. R. Co. 162 pendix G. 
 
 Fed, Rep. 775; Chicago, etc., R. » T'nited States v. Southern Pacific 
 
 Co. 154 Fed. S97.
 
 450 FEDERAL SAFETY APPLIANCE ACT. 
 
 sion that knowledge is not an element of the offense under 
 the statute. The chief purpose of the act of Congress, as 
 pronounced by the various courts that have passed upon it, 
 was the protection of the lives and the safety of the train- 
 men who have occasion to pass between the cars or to work 
 in and about them, and the act should be construed so as to 
 give this intent full force, if such a construction can be 
 given to the act without doing violence to the language. Any 
 other construction than this requires, not only that the carrier 
 should fail to have the cars properly equipped, but also that 
 the defect should have existed for such a length of time as 
 would reasonably allow the presumption of inspection and 
 notice on the part of the carrier. That interval would then 
 depend upon the verdict of the jury in each instance — in 
 some eases it might exist onlj'' for an hour; in other cases it 
 might exist for days, or for a sufficient number of hours to 
 move from one inspecting station on the railway to another 
 inspecting station. This construction of the act concludes 
 that Congress did not intend to protect the lives or provide 
 for the safety of a train crew during such period as the jury 
 should find would be sufficient for the company in the ordi- 
 nary method of doing business to discover and remedy this 
 defect. This seems to me an unreasonable construction. If 
 the offense that is specifically charged here depends upon its 
 being knowingly committed, it would seem that under each 
 section of this act, in order to render a railway guilty of non- 
 compliance, such an offense should be knowingly committed, 
 and that leads to what seems to me an absurdity. For in- 
 stance, the fifth section of the act requires that the standard 
 height of the draw bar above the top of the rails is to be fixed 
 at a certain distance, from which distance a maximum varia- 
 tion is allowed. If the act is not violated when there is a 
 variation within that maximum distance then it would 
 appear that if there is an additional variation of another 
 inch, or 2 ov 'A inches, not knowingly allowed, and 
 there has been ordinary care and diligence used, no 
 offense is committed under this act. By the same 
 process of reasoning under Section 2 of the amended
 
 REPAIRS. 451 
 
 act, it would not be a violation of the law to 
 have less than the designated percentage of cars operated by 
 power brakes, but such less percentage must be known to the 
 company."^*' "While the decision in the case of the United 
 States V. A., T. & S. F. E. R. (D. C.)'' is to the contrary, 
 yet it seems to me that. Congress having the power to make 
 certain acts an offense regardless of laiowledge, and having 
 failed to make knowledge an element by express words in 
 this act, it must have been within the contemplation of Con- 
 gress that accidents were liable to occur between stations and 
 for some time before repairs could be made, and that, there- 
 fore, the failure to include knowledge as an element of the 
 offense must have been present in the mind of the enacting 
 body. Its omission was intentional in order that this statute 
 might induce such a high degree of care and diligence on 
 the part of the railroad company as to necessitate a change 
 in the manner of inspecting appliances, and to protect the 
 lives and the safety of its employes, provided the accident 
 occurs from a defective appliance such as is designated in 
 this act."i« 
 
 § 299. Failure to provide or repair defective hand- 
 hold. — A car came into the company 's yards wltlioTit a grab 
 iron on its right hand side of the end on which the brake- 
 
 '^ "I find upon an examination of *' l-'^O Fed. Rep. 442. 
 
 the opinions cited in the argument ^ 'Ignited States v. Chicago etc 
 
 ^, , ' , . 1 • • 1, , R. Co. 156 Fed. Rep. 180. See case 
 
 that there have been decisions by ^^^^^ ^^^^ g._ ^^^ reasoning of 
 
 a number of courts, all holding, in ^^^jg ^^^^ jg ^^^^ supported by cases 
 
 effect, that knowledge and dili- decided in the Supreme Court. See 
 
 gence are not ingredients of the section 288. United States v. Trinity 
 
 offense. United States v. South- & B. V. Ry. Co. 211 Fed. 448; 
 
 ern Ry. Co. (D. C.) 135 Fed. 122; Chicago B. & Q. Ry. Co. v. United 
 
 TT^jfo/i «+o+l ,. p AT * «5t P States. 170 Fed. 556; 9o C. C. A. 
 
 United fetates v. C. M & St P. ^^.^^^ g^^^^^ ^ Chicago, B. & 
 
 Ry. Co., 149 Fed. 486; United q ^y ^o. 156 Fed. 180. 
 States V. G. N. Ry. (D. C.) 150 The case of United States v. Atlan- 
 
 Fed. 229; United States v. S. P. tic, etc., R. Co. 153 Fed. Rep. 918, 
 
 Ry. (D. C.) 154 Fed. 897; United did not adopt the doctrine of this 
 
 States V. Atlantic, etc., Ry. (de- case; but held that the purpose of the 
 
 cision bv Judge Purnell, May 11, statute was to make the railway com- 
 
 19071 I'^Q Fed qis" Pa^Y unconditionally liable for a 
 
 IJOO lod l^ed. J18. violation of the statute.
 
 452 FEDERAL SAFETY APPLIANCE ACT, 
 
 staff was located, known as the "B" end.^^ A grab iron had 
 been upon the car. In that condition, on the day of its 
 arrival, the company hauled it to other yards and delivered 
 it to a connecting carrier in that condition. It was loaded 
 during this time wath interstate traffic. The company had 
 facilities for repairing it both at its yards and when it in- 
 spected it, but failed to put on another grab iron. It was 
 held that the company had violated the statute in not using 
 the proper degree of diligence to make the repairs. It was 
 said that the grab irons were used in the yards where switch- 
 ing was done.-" Secure grab irons or handholds must be 
 put on the end of a car where they are reasonably necessary 
 in order to afford men coupling or uncoupling ears greater 
 security than would be afforded them in the absence of any 
 grab irons or handhold at that point ; but if some other ap- 
 pliance, such as a ladder or brake lever, which afford 
 equal security with the grab irons is there, the statute has 
 not been violated. Having something at that point which 
 performs all the functions of a grab iron is the same as 
 having w^hat is properly called a grab iron there.-*'* 
 
 19 The opposite end is known as down an erroneous rule in view of 
 "A" end. This is in accordance the recent decision of the Supreme 
 with the American Car Builder's Court, Section 243 ] It seems 
 rules. If there be two brake-staffs plain that, if the cars are to be 
 upon the same car, the end toward used in connection with each other, 
 which the cylinder push rod travels they should be in a position to be 
 is known as the "B" end. coupled or uncoupled, so that the 
 
 20 United States v. Louisville, danger intended to be avoided, by 
 etc., R. Co. 156 Fed. Rep. 193. the act in question, would be 
 
 The burden is on the government imminent in case of the absence 
 
 to show there were no grab irons. of sufficient handholds." United 
 
 United States v. Boston & M. R, States v. Illinois Central R. Co. 
 
 Co. 1G8 Fed. 148. 166 Fed. 997; United States v. 
 
 20* United States v. Boston, etc., Chicago & N. W. Ry. Co. 157 Fed. 
 
 R. Co. 168 Fed. 148 (Appendix G). 616; United States v. Wabash 
 
 "Grab irons were required for Terminal Ry. Co. Appendix G ; 
 
 greater safety to men in coupling Dawson v. Chicago, R. I. & P. 
 
 and uncoupling cars. [Dawson v. Ry. Co. 114 Fed. 870; United 
 
 Cliicago, R T. Ry. Co. 114 Fed, States v. Boston & M. R, Co. 168 
 
 870.1 Then, if the defective ear Fed. 148; Appendix G. 
 was far remote from the interstate A man coupling tlie air hose is 
 
 cars in the train, there couhl be engaged in coupling the train, 
 
 no fxissihle danger from coupling United States v. Boston & M. R. 
 
 or uncoupling. [This sentence lays Co. 168 Fed, 148,
 
 REPAIRS. 453 
 
 § 300. Burden to show right to move defective car. — The 
 
 statute provides that if a ear which has been properly 
 equipped shall become defective or insecure while it is being 
 used by the carrier upon its line of railroad it may be hauled 
 from the place where its equipment was first discovered to 
 be defective or insecure to the nearest available point where 
 it can be repaired without liability for any penalty, if such 
 movement is necessary to make such repairs and they can- 
 not be made except at such repair point. As these provi- 
 sions are contained in an exception in the statute, the bur- 
 den is upon the defendant to show that it comes within the 
 exceptional conditions set forth ; and this it must clearly do 
 to avoid the penal provisions of the statute.^ This provision 
 is in the proviso in the amendment of 1910, and is declara- 
 tory of the judicial interpretation, it has been stated, 
 placed upon the acts as previously amended.- The carrier 
 must establish the necessity of the movement claimed to 
 have been made for the purpose of repair,^ and show that 
 the defect to be repaired was of such a nature that it could 
 not have been repaired at the point of its discovery.* The 
 necessity of a movement for the purpose of repairs is gen- 
 erally a question for the jury.^ In one case the evidence 
 was as follows, as outlined by the court: "The proof of the 
 plaintiff showed without contradiction the existence of the 
 defect, and that the car while this defect existed, was moved 
 in a through freight train engaged in interstate commerce, 
 from Houston to Galveston. The defendant's testimony 
 tended to show an inspection at Tom Ball, the divisional 
 point, and that all cars in that particular train were prop- 
 erly equipped ; that the defendant did not maintain at 
 Houston a repair shop, but that the terminal company did 
 repairs for it in cases of necessity; that defendant did not 
 
 -United States v. Trinity & B. V. ^United States v. Chesapeake & 
 
 Ry. Co. 211 Fed. 449; United States Ohio Ry. Co. 213 Fed. 748; Galves- 
 
 V. Kansas City Southern Ry. Co. ton, H. & S. A. Ry. Co. v. United 
 
 202 Fed. 828; United States v. Kan- States, 199 Fed. 891; 118 C. C. A. 
 
 sas City Southern Ry. Co. 189 Fed. 339; Chicago, B. & Q. Ry. Co. 211 
 
 471. Fed. 12; 127 C. C. A. 438. 
 
 2 Galveston, H. & S. Ry. Co. v. "Chicago, B. & Q. Ry. Co. v. 
 
 United States, 199 Fed. 891; 118 C. United States, 211 Fed. 12; 127 C. 
 
 C. A. 339. See, however. United C. A. 438. 
 
 States V. Colorado Midland Ry. Co. ^ Galveston, H. & S. A. Rv. Co. v. 
 202 Fed. 732.
 
 454 FEDERAL, SAFETY APPLIANCE ACT. 
 
 inspect through trains at that point, which was a few hours 
 run from Tom Ball ; that it did maintain a repair shop at 
 Galveston, which was a few hours run from Houston. There 
 was evidence tending to show that the defendant was not 
 aware of the defect until it was pointed out to one of its 
 employees in the yard at Galveston. For the purpose of 
 testing the correctness of the court's ruling on the motion 
 for a peremptory instruction, it must be admitted that the 
 car was equipped properly when the train left Tom Ball 
 to be carried to Galveston." In view of these facts the 
 court said: "Unless the evidence of the defendant tends 
 to show in addition to the facts above recited to wit : (that 
 the car was properly equipped at starting on the journey, 
 and became defective while being used on the line of rail- 
 road of defendant) that the movement of the car in the train 
 was necessary to repair the defect and that the repair could 
 not have been made except at such repair point, then the 
 defendant has not brought itself under the proviso, and 
 there was no question of disputed facts to submit to the 
 jury. Certainly there is no evidence in the record that in 
 the slightest degree tends to prove these last mentioned re- 
 quisites. Bear in mind that under the Safety Appliance Act 
 of 1893, and the amendments, that ignorance of defects does 
 not excuse. The duty to have and maintain in good order 
 the safety appliances required is a positive duty imposed 
 on the carrier by the statute, and that the defendant in the 
 instant case seeks to avoid responsibility for the violation 
 of this duty by pleading the provision of the Act of 1910. By 
 all the canons of construction it must clearly bring itself 
 within the terms of the proviso before it can demand im- 
 munity." The court therefore held that the request for a 
 peremptory instruction to find for the government should 
 have been given." 
 
 United States, 199 Fed. 891; 118 C. Ry. Co. v. United States, 199 Fed. 
 
 C. A. 3:W. 891. 
 
 The proviso of 1910 has no re- "United States v. Trinity & B. V. 
 
 trospoctivo application to a violation Ily. Co. 211 Fed. 449. 
 
 of the ar-ts previou.s to the amend- The court says that the case of 
 
 ment. United States v. Colorado Galveston, II. & S. v. United States, 
 
 Midland Ry. Co. 202 Fed. 732; 121 199 Fed. 891; 118 C. C. A. 339 "does 
 
 C. C. A. 194; Galveston, H. & S. A. not militate or conflict" with these 
 
 views.
 
 REPAIRS 455 
 
 §301. Use of "shims"— Common law duty of master 
 not applicable — Fellow servant's neglect — Construction of 
 statute— Hand grips. — In discussing the effect of this stat- 
 ute upon the duty of a railroad to its employes and the 
 use of "shims" to raise and lower the draw bar to the legal 
 height, the Supreme Court of the United States said: "The 
 evidence showed that draw bars which, as originally con- 
 structed, are of standard height, were lowered by the natural 
 effect of proper use ; that, in addition to the correction of 
 this tendency by general repair, devices called shims, which 
 are metallic wedges of different thickness, are employed to 
 raise and lower draw bars to the legal standard ; and that in 
 the caboose of this train the railroad furnished a sufficient 
 supply of these shims, which it was the duty of the con- 
 ductor or bral\eman to use as occasion demanded. On this 
 state of the evidence the defendant was refused instructions, 
 in substance, that if the defendant furnished cars which were 
 constructed with draw bars of a standard height, and fur- 
 nished shims to competent inspectors and trainmen and used 
 reasonable care to keep the draw bars at a reasonable 
 height, it had complied with its statutory duty, and, if the 
 lowering of the draw bar resulted from the failure to use 
 the shims, that was the negligence of a fellow servant, for 
 which the defendant was not responsible. In deciding the 
 questions thus raised, upon which the courts have differed,'^ 
 we need not enter into the wilderness of cases upon the com- 
 mon law duty of the employer to use reasonable care to 
 furnish his employe reasonably safe tools, machinery and ap- 
 pliances, or consider when and how far that duty may be 
 
 As the law does not define a material whether the chains were 
 
 handhold, it is for the jury to de- broken actually in the links or 
 
 termine whether a car is equipped were disconnected. United States 
 
 with proper handholds or with v. Terminal Assn. (Appendix G). 
 
 such suitable substitutes as will See United States v. Denver, etc, 
 
 give to the employees gi-eater se- R. Co. 163 Fed. Rep. 519. 
 
 curity in the coupling or uncoup- By the use of defective grab 
 
 ling of cars. United States v. iix)ns, a brakeman injured thereby 
 
 Baltimore, etc., R. Co. (Appendix does not assume the risk thereby 
 
 G). See Sections 2S2 299. • incurred. Coley v. Xorth Carolina 
 
 Where the charge is that the R. Co. 128 X. C. 534; 39 S. E. 43. 
 
 chains connecting the lock pins or =i Citing St. Louis, etc, Ry. v. 
 
 loch blocks -mth the uncoupling Delk, 158 Fed. Rep. 931. 
 lever were out of repair, it is im-
 
 456 FEDERAL SAFETY APPLIANCE ACT. 
 
 performed by delegating it to suitable persons for whose de- 
 fault the employer is not responsible In the case before us 
 the liability of the defendant does not grow out of the com- 
 mon law" duty of master and servant. The Congress, not 
 satisfied with the common law duty and its resulting liability, 
 has prescribed and defined the duty by statute. We have 
 nothing to do but to ascertain and declare the meaning 
 of a few simple words in W'hich the duty is described. 
 It is enacted that 'no cars, loaded or unloaded, shall 
 be used in interstate traffic which do not comply with 
 the standard.' There is no escape from the meaning 
 of these words. Explanation cannot clarify them and 
 ought not to be employed to confuse them or lessen 
 their significance. The obvious purpose of the legis- 
 lature was to supplant the qualified duty of the common law 
 with an absolute duty deemed by it more just. If the rail- 
 road does, in point of fact, use cars which do not comply 
 with the standard, it violates the plain prohibitions of the 
 law, and there arises from that violation the liability to make 
 compensation to one who is injured by it. It is urged that 
 this is a harsh construction. To this we reply that, if it be 
 the true construction, its harshness is no concern of the 
 courts. They have no responsibility for the justice or wis- 
 dom of legislation, and no duty except to enforce the law as 
 it is written, unless it is clearly beyond the constitutional 
 power of the lawmaking body. It is said that the liability 
 under the statute, as thus construed, imposes so great a hard- 
 ship upon the railroads that it ought not to be supposed that 
 Congress intended it. Certainly the statute ought not 
 to be given an absurd or utterly unreasonable inter- 
 pretation leading to hardship and injustice, if any other 
 interpretation is reasonably possible. But this argument 
 is a dangerous one and never should be heeded when 
 the hardship would be occasioned and exceptional. It 
 would be better, it was once said by Lord Eldon, 
 to look hard-ship in the face rather than break down 
 the rules of tli(! law. but when applied to the case at bar
 
 REPAIRS. 457 
 
 the argument of hardship is plausible only when the 
 attention is directed to the material interest of the employer 
 to the exclusion of the interests of the employe and of the 
 public. Where the injury happens through the absence of 
 a safe draw bar there must be hardship. Such an injury 
 must be an irreparable misfortune to some one. If it must 
 be borne entirely by him who suffers it, that is a hardship 
 to him. If its burden is transferred, as far as it is capable 
 of transfer, to the employer, it is a hardship to him. It is 
 quite conceivable that Congress, contemplating the inevitable 
 hardship of such injuries, and hoping to diminish the 
 economic loss to the community resulting from them, should 
 deem it wise to impose their burdens upon those who could 
 measurably control their causes, instead of upon those who 
 are in the main helpless in that regard. Such policy would 
 be intelligible, and, to say the least, not so unreasonable as 
 to require us to doubt that it was intended and to seek some 
 unnatural interpretation of common words. We see no 
 error in this part of the case. ' ' ~- 
 
 § 302. Repairing couplers — Other act of negligence aiding 
 negligence with reference to couplers. — It is the duty of a 
 railroad company after it has equipped the cars to keep 
 them in repair. It may be negligent in this respect and 
 become liable to the employe. "The statutory require- 
 ments," said Judge Shiras, "with respect to equipping cars 
 with automatic couplers was enacted in order to protect rail- 
 way employes, as far as possible, from the risks incurring 
 when engaged in coupling and uncoupling cars. If a rail- 
 way uses in its business cars which do not conform to the 
 statutory requirements, either because they never were 
 equipped with automatic couplers, or because the company, 
 through negligence, has permitted the coupler, originally 
 sufficient, to become worn out and inoperative, then the com- 
 
 =-St. Louis, etc., Ry. Co. v. Tay- 
 lor, 210 U. S. 281;" 28 Sup. Ct. 
 Rep. 616; 52 L. Ed. 1061.
 
 458 FEDERAL SAFETY APPLIANCE ACT. 
 
 pany is certainly not performing the duty and obligations 
 imposed upon it by the statute and is, therefore, 
 chargeable with negligence in thus using an improperly 
 equipped car; and the company is bound to know 
 that if it calls upon one of its employes to make 
 a coupling with a coupler so defective and inoperative 
 that it will not couple by impact, and that to make 
 the coupling the employe must subject himself to 
 all risks and dangers that inhered in the old and dangerous 
 link-and-pin method of coupling, it is subjecting such em- 
 ploye to the very risk and danger which it is the purpose 
 of the statute to protect him against, so far as it is reason- 
 ably possible. Subjecting an employe to risk life and limb 
 by calling upon him to use appliances which have become 
 defective and inoperative through the failure to use proper 
 care on part of the master is certainly negligence, which will 
 become actionable if injury results therefrom to the em- 
 ploye, and liability therefor cannot be evaded by the plea 
 that if the company was thus guilty of actionable negligence 
 in this particular it cannot be held responsible therefor be- 
 cause it was guilty of another act of negligence which aided 
 in causing the accident. ' ' -^ 
 
 § 303. Failure to equip train with brakes. — It is the 
 duty of a railroad company to ascertain at its peril that a 
 train it hauls, whether its own train or one received from 
 another company, over its line of railway, or any part of it, 
 that at least eighty-five per cent of the cars of the train 
 are equipped with air brakes, and if that percentage of 
 its trains be not so ecpiipped, it is liable for a penalty of 
 one hundred dollars because of its hauling such train, the 
 penalty being for hauling the train and not a penalty for 
 each insufficiently equipped car. The eighty-five per cent 
 of the cars composing the train must be so equipped with 
 air brakes that they can bo operated by the engineer of the 
 train, and if upon the journey they are reduced below that 
 percentage, then it is the duty of the company to immediately 
 
 23 Voc'lkcr V. Chicago, etc., Ry. Co. 
 IIG Fed. Rep. 8G7, reversed 129 Fed. 
 622; 05 C. C. A. 226.
 
 REPAIRS. 459 
 
 repair the defect or defects and put the air brakes in 
 operative condition as soon as the defects are discovered, 
 or can he discovered by the exercise of reasonable care, at 
 least, on the part of the agents and 'servants of the eom- 
 pany charged Avith that duty, if the defects can be so re- 
 paired by the means and appliances at hand for that pur- 
 pose when the defects are discovered. If the means and 
 appliances are not at hand to remedy the defects, the com- 
 pany has the right, without incurring the penalty of the law, 
 to haul the defectively equipped car to the nearest point 
 on its line where the defects can be repaired and the air 
 brakes and cars put in operative condition, but if the de- 
 fects exist at a repair point or other place where they can 
 be repaired, then if the company run its train from that 
 place when eighty-five per cent of the cars in the train are 
 not equipped vnth operative air brakes it vdll be liable for 
 the penalty of one hundred dollars for so running the 
 train.^* In counting the cars in a train to be equipped with 
 air brakes, the engine and tender are to be counted as sep- 
 arate and distinct cars.-^ The Interstate Commission has 
 increased the number of cars to be equipped in any train to 
 eighty-five per cent of the entire number in the train.'^ This 
 statute did not prevent the use of hand brakes before the 
 
 24 United States v. Chicago, etc., locomotive drawing such train." 
 R. Oo. 162 Fed. Rep. 775. United States v. Erie R. Co. 35 Sup. 
 
 25 United States v. Chesapeake & Ct. 621, reversing 212 Fed. 853; 129 
 
 Ohio R. Co. (Appendix G). os7^'i^i'n^n' f^'^Ln^^^^^ ^^^ ^^^' 
 
 It must not be forgotten that a '^%' ^^^ ^- X' , .■ ooo 
 
 , ., , . ,". .,, x,^ ror hand brakes, see section 283. 
 
 failure to equip a tram wi h the ^he Arkansas statute, requiring 
 
 requisite number of air brakes is tj^j-ee brakemen for freight trains of 
 
 an act of negligence that may give more than twenty-five cars, operated 
 
 a passenger, or even a traveler in the state, is constitutional. Chi- 
 
 crossing the right of way, a right cago, R. I. & P. Ry. Co. v. Arkansas, 
 
 of action. 219 U. S. 453; 31 Sup. Ct. 275; 56 
 
 26 Order of June 6, 1910. Ac- L. Ed. 290. 
 
 cording to this order "all power . \ ™^" coupling or uncoupling the 
 
 brakes in cars in ever^r such train ^'' ^°'^ °^ ^, ^'^''' '?t'T5 «! ? '''" 
 , . , • J. J 1. ±1 -i., couphng a train. United States v. 
 
 which are associated together with g^ston & M. Ry. Co., 168 Fed. 148. 
 the eighty-five per cent, shall have Unless a statute requires it, a 
 
 their brakes so used and oper- railroad company is not bound to 
 ated" — "bj^ the engineer of the equip its cars with automatic or air 
 
 brakes. Pinson v. Southern Ry. Co. 
 
 85 S. C. 355; 67 S. E. 464.
 
 460 FEDERAL SAFETY APPLIANCE ACT. 
 
 Act of 1910 requiring them ; and evidence that under a 
 general order of a railway company brakemen are required 
 to set hand brakes on trains, was held not sufficient to 
 establish a violation of the statute, there being no claim or 
 evidence that the required percentage of cars were not 
 equipped with power or air brakes. It was also held that 
 it could not be a defense to show that the train had a 
 "sufficient" number of brakes as the first section of the 
 Act of 1893 required, although less than seventy-five per 
 cent, after the Interstate Commission, acting under the Sup- 
 plemental Act of 1903 had fixed the percentage at seventy- 
 five. ^^ The court then proceeds with the remaining question 
 as follows: ''It is averred in plaintiff's statement of 
 claim that, while the train had seventy-five per cent of its 
 cars used and operated by the engineer, there were asso- 
 ciated together in said train with said seventy-five per cent 
 four additional train brake cars which did not have their 
 brakes operated by the engineer. This charges a breach 
 of the provisions of section two of the Act of March 2, 1903, 
 above quoted. It was admitted at the trial that said four 
 cars were defective and out of repair. It did not appear 
 how long their brakes had been unused. The testimony 
 showed that they had their air 'cut out' — that is, cut off 
 in the pipes extending from the main air line of the train 
 to the brakes. The air was not interfered with in passing 
 through said cars to other cars. It seems plain that with 
 brakes cut out for defects they ceased to be power-braked 
 cars and became part of the allowed percentage of hand- 
 braked cars. The act nowhere imposes a penalty for using 
 an air-braked car Avith a cut-out brake, as it does for using 
 one with a defective coupler, or one without grabirons or 
 handholds. Again, the act does not say all power-braked 
 cars in a train shall have their brakes used and operated. 
 There is a qualification which must mean that only such 
 power-braked cars 'which are associated together with 
 
 27 "The first section of tho Act train without rorinirinsr brnkemen 
 of lRn.3 intonds that the cnjrineer to use the common hand brake for 
 should control the speed of the that purpose."
 
 REPAIRS. 
 
 461 
 
 said' seventy-five per cent shall have their brakes used. 
 That clearly contemplated that there might be some power- 
 braked cars not associated with the seventy-five per cent, 
 which need not have their air brakes used and operated. 
 All the cars in the train, except the four cut-out cars, and 
 the caboose, not complained of, were associated together in 
 the air brake operations by the engineer of the locomotive. 
 When the Interstate Commerce Commission shall, in the 
 exercise of its powers, fix a minimum percentage of cars in 
 any train required to be operated with power or train 
 brakes, which must have their brakes used and operated as 
 required by the act, at a minimum much greater than that 
 which now is the standard, there may be some right to re- 
 cover upon a cause of action in which the allegations and 
 proofs are similar to those in the case at bar."^^ In the 
 
 28 United States v. Baltimore & 
 0. Ry. Co. 176 Fed. 114. 
 
 The railroad company is bound 
 to keep the safety brakes in order. 
 Sherrer v. Banner Rubber Co. 227 
 Mo. 347; 126 S. W. 1037. 
 
 In order to recover for injuries 
 sustained fiT>m the operation of a 
 train not having air brakes, the 
 failure to equip it with air brakes 
 must have been the proximate 
 cause of the injurv. Lyon ^. 
 Charleston & W. C. Ry. 77 S. C. 
 328; 56 S. E. 18. 
 
 A freight train scheduled to run 
 regularly between points in dif- 
 ferent states is a single train 
 throughout such run and at all 
 times subject to the statute, al- 
 tliough some of the cars compo:?- 
 ing it may have been left and 
 others taken on at different sta- 
 tions, and althougli after entering 
 the second state the engine, caboose 
 and train crew are changed. 
 United States v. Chicago Great 
 Western Ry. Co. 162 Fed. 775. 
 
 "The statute does not require 
 all cars which may be equipped 
 with power brakes to be coupled 
 or associated together, but only 
 
 fifty [now eighty-five] percent, of such 
 brakes, but it does require all that 
 may have been equipped with power 
 brakes and actually associated with 
 fifty [now eighty-five] per cent, to be 
 controlled by the engineer from the 
 locomotive. The statute contem- 
 plates and allows that there may be 
 cars in the train equipped with air 
 brakes and not associated with the 
 fifty per cent, operated from the 
 engine. The word 'associated,' as 
 here used, manifestly means the cars 
 immediately connected with the fifty 
 [now eighty-five] per cent, equipped 
 with power brakes and operated from 
 the engine; and those associated cars 
 are also required to be operated from 
 the engine. But the terms of the 
 statute not only fail to require all cars 
 of the train to be equipped with air 
 brakes to be operated from the engine, 
 but impliedly excludes such require- 
 ment, by expressing the requirement 
 that the cars when associated with the 
 minimum number of cars shall be so 
 equipped." Lyon v. Charleston & W. 
 C. Ry. Co. 77 S. C. 328; 56 S. E. 18. 
 In computing the percentage of opera- 
 tive air brake equipment in any given 
 train, the engine and tender are to be 
 counted as two cars. United States v. 
 Chesapeake & Ohio Ry. Co. (unre- 
 ported) Dec. 2, 1908.
 
 462 FEDERAL SAFETY APPLIANCE ACT, 
 
 absence of evidence of insufficient air brake equipment, the 
 use of hand brakes, not to control the speed of the train, 
 but to insure the safety of its movement, is not a violation 
 of the statutes.^^ The requirement of efficient air brakes 
 presupposes that such equipment shall be inspected at 
 terminals.^" The first section of the Act of 1893 was framed 
 for the purpose of obviating the necessity of brakeman 
 going on top of the cars to operate hand brakes. This is the 
 specific danger legislated against. This purpose stands 
 forth clearly from the language of the act. The implication 
 is irresistable that Congress intended to make illegal the 
 requirement that brakemen should go on the top of cars to 
 operate hand brakes. Any construction that such use of the 
 hand brakes is not illegal defeats the evident and manifest 
 purpose of Congress. It also deprives those injured by 
 falling from cars when required to operate hand brakes of 
 the advantages of the remedial provision of the act, espe- 
 cially of that provision abolishing the assumption of risk. 
 The purpose of the law was to enable the speed of the train 
 to be controlled solely and exclusively by the engineer, 
 through the use of train or power brakes, and to avoid the 
 necessity of trainmen going on the tops of the cars to 
 operate the hand brakes, and to thus endanger their lives. 
 
 § 303a. Air brakes on transfer trains from one yard to 
 another — "Train defined." — In a recent case the Supreme 
 Court has discussed the requirements of the act in this 
 regard as applied to a specific instance. The Erie Railroad 
 maintained railroad yards, with docks for ferries and floats, 
 on the west bank of the Hudson river, at Jersey City and 
 Weehaken, where cars were received from and forwarded to 
 various points around New York harbor ; and it maintained 
 another yard at Bergen — inland two miles from Jersey City 
 and three and one-half miles from Weehaken — where cars 
 were received from and forwarded to western points. The 
 Jersey City yard had 60 tracks, the Weehaken 80 and the 
 
 » Unitf'd states v. Baltimore &Ohio '» United States v. Erie R. Co. 212 
 
 R. Co. 170 Fed. 114. Fed. 853.
 
 REPAIRS. 
 
 463 
 
 Bergen 115. Between the Bergen yard and the others is a 
 high hill pierced by a tunnel almost a mile in length. The 
 three yards were connected by double tracks extending 
 from Jersey City and Weehaken to the eastern portal of the 
 tunnel, and then going through the tunnel to Bergen. "The 
 situation may be illustrated by treating the three yards as 
 located at the outer points of the letter Y — Weehaken and 
 Jersey City at the upper points and Bergen at the base — 
 and connected by tracks conforming to the lines of that 
 letter, the tunnel being along part of the lower line. The 
 connecting tracks are not used by passenger trains, but 
 are the main tracks over which freight is moved from and 
 to points around New York harbor. Jersey City, "Weehaken 
 and Bergen are all stations at which freight, both local and 
 interstate, is accepted and delivered, and are so shown in 
 defendant's tariff schedule. "While the yards at these 
 places are all used for receiving, storing, handling and 
 forwarding cars, the work of classifying, distributing and 
 assembling the cars preparatory to sending them to their 
 ultimate destinations, west and east, is principally done in 
 the Bergen yard. Most of the regular westbound freight 
 trains are made up and started in that yard, and most of the 
 regular eastbound freight trains are stopped and broken up 
 there. Some regular trains carrying high-class freight pass 
 Bergen without more than a temporary stop, but the greater 
 part of the traffic is moved between the yards at Jersey City 
 and Weehaken, and the one at Bergen in transfer trains 
 which run only between those yards and one operated over 
 the double tracks before described. These transfer trains 
 usually have about twenty-five cars, do not carry a caboose, 
 are drawn and operated by engines and crews specially en- 
 gaged in that service, and have flags and signal lights dif- 
 fering somewhat from those on other trains, but answering 
 the same purpose. They are not run according to fixed 
 schedules, but at irregular intervals under the orders of 
 yardmasters and according to block signals. Their speed 
 is from 7 to 18 miles an hour and they move great number
 
 464 FEDERAL SAFETY APPLIANCE ACT. 
 
 of ears in each direction every day. All go through the 
 tunnel, which is admitted to be very dark, and upon each 
 trip they pass over several switches leading to other tracks, 
 traverse part of the same line over which 15 regular through 
 and local freight trains are moved each day, and cross at 
 grade tracks which are in daily use by approximately 35 
 passenger trains." Under these facts the Supreme Court 
 held that statute requiring air brake equipment was appli- 
 cable to these transfer trains. The court calls attention to 
 the fact that the Act of 1903 makes it unlawful for a rail- 
 road company engaged in interstate commerce "to run any 
 train" in such commerce without having a sufficient number 
 of cars so equipped with train brakes — commonly spoken of 
 as air brakes — so the engineer on the locomotive can 
 control the speed of the train "without requiring brakeman 
 to use the common hand brake for that purpose." The court 
 then calls attention to the second section which requires 
 cars to be equipped with couplers which can be coupled and 
 uncoupled automatically "without the necessity of men 
 going between the ends of the cars," and to the fourth 
 section which forbids the use in interstate commerce of any 
 car not provided with secure grabirons or handholds in the 
 ends and sides of the car" for greater security to men in 
 coupling and uncoupling cars." The court then proceeds 
 as follows: "It will be perceived that the air brake pro- 
 vision deals with running a train, while the other require- 
 ments relate to hauling or using a car. In one a train is a 
 unit and in the other a car. As the context shows a train 
 in the sense intended consists of an engine and ears which 
 have been assembled and coupled together for a run or trip 
 along the road. When a train is thus made up and is pro- 
 ceeding on its journey it is within the operation of the air 
 brake provision. But it is otherwise with the various move- 
 ments in railroad yards whereby cars are assembled and 
 coupled into outgoing trains, and whereby incoming trains 
 which have completed their runs are broken up. These are 
 not train movements, but mere switching operations, and so
 
 REPAIRS. 465 
 
 are not within the air brake provision. The other provisions 
 calling for automatic couplers and grabirons are of broader 
 application and embrace switching operations as well as 
 train movements, for both involve a hauling or using of 
 ears.-^ "We are persuaded that the transfer trains moving 
 from Jersey City and Weehakan to Bergen and vice versa 
 come within the purview of the air brake provision. They 
 were made up in yards like other trains and then proceeded 
 to their destination over main line tracks used by other 
 freight trains, both through and local. They were not mov- 
 ing cars about in a yard or on tracks set apart for switching 
 operations, but were engaged in main line transportation, 
 and this in circumstances where they had to pass through 
 a dark tunnel, over switches leading to other tracks, and 
 across passenger tracks whereon trains were frequently 
 moving. Thus it is plain that in common with other trains 
 using the same main line tracks, they were exposed to 
 hazards which made it essential that appliances be at hand 
 for readily and quickly checking or controlling their move- 
 ments. The original act prescribed that these appliances 
 should consist of air brakes controlled by the engineer on 
 the locomotive, and the Act of 1903 declared that this re- 
 quirement should 'be held to apply to all trains.' "We 
 therefore conclude and hold that it embraced these transfer 
 trains. "^° 
 
 "^ Citing Johnson v. Southern R. Southern R. Co. v. Crockett, 234 
 
 Co. 196 U. S. 1; 25 Sup. Ct. 158; 49 U. S. 725; 34 Sup. Ct. 897; 58 L. Ed. 
 
 L. Ed. 363; 17 Am. Neg. 412; Schlem- 1564; Minneapohs, St. P. & S. S. 
 
 mer v. Buffalo, R. & P. R. Co. 205 M. R. Co. v. Popplar, 237 U. S. — ; 
 
 U. S. 1; 27 Sup. Ct. 407; 51 L. Ed. 35 Sup. Ct. 609; 59 L. Ed. — . 
 
 681; Same case, 220 U. S. 590; 31 ^o United States v. Erie R. Co. 
 
 Sup. Ct. 561; 55 L. Ed. 596; St. 35 Sup. Ct. 621, reversing 212 Fed. 
 
 Louis, I. M. & S. R. Co. v. Taylor, 853; 129 C. C. A. 307. See also 197 
 
 210 U. S. 281; 28 Sup. Ct. 616; 52 Fed. 287; 116 C. C. A. 649, and 
 
 L. Ed. 1061; 21 Am. Neg. 464; United States v. Chicago, B. & Q. 
 
 Chicago, B. & Q. R. Co. v. United R. Co., 35 Sup. Ct. 634; affirming 211 
 
 States, 220 U. S. 559; 31 Sup. Ct. 612; Fed. 12; 127 C. C. A. 438. 
 
 55 L. Ed. 582; Delk v. St. Louis & The court concludes as follows: 
 
 S. F. R. Co. 220 U. S. 580; 31 Sup. "Its applicability to this class of 
 
 Ct. 617; 55 L. Ed. 590; Southern R. trains was considered and sustained 
 
 Co. V. United States, 222 U. S. 22; in Atchison, T. & S. F. R. Co. v. 
 
 32 Sup. Ct. 2; 56 L. Ed. 72; Chicago United States, 117 C. C. A. 341; 198 
 
 Junction R. Co. v. King, 222 U. S. Fed. 637; United States v. Grand 
 222; 32 Sup. Ct. 79; 56 L. Ed. 173;
 
 46g FEDERAL SAFETY APPLIANCE ACT. 
 
 § 303b. Trains too long- to be operated alone with air 
 brakes. — The iutention of Congress is to require the con- 
 trol of trains, in ordinary line of movement, by the train 
 brake prescribed by the statute, and to make unlawful 
 the use of hand brakes for that purpose; and if a train of 
 many cars — say one hundred — can be operated only by 
 the use of hand brakes, even at a slow speed, while a train 
 of a smaller number of cars can be successfully operated 
 with power brakes, then the use of hand brakes on such 
 long train is unlawful.^" 
 
 Trunk R. Co. 203 Fed. 775; United does not render the company liable 
 
 States V. Pere Marquette R. Co. 211 to an employee thereby injured. 
 
 Fed. 220, and La Mere v. Railway Whalley v. Philadelphia & R. Ry. 
 
 Transfer Co. 125 Minn. 159; 145 Co. (Pa.) 93 Atl. 1016, citing the 
 
 N. W. 1068." reversed cases of Erie R. Co. v. 
 
 The Supreme Court of Pennsyl- United States, 197 Fed. 287; 116 
 
 vania has decided that the air- C. C. A. 649, and United States v. 
 
 brake provision does not apply to Erie R. Co. 212 Fed. 853; 129 C. C. 
 
 cars engaged in interstate commerce A. 307. 
 
 being shifted to make up trains, and '" Virginia Ry. Co. V. United States, 
 
 hence a failure of a railroad company 223 Fed. 748. 
 to couple air brakes on such cars
 
 CHAPTER XVIII. 
 NEGLIGENT INJURY. 
 
 SECTION 
 
 304. Use of car without automatic 
 coupler is negligence Tpcr se. 
 
 Failure to equip car a con- 
 tinuing negligence. 
 
 Who may bring actions to re- 
 cover damages — What em- 
 ployees are engaged in inter- 
 state commerce. 
 
 Proximate cause of injury. 
 
 Assumption of risk. 
 
 Contributory negligence of 
 plaintiff. 
 
 Contributory negligence does 
 not defeat the action. 
 
 305. 
 306. 
 
 307. 
 308. 
 309 
 
 310. 
 
 SECTION 
 
 311. Two acts of negligence com- 
 bining to produce injury. 
 
 State courts may enforce lia- 
 bility for negligence incurred 
 under statute. 
 
 Removal of case to Federal 
 court. 
 
 Judicial notice. 
 
 Pleading. 
 
 Validity of section concerning 
 releases from liability. 
 
 Statute of Limitations. 
 
 312. 
 
 313. 
 
 314. 
 315. 
 316. 
 
 317. 
 
 § 304. Use of car without automatic couplers is neg- 
 gence per se. — The use of a car in interstate commerce with- 
 out automatic couplers is negligence per se.'^ 
 
 § 305. Failure to equip car a continuing negligence. — A 
 
 failure to properly equip a car with automatic brakes used 
 in interstate commerce is a continuing negligence, making 
 the railway company liable for an injury to an employee 
 while making a coupling in the discharge of his duty.- 
 
 ^ Winkler v. Philadelphia, etc., R. 
 Co. 4 Penn. (Del.) 80; 53 Atl. Rep. 
 90, affirmed 4 Penn. (Del.) 387; 56 
 Atl. Rep. 112; Voelker v. Chicago, 
 etc., Ry. Co. 116 Fed. Rep. 867; 
 Grand Trunk W. Ry. Co. v. Lindsay, 
 201 Fed. 836; 120 C. C. A. 166; St. 
 Louis, I. M. & S. R. Co. Taylor, 
 210 U. S. 281; 28 Sup. Ct. 616; 52 
 L. Ed. 1061; Chicago, B. & Q. R. 
 Co. V. United States, 220 U. S. 559; 
 31 Sup. Ct. 612; 55 L. Ed. 582; Camp- 
 bell V. Spokane & I. E. R. Co. 188 
 Fed. 516; Shohoney v. Quincy, O. 
 & K. C. Ry. Co. 223 Mo. 649; 122 
 S. W. 1025; Nashville, C. & St. L. 
 
 Ry. Co. V. Henry, 158 Ky. 88; 164 
 S. W. 310; Chicago, R. I. & P. R. Co. 
 V. Brown, 229 U. S. 317; 33 Sup. Ct. 
 840; 57 L. Ed. 1204. See also South- 
 ern Ry. Co. V. Carson, 194 U. S. 136. 
 2 Fleming v. Southern Ry. Co. 131 
 N. C. 476; 42 S. E. Rep. 905; Elmore 
 v. Seaboard, etc., Ry. Co. 132 N. C. 
 865; 44 S. E. Rep. 620; Greenlee v. 
 Southern Ry. Co. 122 N. C. 977; 
 30 S. E. Rep. 115; 11 Am. & Eng. R. 
 Cas. (N. S.) 45; 41 L. R. A. 399; 65 
 Am. St. Rep. 734 (no statute relied 
 upon); Mason v. Railroad Co. Ill 
 N. C. 482; 16 S. E. Rep. 698; Whitsell 
 v. Railroad Co. 120 N. C. 557; 27 
 467
 
 468 FEDERAL, SAFETY APPLIANCE ACT. 
 
 § 306. Who may bring action to recover damages — What 
 employees are engaged in interstate commerce. — It is of im- 
 portance to know who may bring an action to recover 
 damages occasioned him by the neglect of a railway com- 
 pany to properly equip its cars with automatic couplers and 
 maintain them in repair, and also with other devices speci- 
 fied by the statute. In one case it was said, though the 
 point was not before the court, "though the Safety Appli- 
 ance Law is primarily in the interest of employees in inter- 
 state commerce, its protection is not limited to them, but 
 extends to all persons who without fault are injured in 
 person or property by reason of the railroad's failure to 
 provide the statutory safeguards."-^ This is certainly true, 
 even as to persons who are passengers or property carried 
 as freight ; but the failure to equip the car properly, to 
 render the railway company liable in this respect, must 
 be the proximate cause of the injury. Thus, merely because 
 an employee is injured by a collision of trains and the cars 
 in the trains, or some of them, were not properly equipped, 
 will not of itself render the company liable.^- To recover 
 in such an instance the liability must be put upon other 
 grounds. Of course, any servant engaged in interstate com- 
 merce, or engaged upon a railroad that is "a highway of 
 interstate commerce," though injured by intrastate improp- 
 erly equipped cars not even moving in an interstate train, 
 is within the protection of the statute. Thus an employee 
 charged with the duty of seeing to the coupling of the cars 
 and of the air brake pipes upon cars standing upon a switch 
 track to be transferred to another car, was held to be em- 
 
 S. E. Rep. 125; Troxler v. Southern resorted to in order to excuse the 
 
 Ily. Co. 124 N. C. 191; 32 S. E. Rep. company from liabihty occasioned 
 
 ')')0; 44 L. II. A. 312; 70 Am. St. Rep. by a defective coupler and his negli- 
 
 580; Montgomery v. Carolina & N. gence. Chicago, etc., R. Co. v. King, 
 
 W. R. Co. 1G3 N. C. 597; 80 S. E. 163. 1G9 Fed. Rep. 372 (decided February 
 
 The obligation to equip its cars 3, 1909); Philadelphia & R. Ry. Co. 
 
 cannot be evaded by a.ssigning the v. United States, 191 Fed. 1; 111 
 
 duty to an employee of the com- C. C. A. 001. 
 
 pany. Thus, the act of a conductor *' Atchison, T. & S. F. Ry. Co. v. 
 
 in charge of a train in deciding what United States, 172 Fed. 194. 
 .shall be done with a defective car is '-- Campbell v. Spokane & I. El. 
 
 the act of the company; and the nog- R. Co. 188 Fed. 51G. 
 ligence of the engineer cannot be
 
 NEGLIGENT INJURY. 
 
 469 
 
 ployed in interstate commerce, and could avail himself of 
 the provisions of the Safety Appliance Act.-^ So a car re- 
 pairer, injured by a car standing upon a switch,-* but not 
 an employee standing on the foot board at the front end 
 of a switch engine, and caught between a car that was 
 being placed on a sidetrack for repair, because of the ab- 
 sence of an automatic car coupler.-"^ 
 
 § 307. Proximate cause of injury. — In order to enable an 
 employee to recover where he has been injured by a car not 
 properly equipped with automatic couplers, such improper 
 equipment, or the absence of an automatic coupler, must 
 have been the proximate cause of his injury ; and he has the 
 burden to show that such was the fact.^ But the failure to 
 equip a car as the statute requires, by reason of which an 
 employee is obliged to go between cars where he is injured 
 in the proximate cause of the accident, although the cars 
 were forced together by the negligent kicking of the other 
 cars against them/ The absence of a proper coupling must 
 
 "' Johnson v. Great Northern Ry. 
 Co. 178 Fed. 643. 
 
 2" Erie R. Co. v. Russell, 183 Fed. 
 722; 106 C. C. A. 160. 
 
 This phase of the question has been 
 discussed somewhat at length in the 
 first part of this work. See, also, 
 Chicago, etc., R. Co. v. King, 169 
 Fed. 372; Appendix G. 
 
 As to an employee loading railroad 
 iron coming within the Act of 1908, 
 see Tsmura v. Great Northern Ry. 
 Co. 58 Wash. 316; 108 Pac. 774. 
 
 As to a track walker under that 
 act, see Colasurdo v. Central R. of 
 New Jersey, 180 Fed. 832. 
 
 ^ St. Louis & S. F. R. Co. v. Con- 
 erty, 35 Sup. Ct. 785, reversing 106 
 Ark. 421; 155 S. W. 93. 
 
 ' Voelker v. Chicago, etc., Ry. Co. 
 116 Fed. Rep. 867 (injury caused 
 while attempting to adjust a coupler); 
 Crawford v. New York, etc., R. Co. 
 10 Amer. Neg. Cas. 166; Donegan v. 
 Baltimore, etc., R. Co. 165 Fed. Rep. 
 869; Chicago, etc., R. Co. v. King, 
 169 Fed. Rep. 372 (decided February 
 3, 1909); injury occasioned while 
 trying to put on a new knuckle. 
 La Mere v. Railroad Transfer Co. 
 125 Minn. 159; 145 N. W. 1068; St. 
 Louis, I. M. & S. R. Co. v. McWhirter, 
 22,9 U. S. 265; 33 Sup. Ct. 858; 57 
 L. Ed. 1179; Te.vas & P. Ry. Co. v. 
 Rigsby, 222 Fed. 221. 
 
 The question whether the defective 
 coupler was the proximate cause of 
 the plaintiff's injury must be sub- 
 mitted to the jury. Erie R. Co. v. 
 Russell, 183 Fed. 722. 
 
 Where the defendant cut off the 
 pilot on an engine so that it was known 
 as a "stub pilot" in order to comply 
 with the Safety Appliance Act in 
 putting an automatic coupler on the 
 front end of the locomotive, and the 
 locomotive turned over and killed its 
 servant, it was held that the act did 
 not apply to such an instance, al- 
 though it was claimed that it turned 
 over because of the condition of the 
 pilot. Briggs v. Chicago & N. W. 
 Ry. Co. 125 Fed. 745. 
 
 * Voelker v. Chicago, etc., Ry. Co. 
 supra; York v. St. Louis, I. M. & S. 
 Ry. Co. 86 Ark. 244; 110 S. W. 803; 
 Sprague v. Wisconsin Central R. Co. 
 104 Minn. 58; 116 N. W. 104; Tur- 
 rittin v. Chicago, St. P., M. & O. R. 
 Co. 95 Minn. 408; 104 N. W. 225; 
 Nashville, C. & St. L. Ry. Co. v. 
 Henry, 158 Ky. 88; 164 S. W. 310; 
 Campbell v. Spokane & I. E. R. Co. 
 188 Fed. 516; Shohoney v. Quincy, 
 O. & K. C. Ry. Co. 223 Mo. 649; 122 
 S. W. 1025; Southern Ry. Co. v. 
 Carson, 194 U. S. 136; 24 Sup. Ct. 
 609; 48 L. Ed. 907; Greenlee v. South- 
 ern Ry. Co. 122 N. C. 977; 30 S. E. 
 115; Troxler v. Southern Rv. Co. 
 124 N. C. 191; .32 S. E. 550; Elmore 
 V. Seaboard Air Line Ry. Co. 130 
 N. C. 506; 41 S. E. 786; Grand Trunk 
 W. Ry. Co. V. Lindsay, 201 Fed. 836. 
 
 Where a coupler was defective, 
 and the plaintiff went between the 
 cars and attempted to pull the coup- 
 ling pin by hand, but not succeeding
 
 470 
 
 FEDERAL SAFETY APPLIANCE ACT. 
 
 have beeu the cause of the injury before a recovery can be 
 had for a failure to comply with the statute.^ But 
 that the deceased employe was engaged in coupling cars at 
 the time of his death, that the cars were not provided with 
 automatic couplers, and that the intestate's death was caused 
 by the old-fashioned coupler's slipping by one another, make 
 out a prima facie case of negligence."* It should be noted 
 
 started out when his foot caught in 
 an unblocked switch frog and he was 
 injured, it was held to be a question 
 for the jury whether the defective 
 coupler was the cause of the injury. 
 Donegan v. B. & N. Y. Ry. Co. 165 
 Fed. 869; Nashville, C. & St. L. Ry. 
 Co. V. Henrv, 158 Kv. 88; 164 S. W. 
 310. 
 
 The statute does not apply to an 
 employee injured in a collision. 
 Campbell v. Spokane &, I. E. R. 
 Co. 188 Fed. 516. 
 
 5 Elmore v. Seaboard, etc., Ry. 
 Co. 132 K C. 865; 44 S. E. Rep. 
 620; 131 N. C. 569; 42 S. E. Rep. 
 689; Greenlee v. Southern Ry. Co. 
 122 K C. 977; 30 S. E. 115; 
 Troxler v. iSouthern Ry. Co. 124 
 X. C. 189; 32 S. E. 550; Mason 
 V. Richmond & D. R. Co. Ill N. C. 
 482; 16 S. E. 698; Elmore v. Sea- 
 board Air Line Ry. Co. 130 X. C. 
 205; 41 S. E. 786; Southern Ry. 
 Co. V. Carson, 194 U. S. 136; 24 
 Sup. Ct. 609 ; 48 L. Ed. — . Xearly 
 all the cases now hold that an 
 action by the government to re- 
 cover a penalty under this statute 
 is a civil action. United States 
 v. Baltimore, etc., R. Co. (Appen- 
 dix G) ; United States v. Terminal, 
 etc. (Appendix G, p. 325) ; United 
 States V. Nevada Countj^, etc., K. 
 Co. 167 Fed. 695 (Appendix G) ; 
 United States v. Chicago, etc., R. 
 Co. (Appendix G) ; United States 
 
 V. Denver, etc., R. Co. 163 Fed. 
 Rep. 519; United States v. Chesa- 
 peake, etc., R. Co. (Appendix G) ; 
 United States v. Louisville, etc., 
 R. Co. 162 Fed. Rep. 185; United 
 States V. Chicago, etc., R. Co. 162 
 Fed. Rep. 775 ; United States v. 
 Lehigh Valley R. Co. 162 Fed. Rep. 
 410; United States v. Philadelphia, 
 etc., R. Co. 162 Fed. Rep. 403; 
 L^nited States v. Pennsylvania R. 
 Co. 162 Fed. Rep. 408; United 
 States v. Philadelphia, etc., R. Co. 
 162 Fed. Rep. 405; United States 
 v. Atlantic Coast Line R. Co. (Ap- 
 pendix G) ; Atlantic Coast Line R. 
 Co. V. United States, 168 Fed. Rep. 
 175 (decided March 1, 1909) ; Wa- 
 bash Ry. Co. V. United States, 168 
 Fed. Rep. 1 (decided February 3, 
 1909 ) ; United States v. Southern 
 Ry. Co. 1.67 Fed. 699, Appendix G. 
 6 Mobile, etc., R. Co. v. Brom- 
 berg, 141 Ala. 258; 37 So. Rep. 
 395. A brakeman was directed to 
 cut oft" the two rear cars while the 
 train was mo\'ing slowly and be- 
 fore it reached a certain switch. 
 The coupler being broken, he went 
 between the ciirs and attempted to 
 pull the pin by hand, but, not 
 succeeding, started out when his 
 foot was caught in an unblocked 
 switch frog and he was injured. 
 It was held that the question 
 whether the failure of the defend- 
 ant to haive the car properly 
 equipped was the proximate cavise
 
 NEGLIGENT IXJUIiY. 
 
 471 
 
 that there is nothing in the statute that limits the class of 
 persons to whom the carrier shall be responsible for damages 
 that result directly and immediately from a failure to com- 
 ply with its provisions.*'* "Though the Safety Appliance 
 Law is primarily in the interest of employees in interstate 
 commerce, its protection is not limited to them, but extends 
 to all persons who without fault are injured in person or 
 property by reason of the railroad's failure to provide the 
 statutory safeguards," namely, grabirons.®^ 
 
 § 308, Assumption of risk. — By undertaking to couple a 
 car used in interstate commerce that has not been provided 
 with such couplings as that statute requires, the employe 
 does not assume the risk of making the coupling. If not 
 equipped as the act of Congress requires, "the plaintiff did 
 not assume the risk therefrom, even though he continued in 
 the employment of the company after such unlawful use of 
 
 of the injury, so as to render it 
 liable under the Safety Appliance 
 Act was one of fact for the jury, 
 and that it was error for the 
 court to direct a verdict for the 
 defendant. Donegan v. Baltimore, 
 etc., R. Co. 165 Fed. Eep. 869. 
 
 6* Chicago, etc., R. Co. v. King, 
 169 Fed. Rep. 372 (decdded Febru- 
 ary 3, 1909). 
 
 "ea Atchison, T. & S. F. Ry. Co. 
 V. United States, 172 Fed. 1<94. 
 
 Failure to equip a train with 
 air brakes must be the proximate 
 cause of his injury to allow a 
 servant of the company to recover 
 damages for such injury. Lyon v. 
 Charleston & W. C. Ry. 77 S. C. 
 928; 56 S. E. 18. 
 
 Where an employee was standing 
 on the running board of a loco- 
 motive, and the train, not being 
 equipped with air brakes, separated, 
 which it would not have done if it 
 had been equipped with them; and 
 
 when the two sections of the train 
 came together he was injured by their 
 impact, it was held that the proximate 
 cause of the injury was the failure to 
 equip the train with air brakes. 
 Blackburn v. Cherokee Lumber Co. 
 152 N. C. 361; 67 S. E. 915. See, 
 also, Nichols v. Chesapeake & O. Ry. 
 Co. 195 Fed. 913; 115 C. C. A. 601. 
 
 Failure to equip an engine with a 
 lever by which it can be uncoupled 
 without going between the cars, even 
 though such failure made it necessary 
 for the injured brakeman to ride upon 
 the running board of such engine, is 
 not the proximate cause of his injury 
 where the defective condition of the 
 locomotive and track are independent 
 intervening causes. Devine v. Chi- 
 cago & C. R. Co. 266 111. 248; 102 
 N. E. 803. 
 
 In an action for injuries to a mem- 
 ber of a switching crew thrown from 
 a cut of cars on which he was riding 
 when two of them separated, in which 
 the complaint alleged that the auto- 
 matic couplers between two such cars
 
 472 
 
 FEDERAL SAFETY APPLIANCE ACT. 
 
 the cars had come to his knowledge. "^ But the usual rules 
 
 were defective; that the engineer and 
 conductor negligently backed the 
 cars at a high and dangerous rate of 
 speed; and that while doing so, with- 
 out warning or notice to the plaintiff 
 that they were going to stop such 
 cars, they did stop them negligently 
 and with great suddenness, thereby 
 causing the last car by reason of its 
 momentum to leave the car to which 
 it was coupled, it is improper to 
 instruct the jury that if the couplers 
 were in proper condition and repair, 
 to allow the cars to be properly 
 coupled, and if it was the plaintiff's 
 duty to see that they were properly 
 and securely coupled before giving 
 a signal to indicate that they were 
 80 coupled, and if he undertook to 
 perform that duty and give such sig- 
 nal, and if the cars separated because 
 they were not properly and securely 
 coupled, the plaintiff could not re- 
 cover, and that if the coupler on the 
 car which separated from the one on 
 which plaintiff was riding was in a 
 condition to properly and securely 
 couple on the other car if plaintiff 
 had properly and carefully attended 
 to his duties to see that it was coupled, 
 and if the cars would not have sepa- 
 rated if the coupling had been properly 
 made, plaintiff could not recover; 
 because they ignore the allegations of 
 the complaint that the negligence 
 complained of not only caused the 
 cars to separate, but produced a sud- 
 den and unusual separation of which 
 plaintiff had no notice or warning. 
 Vandalia R. Co. v. Holland (Ind.) 
 108 N. E. 580. 
 
 For a doubtful case of kicking a 
 coupler, see Morris v. St. Louis, S. 
 W. Ry. Co. (Tex. Civ. App.) 158 
 S. W. 1055. 
 
 'Winkler v. Philadelphia, etc., Ry. 
 Co. 4 Penn. (Del.) 80; 53 Atl. Rep. 
 90; affirmed, 4 Penn. (Del.) 387; 56 
 Atl. Rep. 112; Chicago, etc., Ry. Co. 
 v. Voelker, 129 Fed. Rep. 522; 65 C. 
 C. A. 65; 70 L. R. A. 264; Mobile, etc., 
 R. Co. V. Bromberg, 141 Ala. 258; 
 37 So. Rep. 395; St. Louis, I. M. & 
 S. Ry. Co. V. Neal, 71 Ark. 445; 78 
 S. W. 220; York v. St. Louis, I. M. & 
 S. R. Co. 86 Ark. 244; 110 S. W. 803; 
 Atlantic Coast Line R. Co. v. United 
 States, 168 Fed. 175; Texas & P. Ry. 
 Co. V. Swearingen, 122 Fed. 193; 
 Norfolk & W. R. Co. v. Hazelrigg, 
 170 Fed. 551; Johnson v. Great 
 Northern Ry. Co. 178 Fed. 643; 
 Luken v. Lake Shore & M. S. Ry. 
 Co. 248 111. 377; 94 N. E. 175 (Illinois 
 statute); St. Louis & S. F. R. Co. v. 
 Delk, 158 Fed. 931; St. Louis Cordage 
 Co. V. Miller, 126 Fed. 495; Plummer 
 V. Northern Pacific Ry. Co. 152 Fed. 
 206; United States v. Atlantic Coast 
 Line R. Co. 153 Fed. 918; Coley v. 
 North Carolina R. Co. 129 N. C. 
 422; 40 S. E. 195; 57 L. R. A. 817; 
 Denver & R. G. R. Co. v. Gannon, 40 
 Colo. 195; 90 Pac. 853; St. Louis & 
 S. F. R. Co. v. Delk, 158 Fed. 931; 
 86 C. C. A. 95; Schlemmer v. Buffalo, 
 R. & P. Ry. Co. 220 U. S. 590; 31 
 Sup. Ct. 561; 55 L. Ed. 596; Chicago 
 Junction Ry. Co. v. King, 169 Fed. 
 372; 94 C. C. A. 652; Southern Pacific 
 Co. v. Allen (Tex. Civ. App.) 106 
 S. W. 441; Voelker v. Chicago, M. 
 & St. P. Ry. Co. 116 Fed. 867; United 
 States V. Baltimore & O. R. Co. 170 
 Fed. 456; Greenlee v. Southern Ry. 
 Co. 122 N. C. 977; 30 S. E. 115; St. 
 Louis, S. W. Ry. Co. v. Anderson 
 (Ark.) 173 S. W. 834; Galveston, 
 H. & S. A. Ry. Co. v. Kurtz (Tex. 
 Civ. App.) 147 S. W. 658; Thornbro
 
 negijIGent injury. 473 
 
 concerning the duties of a master to supply safe places for 
 the servant apply ; and the servant assumes the risks incident 
 to his employment. By soliciting work he represents that 
 he is competent to perform the work solicited.^ Upon this 
 question the Supreme Court has made the following observa- 
 tions: "It is enacted by Section 8 of the act that any em- 
 ploye, injured by any car in use contrary to the provisions 
 of the act, shall not be deemed to have assumed the risk 
 thereby occasioned, although continuing in the employment 
 of the carrier after the unlawful use had been brought to 
 his knowledge. An early, if not the earliest, application 
 of the phrase 'assumption of risk' was the establishment of 
 the exception to the liability of a master for the negligence 
 of his servant when the person injured was a fellow servant 
 of the negligent man. Whether an actual assumption by 
 contract was supposed on grounds of economic theory, or the 
 assumption was imputed because of a conception of justice 
 and convenience, does not matter for the present purpose. 
 Both reasons are suggested in the well known ease of Farwell 
 V. Boston d: Worcester R. R. Co.^ But, at the present time, 
 the notion is not confined to risks of such negligence. It is 
 extended, as in this statute it plainly is extended, to danger- 
 ous conditions, as of machinery, premises, and the like, which 
 the injured party understood and appreciated when he sub- 
 mitted his person to them. In this class of cases the risk is 
 said to be assumed because a person who freely and volun- 
 tarily encounters it has only himself to thank if harm comes, 
 on a general principle of our law. Probably the modifica- 
 tion of this general principle by some judicial decisions and 
 
 V. Kansas City, M. & 0. Ry. Co. 91 R. Co. v. Porter, 207 111. 311; 125 C. C. 
 
 Kan. 684; 139 Pac. 410; La Mere v. A. 55; Northern Pacific Ry. Co. v. 
 
 Railway Transportation Co. 125 Maerkl, 198 Fed. 1; 117 C. C. A. 237; 
 
 Minn. 526; 145 N. W. 1068; Nash- Grand Trunk W. Ry. Co. v. Lindsay, 
 
 ville, C. & St. L. Ry. v. Henry, 158 201 Fed. 836, affirmed 233 U. S. 42; 
 
 Ky. 88; 164 S. W. 310; Nicols v. 34 Sup. Ct. 581; 58 L. Ed. 828. 
 
 Chesapeake & O. R. Co. 145 Fed. 913; ^ Winkler v. Philadelphia, 4 Penn. 
 
 Grand Trunk W. Ry. Co. v. Lindsay, (Del.) 80; 53 Atl. Rep. 90; Malott 
 
 201 Fed. 836; Southern Ry. Co. v. v. Hood, 201 111. 202; 66 N. E. Rep. 
 
 Crockett, 234 U. S. 725; 34 Sup. Ct. 247; 99 111. App. 360. 
 
 897; 58 L. Ed. 1564; Illinois Central ^ 4 Met. 49.
 
 474 FEDERAL S.^FETY APPI.IANCE ACT. 
 
 by statutes like Section 8 is due to an opinion that men who 
 work with their hands have not always the freedom and 
 equality of position assumed by the doctrine of laissez faire 
 to exist. Assumption of risk in this broad sense obviously 
 shades into negligence as commonly understood. Negligence 
 consists in conduct which common experience or the special 
 knowledge of the actor shows to be so likely to produce the 
 result complained of, under the circumstances known to the 
 actor, that he is held answerable for that result, although 
 it was not certain, intended or foreseen. He is held to as- 
 sume the risk upon the same ground.^" Apart from the 
 notion of contract, rather shadowy as applied to this broad 
 form of the latter conception, the practical difference of the 
 two ideas is in the degree of their proximity to the particu- 
 lar harm. The preliminary conduct of getting into the dan- 
 gerous employment or relation is said to be accompanied by 
 assumption of the risk. The act more immediately leading to 
 a specific accident is called negligence. But the difference 
 between the two is one of degree rather than of kind ; and 
 when a statute exonerates a servant from the former, if at 
 the same time it leaves the defense of contributory negli- 
 gence still open to the master, a matter upon which we ex- 
 press no opinion, then, unless great care be taken, the serv- 
 ant's right will be sacrificed by simply charging him with 
 assumption of risk under another name. Especially is this 
 true in Pennsylvania, where some cases, at least, seem to have 
 treated assumption of risk and negligence as controvertible 
 terms." We cannot help thinking that this has happened in 
 the present case, as well as that the ruling upon Schlemmer's 
 negligence was so involved with and dependent upon errone- 
 ous views of the statute that if the judgment stood the stat- 
 ute M'ould suffer a wound. To recur for a moment to the 
 facts, the only ground, if any, on which Schlemmer could 
 be charged with negligence is that when he Avas between the 
 tracks he was twice warned by the yard conductor to keep 
 
 '•Choctaw, Oklahoma & Gulf R. Ed. 207; afTirniing 52 C. C. A. 
 R. Co. V. McDadp, 191 U. S. 64, 2(i0; 114 Fed. Rep. 458. 
 08; 24 Sup. Ct. Rep. 102; 48 L.
 
 NEGLIGENT INJURY. 475 
 
 his head down. It is tnie that he had a stick, which the 
 rules of the company reqnirod to be used in coupling:, but 
 it could not have been used in this case, or at least the con- 
 trary could not be and was not assumed for the purpose of 
 directing a nonsuit. It was necessary for him to get be- 
 tween the rails and under the shovel ear as he did, and his 
 orders contemplated that he should do so. But the opinion 
 of the trial judge, to which, as has been seen, the Supreme 
 Court refers, did not put the decision on the fact of warn- 
 ing alone. On the contrary, it began with a statement that 
 an employe takes the risk even of unusual dangers, if he has 
 notice of them and voluntarily exposes himself to them. Then 
 it went on to say that the deceased attempted to make the 
 coupling with the full knowledge of the danger, and to 
 imply that the defendant was guilty of no negligence in 
 using the arrangement which it used. It then decided in 
 terms that the shovel car was not a car within the meaning 
 of Section 2. Only after these preliminaries did it say that, 
 were the law otherwise, the deceased was guilty of contribu- 
 tory negligence; leaving it somewhat uncertain what the 
 negligence was. It seems to us not extravagant to say that 
 the final ruling was so implicated with the earlier errors 
 that on that ground alone the judgment should not be al- 
 lowed to stand. We are clearly of opinion that Schlemmer'a 
 rights were in no way impaired by his getting between the 
 rails and attempting to couple the cars. So far he was saved 
 by the provision that he did not assume the risk. The negli- 
 ence, if any, came later. We doubt if this was the opinion 
 of the court below. But suppose the nonsuit has been put 
 clearly and in terms on Schlemmer's raising his head too 
 high after he had been warned. Still we could not avoid 
 dealing with the case, because it still would be our duty to 
 see that his privilege against being held to have assumed 
 the risk of the situation should not be impaired by holding 
 the same thing under another name. If a man not intent 
 on suicide, but desiring to live, is said to be chargeable with 
 
 11 Pntterson v. IMIIsbTirc <?; Con- 
 nellsville R. P.. Co 70 Pa. St. 389.
 
 476 FEDERAL SAFETY APPLIANCE ACT. 
 
 negligence as matter of law when he miscalculates the height 
 of the car behind him by an inch, while his duty requires 
 him, in his crouching position, to direct a heavy draw bar 
 moving above him into a small slot in front, and this in the 
 dusk, at nearly nine of an August evening, it is utterly 
 impossible for us to interpret this ruling as not, however 
 unconsciously, introducing the notion that to some extent 
 the man had taken the risk of the danger by being in the 
 place at all. But whatever may have been the meaning of 
 the local courts, we are of opinion that the possibility of 
 such a minute miscalculation, under such circumstances, 
 whatever it may be called, was so inevitably and clearly at- 
 tached to the risk which Schlemmer did not assume, that to 
 enforce the statute requires that the judgment should be re- 
 versed. ' ' ^- The provisions of this statute cannot, however, 
 be applied to an instance of "kicking" cars onto a switch.^^ 
 A switchman engaged in handling a freight car having a 
 defective coupler, on a track which is principally used for 
 handling freight trains, although occasionally cars are 
 brought upon the track for repairs, does not assume the risk 
 arising from the defect in such coupler, when he is not en- 
 gaged in moving the car as one in bad order with a view to 
 its isolation or repair.^* 
 
 12 Schlemmer v. Buffalo, etc, R. 116 Fed. Rep. 867. This is the 
 Co. 205 U. S. 1 ; 28 Sup. Ct. Rep. only point upon whicli this ease 
 616; 51 L. Ed. 681; reversing 207 was reversed: on all other points 
 Pa. St. 198; 56 Atl. Rep. 417. the first decision is an authority. 
 This case was again tried and i* Chicago, etc., R. Co. v. Voel- 
 the plaintiff defeated. It was af- ker, supra. "It cannot be as- 
 firmed on appeal. Srhlemnier v. sumod that by the passage of a 
 Buffalo, etc., R. 'Co. 222 Pa. 470; salutary law' designed for the 
 71 Atl. 1053; and on appeal to protection of those engaged in haz- 
 the Supreme Court of the United ardous occupations, Congress in- 
 states the case was again affirmed tended to offer a premium for 
 on the ground of contributory neg- carelessness or to grant immunity 
 ligence in the deceased. Schlem- from the consequences of negli- 
 mer v. Buffalo, R. & P. Ry. Co. gence. The reasonable conclusion 
 220 U. S. 500; 31 Sup. Ct. 561; is that the defense of contributory 
 55 L. Ed. 596. negligence is as available to a rail- 
 is Chicago, etc., Ry. Co. v. Voel- rnad company after as before the 
 ker, 129 Fed. Rep. 522; 66 C. C. A. passage of the act of 'Congress, al- 
 05; 70 L. R. A. 264; revexsing though it has not complied with
 
 negligi':nt injury. 
 
 477 
 
 § 309. Contributory negligence of plaintiff. — While an 
 employee of a railroad does not assume the risk iu coupling 
 a ear not equipped with automatic couplers, yet if he had 
 been guilty of negligence contributing to his injuries it has 
 been held he could not recover. If, in "using such unlaw- 
 ful coupler, the plaintiff contributed to the accident by his 
 own carelessness, he cannot recover, notwithstanding the 
 fact that the coupling was unlawful. In such a case he 
 must take the consequence of his own contributory negli- 
 gence." "It is the duty of the servant, as well as the 
 master, to esercise care and prudence in all cases com- 
 mensurate mtli the risk or danger of the employment. 
 Therefore, if the plaintiff contributed to the accident by 
 his own negligence he cannot recover. "^^ It is not con- 
 tributory negligence, however, in the employee to attempt 
 to couple or uncouple a car not equipped as the act of 
 Congress requires ; and he may recover if he does if his 
 injuries "resulted from such unlawful use alone. "^"^ For 
 an employe to remain in the railway company's service, 
 knowing that the cars had not been equipped with auto- 
 matic couplers, is not contributory negligence. ^^ The em- 
 ploye must use ordinary care to avoid an injury.^^ If the 
 
 its requirements." Denver, etc., 
 R. Co. V. Arrighi, li29 Fed. Rep. 
 347. The Government is entitled 
 to recover the statutory penalty 
 under all circumstances where an 
 injured employe has, imder the 
 statute, the henefit of denial of 
 assumption of risk. United States 
 V. Atlantic, etc., R. Co. 153 Fed. 
 Rep. 918. 
 
 The Safety Appliance Act would 
 be honored only in their breach if 
 the same facts that would defeat 
 the employee under the common- 
 law rule of assumed risk can be 
 used to defeat him under the name 
 of contributory negligence. Chi- 
 cago, etc., R. Co. v. King, 168 Fed. 
 Rep. 372 (decided February 3, 1909). 
 
 Working on defective cars does not 
 constitute assumption of risk. Chi- 
 cago, M. & St. P. Ry. Co. v. Voelker, 
 129 Fed. 522; 65 C. C. A. 276. 
 
 Continuing in service after know- 
 ledge of the defect does not constitute 
 assumption of the risk. United 
 States V. Baltimore & O. R. Co. 
 170 Fed. 456; Greenlee v. Southern 
 Ry. Co. 122 N. C. 977; 30 S. E. 115. 
 
 "Plaintiff did not assume the risk 
 caused by the defective coupler. 
 Merely going between the cars, 
 therefore, was not negligence, if he 
 
 used ordinary care in doing so.'' 
 Grand Trunk W. Ry. Co. v. Lindsay, 
 201 Fed. 836; 120 C. C. A. 166, 
 affirmed 233 U. S. 42; 34 Sup. Ct. 581; 
 58 L. Ed. 828. 
 
 1* Winkler v. Philadelphia, etc., R. 
 Co. 4 Penu. (Del.) 80; 53 Atl. Rep. 
 90, affirmed 4 Penn. (Del.) 387; 
 56 Atl. Rep. 112; Mobile, etc., R. 
 Co. V. Bromberg, 141 Ala. 258; 37 
 So. Rep. 395; Voelker v. Chicago, etc. 
 Ry. Co. 116 Fed. Rep. 867; Denver 
 etc., R. Co. V. Arrighi, 129 Fed. Rep 
 347; Schlemmer v. Buffalo, R. & P 
 Ry. Co. 220 U. S. 590; 31 Sup. Ct. 561 
 55 L. Ed. 596, affirming 222 Pa. St 
 470; 71 Atl. 1053; Schlemmer v 
 Buffalo, etc., R. Co. 205 U. S. 1 
 27 Sup. Ct. 407; 51 L. Ed. 681, re 
 versing 207 Pa. St. 198; 56 Atl. 417 
 Toledo, St. L. & W. R. Co. v. Gor 
 don, 177 Fed. 152; Popplar v. Minne- 
 apolis, St. P. & S. S. M. Ry. Co. 
 121 Minn. 413; 141 N. W. 798; 
 Nichols V. Chesapeake & Ohio R. 
 Co. 195 Fed. 913; 115 C. C. A. 601. 
 
 '« Winkler v. Philadelphia, etc., R. 
 Co. supra. 
 
 " Elmore v. Seaboard, etc., Ry. 
 Co. 132 N. C. 865; 44 S. E. Rep. 
 620; 131 N. C. 569; 42 S. E. Rep. 989. 
 
 " Cleveland, etc., Ry. Co. v. Cur- 
 tis, 134 111. App. 565; [Nashville, C. 
 & St. L. Ry. Co. V. Henry, 158 Ky. 
 88; 164 S. W. 310.
 
 478 
 
 FEDERAL SAFETY APPLIANCE ACT. 
 
 servant could have coupled the cars more safely from the 
 one side of the ear than another, he must do so, if he could 
 have done the work as well by going in on the safe side.^'' 
 If the rules of the company require him to use a stick in 
 coupling, he must do so if practicable ; but if not practicable, 
 he need not do so, as where the coupler weighed 120 pounds 
 and was six feet long.^° In one case it was said that "The 
 devolution of this duty upon the carriers [to equip their 
 cars with automatic brakes] necessarily imposed upon their 
 servants the correlative duty of using the equipment thus 
 furnished to them, and of refraining from going between 
 the ends of the cars to couple or uncouple them unless com- 
 pelled to do so by necessity. ' ' ^"^ And it was held that if 
 the couplers were in order the servant must use them, and 
 if he did not, and was injured in coupling the cars equipped 
 with them he was guilty of such contributory negligence 
 
 19 Mobile, etc., R. Co. v. Brom- 
 berg, 141 Ala. 258; 37 So. Rep. 
 395.' 
 
 20 Fleming v. Soutliem Ry. Oo. 
 131 K C. 476; 42 S. E. Rep. 905. 
 
 In this case it was also held 
 that the employee oould recover, 
 although he was guilty of oon- 
 tributoiy negligence. 
 
 The plaintift''s knowledge of the 
 physical conditions cannot be 
 charged against him in determin- 
 ing the quality of his conduct in 
 going and being between the cars 
 when he was injured. Chicago, 
 etc., R. Co. V. King, 169 Fed. Rep. 
 372 (decided February 3, 1909). 
 
 There are a number of cases to 
 the same effect, which we cite. 
 Rchlemmer v. Buffalo, R. & P. Ry. 
 Co. 220 U. S. 590; 31 Sup. €t. 
 561; 55 L. Ed. 596; affirming 222 
 Pa. 470; 71 Atl. 1053; Suttle v. 
 Choctaw, 0. & G. R. Co. 144 Fed. 
 008 ; 75 C. C. A. 470 ; Union Pacific 
 R. Co. V. Brady, 161 Fed. 719; 
 Morris v. Duluth, S. S. & A. Ry. 
 
 Co. 108 Fed. 717; Donegan v. 
 Baltimore & N. Y. R. Ry. Co. 165 
 Fed. 869 ; York v. St. Louis, I. M. 
 & S. Ry. Co. 86 Ark. 244; 110 
 S. W. 808; Sprague v. Wisconsin 
 Central R. Co. 104 Minn. 58; 116 
 N. W. 104; Turrettin v. Chicago, 
 St. P., M. & O. Ry. Co. 95 :\finn. 
 408; 104 N". W. 225; St. Louis, 
 I. M. & S. Ry. Co. V. York, 92 Ark. 
 554; 123 S. W. 376; Cleveland, C. 
 C. & St. L. Ry. Co. V. Baker, 9 J 
 Fed. 224 ; Johnson v. Great North- 
 ern Ry. Co. 178 Fed. 643; Toledo, 
 St. L. & \v. R. Co. V. Gordon, 177 
 Fed. 152; Siegel v. N. Y. Central 
 R. 178 Fed. 873; Norfolk & W. 
 R. Co. v. Hazelrigg, 184 Fed, 828; 
 Chicago, R. I. & P. Ry. Co. v. 
 Brown, 185 Fed. 80; Gilbert v. 
 Burlington, C. R. & K Ry. Co. 
 128 Fed. 529; 63 C. C. A. 27. 
 
 2na Gilbert v. Burlington, C. R. 
 & N. Rv. Co. 128 Fed. 529; 63 C. 
 C. A. 27. See also Suttle v. Choc- 
 taw, O. & G. R. Co. 144 Fed. 668; 
 75 C. C. A. 470.
 
 NEGLIGENT INJURY. 479 
 
 as prevented his recovering damages because of his injuries 
 received in making the coupling of the ears so equipped. 
 And while it is the duty of a railway company to equip its 
 cars so they can be coupled from both sides of them without 
 the necessity of going between them, yet if one side be not 
 so equipped and the other is, he must go to the other side 
 to make the coupling ; and he cannot be heard to say it was 
 dangerous to cross the tracks between the cars when the 
 engineer is subject to his directions in moving the cars.-*'^ 
 In an action by a brakeman to recover damages for an 
 injury received while uncoupling cars, one of which was 
 being moved with a defective coupler, it was held error 
 for the court to give a general instruction as to the effect 
 of contributory negligence when the cars could have been 
 uncoupled from the other side of the train without the 
 necessity of going between them as the plaintiff did. The 
 defendant asked that the court charge the jury that if they 
 ''believe and find from the evidence that, at the time and 
 upon the occasion of receiving the injuries sued for, the 
 plaintiff was himself negligent, and by his own negligence 
 contributed to the injuries sustained by him and sued for 
 herein, and that, but for such negligence upon the part of 
 the plaintiff, if any there was, such injury could not have 
 happened to or been sustained by him," then they must 
 find for the defendant. The court refused to give this in- 
 struction and did not give another covering it; and 
 this was held erroneous.^"" Upon a second trial a judgment 
 was again given for the plaintiff; and this was affirmed on 
 appeal, the court holding the brakeman being inexperi- 
 enced and was doing switching work in the defendant's 
 railroad yards in weighing cars which were required to be 
 
 20b Union Pacific R. Co. v. Bra- Fed. 529; G3 C. C. A. 27; Suttle 
 
 dy, 161 Fed. 719; 88 C. C. A. v. Choctaw, 0. & G. R. Co. 144 
 
 579; Morris v. Duluth, S. S. & A. Fed. 668; 75 C. C. A 470. 
 Rv. Co. 108 Fed. 747; 47 C. C. A. 20c Norfolk .io W. Ry. Co. v. Ha- 
 
 661; Norfolk & W. R. Co. v. Hazel- zelrigg, ITO Fed, 551; 95 C. C. A. 
 
 rigg, 170 Fed. 551; Gilbert v. Bin- 637. 
 lington, C. R. & N. R. Co. 128
 
 480 
 
 FEDERAL SAFETY APPLIANCE ACT. 
 
 imeoiipled as tliey were weighed, and who, when the lever 
 on a car on the side of train where he was working would 
 not uncouple two cars because . of a defect, went between 
 the cars as he had seen others do, and was injured, cannot 
 be held chargeable as a matter of law with contributory- 
 negligence, because he did not go around the train and try 
 the lever on the other side ; and whether or not he was 
 chargeable with contributory negligence in going between 
 the cars to uncouple them, whereby he was injured, was a 
 question for the jury, who might take into consideration 
 his knowledge and experience in the work. The plaintiff 
 testified that he did not know there was a lever on the other 
 side of the connecting car, as there was.-"*^ Where a brake- 
 man went between the cars to get to the other side to couple 
 the cars with a lever when he could have gone across the 
 
 sod Norfolk & W. E. Co. v. Ha- 
 zelrigg. 184 Fed. 828. The court 
 cites Bhmientlial v. Craig, 81 Fed. 
 320; 26 C. C. A. 427; George v. 
 Clark, 85 Fed. -608; 20 C. C. A. 
 274: Wheeler V. Oak Harbor Head 
 Lining & Hoop Co. 126 Fed. 348; 
 61 C. C. A. 250; and Michigan 
 Headling & Hoop Co. v. Wheeler, 
 141 Fed. 61; 72 C. C. A. 71, upon 
 the question of the youthfulness 
 or inexperience of the plaintifT. 
 The court reviewed the cases cit^d 
 above before a discussion of the 
 case in hand was herein assumed, 
 as follows: "In the Morri?, Gilbert 
 and Suttle cases it was held that 
 the act of the brakeman in going 
 between the cars instead of using 
 the lever on the opposite side was 
 negligence as matter of law. The 
 P.rady case is in harmony Avith the 
 other three cases. We think the 
 case before us is readily distin- 
 guishable upon its facts from each 
 of the four cases cited. In tlio 
 Morris case the injured employee 
 was the hear! brakeman of a crew 
 of employees. He stepped Ixjlweon 
 
 moving cars in the dark. The 
 lever on the opposite side was in 
 working order. In the Gilbert case 
 the plaintiff was head brakeman 
 of the switching crew, and was 
 directing tne movements of the 
 train. He likewise stepped be- 
 tween moving cars. The couplers 
 on both sides were in good Avork- 
 ing order, but the one on his side 
 could not be pulled because the 
 'slack was tight.' In the Suttle 
 case the lever on the brakeman' 3 
 side was temporarily disconnected, 
 but the one on the other side was 
 all right, and the brakeman covild 
 have reached and drawn the pin in 
 safety by going on the platform of 
 the caboose. Instead of doing so, 
 he went between moving cars in 
 the night-time. In the Brady case 
 plaintiff was foreman of the switch- 
 ing crew, and had had twelve 
 years' experience as brakeman, 
 swiicliman, and yardmaster. He 
 knew it was not uncommon for a 
 coupling appliance to require sev- 
 eral jerks of the lever to uncouple. 
 Wliile he was between the cars
 
 NEGLIGENT INJURY. 481 
 
 caboose platform; and in going aei'oss the tracks he 
 stumbled, fell and was run over and killed, it was held that 
 there could be no recovery for his death. At the time of 
 crossing the cars were moving together.-"® A coupler was 
 defective, and the plaintiff went between the cars and at- 
 tempted to pull the pin by hand, but not succeeding, started 
 out when his foot caught in an unblocked switch frog and 
 he was injured. It was held to be a question for the jury 
 if the defective coupler caused the injury, and if the plain- 
 tiff were guilty of contributory negligence.-"^ Wliere a 
 switchman put his hand between cars and moved along 
 with them in uncoupling, it was held that he was not guilty 
 of contributory negligence, the safety coupling being out of 
 order, though he could have avoided the resultant injury 
 by waiting until the cars stopped. There were twelve cars 
 in a string, and there was no way practically open to the 
 SAvitchman to go around to the opposite side. The operation 
 of uncoupling was to be done while the train was moving, 
 and there was no opportunity to stop the train. When he 
 received his injuries he could not have reached the pin 
 lifting the rod on the adjacent car, projecting on the oppo- 
 site side of the train, as readily as he could reach the 
 
 after dark, the cars were moved side, or himself have gone around 
 through the negligence of a fellow and operated that lever or other- 
 servant." wise acted. If you believe from 
 
 The court approved this instruc- the evidence that a brakeman of 
 
 tion: ordinary care and prudence, under 
 
 "The question, then, is whether like circumstances, would have ap- 
 
 or not a brakeman of ordinary care preciated that danger, and would 
 
 and prudence, with such experience not have srone in bptween tliose 
 
 as plaintiff in this case had, and ears, but would have called aero.;? 
 
 with such knowledge of railroading to the conductor, or would have 
 
 as he had, and under existing con- gone around and pulled the other 
 
 ditions — i. e., under like circum- lever himself, or acted othermse 
 
 stances — would or not have than going between the cars, there 
 
 appreciateu the danger of going can be no recoverv in this case." 
 in between those cars, and have -oe Suttle v. Choctaw, 0. & G. R. 
 
 refrained from going in between Co. 144 Fed. GG8; 75 C. C. A, 
 
 them, and, instead of doing so, 470. 
 
 would have called over to the con- ^of Donegan v. Baltimore & N. Y. 
 
 ductor to operate the lever on his E. Co. 165 Fed. 869.
 
 482 FEDERAL SAFETY APPLIANCE ACT. 
 
 pin itself. Tlie court considered that he was compelled to 
 do as he did "by necessity" within the meaning of the 
 quotation above set forth. -"^ "In our judgment, 'the neces- 
 sity' existed in the case under consideration; for in large 
 yards, where safety appliances refuse to work, to let the 
 cars go uncoupled under the circumstances disclosed here, 
 might result in blocking the operation of the whole road. 
 There is nothing in the facts before us that show that the 
 defendant in error [the plaintiff] might, without violating 
 his duty or doing injury to the road, have stopped the 
 operation of the train until he could have gone around on 
 the other side. 
 
 "Nor can we believe that the interpretation put upon this 
 Act, in the part just quoted from the opinion in Gilbert v. 
 
 B. C. B. & N. R. Co., is the one intended by Congress. To 
 our minds, the act was intended, not to increase the diffi- 
 culty of getting compensation for injuries sustained, but to 
 decrease the number of cases in which injuries would 
 happen. It abolishes, in terms, assumption of risk. And 
 where there exists a practical necessity, such as confronted 
 this switchman, to uncouple the cars by some means other 
 that the defective lever, what is done is assumption of risk. 
 Putting his arm between the cars, under such circumstances, 
 and traveling with them, is not per se contril)utory negli- 
 gence. If there be contributory negligeuce at all, it depends, 
 not upon his assuming the risk under the circumstances dis- 
 closed, but upon the degree of care with which he acts 
 while in the performance of the work under the assumed 
 risk; and that question, we think, all things considered, 
 was fairly submitted to the jury in the instruction of the 
 court. "="^ 
 
 Where a brakeman was ordered to make a coupling with 
 a coupler that had been out of order for five months, to the 
 railroad company's knowledge, and he was injured in 
 
 soKCilhftrt V. 151111 infrton, f. Ji. ^m, ciiicapo, R. T. & P. Ry. Co, 
 
 & N. Ry. Co. 128 Fed. 529; (>3 v. J5iovvn, 185 Fed. 80. 
 
 C. C. A. 27; Grand Trunk W. Rv. 
 Co. V. LindKay, 201 Fcul. S;3«; 120 
 C. C. A. 12(5, affirrnod 2;]3 U. S. 42; 
 34 Sup. Ct. 581; 68 L. Ed. 828.
 
 NEGLIGENT INJURY. 483 
 
 obeying the order, it was held that he was not guilty of 
 contributory negligence.- An experienced brakeman, 
 having been in service fifteen or sixteen years, undertook 
 to couple a shovel car, having an iron drawbar, weighing 
 about eighty pounds, and protruding beyond the end of the 
 shovel car. The end of this drawbar had a small opening, 
 or eye, into which an iron pin was to be fitted when the 
 coupling was made; this was to be affected by placing the 
 end of the drawbar into the slot of the automatic coupler 
 with which the caboose was equipped. Owing to the differ- 
 ence in height, tlie end of the shovel car would pass over 
 the automatic coupler on the caboose in case of an unsuc- 
 cessful attempt to make the coupling; and the end of the 
 shovel car would come in contact with the end of the 
 caboose. At the time when he undertook to couple the train 
 with the shovel car to the end of the caboose, he went under 
 the end of the shovel car, and attempted to raise the iron 
 bar so as to cause it to fit into the slot of the automatic 
 coupler on the caboose. While so doing, his head was 
 caught between the ends of the shovel ear and the caboose, 
 and he was almost instantly killed. The situation was 
 plainly observable. It was held that there could be no 
 recovery for his death. He was twice expressly cautioned 
 
 ^ Elmore v. Seaboard Air Line Ry. negligence to go between the cars to 
 
 Co. 130 N. C. 506; 41 S. E. 786. couple them. Sprague v. Wisconsin 
 
 ^Schlemmer v. Buffalo, R. & P. Central R. Co. 104 Minn. 58; 116 
 
 Ry. Co. 222 Pa. 470; 71 Atl. 1053; N. W. 104; Turrettin v. Chicago, 
 
 affirmed 220 U. S. 590; 31 Sup. Ct. St. P. M. & O. R. Co. 95 Minn. 408 
 
 561; 55 L. Ed. — . A like holding 104 N. W. 225; York v. St. Louis, I 
 
 was had on the first appeal, 207 Pa. M. & S. Ry. Co. 86 Ark. 244; 110 S 
 
 198; 56 Atl. 417, but the case was W. 803; Smith v. Atlantic Coast Line 
 
 reversed by the United States Su- R. Co. 210 Fed. 761; 127 C. C. A. 311 
 
 preme Court, 205 U.S. 1; 27 Sup. Ct. Grand Trunk Western Ry. Co. v 
 
 407; 51 L. Ed. 681. Lindsay, 201 Fed. 836; 120 C. C. A 
 
 For a case holding it contributory 166, affirmed 233 U. S. 42; 34 Sup. Ct 
 
 negligence not to go to the other side 581; 58 L. Ed. 828. 
 
 of a car where a lever could be worked. In the absence of grab irons it was 
 
 see St. Louis, I. M. & S. Ry. Co. v. held in an early case that the jury 
 
 York, 92 Ark. 554; 123 S. W. 376. was to consider whether or not the 
 
 If the coupling be out of working plaintiff was guilty of contributory 
 
 order, then it is not contributory negligence in attempting to couple
 
 484 FEDERAL, SAFETY APPLIANCE ACT. 
 
 at the time as to the danger of doing as he did.^ But where 
 dust from ballast on the track filled the pin hole of the 
 coupler and packed the coupling so it could not be removed 
 by the automatic coupler, and the plaintiff's superior or- 
 dered him to go between the cars and uncouple them, it 
 was held that he was not guilty of contributory negligence.* 
 If the coupler is defective to the extent that it falls within 
 the condemnation of the statute, and the defect was the 
 proximate cause of the plaintiff's injury, then his contribu- 
 tory negligence will not be considered f unless such contribu- 
 tory negligence was the sole cause of the injury.** A failure 
 of the plaintiff to report the defect, to the railroad company, 
 as its rules required, is no defense on its part.'^ "But there 
 is nothing in the statute absolving the employee froni the 
 duty of using ordinary care to protect himself from injury 
 in the use of the car with the appliance actually furnished. 
 In other words, notwithstanding the company failed to 
 comply with the statute, the employee was not for that rea- 
 son absolved from the duty of using ordinary care for his 
 own protection under the circumstances as they existed. 
 This has been the holding of the courts in construing stat- 
 utes enacted to promote the safety of employees."^ The 
 question of contributory negligence is ordinarily one for the 
 jury. In one case it was said: "It was peculiarly within 
 the province of the jury to look into all the facts and circum- 
 stances and determine whether the plaintiff used the ordi- 
 nary care required of him in carrj'ing out the order which 
 was given him."^ The question of proximate cause ordinarily 
 
 cars. Cleveland, C. C. & St. L. Ry. « Schlemmer v. Buffalo, R. & P. 
 
 Co. V. Baker, 91 Fed. 224. Ry. Co. 220 U. S. 590; 31 Sup. Ct. 
 
 Uohnston v. Chicago G. W. R. 561; 55 L. Ed. 596, affirming 222 Pa. 
 
 Co. (Mo. App.) 164 S. W. 260. St. 470; 71 Atl. 1053; Denver & R. 
 
 ' St. Louis S. W. R. Co. v. Anderson G. R. Co. v. Arrighi, 129 Fed. 347; 
 
 (Ark.) 173 S. W. 834. 63 C. C. A. 649; Toledo, St. L. & W. 
 
 "Whenever injury or death is R. Co. v. Gordon, 177 Fed. 152; 100 
 
 caused by a failure to comply with C. C. A. 572; Popplar v. Minneapolis 
 
 the demands of the safety appliance St. P. & S. S. Ry. Co. 121 Minn. 413; 
 
 laws, there is absolutely no defense 141 S. W. 798. 
 
 that can be presented by the railroad " Donegan v. Baltimore & N. Y. 
 
 company." San Antonio & A. P. Ry. Co. 165 Fed. 869; 91 C. C. A. 
 
 Ry. Co. v. Wagner (Tex. Civ. App.) 5.55; Johnson v. Great Northern Ry. 
 
 166 S. W. 24. Co. 178 Fed. 643; Chicago, R. I. & P. 
 
 •Smith v. Atlantic Coast Line R. Ry. Co. v. Brown, 1S5 Fed. 80; 107 
 
 Co. 210 Fed. 761; 127 C. C. A. 311. C. C. A. 300; Nichols v. Chesapeake 
 
 ^ Na.shville. C. A- St. L. Py. Co. v. & O. Ry. Co. 195 Fed. 913; 115 C. C. 
 
 Henry, 158 Ky. 88; 164 S. W. 310. A. 601; Grand Trunk W. Ky. Co. v.
 
 NEGLIGENT INJURY. 4g5 
 
 is one for the jury;^° unless the facts are undisputed and 
 are such that all reasonable minds must reach the same con- 
 clusion.^^ 
 
 § 310. Contributory negligence does not defeat the 
 action. — The questions of contributory negligence discussed 
 in the preceding section are not of as much importance as 
 they may seem when the action is brought by an employee 
 injured by a defective coupling or grabiron upon an inter- 
 state train or car, or car moving over or used on a railroad 
 used as a highway of interstate commerce as would at first 
 blush seem, in view of the Employers' Liability Act of 
 1908. It is only an interstate railroad company, or one en- 
 gaging in interstate traffic, that is required to equip its 
 cars with automatic brakes and couplers and handgrabs 
 or handholds; and consequently usually all employees en- 
 gaged on such cars are within the provision of this Act of 
 1908. In none of the cases cited in the previous section is 
 this exact question discussed, or even, we believe, alluded 
 to. By the Act of 1908 in all actions brought against a 
 common carrier by railroad for injuries to an employee 
 occasioned while engaged in commerce between any of the 
 several states or territories ; or between the District of 
 Columbia, or any of the states or territories and any foreign 
 nation or nations, the fact that he may have been guilty of 
 contributory negligence will not bar a recovery, but his dam- 
 ages will be diminished by the jury in proportion to the 
 amount of negligence attributable to him. If the violation 
 by the common carrier of any statute enacted for the safety 
 of employees contributed to an employee's injury or death, 
 then he cannot be deemed guilty of contributory neg- 
 ligence.^" As we have said, this statute is applicable to an 
 employee injured by a defective coupler on an interstate 
 car or a car used on a highway of interstate commerce ; and 
 
 Poole, 93 N. E. 26; La Mere v. Ry. Russell, 183 Fed. 722; Thornbro v. 
 
 Trans. Co. 125 Minn. 159; 145 N. Kansas Citv, M. & O. Ry. Co. 91 
 
 W. 1068; Grand Trunk Western Rv. Kan. 684; 139 Pac. 410. 
 
 Co. V. Lindsay, 201 Fed. 836; 120 " Devine v. Chicago & C. R. Co. 
 
 C. C. A. 166, affirmed 233 U. S. 42; 266 111. 248; 102 N. E. 803. 
 
 34 Sup. Ct. 581 ; 58 L. Ed. 828. •- This statute is discussed at 
 
 '*> Donegan v. Baltimore & N. Y. length in the first part of this work. 
 R. Co. 165 Fed. 869; Erie R. Co. v.
 
 486 FEDERAL SAFETY APPLIANCE ACT. 
 
 sven though he has been guilty of contributory negligence, 
 that will not defeat his cause of action. This question has 
 been decided in the affirmative. In that case the coupler 
 on a car being used in interstate commerce was so defective 
 that it Avould not couple automatically by impact, and an 
 employee in the performance of his duty, was caught be- 
 tween the cars and injured, the violation of the statute by 
 the company being a contributory cause of the injury, which 
 rendered it liable tlierefor. It was held that the question of 
 assumption of risk and contributory negligence was imma- 
 terial. This employee was charged with the duty to see that 
 the coupling of the cars and of the air brake pipes upon 
 cars standing upon a switch track to be transferred to an- 
 other company. Some of these cars were being used in inter- 
 state commerce. It was held that he was employed in 
 interstate commerce, and was Avithin the provision of the 
 Act of 1908.-°' Inasmuch as negligence on the part of the 
 plaintiff reduces the amount of damages he would other- 
 wise recover, a discussion of those cases in which contributory 
 negligence has been involved in safety appliance in- 
 juries becomes important in order to measure the amount of 
 recovery. -°"^ 
 
 § 311. Two acts of negligence combining to produce in- 
 jury.— Two acts of negligence may so combine as to pro- 
 duce an injury, one of which is a violation of the Safety 
 Appliance Act with reference to automatic couplers. In such 
 an instance the company will be liable, although but for the 
 combination the injury would not have been inflicted.-^ And 
 a violation of the Safety Appliance Act may always be con- 
 sidered by the jury in determining whether or not the de- 
 fendant company was negligent, so far as its duty was con- 
 
 201 Johnson v. Grent Xorthorn nte of 1908 applies to an injury 
 
 lly. Co. 178 Fed. G43. occasioned by a defective coupler 
 
 20m There is the merest intima- on an interstate railroad. 
 tion in fiehlemmer v. Buffalo, etc., 21 Voelker v. Chicago, etc., Ry 
 
 Ry. Co. 220 U. R. 5fl0; .31 Wup. Ct. Co. IIG Fed. Hep. 8G7. 
 5G1 ; 55 L. Ed. o'Jd, that tiie stat-
 
 NEGLIGENT INJURY. 
 
 487 
 
 cerned towards the employe who was injured while coupling 
 cars not equipped with automatic brakes as the statute re- 
 quired.-^ 
 
 § 312. State courts may enforce liability for negligence in- 
 curred under statute.— The state courts have the power to 
 entertain suits to recover damages received by reason of a 
 violation of the Safety Appliance Statute.^^ A number of 
 cases have reached the highest courts of several states which 
 had been brought upon the federal statute.^* And at least 
 two of these have been carried to the Supreme Court of the 
 United States, and either reyersed or affirmed; and the ques- 
 tion of the state court's jurisdiction never raised. And it 
 has been expressly decided that this federal statute is bind- 
 ing upon a state court and must be applied when the plead- 
 ings and facts proven show the case falls within its 
 provisions.-^ 
 
 22 Crawford v. New York, etc., 
 E. Co. 10 Am. & Eng. Neg. Ciis. 
 166; see Chicago, etc., E,. Co. v. 
 King, 169 Fed. Rep, 372 (decided 
 February 3, 1909). 
 
 23 St. Louis, etc., R. Oo. v. Tay- 
 lor, 210 U. S. 281; 28 Sup. Ct. 
 Rep. 616; Sclilenimer v. Buffalo, 
 etc., Ry. Co. 205 U. S. 1 ; 27 Sup. 
 Ct. Rep. 407; 51 L. Ed. 681; re- 
 versing 207 Pa. St. 19i8; 56 Atl. 
 Rep. 417; Southern Pac. R. Co. v. 
 Allen, 48 Tex. Civ. App. 66; 106 
 S. W. Rep. 441; Mobile, etc., R. Co. 
 V. Bromberg, 141 Ala. 258; 37 So. 
 Rep. 395; Crawford v. New Yore, 
 etc., R. Co. 10 Am. & Eng. Neg. 
 Cas. 166. 
 
 24 Missouri Pac. Ry. Co. v. 
 Brinklemeier, 77 Kan. 14; 93 Pac. 
 Rep. 621; Southeni Pac. R. Co. v. 
 Allen, 48 Tex. Civ. App. 66; 106 6. 
 W. Rep. 441 ; Chicago, etc., Ry. 
 Co. v. State, 86 Ark. 412; 111 S. 
 W. Rep. 456; Cleveland, etc.. Ry. 
 Co. V. Curtis, 134 111. App. 565; 
 
 Nicholas v. Chesapeake, etc., Ry. 
 Co. 127 Ky. 310; 105 S. W. Rep. 
 4.81; 32 ivy. L. Rep. 270. See 
 Harden v. North Carolina E. Co. 
 129 N. €. 354; 40 S. E. Rep. 184; 
 
 55 L. R. A. 7i84. 
 
 25 Mobile, etc., R. Co. v. Brom- 
 berg, 141 Ala. 258; 37 So. Rep. 
 305; Kansas City, etc., R. Co. v. 
 Flippo, 138 Ala. 487; 35 So. Rep. 
 457 ; York v. iSt. Louis, I. M. & S. 
 Ry. Co. 86 Ark. 244; 110 S. W. 
 803 ; Sprague v. Wisconsin Central 
 R. Co. 104 Minn. 58; 116 N. W. 
 104; Turrettin v. Chicago, St. P., 
 M. & 0. R. Co. 95 Minn. 408; 
 104 N. W. 225; St. Louis. I. M. .% 
 S. Rv. Co. V. York, 92 Ark. 554; 
 123 S. W. 376; Elmore v. Seaboard 
 Air Line Ry. Co. 130 N. C. 205 
 41 S. E. 786; 'Schlemmer v. Buf 
 falo, etc., Ry. Co. 207 Pa. 198 
 
 56 Atl. 417; reversed 205 U. S 
 1; 27 Sup. Ct. 407; 51 L. Ed. 681 
 Schlemmer v. Buffalo, etc., Rv. Co 
 222 Pa. 470; 71 Atl. 1053; af
 
 ^gg FEDERAL SAFETY APPLIANCE ACT. 
 
 § 313. Removal of case to Federal court. — As the injured 
 employee, M^hen he bases his cause of action upon the terms 
 of the Federal statute, can bring his suit in the Federal 
 court, the defendant can insist, when the suit is brought on 
 the statute in a state court, if the amount demanded is three 
 thousand dollars or more, that it be removed into the 
 proper federal court. One case on this question was deter- 
 mined in one of the circuit courts. The court assumed the 
 statute was valid, and then proceeded to discuss its remov- 
 ability into the federal court: "Does it follow that the 
 case is a removable one? It is the contention of the plain- 
 tiff that the cause of action does not arise under this act of 
 Congress, or at least that it does not so appear from the 
 allegations of this petition. It is undoubtedly true that under 
 the Act March 3, 1887, c. 378,-« and Act August 13, 1888, 
 c. 866,-^, a case not depending on diversity of citizenship 
 cannot be removed from a state court into the Circuit Court 
 of the United States, as one arising under the Constitution 
 or law of the United States, unless that fact appears by the 
 plaintiff's own statement of his cause of action; and if it 
 does not, the fact cannot be supplied by the petition for 
 removal."^ But the court takes notice of the laws of Con- 
 gress, and, if the facts stated by the plaintiff as the basis 
 of his right of recovery show a right of action given or 
 created by such law, then it may fairly be said that it 
 appears from his own statement of his claim that the action 
 is one arising under a law of the United States. If the 
 same facts show, also, a right of action created or given by 
 a state law, still it would be for the court to determine 
 under which statute the action was maintainable, if at all; 
 
 firmed 220 U. S. 500; 31 Sup. Ct. 28 24 Stat, at L. 55^. 
 
 561; 55 L. Ed. 596; Neal v. St. 2^25 Stat, at L. 433 (U. S. 
 
 Louis, I. M. & S. R. Co. 71 Ark. Comp. St. lOOl, p. 509). 
 
 445; Vs S. W. 220; St Louis, I. 28 Citing Chappel v. Waterworth, 
 
 M. & S. R. Co. V. Neal, 83 Ark. 155 U. S. 102; 15 Sup. Ct. Rep. 
 
 591; 08 S. W. 1)58: affirmed 210 U. .34; 39 L. Ed. 85; reversing 39 
 
 S. 281; 28 Sup. Ct. 616; 52 L. United States v. Atlantic Coast 
 
 Ed. 1061. See Georgia Pac. R. Co. Fed. Rep. 77; Third St. R. 'Co. v. 
 
 V. Davis, 92 Ahu 307; 9 So. Rep. Txiwis, 173 U. S. 457; 19 Sup. Ct. 
 
 253; 25 Am. K«t. Hep. 47. Kep. 451; 43 L. Ed. 706.
 
 NEGLIGENT INJURY. 4g9 
 
 and if one construction of the federal statute would sustain, 
 and another construction would defeat, a recovery under 
 that statute, the action would be one arising under a law 
 of the United States, and therefore of federal cognizance.^^ 
 It sufficiently appears, therefore, from plaintiff's petition 
 that the cause of action as alleged therein is one arising 
 under a law of the United States," the Act of June 11, 
 1906.^° The right to remove a case, brought to recover 
 damages, because of a failure to equip a car is now purely 
 academic ; for the amendment to the Act of Employers ' 
 Liability Act of 1908 provides that no case arising under 
 "and brought in any state court or competent jurisdiction 
 shall be removed to any court of the United States. ' ' ^^^ 
 
 §314. Judicial notice. — A state court will take, and is 
 bound to, notice of the Safety Appliance Act.^^ 
 
 § 315. Pleading. — It is not necessary in bringing an ac- 
 tion under the federal statute to specifically refer to it ; 
 
 29 Citing Starin v. New York, Where nn action was brought, 
 115 U. S. 248; 6 Sup. Ct. Rep. based upon the Federal statutes, 
 28; 29 L. Ed. 388; affirming 21 and then removed into the Federal 
 Fed. Rep. 593 ; Carson v. Dunham, Court, and then dismissed by the 
 121 U. S. 421; 7 Sup. Ct. Rep. plaintiff, and the plaintiff then 
 1030; 30 L. Ed. 992. brought a common-law action for 
 
 30 Hall V. Chicago, etc., R. Co. this same injury, it was held that 
 149 Fed. Rep. 564. the latter case could not be re- 
 
 If the construction of the Safety moved into the Federal Court. 
 
 Appliance Acts be not drawn into iShohoney v. Quincy, 0. & K. R. 
 
 question the case cannot be re- Co. 223 Mo. 649; 122 S. W. 1025. 
 
 moved to the Federal Court, even '°' See Appendix A and Chapter XI. 
 
 though it be alleged in the com- 3i Mobile, etc., R. Co. v. Brom- 
 
 plaint or declaration that the train berg, 141 Ala. 258; 37 So. Rep. 
 
 was an interstate one, and not 395 ; Kansas City, etc., R. Co. v. 
 
 properly equipped with automatic Flippo, 138 Ala. 487; 35 So. Rep. 
 
 couplers. Mvrtle v. Nevada County 457; Mcintosh v. St. Louis & S. F. 
 
 & D. Rv. Co. 137 Fed. 193; St. R. Co. 182 Mo. App. 288; 168 S. W. 
 
 Louis, I. M. & S. R. Co. v. Neal, 821. 
 
 83 Ark. 591; 98 S. W. 958; Inter- That courts will examme pubhc 
 
 national & G. N. Rv. Co. v. Elder, documents m construing a statute, 
 
 ^A rr rt- A cAc nn c \X7 see Johnson v. bouthern Pacific 
 
 44 Tex. Civ. App. 605; 99 S. W. ^o. 196 U. S. 1; 25 Sup. Ct. 158; 49 
 
 856, 
 
 L. Ed. 363; Chicaso, M. & St. P. 
 Rv. Co. 129 Fed. 522.
 
 490 
 
 FEDERAL SAFETY APPLIANCE ACT. 
 
 in fact, it is not good pleading to do so. "As a matter of 
 pleading, it certainly cannot be said that, in order to base 
 a right of recovery on the provisions of the statute, it was 
 necessary to cite the statute or its provisions in the petition. 
 The petition in set words charged the defendant with negli- 
 gence in having and operating a car upon which was a 
 defective, worn out and inoperative coupler which would 
 not couple by impact. Charging the defendant with negli- 
 gence was charging that the company had not met or ful- 
 filled the duty imposed upon it by law with respect to having 
 and keeping the coupler upon the car in proper con- 
 dition for use. It was not necessary, nor, indeed, per- 
 missible, under the rules of pleading, that the petition should 
 set forth the law which had been violated.^'^ * * * 
 Therefore, when the petition charged the defendant with 
 negligence with respect to the coupler upon the car the de- 
 fendant must have known, as the car was used in interstate 
 traffic, the act of Congress would necessarily come into con- 
 sideration in defining the obligations resting upon the de- 
 fendant company. ' ' "^ 
 
 3* "It is not for one moment sup- 
 posable that the officers of the de- 
 fendant company or the learned coun- 
 sel representing it in this case are not, 
 and were not, when this action was 
 commenced, fully aware of the pro- 
 visions of the Act of Congress of 
 March 2, 1893, and the acts of the 
 General Assembly of the State of 
 Iowa, which now form sections 2079 
 and 2083, both inclusive, of the code 
 of the state, and therefore knew that 
 as cars used in interstate traffic the 
 obligations of the act of Congress 
 were in force, and as to cars used with- 
 in the State of Iowa the named 
 sections of the code were applicable." 
 From the opinion above quoted from. 
 
 The complaint must allege that 
 the car was, at the time of the acci- 
 dent, used in moving interstate 
 traffic. Brinkmeicr v. Missouri Pac. 
 Ily. Co. 81 Kan. 101; 105 Pac. 221, 
 affirmed 224 U. S. 208; 32 Sup. Ct. 
 412; -,(•> L. Ed. 758; San Antonio & 
 A. 1*. liy. Co. V. Wagner (Tex. Civ. 
 App.) 100 S. W. 24. 
 
 Where there was no direct alle- 
 gation that the defendant railroad 
 moved the defective cars, yet other 
 
 allegations were held sufficient to 
 show that was done by it. Grand 
 Trunk W. Ry. Co. v. Lindsay, 201 
 Fed. 836, citing Sargent v. Baublis, 
 215 111. 430; 74 N. E. 455, and Ameri- 
 can Bridge Co. v. Peden, 129 Fed. 
 1004; 64 C. C. A. 581. 
 
 '^ Voelker v. Chicago, etc., Ry. 
 Co. 116 Fed. Rep. 867. Approved, 
 Missouri Pac. Ry. Co. v. Brink- 
 meicr, 77 Kan. 14; 93 Pac. Rep. 621; 
 50 Am. & Eng. R. Cas. (N. S.) 441; 
 Kansas City, etc., R. Co. v. Flippo, 
 138 Ala. 487; 35 So. Rep. 457. See 
 Lewis V. Pennsylvania R. Co. 220 
 Pa. 317; 69 Atl. 821. 
 
 It has been held that it need not 
 be alleged or proved that the de- 
 fective car was loaded with interstate 
 traffic. Felt v. Denver & R. G. R. 
 Co. 48 Colo. 249: 110 Pac. 1136. 
 
 If the complaint charge that the 
 railroad runs through several states, 
 evidence to show that it was engaged 
 in interstate commerce is admissible. 
 Missouri Pacific Ry. Co. v. Brink- 
 meicr, 77 Kan. 14; 93 Pac. 621. 
 
 If the answer does not deny 
 that the car was used in interstate 
 commerce, the allegation that it
 
 NEGLIGENT INJURY. 
 
 491 
 
 § 316. Validity of section concerning releases from lia- 
 bility. — Statutes similar to section five eoneei'iiing a servant 
 agreeing to exempt his master from liability for his in- 
 juries have been held valid in a number of states. A 
 statute prohibiting such a contract is constitutional and 
 within the power of a legislature to adopt on the ground 
 of public policy.^* 
 
 § 317. Statute of Limitations. — The Statute of Limita- 
 tions of the state w^here the injury is received and the suit 
 is brought is applicable to the action, in the absence of any 
 Federal statute or the subject.^^ An amendment which 
 states a new cause of action will not be allowed after the 
 Statute of Limitations has run.^® 
 
 was so used need not l)e proved. 
 Norfolk & W. Ey. Co. v. Hazelrigg, 
 170 Fed. 551. 
 
 Where the action is a common- 
 law one, evidence that all roads 
 were discarding the "Leeds" coup- 
 lers and using automatic couplers 
 was held not admissible. Sho- 
 honey v. Quincy & 0. K. R. Co. 
 223 ivio. 649; 122 S. W. 1025. 
 
 In a case in the United States 
 Court for the District of North 
 Carolina, the court held an action 
 to recover a penalty a civil ac- 
 tion, and that it was not necessary 
 to allege the specific date of the 
 violation of the statute. United 
 States V. Atlantic, etc., Ry. Co. 
 153 Fed. Rep. 918. 
 
 In Alabama, very general terms, 
 little short of conclusions, may be 
 used in pleading. Kansas City, 
 etc., R. Co. V. Flippo, 138 Ala. 
 48?'; 35 So. Rep. 457; adopting 
 Georgia Pac. R. Co. v. Davis, 92 
 Ala. 307; 9 So. Rep. 253; 25 Am. 
 St. Rep. 47. In this state the 
 complaint need not contain an al- 
 legation stating in what manner 
 the failure to comply with the 
 statute caused the injury. INIobile, 
 etc., R. Co. v. Bromberg, 141 Ala. 
 258; 37 So. Rep. 395. 
 
 34 Pittsburg, etc., R. Co. v. Mont- 
 gomery, 152 Ind. 1; 45 N. E. Rep. 
 582; Pittsburg, etc., R. Co. v. 
 Hosea, 152 Ind. 412; 53 N. E. 
 Rep. 419; Kilpatrick v. Railroad 
 Co. 74 Vt. 288; 52 Atl. Rep. 531; 
 93 Am. St. Rep. 887; Goldenstein 
 V. Baltimore & 0. Ry. Co. 37 
 Wash. L. Rep. 2; Weir v. Roun- 
 tree, 173 Fed. 776; Atlantic Coast 
 Line v. Riverside Mills, 219 U. S. 
 186; 31 S. C. 164; 55 L. Ed. 
 167; affirming 168 Fed. 990; Mc- 
 Namara v. Washington Terminal, 
 35 App. D. C. 230; Louisville & 
 N. R. Co. V, Scott, 219 U. S. 
 209; 31 Sup. Ct. 171; 55 L. Ed. 
 — ; Chicago, B. & Q. R. Co. v. 
 McGuire, 219 U. S. 549; 31 Sup. 
 Ct. 259; 55 L. Ed. — ; affirming 
 138 Iowa, 664; 116 N, W. 801; 
 Norfolk & W. Ry. Co. v. Dixie, 
 111 Va. 813; 69 S. E. 1106. 
 
 A statute forbidding a contract 
 that the employee shall not recover 
 damages if he accepts relief from 
 a relief association has been sus- 
 tained. McGuire v. Cliicago, etc., 
 R. Co. 131 Iowa, 340; 108 N. W. 
 Rep. 902, contra, Shaver v. Penn- 
 sylvania Co. 71 Fed. Rep. 331. 
 
 '^ Nichols V. Chesapeake & O. R. 
 Co. 195 Fed. 913; 115 C. C. A. 601. 
 See also Campbell v. Haverhill, 155 
 U. S. 610; 15 Sup. Ct. 217; 39 L. Ed. 
 280; Brinkmeier v. Missouri Pacific 
 R. Co. 224 U. S. 268; 32 Sup. Ct. 412; 
 56 L. Ed. 758, affirming 81 Kan. 101 ; 
 105 Pac. 221; Texas & N. O. R. Co. v. 
 Miller, 221 U. S. 408; 31 Sup. Ct. 534; 
 55 L. Ed. 789. 
 
 ^^ Brinkmeier v. Missouri Pacific 
 Ry. Co., supra.
 
 CHAPTER XIX. 
 ACTION TO RECOVER PENALTY. 
 
 318. "Suits" — Criminal offense — 324. Defendant relying on ex- 
 
 Presumption of innocence — ceptions in proviso of acts. 
 
 Burden — Reasonable doubt. 325. Jury trial. 
 
 319. Action to recover a penalty 326. Directing the verdict. 
 
 not a criminal action. 327. Amount of penalty. 
 
 320. Joint action. 328. Penalty for failure to equip 
 
 321. Government's petition. with grab irons. 
 
 322. Sufficiency of proof — Burden. 329. Writ of error. 
 
 323. Expert testimony. 330. Twice in jeopardy. 
 
 § 318. "Suits" — Criminal offense — Presumption of inno- 
 cence — Burden — Reasonable doubt.— An action or suit 
 brought by the government to recover a penalty because 
 of non-compliance with the .statute in providing cars with 
 automatic couplers has been held to be a criminal action 
 and not a civil action, and must be tried as a criminal case, 
 violations of the statute being construed as criminal offenses 
 — crimes and misdemeanors in the broad sense of the words. 
 The presumption, it was held, therefore, that the defendant 
 is innocent, and that it cannot be found guilty until the 
 evidence removes all reasonable doubt of its guilt, the burden 
 resting upon the government to show beyond a reasonable 
 doubt the existence of every element necessary to constitute 
 the offense ; and this burden continues throughout the case 
 and never shifts to the defendant.^ 
 
 § 319. Action to recover penalty not a criminal action. — 
 
 In the Utiited States (V)urt for the District of North Caro- 
 lina, Judge Pui-ncll held, in 1907, that in an action by the 
 government to recover a penalty for a violation of the Safety 
 Appliance Act, the action was governed by the state statute 
 and was a civil suit, and tli;it it was not necessary to allege 
 the specific date on which the statute had been violated by 
 
 'United states v. Illinois Cent. R. Co. 150 Fed. Rep. 180. 
 402
 
 ACTION TO RECOVKK PENALTY. 
 
 493 
 
 the defendant. "This is an action in debt,"- said the court, 
 and he follows the State Supreme Court's construction of 
 such a suit.^ "The number of the car and nature of the 
 traffic and the date given in each count sufficiently advise 
 the defendant of the times of the violation," said the court, 
 so that it can intelligently prepare its defense. This is 
 sufficient."* In another court it was held that it was only 
 incumbent upon the government to prove its case by a pre- 
 ponderance of the evidence, and it need not show the facts 
 constituting the violation beyond a reasonable doubt r' and 
 this is now the accepted rule, the case being considered 
 merely a civil action to recover a penalty.^* 
 
 2 Citing United States v. South- 
 ern Ry. Co. 135 Fed. Rep. 122. 
 
 3 Citing Hilton Lumber Co. v. 
 Atlantic Coast Line Railroad, 141 
 N. C. 171; 53 N". E. Rep. 823; G 
 L. R. A. (N. S.) 225. 
 
 4 LTnited States v. Atlantic, etc., 
 R. Co. 153 Fed, Rep. 918. 
 
 5 United States v. Central of Ga. 
 Ry. Co. 157 Fed. Rep. 893. 
 
 5* Atlantic Coast Line R. Co. v. 
 United States, 168 Fed. Rep. 175 
 (decided INIarch 1, 1909); United 
 States V. Atlantic Coast Line R. 
 Co. Appendix G; United States 
 V. P. & Ry. Co. 162 Fed. Rep. 403; 
 United States v. Chicago, etc., R. 
 Co. 162 Fed. Rep. 775; United 
 States V. Baltimore, etc., R. Co. 
 159 Fed. Rep. 33; Wabash R. Co. 
 V. United iStates, 168 Fed. Rep. 
 1 (decided February 3, 1909); 
 United States v. Southern Ry. Co. 
 Appendix G, 167 Fed. 699) ; 
 United States v. Illinois Central 
 R. Oo. (Appendix G, 170 Fed. 
 542) ; 166 Fed. 997: United States 
 V. Philadelphia & R. Ry. Co. 160 
 Fed. 696; United Siiates v. Louis- 
 ville & y. R. Co. 162 Fed. 185; 
 United States v. Illinois Central 
 R. Co. 170 Fed. 542; United States 
 
 V. Bait. & 0. S. W. R. 159 Fed. 
 33, 38; 86 C. C. A. 223; United 
 States V. Louisville & X. R. Co 
 167 Fed. 306; Chicago, B. & Q 
 Ry. Co. V. United States, 170 Fed 
 556; Atlantic Coast Line R. Co 
 V. United States, 168 Fed. 175, af 
 firming 153 Fed. 91'8; United 
 States V. Chicago, R. I. & P. Ry. 
 Co. 173 Fed. 684; St. Louis S. W. 
 Ry. Co. V. United States, 183 Fed. 
 770; Atchison, T. & S. F. Ry. Co. 
 V. United States, 172 Fed. 194; 
 United States v. Nevada County 
 Narrow Gauge R. Co. 167 Fed. 
 695; Louisville & K R. Co. v. 
 United States, 174 Fed. 102.1; 98 
 C. C. A. 664; Lucas v. Peoria & E. 
 Ry. Co. 171 III. App. 1. 
 
 This question has been put at rest 
 by the Supreme Court. Chicago, B. 
 & Q. R. Co. V. United States, 220 U. 
 S. 559; 31 Sup. Ct. 612; 55 L. Ed. 582; 
 United States v. Denver & R. G. R. 
 Co. 163 Fed. 519; United States v. 
 St. Louis & S. W. Ry. 184 Fed. 28; 
 United States v. Atlantic Coast Line 
 R. Co. 182 Fed. 284; United States v. 
 Baltimore & Ohio R. Co. 176 Fed. 
 114; Chicago, B. & Q. R. Co. v. 
 United States, 170 Fed. 556; 95 
 C. C. A. 41. 
 
 An action to recover a penalty can 
 be brought in the Circuit Court of the 
 District of Columbia if service of 
 process can there be made on the de- 
 fendant railway company. United 
 States V. Baltimore & O. R. Co. 26 
 App. D. C. 587.
 
 494 FEDERAL SAFETY APPLIANCE ACT. 
 
 § 320. Joint action. — A joint action may be maintained 
 against two or more companies hauling the same car in a 
 continuous passage over their several roads.^ 
 
 § 321. Government's petition. — In a complaint to re- 
 cover a penalty under this statute, it is not defective for a 
 failure to negative the exception in any proviso of the act/ 
 nor is it defective because it shows that only one of the 
 couplers was out of repair and defective, being so because 
 the uncoupling chain was "kinked;" or because it fails to 
 negative the exercise of reasonable care on the part of the 
 defendant in maintaining the coupler in an operative condi- 
 tion ; nor, although showing an actual and substantial haul- 
 ing of the car in interstate traffic, because it fails to specify 
 how far the hauling was continued, or is even silent as to 
 the actual use of the defective coupler.^ The practice in the 
 state courts of the district in civil cases control and must 
 be followed.®* It need not be alleged that the defendant 
 acted wilfully in not making the repairs.^^ Nor need it be 
 averred that the defendant had acted knowingly and negli- 
 gently; it being sufficient to set forth the cause of action 
 in the language of the statute, with specifications of the time 
 
 ^United States v. Chicago, etc., United States, 168 Fed. Rep 175. 
 
 R. Co. 143 Fed. Rep. 353; Chaffee V. (decided March 1, 1909); United 
 
 United States, 18 Wall. 518, 538. States v. Atlantic Coast Line R. Co. 
 
 ' Schlemmer v. Buffalo, etc., R. Co. Appendix G; Chicago, etc., R. Co. v. 
 
 205 U. S. 1; 27 Sup. Ct. Rep. 407; 51 United States, 168 Fed. Rep. 236 
 
 L. Ed. 681, reversing 207 Pa. St. 198; (decided March 10, 1909); United 
 
 56 Atl. Rep. 417; United States v. States v. Montpelier & W. R. R. R. 
 
 Houston, B. & T. Ry. Co. 205 Fed. 175 Fed. 874. 
 
 344; (C. C. A.); United States v. In the first case cited it was held 
 
 Kansas City Southern Ry. Co. 202 that in alleging the time of the vio- 
 
 I'ed. 828; 121 C. C. A. 136; Chicago, lation of the statute the declaration 
 
 B. & Q. R. Co. V. Un'ted States, 195 was not bad because it was laid "on or 
 
 Fed. 241; 115 C. C. A. 193; New York about" a certain day named. So 
 
 Central & H. R. R Co. v. United decided also in United States v. 
 
 States, 165 Fed. 833; 91 C. C. A. 519; Atlantic Coast Line R. Co. 153 Fed. 
 
 United States v. Kansas City South- 918, and in Louisville & N. R. Co. v. 
 
 ern Ry. Co. 189 Fed. 471. United States, 186 Fed. 280; 108 
 
 * United States v. Denver, etc., C. C. A. 326. 
 
 R. Co. 163 Fed. Rep. 519. »' United States v. Illinois Central 
 
 «• Atlantic Coast Line R. Co. v. R. Co. 170 Fed. 547.
 
 ACTION TO RECOVER PENALTY. 
 
 495 
 
 and place, the ear, the particular part of the car where the 
 defect existed, and the nature of the defect.**- 
 
 § 322. Sufficiency of proof — Burden. — It is not neces- 
 sary that the government prove its case beyond a reasonable 
 doubt ; but it has the burden to prove its case by evidence 
 that is clear and satisfactory to the jury, and that burden 
 never shifts. It must make out all the elements which go 
 to constitute the charge in the petition. If it fails to come 
 up to his standard, it fails to make out a case." The gov- 
 ernment need not show that the defendant had not used 
 due care or ordinary diligence in making an inspection 
 and in repairing the defects an inspection would have 
 shown. ^° The rule that positive testimony is preferred to 
 
 ^- United States v. Oregon Short 
 Line R. Co. 180 Fed. 483. 
 
 The use of the words "on or about," 
 in stating the time, does not render 
 the complaint or petition uncertain. 
 Atlantic Coast Line R. Co. v. United 
 States, 168 Fed. 175. 
 
 As an example of what is sufficient 
 pleading, see Louisville & N. R. Co. 
 V. United States, 186 Fed. 280. 
 
 ' United States v. Philadelphia, 
 etc., R. Co. 160 Fed. 696 (Appendix 
 G); United States v. Pennsylvania 
 R. Co. (Appendix G) ; United States v. 
 Lehigh Valley R. Co. 160 Fed. 696 
 (Appendix G); United States v. 
 Chicago, etc., R. Co. 162 Fed. Rep. 
 775; United States v. Louisville, etc., 
 R. 162 Fed. Rep. 185; United States 
 V. Chesapeake & Ohio Rj'. Co. (Ap- 
 pendix G); United States v. Chicago, 
 etc., Ry. Co. (Appendix G); United 
 States V. Chicago, etc., R. Co. 173 
 Fed. 684 (Appendix G) ; United States 
 V. Nevada, etc., R. Co. 167 Fed. 965 
 (Appendix G); United States v. Bos- 
 ton & Maine R. Co. 168 Fed. 148 
 (Appendix G); United States v. 
 Illinois Central R. Co. 170 Fed. 542; 
 United States v. Baltimore & O. S. 
 W. R. 159 Fed. 33, 38; 86 C. C. A. 223; 
 United States v. Louisville & N. R. 
 Co. 167 Fed. 306; Chicago, B. & Q. 
 Ry. Co. V. United States, 170 Fed. 
 556; Atlantic Coast Line R. Co. v. 
 
 United States, 168 Fed. 175, affirming 
 153 Fed. 918; United States v. Chi- 
 cago, R. I. & P. Ry. Co. 173 Fed. 
 684; St. Louis S. W. Ry. Co. v. United 
 States, 183 Fed. 770; Louisville & N. 
 R. Co. V. United States, 174 Fed. 
 1021; 98 C. C. A. 664; United States 
 V. Central of Georgia, 157 Fed. 893; 
 United States v. Illinois Central R. 
 Co. 166 Fed. 997; United States v. 
 Southern Pacific, 167 Fed. 699; 
 United States v. Southern Ry. Co. 
 170 Fed. 1014; United States v. Mont- 
 pelier & W. R. Co. 175 Fed. 874; 
 United States v. Kansas City South- 
 ern Ry. Co. 202 Fed. 828. 
 
 "Every material fact must be 
 proved by a fair balance of evidence 
 to entitle the plaintiff to recover the 
 penalty prescribed by law." United 
 States V. Montpelier & W. R. R. R. 
 175 Fed. 874 (see this case for an 
 example). 
 
 Weight to be given to United States 
 inspectors and to the defendant's in- 
 spectors, see Norfolk & W. Ry. Co. 
 v. United States, 177 Fed. 623. The 
 inspectors are not bound to inform the 
 company of the defect. Norfolk & 
 W. Ry. Co. v. U. S. 191 Fed. 302. 
 
 '° United States v. Atlantic, etc., 
 R. Co. 153 Fed. Rep. 918; United 
 States v. Wabash R. Co. (Appendix 
 G).
 
 496 FEDERAL, SAFETY APPLIANCE ACT. 
 
 negative testimony, in the absence of other testimony or 
 corroborative evidence, has been adopted;'^ but the testi- 
 mony of a car inspector that he inspected particular cars in 
 the furtherance of his duty, and that he failed to find partic- 
 ular defects, is positive testimony of a negative fact.^^* A 
 mere preponderance of the evidence is sufficient to make out 
 the government's case.^ There is no legal obligation on the 
 part of the government inspectors to notify a railway com- 
 pany of defects found in its equipment; and therefore they 
 may testify to defects they had observed before the govern- 
 ment brought its action, even though such action is solely 
 based upon the information thus furnished. Their failure to 
 inform the railway company is not to be considered by the 
 jury as discrediting their testimony.- No witness is to be 
 discredited by the jury merely by reason of his personal 
 interest as an inspector of the government or as an em- 
 ployee of the defendant carrier.^ Records kept by the de- 
 fendant for the purpose of giving necessary information on 
 which the carrier itself would rely, although not proved as 
 would be necessary if offered by the defendant for self- 
 serving purposes, are admissible when offered by the gov- 
 ernment as in the nature of an admission.* The exhibition of 
 model couplers to the jury, merely for the purpose of illus- 
 
 " United States v. Atchison, etc., which to your mind is the most satis- 
 
 R. Co. 167 Fed. 696 (Appendix G); factory and is entitled to the greatest 
 
 United States v. Baltimore & 0. Ry. weight." United States v. Southern 
 
 Co. 170 Fed. 456; United States v. Pacific Co. 167 Fed. 699; United 
 
 Southern Pacific Co. 167 Fed. 699. States v. Central of Georgia, 157 Fed. 
 
 "• Norfolk & W. Ry. Co. v. United 893; United States v. Boston & M. 
 
 States, 177 Fed. 623; 101 C. C. A. 249. R. Co. 168 Fed. 148. 
 
 ' United States v. Nevada County " Norfolk & W. Ry. Co. v. United 
 
 N. Y. R. Co. 167 Fed. 695; United States, 191 Fed. 302; 101 C. C. A. 
 
 States V. Southern Ry. Co. 170 Fed. 249; Chicago, B. & Q. Ry. Co. v. 
 
 1014; United States v. Atchison, T. United States, 211 Fed. 12; 127 C. C. 
 
 P. & St. F. Ry. Co. 167 Fed. 696; A. 438; United States v. Chicago 
 
 United States v. Boston & M. R. Great W. Ry. Co. 162 Fed. 775; 
 
 Co. 168 Fed. 148; United States v. United States v. Baltimore & Ohio 
 
 Baltimore k Ohio R. Co. 176 Fed. R. Co. 170 Fed. 456. 
 114; Wheeling Terminal Ry. Co. v. ' Norfolk & "W. Ry. Co. v. United 
 
 Russell, 209 Fed. 795; 126 C. C. A. States, 177 Fed. 623; 101 C. C. A. 
 
 519. 249; United States v. Chicago, G. 
 
 "By preponderance of evidence is W. Ry. Co. 162 Fed. 775. 
 not RK^ant the greater number of wit- * Louisville & N. R. Co. v. United 
 
 ncKses, })ut it means that evidence States, 186 Fed. 280; 108 C. C. A. 326.
 
 ACTION TO RECOVER PENALTY. 497 
 
 trating particular defects, is permissible.'^ A memorandum 
 made by a government inspector from original waybills, 
 showing the origins, destinations, consignors and consignees 
 of particular shipments, may be read to the jury as an 
 original memorandum made at the time of his inspection, 
 and, in the absence of evidence to the contrary, may be 
 inferred to have been correctly made." The ownership of 
 the cars is immaterial ; for the defendant is liable for the 
 use or hauling of a foreign car in violation of the statute.'^ 
 The government must show that the defendant was, at the 
 time the alleged offense was committed, a common carrier 
 by railroad engaged in interstate commerce ; that it either 
 hauled or permitted to be hauled over its line, the locomo- 
 tives, trains or cars mentioned in the complaint; and that 
 these locomotives, trains or cars were not provided with the 
 equipment required by the statute.^" When it has made this 
 proof, then the burden is upon the defendant to show an 
 excuse — to show that it had used all reasonably possible en- 
 deavor to perform its duty to discover and correct the de- 
 fect.^2» 
 
 ' Norfolk & W. R. Co. v. United car was being used in interstate 
 
 States, 191 Fed. 302; 112 C. C. A. 46. commerce when out of repair, it is 
 
 * Louisville & N. R. Co. v. United admitted and need not be proven. 
 
 States, 186 Fed. 280; 108 C. C. A. 326. Norfolk & W. Ry. Co. v. Hazelrigg, 
 
 7 United States v. Chicago G. W. 170 Fed. 551. 
 
 Ry. Co. 162 Fed. 775; Crawford v. The prosecution may use the record 
 
 New York Central & H. R. R. Co. of cars kept by the defendant to 
 
 10 Am. Neg. 166. show that the car was used on inter- 
 
 '- United States v. Pacific Coast state commerce. Louisville & N. R. 
 
 Ry. Co. (Appendix G). Co. v. United States, 186 Fed. 280. 
 
 ^^* United States v. Illinois Central Evidence of the condition of the 
 R. Co. 170 Fed. 542 (Appendix G). cars when last inspected, thirty-seven 
 An expert trainman may be asked at miles distant, before they arrived at 
 the trial concerning the condition of the station where the defects were 
 the car coupler and as to what was discovered and material slips of the 
 necessary in order to operate such workmen who repaired them were 
 coupler. The mode of operating auto- held competent evidence upon the 
 matic coupling mechanism and the issue in an action to recover a penalty, 
 effect of various conditions thereof is United States v. Rio Grande W. Ry. 
 the subject of expert testimony. Co. 174 Fed. 399. 
 Wabash R. Co. v. United States, 168 "Repeated and unsuccessful efforts 
 Fed. Rep. 1 (decided February 3, to make the lever operate are some 
 1909). See Chicago, etc., R. Co. v. evidence that it was not in a con- 
 King, 169 Fed. Rep. 272 (decided dition required by the statute." 
 February 3, 1909). Nichols v. Chesapeake & Ohio R. 
 
 If the answer does not deny that Co. 195 Fed. 913; Louisville & N.
 
 498 FEDERAL, SAFETY APPLIANCE ACT. 
 
 § 323. Expert testimony. — Experts may testify respecting 
 automatic couplers' operation and normal condition;* and a 
 brakeman of several years' experience may also testify that 
 a coupler when in ordinary repair could be closed with the 
 foot as well as the hand.^ But a witness cannot be asked 
 whether coupler in ordinary repair could be closed with the 
 foot as well as the hand; for it calls for a conclusion and 
 invades the province of the jury. Yet if the evidence shows 
 beyond contradiction that the coupler was not in a state of 
 ordinary repair, the error in permitting him to so testify 
 is not prejudicial.^ Whether openings in the buffer on the 
 ends of the cars afford the security intended by the act, so 
 as to constitute a substantial compliance therewith, is not 
 a proper subject for expert testimony, but is one for the 
 determination of the jury.^° 
 
 § 324. Defendant relying on exceptions in provisos of 
 acts. — If the defendant seeks to defend within the clauses 
 of any proviso of the act, it must set up such defense by an 
 answer ; and clearly bring itself within the terms of the 
 proviso before it can claim immunity." 
 
 § 325. Jury trial. — There is no law that authorizes a 
 trial by the court in an action to recover a penalty ; the case 
 must be tried by a jury ; and if a court should assume to try 
 a case, its judgment cannot be reviewed at the instance of 
 the government.^^^ 
 
 R. Co. V. Wilson, 188 Fed. 417; 110 affirmed 233 U. S. 42; 34 Sup. Ct. 581; 
 
 C. C. A. 217; Hunter v. Illinois 56 L. Ed. 828. 
 
 Central R. Co. 188 Fed. 045; 110 C. » Grand Trunk W. Ry. Co. v. Lind- 
 
 C. A. 459; Popplar v. Minneapolis, say, svpra. 
 
 St. P. & S. S. M. Ry. Co. 121 Minn. '" Spokane & I. E. R. Co. v. United 
 
 413; 141 N. W. 798. States, 210 Fed. 243; 127 C. C. A. 61. 
 
 Judicial notice is not taken that " United States v. Trinity & B. V. 
 
 a carrier is engaged in intenstate com- Ry. Co. 211 Fed. 448; United States 
 
 merce. Southern Ry. Co. v. R. R. v. Kansas City Southern Ry. Co. 202 
 
 Commission, 179 Ind. 23; 100 N. E. Fed. 828; 121 C. C. A. 136; Chicago, 
 
 337. B. k Q. R. Co. v. United States, 195 
 
 * Wabash R. Co. v. United States, Fed. 241; 115 C. C. A. 193; United 
 
 108 Fed. 1; 93 C. C. A. 393. States v. Kansas City Southern Ry. 
 
 8 Grand Trunk W. l{y. Co. v. Lind- Co. 189 Fed. 471. 
 
 Bay, 201 Fed. 830; 120 C. C. A. 106, "=■ United States v. Louisville &. 
 
 N. R. Co. 167 Fed. 306.
 
 ACTION TO RECOVER PENALTY. 
 
 499 
 
 § 326. Directing the verdict. — If the evidence produces 
 evidence clearly sustaining its declaration or petition, and 
 the defendant introduces none, then the government is 
 entitled to have the jury directed to return a verdict in 
 its behalf. ^^^ "If, in a civil action to recover a penalty, the 
 defendant is entitled, the evidence being undisputed, to 
 have a peremptory instruction in his behalf, it is difficult 
 to perceive why the government is not entitled to a per- 
 emptory instruction in its favor, where the undisputed tes- 
 timony left no facts for the jury to consider, but established, 
 beyond all question and as a matter of law, its right to 
 judgment for the prescribed penalty. "^'^ But it has been 
 
 ^-^ United States v. Atlantic Coast 
 Line R. Co. 182 Fed. 284; Chicago, B. 
 & Q. Ry. Co. V. United States, 220 
 U. S. 559; 31 Sup. Ct. 612; 55 L. Ed. 
 1204, affirming 170 Fed. 556; 95 C. C. 
 A. 642. 
 
 >=3Hepner v. United States, 213, 
 p. 114; 29 Sup. Ct., p. 499; 53 L. Ed. 
 720; 27 L. R. A. (N. S.) 739; 16 A. & 
 E. Ann. Cas. 960. 
 
 "This is a civil case; otherwise, 
 there would have been an indictment. 
 The reasoning of the Supreme Court 
 and its conclusion is controlling on my 
 action. The evidence here is singu- 
 larly clear, and absolutely uncon- 
 tradicted on the twenty counts, and 
 on the twenty counts the government 
 has made out its case — that the rail- 
 road company did in fact run out cars 
 upon which the safety equipment re- 
 quired by the act of Congress was 
 in such condition that it could not 
 have protected the operatives from 
 the danger of death and mutilation, 
 from which this benevolent law seeks 
 to protect them. It is also in evi- 
 dence, while the equipment was thus 
 ineffective, that the slightest effort to 
 repair the defects would have reme- 
 died them, and danger to life and 
 limb would have been avoided. If 
 the court neglects to enforce the great 
 purpose which moves the framers of 
 our laws to protect the people from 
 the negligence or indifference of those 
 in control of the powerful and danger- 
 
 ous engines of modern transporta- 
 tion, the benefits of those laws will be 
 lost to the public for the present 
 time, and possibly for the future. 
 But, if the courts and the juries do 
 their duty, the officers of the cor- 
 porations, when they find there is a 
 penalty which will be enforced, will 
 very soon begin to respect the law, 
 and hundreds of thousands who now 
 labor in peril, or languish as the result 
 of preventable wounds — the mashing 
 and grinding of bones of the well and 
 strong — will live out the normal 
 period of their lives. 
 
 "As I understand, there has been 
 a wonderful decrease in such mu- 
 tilations and in such deaths since this 
 law went into effect. The almost 
 incredible dangers to which we are 
 exposed may be realized when I tell 
 you that it. is stated that our country 
 suffers in loss of life and limb every 
 year as much as the Northern and 
 Southern armies lost in killed and 
 wounded on the bloody field of Gettys- 
 burg. Now what would be the effect 
 upon the minds of the people through- 
 out the land if they knew that in 
 the process of one business, that at 
 one place each year, would meet con- 
 tending forces that would put to 
 death at once as many people as were 
 killed and wounded at Gettysburg? 
 Why, men the world around would be 
 shocked in every fiber of our natures. 
 Yet such are the facts; those are the
 
 500 FEDERAL SAFETY APPLIANCE ACT. 
 
 held in the Seventh Circuit that the court has no power to 
 direct a verdict in favor of the government ;^-* but the reason 
 of the case does not commend itself. No reference is made 
 to the decision of the Supreme Court from which a quota- 
 tion is made above. 
 
 § 327. Amount of penalty. — A railroad company haul- 
 ing cars not equipped as the statute requires is liable to a 
 penalty of $100 for each car so hauled.^^ And for hauling 
 a train of cars not properly equipped with air brakes there 
 can be a recovery of a penalty of $100 for each car in the 
 train not equipped with air brakes.^* "The penalty recov- 
 ered is not money coming to the government as something 
 that is its own; nor money, a part of which is the govern- 
 ment's own, as in the violation of revenue statutes; nor 
 money coming to the government in the exercise of its 
 power patriae parens, for the protection of a class, but is the 
 punishment that the government, in its capacity as protector 
 of society, inflicts upon the carrier who has violated the 
 protection measure thus provided — the fine collected going 
 into the treasury of the government simply because it must 
 
 results these laws are intended to See also Proctor & Lohman v. 
 
 protect. It is a great law; it is a People, 24 111. App. 599; State v. 
 
 benign law; it is intended to protect as Kansas City, Ft. S. & M. R. Co. 70 
 
 fearless and as worthy, if sometimes Mo. App. 634; Hitchcock v. Munger, 
 
 careless class of our people, careless 15 N. H. 97, and People v. Briggs, 
 
 because they are always in the pres- 114 N. Y. 56; 20 N. E. 820. 
 
 ence of danger, as any nation can '-^ Atchison, T. & S. F. Ry. Co. 
 
 produce. The defendant will not be v. United States, 172 Fed. 194; 96 
 
 permitted here to whittle down these C. C. A. 646. 
 
 laws, or to defeat them by unneces- '^ United States v. Chicago, etc., 
 
 sary technicalities. R. Co. 162 Fed. Rep. 775; United 
 
 "These observations are perhaps States v. Atlantic Coast Line R. Co. 
 
 not essential to this case. They are (Appendix G); Atlantic Coast Line 
 
 merely the views of the court. What R. Co. v. United States, 168 Fed. Rep. 
 
 is essential, though, is that I direct 175 (decided March 1, 1909); St. 
 
 a verdict for the plaintiff for the full Louis S. W. Ily. Co. v. United States, 
 
 amount sued for." United States 183 Fed. 770; St. Louis S. W. Ry. 
 
 v. Atlantic Coast Line R. Co. 182 Co. v. United States, 183 Fed. 770; 
 
 Fed. 284. 106 C. C. A. 136; United States v. 
 
 This case is mentioned in Calves- St. Louis S. W. Ry. Co. 184 Fed. 28; 
 
 ton, H. & S. A. R. Co. 183 Fed. 579; 106 C. C. A. 230, contra. 
 
 105 C. C. A. 422, where a case was '* United States v. Chicago, etc., 
 
 affirmed in which a verdict had been R. Co. 162 Fed. Rep. 775. 
 directed.
 
 ACTION TO RECOVER PENALTY. 50I 
 
 go somewhere, and, as in other criminal cases, there is no 
 other appropriate place to direct it."^^^ 
 
 § 328. Penalty for failure to equip with grabirons. — The 
 statute of 1893 makes it an offense "to use any car in inter- 
 state commerce that is not provided with secure grabirons 
 or handholds in the ends and sides of each car for greater 
 safety to men in coupling and uncoupling ears." A penalty 
 is prescribed for "using any locomotive engine, running any 
 train, or hauling or permitting to be hauled or used on its 
 line any car in violation of any of the provisions" of the 
 statute. A railroad was charged by the government to 
 have hauled in a train on a certain day a car not provided 
 with a grabiron or handhold such as the law requires. The 
 question arose whether or not a stoppage of the car in the 
 journey constituted one or two oft'enses. Upon that point 
 the court charged the jury as follows: 
 
 "The government claims here that it has proved to you 
 by a preponderance of the evidence not only one violation 
 of the statute, but two. Now, on that point, gentlemen, 
 you will consider whether or not this car, in the first place, 
 was unprovided with grabirons or handholds, as it should 
 have been, and, in the second place, whether it was moved 
 by this railroad in more than one train. Let us suppose 
 that you have found that that car was on a given day not 
 properly provided with grabirons and handholds as the 
 statute requires. Let us suppose that that car was at the 
 time being moved in a train. Let us suppose that that train 
 stopped for some purpose, no matter what, for a while, and, 
 after having so stopped for a certain time, started up and 
 went on again. Now, in a supposed case like that, my in- 
 struction to you would be that there were not two viola- 
 tions of the law, but only one, because the car was all 
 the time being moved in the same train. I should instruct 
 you, gentlemen, that, so long as the car is being all the 
 
 14a Atchison, T. & S. F. Rv. Co. United States v. Chicago, R. I. & 
 V. United States, 172 Fed.* 194, P. Ry. Co. 173 Fed. 684.
 
 502 
 
 FEDERAL SAFETY APPLIANCE ACT. 
 
 time moved in the same train, it makes no difference that it 
 is being so moved on two different days; that so long as 
 the ear continues being moved by the railroad on the same 
 train it makes no difference that September 19th has run 
 out and September 20th has come in ; that that does not 
 make two distinct violations of the statute, but the move- 
 ment of the car being, though on those two different days, 
 all the time in one train, there has been one violation of the 
 statute. You ^vill consider upon the evidence to which you 
 have listened whether this car has been moved in more 
 than one train. If you so find, it will be proper, provided 
 you have been satisfied by a preponderance of the evidence 
 that it was being so moved without the grabirons and 
 handholds which the law requires, to find for the plaintiff 
 both on the first count and on the fifth count. If, on the other 
 hand, you are not satisfied by a preponderance of the 
 evidence that the car was moved in two trains, but was only 
 so moved in one, that both on September 19th and on Sep- 
 tember 20th the car was continued all the time in one 
 train, you should then find for the plaintiff only on one of 
 those counts, either the first or fifth, but you should not 
 find for the plaintiff on both of them.^^ In regard to what 
 makes the trains, by 'train' I understand one aggregation 
 of ears drawn by the same engine, and, if the engine is 
 changed, I understand there is a different train. "^'^ The 
 purpose of requiring grabirons or handholds to be placed at 
 the end of the cars is to afford greater security for em- 
 ployees when they are in the act of coupling or uncoupling 
 cars.^^ They must be placed at the ends and sides of all 
 cars to which the statute applies ;^^ and the maintenance of 
 
 " These two counts related to the state the engine, caboose and train 
 
 same unequipped car. crew were changed. United States v. 
 
 '8 United States v. Boston & M. Chicago Great Western Ry. Co. 162 
 
 R. Co. 1(J8 Fed. 148. Fed. 775. 
 
 It has been held that a freight " Dawson v. Chicago, R. I. & P. 
 
 train scheduled to run regularly be- Ry. Co. 114 Fed. 870. 
 
 tween points in different states is a '^ United States v. Chicago & N. 
 
 single train throughout such run and W. Ry. Co. 157 Fed. 610; United 
 
 at all times subject to the act, al- States v. Baltimore & Ohio R. Co. 
 
 though some of the cars composing bS4 Fed. 94; Soutliern ^Ry. Co. v. 
 
 it may have Ijeen left and others Railroad Commission, 179 Ind. 23; 
 
 tak(-n on at different stations, and 100 N. E. 337. 
 although after entering the second
 
 ACTION TO RECOVER PENALTY. 503 
 
 only one handhold on each side of the car is not a com- 
 pliance with the statute/'' The necessity of handholds on 
 passenger cars is not obviated by the presence thereon of 
 air, steara, or signal hose, coupling chains, handbrake shafts, 
 or other appliances affording some measure of security to 
 employees while coupling and uncoupling cars;-" nor is 
 their necessity on sides near the rear ends of tenders ob- 
 viated by the fact that uncoupling levers extend practically 
 across the rear ends of the cars, in such a position and of 
 such a character as to serve as handholds, unless it is shown 
 by the defendant that handholds, if applied, would not con- 
 tribute to the greater security of employees in coupling and 
 uncoupling cars.-^ The determination of what is and what 
 is not a handhold within the provisions of the statute is 
 within the province of the jury.^- The competency of open- 
 ings in the buffers on the ends of cars, as substitutes for 
 handholds, is a question for the jury, and not a proper sub- 
 ject for expert testimony, where they are subjected to the 
 personal inspection of the jury.-^ 
 
 § 329. Writ of error. — From an adverse judgment the 
 government may have a writ of error from the District 
 Court to the Circuit Court of Appeals.^^ But if the judge 
 of the District Court tries the case without a jury, his de- 
 cision cannot be reviewed at the instance of the government ; 
 for there is no law that authorizes him to try the case."^ 
 When damages for a personal injury are sought, the case 
 may be reviewed on appeal.-*' 
 
 "United States v. Wabash Ter- Co. 167 Fed. 306; Chicago, B. & 
 
 minal Ry. Co., Nov. 3, 1909 (unre- Q. R. Co. v. United States, 220 
 
 ported). U. S. 559; 31 Sup. Ct. 612; 55 L. Ed. 
 
 20 United States v. Norfolk & W. 582, affirming 170 Fed. 556; 95 C. C. 
 R. Co. 184 Fed. 99. A. 556; United States v. Baltimore & 
 
 21 United Stated v. Baltimore & O. S. W. Ry. Co. 159 Fed. 33, 38; 
 Ohio R. Co. 184 Fed. 94. 86 C. C. A. 233. Of course, the de- 
 
 -- United States v. Baltimore & fendant may also have the writ when 
 
 Ohio R. Co., January IS, 1909 (un- the judgm.ent is adverse to it. At- 
 
 reported) United States v. Atchison, lantic Coast Line R. Co. 168 Fed. 
 
 T. & S. Ry. Co., Dec. 27, 1909 (un- Rep. 175 (decided March 1, 1909). 
 
 reported) United States v. Spokane " United States v. Louisville & 
 
 & I. E. R. Co., Oct. 31, 1912 (un- N. R. Co. 167 Fed. 306. See Rogers 
 
 reported). v. United States, 141 U. S. 548; 12 
 
 « Spokane & I. E. R. Co. v. United Sup. Ct. 91 ; 35 L. Ed. 853. 
 
 States, 210 Fed. 243; 127 C. C. A. 61. ^^ Chicago Junction Ry. Co. v. 
 
 -' United States v. Illinois Central King, 222 U. S. 222; 32 Sup. Ct. 79; 
 
 R. Co. 170 Fed. 542 (Appendix G); 56 L. Ed. — , affirming 169 Fed. 372; 
 
 United States v. Louisville & N. R. 94 C. C. A. 652.
 
 rQ4 FEDERAL SAFETY APPLIANCE ACT. 
 
 § 330. Twice in jeopardy. — The constitutional prohibi- 
 tion that no one shall be twice put in jeopardy has no appli- 
 cation when applied to the assessment of a penalty under 
 this statute.^^ 
 
 " United States v. Illinois Central 
 R. Co. 170 Fed. 542.
 
 CHAPTER XX. 
 HOURS OF LABOR. 
 
 SECTION 
 
 331. Statutory provisions. 
 
 Constitutionality of statute. 
 
 Validity of state statute cover- 
 ing the subject of the Federal 
 statute. 
 
 Power of Interstate Commerce 
 Commission to require re- 
 ports — Validity of statute. 
 
 Remedial — Purpose of act. 
 
 Liability absolute — Permit — 
 Voluntary action on part of 
 employee. 
 
 Statute liberally constructed. 
 
 Analogous to other remedial 
 statutes. 
 
 Inability of carrier to compel 
 employees to rest. 
 
 Scope of act. 
 
 Employees subject to act. 
 
 "Other employees" as used 
 in proviso of section 2. 
 
 "On duty" and "off duty" as 
 defined by the act. 
 
 Casualty or unavoidable acci- 
 dent — Act of God. 
 
 Period of consecutive hours. 
 
 Hours of employment — Inspec- 
 tion of engine by engineer. 
 
 Deducting time lost by failure 
 of locomotive to get up 
 steam — Bad coal. 
 
 Deducting time lost by hot 
 boxes. 
 
 Time lost by sidetracking — 
 deducting. 
 
 Time train delayed cannot be 
 deducted from period of 
 time of service. 
 
 Delay in starting caused by 
 another train. 
 
 332. 
 333 
 
 334. 
 
 335. 
 336. 
 
 337. 
 338. 
 
 339. 
 
 340. 
 341. 
 342. 
 
 343. 
 
 344. 
 
 345. 
 346. 
 
 347. 
 
 348. 
 349. 
 350. 
 
 351. 
 
 SECTION 
 
 352. Commingling of intrastate and 
 
 interstate duties. 
 
 353. Fireman or other employee 
 
 engaged in watching engine. 
 
 354. "Consecutive" — "Continuous" 
 
 — Unbroken intervals of time. 
 
 355. Proviso to section 2 — Towers — 
 
 Places — Stations. 
 
 356. Orders. 
 
 357. Office "continuously operated" 
 
 or "operated only during 
 the daytime." 
 
 358. Period as used in statute. 
 
 359. Towermen and switchtenders 
 
 using telephones. 
 
 360. Operator at a local station. 
 
 361. Emergency — Week. 
 
 362. Proviso of section 3 — Casualty 
 
 — Unavoidable accident. 
 
 363. Terminal as used in act de- 
 
 fined. 
 
 364. Suspension of operation of 
 
 statute for a given trip. 
 
 365. Occurrence of conditions or- 
 
 dinarily to be expected. 
 386. Sudden illness of operator. 
 
 367. Economical reasons. 
 
 368. Action to recover penalty — 
 
 Civil action — Pleadings. 
 
 369. Defense. 
 
 369a. Injury to employee — Right of 
 action. 
 
 370. Liability to passengers for 
 
 delay. 
 
 371. Penalty, measure — Fixing. 
 
 372. Question for jury. 
 
 373. Reports to Interstate Com- 
 
 merce Commission. 
 
 § 331. Statutory provisions. — It is unlawful for any- 
 interstate commerce common carrier, its officers or agents 
 "to require or permit any employee subject to" the statute 
 on hours of labor for railroad men, "to be or remain on 
 duty for a longer period than sixteen consecutive hours," 
 and it is provided that "whenever any such employee of 
 such common carrier shall have been continuously on duty 
 for sixteen hours he shall be relieved and not required or 
 permitted again to go on duty imtil he has had at least ten 
 consecutive hours off duty; and no such employee who has 
 been on duty sixteen hours in the aggregate in any twenty- 
 four-hour period shall be required or permitted to continue 
 or again go on duty without having had at least eight con- 
 secutive hours off duty." In a proviso to this section, it 
 is provided that in the case of an "operator, train dis- 
 patcher, or other employee, who by the use of the telegraph 
 or telephone dispatches repeats, transmits, receives or de- 
 
 505
 
 506 FEDERAL SAFETY APPLIANCE ACT. 
 
 livers orders pertaining to or affecting train movements" 
 he cannot be "required or permitted to be or remain on 
 duty for a longer period than nine hours in any twenty- 
 four-hour period in all towers, offices, places and stations 
 continuously operated night and day, nor for a longer 
 period than thirteen hours in all towers, offices, places and 
 stations, operated only during the daytime, except one of 
 emergency." In case of such an emergency the employees 
 just named in the proviso "may be permitted to be and 
 remain on duty for four additional hours in a twenty-four- 
 hour period or not exceeding three days in any week."^ 
 The penalty cannot exceed five hundred dollars, to be 
 recovered in an action brought by the United States Dis- 
 trict Attorney of the district within one year from the date 
 of the violation. In all such prosecutions "the common 
 carrier shall be deemed to have had knowledge of all acts 
 of the officers and agents." "In case of any casualty or 
 unavoidable accident as the Act of God or where the delay 
 was the result of a cause not known to the carrier or its 
 officers or agent in charge of such employee at the time 
 said employee left a terminal, and which could not have 
 been foreseen" the statute does not apply. Nor does the 
 statute ' ' apply to the crews of wrecking or relief trains. ' ' ^ 
 
 § 332. Constitutionality of statute. — This statute has 
 been held to be constitutional.' "The fundamental ques- 
 tion here," said Justice Hughes, "is whether a restriction 
 upon the hours of labor of employees who are connected 
 with the movements of trains in interstate transportation is 
 comprehended within this sfihere of authorized legislation. 
 This question admits of but one answer. The length of 
 hours of service has direct relation to the efficiency of the 
 
 iSee Appendix F. 407: 117 N". W. fiSfi; "Baltimore & 
 
 2 Annondix: F ^- ^- C"- ^'- interstate Commerce 
 
 vppemux 1. Commission. 221 U. S. 012; 31 
 
 " LniU'd States v. Illinois Con- _^ ^, qto 04. t 
 
 X , T, r. lor. T^ 1 ,-yfv /-■! • Sup. Ct. 621; 55 L.Ed. 878; St. Louis, 
 
 tral R. (o. 180 I-od. UO; Cl.icafro, j ^^^ ^ g j^ ^o. v. McWhirter, 
 
 M. & St. Paul Ry. Co. 136 Wis. 145 Ky. 427; 140 S. W. 672.
 
 HOURS OF LABOR. 507 
 
 human agencies upon which protection to life and property 
 necessarily depends. This has been repeatedly emphasized 
 in official reports of the Interstate Commerce Commission, 
 and is a matter so plain as to require no elaboration. In 
 its power suitably to provide for the safety of employees 
 and travelers. Congress was not limited to the enactment 
 of laws relating to mechanical appliances, but it was also 
 competent to consider, and to endeavor to reduce, the 
 dangers incident to the strain of excessive hours of duty 
 on the part of engineers, conductors, train dispatchers, teleg- 
 raphers, and other persons embraced within the clause 
 defined by the act. And in imposing restrictions having 
 reasonable relation to this end there is no interference with 
 liberty of contract as guaranteed by the Constitution.* If, 
 then, it be assumed, as it must be, that, in the furtherance 
 of its purpose. Congress can limit the hours of labor of 
 employees engaged in interstate transportation, it follows 
 that this power cannot be defeated either by prolonging 
 the period of service through other requirements of the 
 carriers, or by the commanding of duties relating to inter- 
 state and intrastate operations. ' ' ^ Nor is the statute void 
 because of the fact that many of the interstate employees 
 are also employed in intrastate transportation. '^ Nor do 
 the words "except in case of emergency" in the proviso 
 to section two make the application of the act so 
 uncertain as to destroy its validity, even though the proviso 
 in section three, limiting the effect of the entire act, can 
 be said to include everything which may be embraced within 
 the term "emergency." "It is said that the words 'except 
 in case of emergency' make the application of the act so 
 
 4 Citing Chicago, B. & Q. E. Co. See also Black v. Charleston & W. 
 
 V. McGuire, 219 U. S. 549; 31 Sup. Si^^^; ^o- ^^ ^' <?' '^,'^^' ^^ ^'r^' 
 
 Ct. 259; 55 L. Ed. 328. ^30; Kansas City Soutnern Ry. Co. 
 
 - T> li.- n, -D rt T i. V. Quiglev, 181 Fed. 190. 
 
 o Baltimore & 0. R Co. v. Inter- e^Baltiniore & O. R. Co. v. Inter- 
 state Commerce Commission, 221 gt^te Commerce Commission, supra. 
 U. S. 612: 31 Sup. Ct. 621, 55 L. 
 Ed. 878; United States v. Kansas 
 City Southern Ry. Co. Appendix G.
 
 508 FEDERAL SAFETY APPLIANCE ACT. 
 
 uncertain as to destroy its validity," continues Justice 
 Hughes. "But this argument in substance denies to the 
 legislature the power to use a generic description, and, if 
 pressed to its logical conclusion, would practically nullify 
 the legislative authority by making it essential that legis- 
 lation should define, without use of generic terms, all the 
 specific instances to be brought within it. In a legal sense 
 there is no uncertainty. Congress, by an appropriate de- 
 scription of an exceptional class, has established a standard 
 with respect to which cases that arise must be adjudged. 
 Nor does the contention gather strength from the broad 
 scope of the proviso in section three, for if the latter, in 
 limiting the effect of the entire act, could be said to include 
 everything that may be embraced wnthin the term of 
 'emergency,' as used in section two, this would be merely a 
 duplication w^hieh would not invalidate the act."^ The 
 classification of operators in the act is not unconstitutional.'* 
 
 § 333. Validity of state statute covering the subject of 
 the Federal statute. — Because Congress has enacted a law 
 upon the subject limiting the number of hours a train crew 
 may be kept at Avork, or other employee, it does not follow 
 that a state may not also prescribe rules on the same subject. 
 Thus a statute of New York provided that any corporation 
 operating a line of railroad "in whole or in part" in that 
 state should not "require or permit any telegraph or tele- 
 phone operator who spaces trains by the use of the tele- 
 graph or telephone under what is kno\ATi and termed as 
 the 'block system,' " and certain other persons engaged in 
 the management of trains, "to be on duty more than eight 
 hours in a day of twenty-four hours ; ' ' and it was ' ' declared 
 that eight hours shall constitute a day of employment for all 
 laborers or employees engaged in that kind of labor" above 
 stated. An exception was made in these "cases of extraordi- 
 nary emergency caused by accident, fire, flood, or danger 
 
 ' Baltimore & O. R. Co. v. Inter- '• United States v. St. Louis S. W. 
 
 Btate Commerce Comini.ssion, xupra. Ry. Co. 189 Fed. 954. 
 
 The act i.s not invalid on account The Pennsylvania statute is valid, 
 
 of ambiguity. United States v. St. Commonwealth v. Casey, 43 Pa. 
 
 Loui.s S. \V. Ry. Co. 1.S9 Fed. 9.")4. Super. Ct. 494.
 
 H0UB6 OP LABOR. 509 
 
 to life or property." It was limited in its application to 
 those parts of a railroad where more than eight regular 
 passenger trains in twenty-four hours pass each way, but 
 not "where twenty freight trains pass each way generally 
 in twenty-four hours notwithstanding that there may pass 
 a less number of passenger trains than eight passenger 
 trains daily." This statute was attacked upon the ground 
 that the legislature had no power to place such a limitation 
 on the right of a railroad to keep its employees on duty ; but 
 the court held that the argument in favor of the attack 
 was untenable. The court said: "The doctrines that the 
 legislature under proper circumstances and within reason- 
 able limits may exercise its police power in the regulation 
 of hours and conditions of labor is now thoroughly and 
 broadly established. One familiar form of this class of legis- 
 lation is that which has for its object the promotion of the 
 health and welfare of the employee as especially in the case 
 of women and children. Another class seeks to protect the 
 safety of the public by limiting the hours of labor of those 
 who are in control of dangerous agencies but by excessive 
 periods of duty they become fatigued and indifferent and 
 cause accidents leading to injuries and destruction of life. 
 This statute comes within the latter class." A second 
 attack on the validity of the statute was that the employee 
 to whom it applied "being in part engaged in forwarding 
 interstate commerce, Congress had the superior power to 
 regulate his hours of labor, and that it had done this by 
 legislation which barred or superseded the state legisla- 
 tion." The court also held this attack not well taken, say- 
 ing that "within the authority of those cases,® and of what 
 
 8 Gulf, etc., Ry. Co. v. Hefley, Sinnot v. Davenport, 22 How. 227 
 
 158 U. S. 98; 15 Sup. Ct. 802; 39 16 L. Ed. 243; Smith v. Alabama 
 
 L. Ed. ; Missouri, K. & T. Ry. 124 U. S. 465; 8 iSup. Ct. 564 
 
 Co. V. Haber, 169 U. S. 613; IS 31 L. Ed. 508; affirming 76 Ala 
 
 Sup. Ct. 488; 42 L. Ed. 878; af- 69; Hennington v. Georgia, 163 U, 
 
 firming 56 Kan. 694; 44 Pac. 632; S. 299: 16 Sup. Ct. 1086; 41 L, 
 
 Eeid V. Colorado, 187 U. S. 137; Ed. 166-. affirming 90 Ga. 396 
 
 23 Sup. Ct. 92; 47 L. Ed 108; 17 S. E. 1009 j Gladson v. Minne
 
 510 FEDERAL SAFETY APPLIANCE ACT. 
 
 was said in deciding tliem, it may be held that where Con- 
 gress has prescribed a general minimum limit of safety ap- 
 plicable to average conditions throughout the country in the 
 movement of interstate traffic, a state statute does not tres- 
 pass upon forbidden territory and become obnoxious be- 
 cause, in response to special conditions within its limits, it 
 has raised such limit of safety. There is no conflict; the 
 state has simply supplemented the action of the Federal 
 authorities. It is the same as if Congress had enacted that 
 the class of employees named might be employed for nine 
 hours or less, and the state had then fixed the lesser num- 
 ber, which was left open by the Federal statute. The form 
 of the latter fixing the outside limit, but not expressly legal- 
 izing employment up to that limit, fairly seems to have 
 invited and to have left the subject open for supplemental 
 state legislation if necessary. Such is the view which this 
 court has taken on another occasion in the decision of a 
 question quite identical with that here presented."^ But 
 there are a number of decisions which hold state legisla- 
 tion on the subject of the number of hours that employees 
 may be kept at work unconstitutional.'^" 
 
 § 334. Power of Interstate Commerce Commission to re- 
 quire reports — Validity of statute. — By section four of this 
 Act it is made the duty of the Interstate Commerce Com- 
 mission to enforce the provisions of this statute, and all 
 powers granted to such Commission are ''extended to it in 
 
 sota, IGG U. S. 427; 17 Sup. Ct. 686; 19 L. R. A. (N. S.) 326; 
 
 627; 41 L. Ed. 1004; aHirmincir 57 State v. Missouri Pacific Rv. Co. 
 
 l\Iinn. 385; 59 N. W. 487; 24 L. 222 Mo. 658: HI S. W. 500;' State 
 
 R. A. 502. V. Texas & N. O. R. Co. (Tex. Civ. 
 
 9 People V. Erie R. Co. 108 X. App.) 124 S. W. 984; Northern 
 
 Y. 369; 91 N. E. 840; 20 L. R. A. Pac. R. Co. v. State, 32 U. S. Sup. 
 
 (N. S.)' 240; reversing 135 N. Y. Ct. Rep. 160. See State v. North- 
 
 App. Div. 767; 119 N. Y. Supp. ern Pacific Rv. Co. 36 Mont. 582; 
 
 873; Llovd v. North Carolina R. 93 Pac. 945;' 15 L. R. A. (N. S.) 
 
 Co. 151 N. C. 536; 66 S. E. 604; 134; and State v. Northern Pacific 
 
 Railroad Com. v. Texas & P. Rv. R. Co. 53 Wash. 673; 102 Pac. 
 
 Co. (Tex. Civ. App.) 140 S. W. 876, as to lepishition after tlio act 
 
 829; State v. Wabash R. Co. (Mo.) of Cnnffress was enacted and before 
 
 141 S. W. 646. it applied to interstate railway 
 
 if> State v. Chicapo. M. & St. P. companies. 
 Ry. Co. 136 Wis. 407; 117 N. W.
 
 HOURS OF LABOR. 511 
 
 the execution" of the act. Section twenty of the Interstate 
 Commerce Commission Act was amended in 1910,^^ so as to 
 enable it "by general or special orders to require said 
 carriers, or any of them, to file monthly reports of earnings 
 and expenses, and to file periodical or special, or both 
 periodical and special, reports concerning any matters about 
 which the Commission is authorized or required by this or 
 any other law to inquire or keep itself informed, or which 
 it is required to enforce. "^^ Under these two statutes the 
 Commission can by order require reports to be made con- 
 cerning the hours employees are required to perform service. 
 "To enable the Commission properly to perform its duty 
 to enforce the law, it is necessary that it should have full 
 information as to the hours of service exacted of the em- 
 ployees who are subject to the provisions of the statute, 
 and the requirements to which we have referred are appro- 
 priate for that purpose, and are comprehended within the 
 power of the Commission." * * * Nor is the statute 
 void with * * * respect to those reports on the ground 
 that it is contrary to the Fourth Amendment of the Con- 
 stitution with reference to unreasonable search and sei- 
 zure ; nor can the railway company plead a privilege against 
 self -crimination under the Fifth Amendment.^^ "With re- 
 spect to the officers," said the court, "it would be sufficient 
 to say that the privilege guaranteed to them by this amend- 
 ment is a personal one, which cannot be asserted on their 
 behalf by the corporation. But the transactions to which 
 the required reports relate are corporate transactions, sub- 
 ject to the regulating power of Congress. And, with regard 
 to the keeping of suitable records of corporate administra- 
 tion, and the making of reports of corporate action, 
 
 1136 Stat, at L., c. 309, p. 556. Fed. 496; Hammond Packing Co. 
 
 12 These reports must be under v. Arkansas, (212 U. S. pp. 348, 
 oath "whenever the Commission so 34D; 29 Sup. Ct. 370; 53 L. Ed. 
 requires." 543, 544; Wilson v. United States, 
 
 13 Citing Hale v. Henkel, 201 U. 220 U. 'S. 614; 31 Sup. Ct. 538; 
 S. pp. 74, 75, 665, 666; 26 Sup. Ct. 55 L. Ed. 610. 
 
 370; 50 L. Ed. 652; affirming 139
 
 522 FEDERAL SAFETY APPLIANCE ACT. 
 
 ■where these are ordered by the Commission, the officers 
 of the corporation, by virtue of the assumption of their 
 duties as such, are bound by the corporate obligation, and 
 cannot claim a personal privilege to the requirement."^* 
 The penalty for failure to report is $100 per day for each 
 and every day the carrier has made default.^ 
 
 § 335. Remedial — Purpose of act. — The act is remedial,^ 
 its purpose being to promote the safety of employees and 
 the traveling public by prohibiting hours of service wliich 
 presumably result in impaired efficiency for discharging 
 their important duties.^ "It was passed to meet a condi- 
 tion of danger incidental to the working of railroad em- 
 ployees so excessively as to impair their strength and alert- 
 ness."'* In another case it was said: "In this legislation 
 Congress had in view the many serious railroad accidents 
 caused by the unfitness for duty of men engaged in or hav- 
 ing to do with the movement of trains, who had endured 
 excessive periods of continuous, unbroken service without 
 intervals for rest. The remedy adopted was by limiting 
 the maximum of the hours of service and the minimum for 
 the intervals betvreen. It was futile to attempt to control 
 the employees in their use of their off time ; therefore, as 
 being more practical and efficient, the command was laid 
 upon and confined to those who gave them employment in 
 their regular occupations."^ 
 
 " Baltimore & Ohio R. Co. v. United States v. Southern Pacific Co. 
 
 Interstate Commerce Commission, 209 Fed. 5G2; United States v. At- 
 
 221 U. S. 612; 31 Sup. Ct. 621; 55 Ian tic Coast Line R. Co. 211 Fed. 
 
 L. Ed. 878. 897; 127 C. C. A. 123; San Pedro, C. A. 
 
 ' United States v. Yazoo & M. V. & S. L. R. Co. v. United States, 213 
 
 R. Co. 203 Fed. 159. In this case Fed. 326. 
 
 it is said no matter in mitigation as a ^ United States v. Atlantic Coast 
 
 ground for reducing the penalty can Lino R. Co. 211 Fed. 897; 127 C. C. A. 
 
 be considered. 123. 
 
 ^ United States v. Kansas City "' United States v. Kansas Citj' 
 
 Southern Ry. Co. 189 Fed. 471; Southern Ry. Co. 202 Fed. 828; 121 
 
 United States v. Chicago, M. & P. C. C. A. 130. 
 
 S. Ry. Co. 197 Fed. 624; United ^ San Pedro, L. A. & S. L. R. Co. 
 
 States V. Kansas City Southern Ry. 213 Fed. 326; United States v. Chi- 
 
 Co. 202 Fed. 562; 121 C. C. A. 13(3; cago, M. & C. S. Ry. Co. 197 Fed. 
 
 United States v. Great Northern Ry. 624; LTnited States v. Yazoo & INI. 
 
 Co. 200 Fed. 838; United States v. V. R. Co. 203 Fed. 159; United States 
 
 Missouri Pacific Ry. Co. 203 Fed. 847; v. r,Iissouri, K. & T. Ry. Co. 208 Fed.
 
 HOURS OF LABOR. 513 
 
 § 336. Liability absolute — Permit — Voluntary action on 
 part of employee. — The statute in fixing the liability of the 
 carrier does not use the words "knowingly" or "wiIfull3^" 
 It "is made liable if it requires or permits any employee to 
 be or remains on duty in violation of stated provisions." 
 Cases under the statute fall "within that class where pur- 
 posely doing a thing prohibited by statute may amount to 
 an offense, although the act does not involve turpitude or 
 moral wrong."" Reasonable diligence or due care on the 
 carrier's part is no excuse; for the statute imposes positive 
 and absolute duties upon it.'^ Neither the lack of actual con- 
 temporaneous knowledge on the part of a carrier that the 
 act is being violated, nor its previous instructions to the 
 contrary, is a defense to a prosecution under the act.^ The 
 exercise of discretion on the part of the employee, in con- 
 tinuing on duty in excess of sixteen hours, under the as- 
 sumption that he can reach a terminal within the statutory 
 period, does not supersede the mandate of the law.^ The 
 word "permit," as used in the act, means a "failure to 
 prohibit by one who has the power and authority to do so."^° 
 The carrier is chargeable with "knowledge of all acts of all 
 its officers and agents. "^^ The expression "all the officers 
 and agents" as used in the act, is not restricted to the car- 
 rier's general officers and agents; and in this respect the act 
 is more than declaratory of the common law.^- 
 
 § 337. Statute liberally construed. — This statute is lib- 
 erally construed. "The act being remedial, for the pur- 
 
 957; St. Louis, I. jNI. & S. Ry. Co. Ed. 1179; United States v. Chicago, 
 
 V. McWhirter, 145 Ky. 427; 140 S. M. & P. S. Ry. Co. 195 Fed. 783; 
 
 W. 672. United States v. Yazoo & M. V. R. 
 
 « United States v. Kansas City Co. 203 Fed. 159. 
 
 Southern Ry. Co. 202 Fed. 828; 121 « United States v. Oregon-W. R. 
 
 C. C. A. 136; United States v. Oregon- & N. Co. 213 Fed. 688. 
 
 W. R. & Nav. Cc. 218 Fed. 925. « United States v. Kansas Citv 
 
 'United States v. Oregon-V/. R. & Southern Ry. Co. 202 Fed. 828; 121 
 
 N. Co. 213 Fed. 688; United States CCA. 136. 
 
 V. Kansas City Southern Ry. Co. " United St.ates v. Oregon-W. R. 
 
 202 Fed. 828; 121 C C A. 136; & N. Co. 213 Fed. 688. 
 
 St. Louis, I. M. & S. Rv. Co. v. 'i 34 Stat, at L. 1415. § 3. 
 
 jMcWhirter, 145 Ky. 427; 140 S. W. '- United States v. Oregon-W. R. 
 
 672, reversed (but not on this point) & N. Co. 213 Fed. 688. 
 229 U. S. 265; 33 Sup. Ct. 858; 57 L.
 
 514 FEDERAL SAFETY APPLIANCE ACT. 
 
 pose of preventing accidents to trains and consequent in- 
 juries to passengers and employees, it is the duty of the 
 court to construe it liberally in order to accomplish the 
 purpose of its enactment/^ Experience has shown that 
 many serious accidents to trains, causing great loss of life 
 or permanent disabilities to passengers, as well as em- 
 ployees, are often due solely to the fact that members of the 
 train crew had become exhausted by reason of being re- 
 quired or permitted to remain on duty for too long a period, 
 and therefore unable to give the care and attention neces- 
 sary for the safety of the train. To prevent accidents from 
 such causes, the Congress in its wisdom enacted this statute 
 prohibiting railroads not only from requiring any employee 
 subject to the act to remain on duty for a longer period 
 than sixteen consecutive hours, but also 'permitting' it,"^*^ 
 
 § 338. Analogous to other remedial statutes. — The act is 
 
 analogous to the Safety Appliance Acts/ but is distinguish- 
 able from the Employers' Liability Acts,- and from the 
 twenty-eight hour law.^ 
 
 § 339. Inability of carriers to compel employees to rest. 
 
 — The inability of carriers to compel its employees to rest 
 during their intermissions from actual service is so remote 
 a contingency as not to merit consideration.* 
 
 § 340. Scope of act. — The provisions of the act apply to 
 all common carriers by railroad in the District of Columbia, 
 or in any territory of the United States, or engaged in the 
 movement of interstate or foreign traffic, and to all em- 
 ployees of such common carriers who are engaged in or 
 
 '* Citing Johnson v. Southern Pa- ^ Baltimore & Ohio R. Co. v. Inter- 
 
 cific Co. 196 U. S. 1; 25 Sup. Ct. state Commerce Commission, 221 
 
 158; 49 L. Ed. 363. U. S. 612; 31 Sup. Ct. 621; 55 L. 
 
 '8 United States v. Kansas City Ed. 878. 
 
 Southern Ry. Co. 202 Fed. 828; 121 ^ United States v. Kansas City 
 
 C. C. A. 1.36; United States v. Kansas Southern Ry. Co. 202 Fed. 828; 121 
 
 City Southern Ry. Co. 189 Fed. 471; C. C. A. 136. 
 
 United States v. St. Louis S. W. Ry. * United States v. Great Northern 
 
 Co. 1S9 Fed. 959. Ry. Co. 206 Fed. 838; San Pedro, L. 
 
 ' United States v. Kansas City A. & S. L. R. Co. v. United States, 
 
 Southern Ry. Co. 202 Fed. 828; 213 Fed. 326. 
 121 C. C. A. 136.
 
 HOURS OF LABOR. 5]^5 
 
 connected with the movement of any train carrying traffic 
 in such district or territory, or carrying interstate or for- 
 eign traffic. It applies also to all railroads subject to the 
 provisions of the act to regulate commerce, including street 
 railroads when engaged in interstate commerce. The stat- 
 ute declares that the term "railroad" "shall include all 
 bridges or ferries used or operated in connection with any 
 railroad, and also all the road used by any common carrier 
 operating a railroad, whether owned or operated under a 
 contract, agreement, or lease. "^ It includes a receiver op- 
 erating a railroad." 
 
 § 341. Employees subject to act. — The term * ' employees ' * 
 "as used in this act shall be held to mean persons actually 
 engaged in or connected with the movement of any train. "^ 
 It will thus be seen that the act does not specify the classes 
 of employees that are subject to its provisions. All em- 
 ployees engaged in or connected with the movement of any 
 train are within the scope of the act.^ An employee, working 
 about feed yards in helping to unload, care for and reload 
 stock which in course of shipment is unloaded for food, water 
 and rest, is not within the act, though injured while riding 
 on a switch engine from one part of the yards to another.** 
 
 §342. "Other employee" as used in proviso of section 
 two. — The proviso to section two provides "that no operator, 
 dispatcher, or other employee who by the use of the tele- 
 graph or telephone dispatches, reports, transmits, receives, 
 or delivers orders pertaining to or affecting train move- 
 ments shall be required or permitted to be or remain on 
 duty for a longer period than nine hours in any twenty-four 
 
 534 Stat, at L. 1415, § 1. P. Ry. Co. 205 Fed. 96; Baltimore & 
 
 ^ United States v. Ramsey, 19 Fed. Ohio R. Co. v. Interstate Commerce 
 
 144; 116 C. C. A. 568. Commission, 221 U. S. 612; 31 Sup. 
 
 ' 34 Stat, at L. 1415, § 1. Ct. 621; 55 L. Ed. 878. (Employees 
 
 ^ United States v. Missouri Pacific "are those engaged in the trans- 
 
 Ry. Co. 206 Fed. 847; United States portation of passengers or property 
 
 V. Atchison, T. & S. F. Ry. Co. 177 by railroad.") 
 
 Fed. 115; San Pedro, L. A. & S. L. « Schweig v. Chicago, M. & St. P. 
 
 Ry. Co. V. United States, 213 Fed. Ry. Co. 216 Fed. 750. 
 
 326; Schweig v. Chicago, M. & St.
 
 516 FEDERAL SAFETY APPLIANCE ACT. 
 
 hour period in all towers, offices, places and stations con- 
 tinuously operated night and day," and the question is who 
 is meant by the words "other employee." The construction 
 placed upon these words is that they "mean an employee 
 engaged in the same character of service as a train dis- 
 patcher or operator, who by the use of the telegraph or tele- 
 phone performs the work described" in this proviso. "In 
 other words. Congress intended the nine-hour provision to 
 apply to employees whose primary duty was to dispatch, 
 report, transmit, receive, or deliver orders pertaining to or 
 affecting train movements. "^° 
 
 § 343. "On duty" and "off duty" as defined by the act. 
 
 — "The requirement for ten consecutive hours off duty ap- 
 plies only to such employees as have been on duty for sixteen 
 consecutive hours. The requirement for eight consecu- 
 tive hours off duty applies only to employees who have not 
 been on duty sixteen consecutive hours, but who have been 
 on duty sixteen hours in the aggregate out of a twenty-four- 
 hour period. Such twenty-four-hour period begins at the 
 time the employee first goes on duty after having had at 
 least eight consecutive hours off duty. The term 'on duty' 
 includes all the time during which the employee is perform- 
 ing service, or is held responsible for performance of service. 
 An employee goes on duty at the time he begins to perform 
 service or at which he is required to be in readiness to per- 
 form service, and goes 'off duty' at the time he is relieved 
 from service and from responsibility for performance of 
 service. "^^ Within the meaning of the law, an employee 
 goes on duty at the time he reports for work, as required 
 by the rules of the railway company, and begins the work 
 of looking after his train and seeing that it is in proper 
 condition for road service. He remains on duty while he is 
 in t;liarge of his Irjiin, pciforining service in and about the 
 same, 01- held I'csponsible for the performance of such serv- 
 
 '" Missouri Pacific Ry. Co. v. however, United States v. Houston, 
 United States, 211 Fed. 893. See, B. <t T. Ry. Co. 205 Fed. 344. 
 
 " Administrative Ruling No. 287-b.
 
 HOURS OF LABOR. 
 
 517 
 
 ice should the occasion therefor arise. He is not off duty 
 until he is relieved from all responsibility as to his train and 
 becomes his own free agent to go and do as he pleases. Brief 
 interruptions, such as time necessary for meals while on the 
 road, meeting trains, waiting for orders, delays on account 
 of congestion of traffic, cannot be considered as time off 
 duty, although during such detention no active service what- 
 ever may be required of him. After the employee in train 
 service starts on his trip, it cannot be said that he is off duty, 
 within the meaning of the statute, until he reaches the end 
 of his run, unless, before reaching his destination, he is 
 released from all service in connection with his train, or 
 from all responsibility therefor should the occasion arise, 
 and is given an unqualified bona fide release, and for a defi- 
 nite and substantial period.^^ But employees "dead head- 
 ing" on trains and not required to perform, and not held 
 responsible for the performance of, any duty or service in 
 connection with the movement of the train upon which they 
 are dead heading, are not, while so dead heading, "on duty" 
 as that phrase is used in the statute.^^ 
 
 § 344. Casualty or unavoidable accident — Act of God. — 
 
 The proviso of the third section of this statute provides 
 that the provisions of the statute "shall not apply in any 
 case of casualty or unavoidable accident or the act of God; 
 nor where the delay was the result of a cause not known 
 to the carrier or to officer or agent in charge of such em- 
 ployee at the time said employee left a terminal, and which 
 could not have been foreseen." The provisions of the act 
 do "not apply to the crews of wrecking or relief trains." 
 
 " United States v. Chicago, M. & appear to have been intelligently 
 
 P. S. Ry. Co. 197 Fed. 624; United chosen and used in the composition 
 
 States V. Denver & R. G. R. Co. 197 of the statute to bar all excuses for 
 
 Fed. 629; United States v. Illinois noncompliance with its requirements 
 
 Central R. Co. 180 Fed. 630. by any pretext of misunderstanding 
 
 "An employee is on duty when he its meaning." United States v. 
 
 is at his post in obedience to rules or Chicago, M. & P. S. Ry. Co. 195 Fed. 
 
 requirements of his superior and 783. 
 
 ready and willing to work, whether ^^ Osborne v. Cincinnati, N. O. & 
 
 actually at work or waiting for orders T. P. Ry. Co. 15S Ky. 176; 16-4 S. W. 
 
 or for the removal of hindrances for 818. 
 any cause. The words 'on duty'
 
 518 FEDERAL SAFETY APPLIANCE ACT. 
 
 If it desires to avail itself of the provisions of this pro- 
 viso, a defendant railway company must bring itself strictly 
 within the latter as well as its reason of such provisions in 
 order to escape the penalty provided in the act. An act of 
 God is something which occurs exclusively by the violence 
 of nature, at least an act of nature which implies an entire 
 exclusion of all human agencies. Such would be a landslide 
 blocking a railway track, extraordinary floods, storms of 
 unusual violence, sudden tempests, severe frosts, great 
 droughts, lightnings, earthquakes, sudden deaths, and ill- 
 nesses ; but not a rain not of unusual violence and its probable 
 results in softening the superficial earth. It is an act in 
 which no man has an agency whatever. It must be such 
 as a person of reasonable prudence and foresight could not 
 have guarded against. A casualty is an act which proceeds 
 from an unknown cause or is an unusual effect of a known 
 cause. Some of the authorities hold that an ''unavoidable 
 accident" is synonymous with "act of God," but the better 
 definition is that it must be an inevitable accident which 
 could not have been foreseen and prevented by the exercise 
 of that degree of diligence which reasonable men would 
 exercise under like conditions and without any fault at- 
 tributable to the party sought to be held responsible. It is 
 one that occurs without any apparent cause and without 
 any fault attributable to anyone. If it is attributable to the 
 negligence of any person, it is not an unavoidable accident. 
 It must be an accident which cannot be anticipated or 
 avoided by the exercise of due diligence and foresight.^^ 
 
 17 United States v. Kansas City crn Car Co. 139 U. S 79; 11 
 Southern Ry. Co. 189 Fed. 471, cit- Sup. Ct. 490; 35 L. Ed. 97; Clyde 
 ing Gleason v. V. M. R. Co. 140 v. R. & D. R. Oo. 59 Fed. 394; 
 U. S. 435; 1 4Sup. Ct. 859; 35 L. Fish v. Clapman, 2 Ga. 349; Dick- 
 Ed. 458; The Majestic, l&G U. S. son v. United States, 1 Brock — ; 
 375; 17 Sup. Ct. 597; 41 L. Ed. Newport News & N. V. Co. v. 
 1039; Harrison V. Hughes 125 Fed. United States, 61 Fed. 488; 9 C. 
 8f;0; 00 C. C. A. 442; J'.iillnck v. C. A. 579; United States v. .South- 
 White Star ^Steamship Co. 30 ern Pac-ific Co. 157 Fed. 459; 
 Wash. 448; 70 V-dt: 1106; Chi- United States v. Atchison, T. & S. 
 cago, etc., R. Co. V. Pullman South- F. Ry. Co. 160 Fed. 160; United
 
 HOUltS OF LABOR. 519 
 
 § 345. Period of consecutive hours. — The number of 
 hours in twenty-four hours during which an employee may 
 be required to work need not be consecutive hours ; but may 
 be divided into two or more periods, so long as their totality 
 does not exceed a prohibitive number in any twenty-four 
 hours. Thus where a telegraph operator dispatching, 
 reporting, transmitting, receiving and delivering orders per- 
 taining to or affecting train movements in interstate com- 
 merce was required to be on duty in an office, continuously 
 operated day and night from 6 :30 o 'clock a. m. until 12 :00 
 o 'clock noon, and then from 3 :00 o 'clock p. m. until 6 :30 
 p. m., making in all nine hours actual service, but twelve 
 hours from the beginning until the end thereof, it was held 
 that the railway company had not violated the statute. In 
 passing on the case the court said: "The contention of the 
 Government is, that while in neither of the cases above men- 
 tioned was the operator required or permitted to remain 
 on duty for more than nine hours in any twenty-four in the 
 aggregate, such service, within the contemplation of the 
 statute either is to be divided into 'two periods,' separated 
 by the intermission (for which the statute makes no provi- 
 sion), or is to be considered as 'one period,' including the 
 intermission, which would make it a period of twelve hours. 
 But manifestly, Congress did not intend that an intermis- 
 sion of three hours, in the middle of the day, should be 
 computed as a part of the employee's service ; for the statute 
 
 States V. Union Pacific R. Co. 160 It is error to charge the jury 
 
 Fed. 65; 95 C. C. A. 433; United under the Ohio statute that, if 
 
 States V. Atlantic Coast Line R. the train was delayed by an acci- 
 
 Oo. 173 Fed. 764; OS C. C. A. 110; dent, the statute has no application 
 
 The Olympia, 61 Fed. 120; 9 C. C. iinless the railroad company know- 
 
 A 393 ; Welles v. Clastles, 69 ing that the crew had been on duty 
 
 Mass. 325; Dreyer v. People, more than fifteen consecutive hours 
 
 188 111. 40; 58 N. E, 620; Smith could have reasonably provided in 
 
 V. Southern Ry. Co. 129 N. C. tlie proper operation of the train 
 
 374; 40 S. E. 86; Tays v. Echer, other servants competent to re- 
 
 6 Tex. Civ. App. 188; 24 S. W. lieve the crew. Baltimore & 0. 
 
 954; Crystal Springs Dist. Co. v. Ry. Co. v. Collins, 30 Ohio Civ. 
 
 Cox, 49 Fed. 556; 1 C. C. A. 365; Ct. App. 110. 
 Black v. Charleston & W. C. Ry. Co. 
 87 S. C. 241; 69 S. E. 230.
 
 520 FEDERAL, SAFETY APPLIANCE ACT. 
 
 was enacted in view of the customs of the land, and the 
 customs of the land do not include such intermissions as a 
 part of the working hours of employees. The position of 
 the Government is therefore reduced to its contention re- 
 specting the word 'period,' — that 'period' is 'a term,' *a 
 cycle,' something 'continuous' between a definite begin- 
 ning and a definite end — whereby, invoking the canon of 
 strict construction in criminal statutes, the period was a 
 period of twelve hours, notwithstanding the intermission. 
 "We cannot concur in this view. The statute was passed 
 with custom as a background. According to custom, nine 
 hours' work unquestionably means nine hours' actual em- 
 ployment, "whether broken by an intermission for lunch or 
 on account of some other occasion. According to custom, 
 too, especially in railroading in the new western states, the 
 actual service of employees is divided, necessarily divided, 
 throughout the day, to correspond with the arrival and 
 departure of trains. Certainly, Congress did not intend to 
 override these existing customs; making it necessary either 
 that the railroad company should not give intermissions, 
 or that the employee should be paid notwithstanding the 
 intermissions; and making it necessary at many stations 
 (presumably well known to Congress) that the railroad 
 should either employ a different telegraph operator for 
 every train that came and went (trains on western roads 
 being often more than nine hours apart), irrespective of the 
 fact that the actual service for each train was a very short 
 period of time. The contention of the Government gives 
 to this word 'period,' all things considered, a highly strained 
 meaning. Disregarding a meaning so strained, and reading 
 the word in connection with the context, and in the light 
 of ordinary custom, we are clear that the acts proven do not 
 constitute an offense within the meaning of the law. And, 
 if it be objected that under this construction of the law, it 
 would bo possible for the railroad company to require its 
 opf^rators to give their service for short periods at short 
 intervals, say every alternate hour, or an hour in every two
 
 HOURS OK LABOR. 521 
 
 hours and a half, thus so spreading his actual service over 
 the twenty-four hours that no opportunity v/ould be given 
 for real recuperation, the answer is that no instance of such 
 practice has been brought to our attention, and no such 
 instance is likely, which accounts for the fact that no pro- 
 vision in the act is made for such instances. Wlien such 
 practice actually occurs, Congress will doubtless provide a 
 cure. A further answer is that dispatchers, being 'em- 
 ployees,' come under the protection of the main part of 
 the section which gives to all employees 'at least eight con- 
 secutive hours off duty' in each day, counting from some 
 point in the next day. ' ' ^^ 
 
 § 346. Hours of employment — Inspection of eiig:ine by 
 engineer. — In addition to the hours of service the statute 
 permits, the railroad company cannot require a locomotive 
 engineer to report before his time begins to run and to 
 spend a certain time — thirty minutes — in the inspection of 
 his locomotive. "In my opinion," said the court, "this man 
 was on duty, within the meaning of the act, from the time 
 he went there and commenced to supervise, or overlook, 
 that engine in preparation for the trip. It does not make 
 any difference whether he was paid for this time or not. 
 That was the time his work and the strain on him began. 
 The work of an engineer, or employee of the railroad, begins 
 when under the rule of the company he is there and is at 
 work in connection with the preparation of the engine for 
 the moving of the train. He must look over the engine. 
 He must see that it is oiled up. He must see that the air 
 brakes are all right. He must move the engine down over 
 the tracks and across the switches to connect it with the 
 train. And in my opinion he is on duty, within the meaning 
 of the act, during the time he is doing these things. If 
 
 18 Atchison, T. & S. F. Ey. Co. 12 o'clock midnifrht until ,3 o'clock 
 
 V. United States, 177 Fed. 114. a.m. Affirmed. '220 U. S. 37; 30 
 
 The nightmen worked from 6:30 Sup. Ct. 362; 55 L. Ed. 361 ;" St. 
 
 P.M. until 6:30 the next morninTr, Louis, I. M. & S. R. Co. v. Me- 
 
 with three hours off duty from Whirter, 145 Ky. 427- 140 S. \V. GiL'.
 
 522 
 
 FEDERAL SAFETY APPLIANCE ACT. 
 
 he goes there half an hour before the time to start to do 
 these things, during the time he is there doing them he is 
 on duty. ' ' ^® 
 
 § 347. Deducting time lost by failure of locomotive to 
 get up steam — Bad coal, — "The time lost by reason of the 
 locomotive getting out of steam or cleaning flues could, by 
 the exercise of reasonable diligence, certainly have been an- 
 ticipated and prevented. The coal, although testified to 
 that it was as good as that sold to other railroads, evidently 
 was not a good steam coal, or else the engine must not have 
 been in proper condition. In fact the evidence of the engi- 
 neers of defendant shoAvs that the engines used on these 
 trains were old and the coal, owing to a good deal of slack, 
 would cake and not bum as freely as lump coal. If fire 
 will give out frequently as the evidence in this case shows, 
 there must certainly be a remedy for it. What would be- 
 come of defendant's through passenger trains if this con- 
 dition existed on their locomotives'? All the delays shown 
 by the evidence to have occurred could have been prevented 
 by the exercise of reasonable diligence, or at least antici- 
 pated, and the court is unable to find, after a careful read- 
 ing of all the testimony, that any delays were caused by 
 casualty, unavoidable accident, or act of God, or by any 
 cause which could not have been foreseen. "-° 
 
 § 348. Deducting time lost by hot boxes. Hot boxes are 
 not unavoidable or unforeseen accidents; and a careful 
 examination of them before starting a train and a close 
 investigation at stopping points will reduce accidents of that 
 nature to a minimum. ''The officials of defendant could 
 reasonably anticipate that hot boxes are likely to occur on 
 every train, more especially on freight trains such as these 
 were, and it was their duty to take that fact, as well as the 
 frequency with which other trains would be met, into con- 
 
 '» United States v. Illinois Central Ky. 176; 164 S. W. 818; United States 
 
 R. Co. 180 Fed. 630; United States v. v. Kansas City Southern Ry. Co. 
 
 Denver & R. G. R. Co. 197 Fed. 629 189 Fed. 471; San Pedro, L. A. & 
 
 (cited with apparent approval in S. L. R. Co. v. United States, 213 Fed. 
 
 Missouri. K. & T. Ry. Co. v. United 326. 
 
 States, 231 U. S. 112; 34 Sup. Ct. -"United States v. Kansas City 
 
 26; .58 L. Ed. — .); Osborne v. Cin- Southern Ry. Co. Appendix G. 
 cinnati, N. O. & T. P. Ry. Co. 158
 
 HOURS OF LABOR. 
 
 523 
 
 sideration in establishing the division or terminal yards 
 and determining the distance for them. If they failed to 
 do so and by reason of such failure the crews on its trains 
 are required to remain on duty for a longer period than 
 sixteen consecutive hours it is guilty of a violation of this 
 Act"" 
 
 § 349. Time lost by side-tracking — Deducting. — Time lost 
 by reason of side-tracking to give passenger or superior 
 freight trains the right of way cannot be deducted from 
 the time a crew may be kept out so as to bring such time 
 within a period not exceeding sixteen hours ; for it is no 
 excuse if the meeting of such trains could have been antici- 
 pated at the time the train was dispatched from the starting 
 point.-^ 
 
 § 350. Time train delayed cannot be deducted from pe- 
 riod of time of service. — The time during which the train 
 is delayed cannot be included within the time the crew is 
 on duty. There is nothing in the statute to justify a con- 
 struction that will allow such a deduction. "The employee 
 goes on duty when required by the rules of the employer 
 to report for duty, and if for any reason he is delayed, 
 unless it is for some cause excepted by the proviso of this 
 Act [in section 3] , the time he is on duty runs.-^ Any other 
 construction could, to a great extent, defeat the object of 
 the statute to prevent employees of railroads from working 
 for so many hours as to unfit them to discharge their duties 
 intelligently and with safety to the train. It may and does 
 often happen frequently that trains are delayed five or six 
 hours or even eight hours. If the employees composing the 
 crew on that train are required to remain on duty during 
 that time and then remain on duty for sixteen hours while 
 
 "United States v. Kansas City R. G. R. Co. 197 Fed. 629; United 
 
 Southern Ry. Co., Appendix G; 189 States v. Kansas City Southern Ry. 
 
 Fed. 471; Washington, P. & C. Ry. Co. 202 Fed. 828; 121 C. C. A. 136; 
 
 Co. V. Magruder, 198 Fed. 218; Great Great Northern Ry. Co. v. United 
 
 Northern Ry. Co. v. United States, States, 211 Fed. 309; 127 C. C. A. 595; 
 
 211 Fed. 309; 127 C. C. A. 595. Missouri, K. & T. Ry. Co. v. United 
 
 "United States v. Kansas City States, 231 U. S. 112; 34 Sup. Ct. 
 
 Southern Ry. Co. 189 Fed. 471, Ap- 26; 58 L. Ed. — . 
 
 pendix G; citing United States v. ^^(^jjijng United States v. Illinois 
 
 Southern Pacific Co. 157 Fed. 459. Central R. Co. 180 Fed. 630. 
 See also United States v. Denver &
 
 524 FEDERAL SAFETY APPLIANCE ACT. 
 
 the train is being operated, would they be in physical con- 
 dition to manage that train with safety?"-* 
 
 § 351. Delay in starting caused by another train. — Delay 
 in starting caused by reason of the fact that another train 
 is late is no excuse with the meaning of the proviso to 
 section three. It is not an unavoidable delay by which the 
 keeping of trainmen on duty longer than the statute allows 
 which will excuse a railway company. "That was a mat- 
 ter," it was said in one case, "which was known to the car- 
 rier or its officers in charge of the employees at the time they 
 left the terminal and they knew that it would cause delay in 
 the employees getting off duty. There is nothing unforeseen 
 in this."-^ The delay of the departure of a circus train 
 W'hich circumstances required should be loaded on the main 
 line, due to the act of the circus company's intoxicated 
 employees running a wagon off a flat car, was held to be an 
 ordinary incident which furnished neither justification nor 
 excuse for a violation of the act.-*' 
 
 § 352. Commingling of intrastate and interstate duties. 
 
 — The application of the act to employees otherwise within 
 its terms can not be evaded by a commingling of their 
 duties with respect to interstate and intrastate operations. 
 Thus ]\Ir. Justice Hughes has said in answer to the claim 
 that that part of the time the employee was engaged in 
 intrastate traffic, though mingled with interstate traffic, 
 should not be counted in determining how long the em- 
 ployee was kept on duty: "But the argument undoubtedly 
 involves the consideration that the interstate and intrastate 
 operations of interstate carriers are so interwoven that it is 
 utterly impracticable for them to divide their employees in 
 such manner that the duties of those who are engaged in 
 
 '* United States v. Kansas City "" United States v. Chicago & N. 
 
 Southern Ry. Co., Appendix G. W. Ry. Co. 219 Fed. 342. But see 
 
 2^ United States v. Kansas City United States v. Northern Pacific 
 
 Southern Ry. Co., Appendix G; R. Co. 215 Fed. 64. 
 United States v. Chicago & N. W. 
 Ry. Co. 219 Fed. 342.
 
 HOURS OF LABOR. 525 
 
 connection with interstate commerce shall be confined to 
 that commerce exclusively. And thus, many employees who 
 have to do with the movement of trains in interstate trans- 
 portation are, by virtue of practical necessity, also employed 
 in intrastate transportation, * * * if^ then, it be as- 
 sumed, as it must be, that in the furtherance of its purpose 
 Congress can limit the hours of labor of employees engaged 
 in interstate transportation, it follows that this power can 
 not be defeated either by prolonging the period of service 
 through other requirements of the carriers or by the com- 
 mingling of duties relating to interstate and intrastate 
 operations."" 
 
 § 353. Fireman or other employee engaged in watching 
 engine. — A fireman or other employee subject to the act, 
 Avhile engaged in watching an engine, is on duty within the 
 purview of the act. "It is contended," said Judge Hook, 
 "that the excess of service here was of another kind, and 
 being at the end of the sixteen hours is therefore imma- 
 terial, as it does not appear when thereafter the fireman 
 returned to work. That is too narrow a view of the legis- 
 lation, since it ignores the effect upon their efficiency of 
 excessive hours of service of any kind without rest. But, 
 taking the narrower view, it cannot be seriously doubted 
 that the statute would be violated if the other service im- 
 mediately preceded the sixteen consecutive hours in a train 
 movement. The attentiveness of mind so essential to safety 
 in transportation might be as effectively impaired by loss 
 of rest while oiling machinery in the shops or attending an 
 engine on a siding as while serving on a moving train. Like- 
 wise, if the train service aggregating sixteen hours in a 
 twenty-four-hour period were divided by intervening service 
 of another kind.-^ If this were not so the requirements 
 
 "-' Baltimore & Ohio R. Co. v. 233 U. S. 671; 34 Sup. Ct. 756; 58 L. 
 
 Interstate Commerce Commission, Ed. 1149; State v. Chicago, ]\I. & St. 
 
 221 U. S. 612; 31 Sup. Ct. 621; 55 L. P. Ry. Co. 136 Wis. 407; 117 N. W. 
 
 Ed. 878; Northern Pacific Ry. Co. v. 686. 
 
 State, 222 U. S. 370; 32 Sup. Ct. 160; -'« Citing United States v. Chicago, 
 
 56 L. Ed. 237 ; Erie R. Co. V. New York, U. & P. S. Ry. Co. 197 Fed. 624.
 
 526 FEDERAL SAFETY APPLIANCE ACT. 
 
 of a minimum of ten hours' relief after sixteen consecutive 
 hours of duty and of but eight hours' relief after an aggre- 
 gate of sixteen hours of duty out of twenty-four would 
 often work inconsistently. The shorter rest might follow 
 the longer labor if the employee could without restraint be 
 shifted in his work. We also think a railroad company can 
 not lawfully require or permit an employee, within the 
 statute, who has served the sixteen hours to return to other 
 duty without the prescribed relief.^^ The ten-hour and eight- 
 hour periods for rest were proportioned to sixteen hours 
 of duty, not to sixteen hours of one kind plus an indefinite 
 number of another. This conclusion makes it unnecessary 
 to consider whether a fireman who, after sixteen consecu- 
 tive hours of service as such, watches his engine on a siding 
 and keeps it in a state of preparedness for his successor is 
 performing a duty in connection with the movement of the 
 train. "^° This has been held in other cases also. "The 
 act," said Judge Morrow, "prohibits any common carrier 
 from requiring or permitting any 'employee' to be and 
 remain on duty for a longer period than sixteen consecutive 
 hours. There is no distinction made in the act as to any 
 particular duty or duties which an employee may be per- 
 forming during the whole time, or any period of the time, 
 he is on duty. In this case, when Burgen's duties were 
 changed from those of fireman to those of engine watch- 
 man, he continued to be no less an employee of the railroad 
 company. In other words, had he been employed as an 
 engine watchman during the entire period of twenty-four 
 consecutive hours, there could be no question but that such 
 employment would have constituted a violation of the act. 
 The fact that during the twenty-four-hour period he was 
 employed for sixteen hours as fireman and for eight hours 
 as engine watchman does not lessen the offense. "^^ Of 
 
 '^Citing United States v. Great ^' Great Northern Ry. Co. v. 
 
 Northern Ry. Co. 206 Fed. 838. United States, 211 Fed. 309; 127 
 
 =" San Pedro, L. A. & S. L. R. Co. C. C. A. 595, affirming 206 Fed. 838; 
 
 V. United States, 213 Fed. 326. Great Northern Ry. Co. v. United 
 
 Citing T.^nited States v. Missouri States, 21S Fed. 302; Northern Pacific 
 
 Pacific Ry. Co. 206 Fed. 847. Ry. Co. v. United States, 213 Fed.
 
 HOURS OF LABOR. 527 
 
 course, it is immaterial whether the service as engine watch- 
 man precedes, intervenes or succeeds the service as fireman, 
 or as other employee subject to the act. "True, the viola- 
 tion of the spirit of the statute is more apparent in such a 
 case, where the service as watchman precedes the service 
 as fireman, than where, as here, it follows such service, hut 
 the difference is one of degree only ; and the courts cannot 
 with nicety distinguish between service which materially 
 impairs and that which impairs only to an inappreciable 
 extent the efficiency of a trainman. "^^ 
 
 §354. "Consecutive" — "Continuous" — Unbroken inter- 
 vals of time. — Where the breaks in the work are so short 
 as not to allow the employee to gain substantial rest and 
 recuperation, then his work is continuous, notwithstanding 
 the breaks or intervals. "The purpose of the statute is 
 plain, and it must be so construed as to promote its policy. 
 The hours of service of railway trainmen are long at best, 
 leaving only eight hours for rest and recreation, and if this 
 brief period can be broken into fragments the purpose and 
 policy of the law will be entirely frustrated. If a train 
 crew may be laid off for an hour and a half at one point 
 to suit the convenience or necessities of the company, it 
 may be laid off for a like period at another, and the mem- 
 bers of the crew thus wholly deprived of any substantial 
 period for either sleep or rest. If this crew had not been 
 released from duty at Auburn, the members would have 
 been compelled to remain idle until the time of departure 
 arrived, and the release for the brief period allowed by the 
 company permitted them to do little else. The release was 
 of no benefit to the crew and could subserve no substantial 
 purpose except to obviate the penalty imposed by law. 
 Perhaps it cannot be said as a matter of law in all cases 
 whether a release from duty for a fixed period of time will 
 
 577; United States v. Missouri engine watchmen, see United States 
 
 Pacific Ry. Co. 206 Fed. 847. v. Great Northern Ry. Co. 206 Fed. 
 
 ^^ United States v. Great Northern 838, and United States v. Missouri 
 
 Ry. Co. 206 Fed. 838. Pacific Ry. Co. 206 Fed. 847. 
 
 As to what are the usual duties of
 
 528 FEDERAL, SAFETY APPLIANCE ACT. 
 
 or will not be sufficient to break the continuity of the serv- 
 ice. No doubt in extreme cases the court may declare as 
 a matter of law that a given period is so short as not to 
 break the continuity of the service, or that another period 
 is so long as to break the continuity of the service, but 
 between these extremes there is a twilight zone where the 
 question becomes a mixed one of law and fact."^^ And in 
 another case it was said: "It is said that because deceased 
 had left his engine and was going to his boarding house, he 
 was engaged upon a personal errand, and not upon the 
 carrier's business. Assuming (what is not clear) that the 
 evidence fairly tended to indicate the boardinghouse as 
 his destination, it nevertheless also appears that deceased 
 was shortly to depart upon his run, having just prepared his 
 engine for the purpose, and that he had not gone beyond 
 the limits of the railroad yard when he was struck. There 
 is nothing to indicate that this brief visit to the boarding- 
 house was at all out of the ordinary, or was inconsistent 
 with his duty to his employer. It seems to us clear that 
 the man was still 'on duty,' and employed in commerce, 
 notwithstanding his temporary absence from the locomo- 
 tive engine."^* A respite from duty, even for a reasonable 
 extended interval, does not break the continuity of service, 
 unless the duration of the interval is definitely anticipated 
 and predetermined at its inception. "If the crew had been 
 laid off for a definite period of three hours at a terminal 
 or other place where the crew might rest, such lay-off would 
 no doubt break the continuity of the service. But such 
 was not the case here. The crew was laid off for an indefi- 
 nite period, awaiting the arrival of a delayed engine. They 
 did not know at what moment the train might move, and 
 had no place to go except to a bunkhouse or remain in the 
 
 =" United States v. Northern Pacific 72 S. E. 858; Missouri, K. & T. Ry. 
 
 Ry. Co. 213 Fed. 539; Osborne v. Co. v. United States, 231 U. S. 112; 
 
 Cincinnati, N. O. & T. P. Py. Co. 34 Sup. Ct. 2G; 58 L. Ed. —; Northern 
 
 15S Ky. 17G; 104 S. W. 818. Pacific Ry. Co. v. United States, 
 
 ■■" North Carolina R. Co. v. Zach- 220 Fed. 108; United States v. 
 
 ary, 232 U. S. 248; .34 Sup. Ct. 305; Chicago & N. W. Ry. Co. 212 Fed. 
 
 58L. Ed. 591, reversing 150 N. C. 496; 342 (going to meals).
 
 HOURS OF LABOR. 529 
 
 caboose. They chose the latter course. This, in my opinion, 
 was a trifling interruption."""''' In order to suspend the 
 operation of the act, the release from service must be 
 granted in good faith, at a time and place and under cir- 
 cumstances that permit of rest and recuperation, must be 
 definite in time, and must be predetermined at the incep- 
 tion of such period. "If it appeared to the company that 
 a certain train would probably be delayed at a station for 
 a certain time, by reason of a congested condition of traffic 
 or on account of having to cool the engine by hand, and 
 the carrier notified the employees on that train that they 
 were released for a certain time, which was approximately 
 the time the company saw they would be delayed at that 
 place, and the only reason for such release was for the 
 purpose of extending the time within which the employees 
 might operate their train, and neither the purpose nor ef- 
 fect of the release was to afford the trainmen any rest, the 
 jury would be warranted in finding that such release was 
 not bona fide, but merely a subterfuge. "^"^ 
 
 55 United States v. Chicago, M. & argued that they were not on duty 
 
 P. S. Ry. Co. 197 Fed. 624, cited during this period, and that if it be 
 
 with apparent approval in Missouri, deducted, they were not kept more 
 
 K. & T. Ry. Co. V. United States, than 16 hours. But they were under 
 
 231 U. S. 112; 34 Sup. Ct. 26; 58 L. orders, liable to be called upon at any 
 
 Ed. — . moment, and not at liberty to go 
 
 In the case just quoted from there away. They were none the less on 
 
 was a layoff from 30 to 45 minutes duty when inactive. Their duty 
 
 for breakfast, and of about one hour was to stand and wait." Missouri, 
 
 each for the midday and evening K. & T. Ry. Co. v. United States, 
 
 meals; and this was held not to 231 U. S. 112; 34 Sup. Ct. 26; 58 
 
 break the continuity of service. The L. Ed. — . 
 
 same was true where there was an ^^ United States v. Northern Pacific 
 
 indefinite layoff of three hours while Co. (unreported) February 14, 1913; 
 
 awaiting the arrival of a helper engine. Northern Pacific Ry. Co. v. United 
 
 The same was held where there was States, 220 Fed. 108. 
 a delay of 55 minutes on a side- Where an engineer, who had pre- 
 track while waiting for a train to pass. viously been engaged in interstate 
 United States v. Denver & R. G. R. commerce, was assigned to duty on 
 Co. 197 Fed. 629, cited with apparent an engine hauling a work train en- 
 approval in Missouri, K. & T. Ry. gaged in filling a bridge on the de- 
 Co. V. United States, 231 U. S. 112; fendant's interstate line, and he was 
 34 Sup. Ct. 26; 58 L. Ed. — . wholly engaged in such service for 
 
 "One of the delays was while the 59 days, during which he was per- 
 
 engine was sent off for water and mitted to remain on duty continuous 
 
 repairs. In the meantime the men for more than 16 hours, it was held 
 
 were waiting, doing nothing. It is that the act had not been violated.
 
 530 FEDERAL SAFETY APPLIANCE ACT. 
 
 § 355. Proviso to section 2 — Towers — Places — Stations. 
 
 — The proviso to section two of the act applies to all offices 
 in which train orders are handled affecting the movement 
 of interstate traffic, irrespective of the number or the ef- 
 ficiency of such orders.^^ The phrase "towers,, offices, 
 places and stations" mean particular and definite loca- 
 tions. The purpose of the law and this proviso cannot 
 be avoided by erecting offices, stations, depots, or buildings 
 in close proximity to each other and operating from one 
 a part of the day while the other is closed, and vice versa.^^ 
 This proviso classifies "the offices in which telegraphic op- 
 erators engaged in handling train orders worked as day 
 offices only and those open for the transaction of such busi- 
 ness during both the day and night. As to the latter class, 
 it limited the hours of service of such operators to nine out 
 of twenty-four. As to the former class, where the office was 
 open for business only during the daytime, it limited the 
 hours of service of such operators to thirteen, unless in 
 case of emergency the period of service should be extended 
 to seventeen hours without violating the statute."^'' "The 
 terms employed are plainly intended to include every sort 
 of place where train orders are handled, however infre- 
 quently, by telegraph or telephone. There is nothing to 
 suggest that the permitted hours on duty, whether nine or 
 thirteen, are determined by the number of train orders 
 handled, if they are handled at all, or by the proportion 
 of time which the employee spends in that particular ser- 
 vice. Surely the descriptive words 'towers, offices, places, 
 and stations,' negative any intention to confine the nine- 
 hour limitation to those offices, however designated, in 
 which the principal work of the operator is connected with 
 the movement of trains. In short, we deem it beyond dis- 
 pute that the classification of an office is fixed by the length 
 
 United States v. Chicago, M. & P. ^s Administration Ruling No. 287-f. 
 
 S. liy. Co. 219 Fed. 032. •■"' United States v. Missouri, K. 
 
 •" United States v. Atchison, T. & T. Ry. Co. 208 Fed. 957. 
 & S. F. Hy. Co. 220 U. S. 37; 31 Sup. 
 Ct. 302; 55 L. Ed. — .
 
 HOURS OF LABOR. 531 
 
 of time it is kept open, and not in the least by the nature 
 of the duties performed, if only those duties include the 
 handling of train orders as occasion may require. "^'^ 
 
 §356. Orders. — The term "orders," as used in the act, 
 includes every communication of information or instruction 
 relative to the movement of any train. It is not restricted 
 to what railway companies technically call "train orders;" 
 that is, such orders as emanate from the train dispatcher's 
 office and are reduced to writing and handed to the con- 
 ductor and engineer of a train. It includes telephone or- 
 ders from towermen to towermen. "Any direction or com- 
 munication by telephone or telegraph which has the oper- 
 ative effect of an order which is to be followed and obeyed 
 by the employees of the company is an order which the terms 
 of this law are broad enough to cover and the spirit of 
 the law fully covers."" A rule of a railway company pro- 
 vided that if a train was held over thirty minutes at a sid- 
 ing where there was no open telephone office the conductor 
 should report to the dispatcher for orders, using a telephone 
 if no operator available, and to make that possible, the 
 company had installed telephones at various points where 
 no telegraph operators were employed and no regular sta- 
 tions were maintained ; it was held that such a train con- 
 ductor using the telephone pursuant to such orders did not 
 come within the statute."*- 
 
 § 357. Office "continuously operated" or "operated only 
 during the daytime." — The classification of an office as 
 "continuously operated" or "operated only during the day- 
 time" is determined bj^ the length of time it is left open, 
 and not by the character of the service therein performed, 
 provided only that such service comprehends the handling 
 
 «» United States v. Atlantic Coast Missouri Pacific Ry. Co. v. United 
 
 Line R. Co. 211 Fed. 897; 127 C. C. States, 211 Fed. 893; 127 C. C. A. 
 
 A. 123. 123; United States v. Houston, B. 
 
 « United States v. Missouri Pacific & T. Ry. Co. 205 Fed. 344. 
 
 Ry. Co. (unreported), but affirmed by ^-United States v. Chicago, M. 
 
 the Circuit Court of Appeals in & P. S. Ry. Co. 219 Fed. 1011.
 
 532 FEDERAL SAFETY APPLIANCE ACT. 
 
 of train orders as occasion may require.*^ An office is ''con- 
 tinually operated" if it be kept open for such a number 
 of hours in the aggregate as necessarily to include a ma- 
 terial or substantial portion of the night. The quoted 
 phrase applies to all offices, places, and stations operated 
 during a portion of the day and a portion of the night a 
 total of more than thirteen hours. The phrase "operated 
 only during the daytime" refers to stations which are op- 
 erated not to exceed thirteen hours in a twenty-four-hour 
 period, and is not considered as meaning that the operator 
 thereat may be employed only during the daytime.^* Triflng 
 interruptions do not break the continuity of operation of 
 an office otherwise continuously operated; "and it is pos- 
 sible that even three hours by night and three hours by day 
 would not exclude the office from all operation of the law, 
 and that extent defeat what we believe was its intent."*^ 
 So closing the office four times, for a period of one hour 
 each, during a twenty-four-hour period is not a compliance 
 with the statute.'"' "It is contended by the defendant," 
 said Judge Pollock, "as the ten hours of service performed 
 by its operators were not continuous, but were broken by 
 the intervention of one hour, and as the office was not open 
 for the purpose of telegraphic communications regarding 
 the movement of trains from 6 :00 a. m. until 8 :00 a. m. each 
 day, it was not a night and day office, within the meaning 
 of the section quoted. That is to say, it is the contention 
 of defendant neither the hours of service of its employees 
 nor the operation of its Coffeyville office was so continuous 
 as required by the act to make it both a night and day of- 
 fice. I am of the opinion on both authority and the very 
 reason of the matter, defendants have violated the act as 
 charged. "^^ 
 
 *^ United States v. Atlantic Coast *^ United States v. Atchison, T. 
 
 Line R. Co. 211 Fed. 897; 127 C. C. & S. F. Ry. Co. 220 U. S. 37; 31 Sup. 
 
 A. 123; United States v. Atchison, Ct. 3()2; 55 L. Ed. — . 
 
 T. & S. F. Ry. Co. 177 Fed. 115. "United States v. St. Louis S. W. 
 
 ** Administration Ruling No. 2S7-K. Ry. Co. 189 Fed. 954. 
 
 United States v. Atlantic Coast Line " United States v. Missouri, K. & 
 
 K. Co. 211 Fed. 897; 127 C. C. A. 123. T. Ry. Co. 208 Fed. 957.
 
 HOURS OF LABOR. 533 
 
 § 358. Period as used in statute. — The statute limits a 
 train dispatcher's work at night "for a longer period than 
 nine hours in any twenty-four-hour period," and in daytime 
 "for a longer period than thirteen hours," in certain enu- 
 merated places. In the construction of these classes it is 
 held that an operator employed for six hours and then, 
 aften an interval of three, for an additional period of three 
 hours, is not on duty for a longer period than nine hours 
 in a twenty-four-hour period.^^ But if he remains in the 
 office on duty in a continuously operated office for more 
 than nine hours in a twenty-four-hour period, it is imma- 
 terial that such service may be continuous.*^ 
 
 § 359. Towermen and switch tenders using telephone. — 
 Towermen and switch tenders w'ho use the telephone for 
 the communication of information or instructions relative 
 to the movement of trains are subject to the proviso of 
 section two of the act. This provision includes all em- 
 ployees who, by the use of an electric current, handle train 
 orders or signals which control the movement of trains.^'^ 
 
 § 360. Operator at a local station. — The service of an 
 operator at a local station is clearly within the purpose of 
 the act as is that of a similar employee in a train dis- 
 patcher's office.^^ 
 
 § 361. Emergency — Week. — In case of an emergency an 
 operator, train dispatcher, or other employee who by the 
 use of telegraph or telephone dispatches, reports, transmits, 
 receives, or delivers orders pertaining to or affecting train 
 movements cannot remain longer than certain enumerated 
 
 *^ United States v. Atchison, T. s" United States v. Houston, B. 
 
 & S. F. Ry. Co. 220 U. S. 37; 31 & T. Ry. Co. 205 Fed. 344; Missouri 
 
 Sup. Ct. 3G2; 55 L. Ed. — , affirming Pacific Ry. Co. v. United States, 211 
 
 177 Fed. 114, which reversed 177 Fed. 893. 
 
 Fed. 114. 5' United States v. Atlantic Coast 
 
 « United States v. St. Louis S. W. Line R. Co. 211 Fed. 897; 127 C. C. 
 
 Ry. Co. 189 Fed. 954; United States A. 123. 
 V. Missouri, K. & T. Ry. Co. 208 Fed. 
 957.
 
 534 FEDERAL SAFETY APPLIANCE ACT. 
 
 periods "except in case of an emergency," when they may 
 remain ' ' on duty for four additional hours in a twenty-four- 
 hour period or not exceeding three days in a week." This 
 emergency must be real and one against which the carrier 
 cannot guard. Congress used the word "emergency" in 
 its ordinary and popular sense with reference to the busi- 
 ness of dispatching trains when conducted in the exercise 
 of the ordinary care required in such business.^- The word 
 "week" means a period of seven days and not necessarily 
 a calendar week; and the statute is not violated if no em- 
 ployee worked overtime more than three days out of seven.^^ 
 
 § 362. Provisos of section 3 — Casualty — Unavoidable 
 accident. — The act does not apply "in any case of casualty 
 or unavoidable accident or act of God ; nor where the delay 
 was the result of a cause not known to the carrier or its 
 officer or agent in charge of such employee at the time said 
 employee left a terminal, and which could not have been 
 foreseen." These provisions are applicable to the service 
 of operators and other employees handling train orders as 
 fully as to employees in train service.^* Of course a "cas- 
 ualty" is an act which proceeds from an unknown cause, 
 or it is an unusual effect of a known cause,^^ and an "un- 
 avoidable accident" is an "inevitable accident which could 
 not have been foreseen and prevented by the exercise of 
 that degree of diligence which reasonable men would ex- 
 ercise under like conditions and without any fault attrib- 
 utable to the party sought to be held responsible."^" For 
 
 62 United States v. Southern Pacific " United States v. Missouri Pacific 
 
 Co. 209 Fed. 562; 126 C. C. A. 384. Ry. Co. 213 Fed. 169. 
 
 An answer setting up that the train '^ United States v. Kansas City- 
 dispatcher in the office became Southern Ry. Co. 189 Fed. 471. 
 "abusive, insubordinate, and de- '■'' Ibid. United States v. Southern 
 ficicnt," and it became necessary to Pacific Co. 157 Fed. 459; United 
 dismiss him, because his retention States v. Atchison, T. & S. F. Ry. 
 would have endangered the public; Co. 166 Fed. 160; United States v. 
 and that he was replaced as soon as Union Pacific P. Co. 169 Fed. 65; 
 possible by another, states a case of United States v. Atlantic Coast Line 
 emergency. United States v. Den- R. Co. 173 Fed. 764; United States 
 ver & R. G. R. Co. 220 Fed. 293. v. Southern Pacific Co. 220 Fed. 
 
 " Ihlrl. 745.
 
 HOURS OF LABOR. 535 
 
 a carrier to avail itself of a breakdown or wreck as an 
 excuse it must show that the circumstances it relies on re- 
 sulted from a cause which could not have been avoided by 
 the exercise of due diligence and foresight.^' Thus the 
 failure of a conductor to examine a waybill, resulting in a 
 violation of the statute, is not an excuse.^^ A hot box, or 
 an extraordinary hard wind or storm delaying a train to 
 some extent in making its ordinary running time, but not 
 causing obstructions to or breaks in the tracks, is not a 
 casualty or unavoidable accident nor an act of God.^^ A 
 railroad operated a single track line between two stations, 
 over which the trains of three companies were operated, 
 aggregating twenty-eight passenger trains daily and a large 
 number of freight trains. According to schedule, the crew 
 of train 303, westbound, left T at 1 :40 p. m. daily, arriving 
 at P at 6 :45 p. m., and, returning, left P at 7 :25 the next 
 morning, arriving at T at 12 :35 p. m. On May 12 the crew 
 left on time, but were detained by a serious wreck of an- 
 other train until 6 :00 p. m., when the crew and passengers 
 of train 303 were transferred around the wreck to train 314, 
 which had ' come up from P, when they proceeded to P, 
 reaching there at 12 :30 a. m. next day. The crew, after 
 being off duty six and one-half hours, returned to T on 
 their regular run, and in doing so was on duty about 
 seventeen hous without having had eight continuous hours 
 off duty. It was held that the failure of the train dis- 
 patcher to appreciate the fact that the transfer of the crew 
 would prevent the return to T on their regular train with- 
 out keeping them on duty more than sixteen hours without 
 eight consecutive hours rest was a casualty or unavoidable 
 accident; and the statute had not been violated.*^" 
 
 § 363. Terminal as used in the act defined. — In the pro- 
 
 ^' United States v. Atchison, T. & United States v. Lehigh Valley R. 
 
 S. F. Ry. Co. 166 Fed. 163. Co. 219 Fed. 532. ^ 
 
 ^* United States v. Atlantic Coast ^° United States v. Northern Pacific 
 
 Line R. Co. 173 Fed. 764. Ry. Co. 215 Fed. 64; United States 
 
 53 Great Northern Ry. Co. v. v. Southern Pacific Co. 220 Fed. 745. 
 United States, 218 Fed. 302, and see
 
 536 FEDERAL SAFETY APPLIANCE ACT. 
 
 viso to section 3 is used the word "terminal." According 
 to the usage of railroad men each train crew is assigned 
 hy the officers of the company to a definite, fixed run, be- 
 ginning and ending at fixed points or places, and these fixed 
 beginning and ending points of a given run from a given 
 crew are the "terminals" of that run within the meaning 
 of the word "terminal" as used in the proviso of section 
 3 of the act. "In the usage of railroad men there are dif- 
 ferent 'runs' for different train crews and also different 
 runs for different employees on the same train, and the run 
 of an engineer on a passenger train might be different from 
 the run of a conductor or brakeman. There may be one 
 run for a freight crew and another run for a passenger 
 crew, and these runs may not be, and usually are not, 
 coterminous, and one run or several runs for freight crews 
 may be between the terminals of the run of a single pas- 
 senger crew, and each of these runs has its own terminals. 
 And in applying this act to a given case regard must be 
 had to the line of service in which the train crew or em- 
 ployees in question were engaged at the time of the al- 
 leged violation of the act, and to that alone. "''^ 
 
 § 364. Suspension of operation of statute for a given 
 trip. — "The instances in which the act will not apply include 
 only such occurrences as could not be guarded against ; 
 those which involved no neglect or lack of precaution on 
 the part of the carrier, its agents or officers ; and they serve 
 to waive the application of the law to employees on trains 
 only until such employees, so delayed, reach a terminal or 
 rehiy point.""- Any employee delayed under the condi- 
 tions stated in the proviso to section 3, of which the above 
 quoted ruling is an exposition, may continue on duty to the 
 terminal or end of that run. The proviso removes the 
 application of the statute to tliat trip."-' When the train 
 
 «' United States v. Atchison, T. & "^ Administration Ruling No. 2S7-i. 
 
 S. F. Ry. Co. 212 Fed. 1000; St. "^ Administration Ruling No. SS-b. 
 
 Louis, I. M. & S. R. Co. V. State, 
 102 Ark. 205; 14:; S. W. 91.",.
 
 HOURS OF LABOR. 537 
 
 has been delayed by reason of any of the causes set out in 
 this proviso it is not required to stop at the tirst "suitable 
 stopping place and there tie up and relieve the crew." The 
 statute does not prevent the crew from continuing on duty 
 and proceeding on their trip to the terminal or end of that 
 run.''^ 
 
 § 365. Occurrence of conditions ordinarily to be ex- 
 pected. — The excess service of employees is not to be ex- 
 cused by the occurrence of conditions ordinarily to be ex- 
 pected in the operation of trains. "If the usual causes of 
 delay incident to operation were to excuse, then the statute 
 would be wholly ineffective to accomplish its purpose.'"*^ 
 Where a train was delayed fifteen minutes by a broken rail, 
 it was held that that fact was not "entitled to consideration 
 as an unforeseen delay. The track ought to have been heavy 
 enough to bear the ordinary tratHc over it.'""^ A like ruling 
 has been made where the delay was occasioned by cleaning 
 fires,'*'' by congestion of traffic,'*^ by delay in starting trains,*"^ 
 by engine's failure due to mechanical defects/'* by frost on 
 rails and heavy tonnage, necessitating doubling,^^ by hot 
 boxes,'- by injectors failing on account of insufficiency or 
 quality of water,^^ by intermission for meals,'* by meeting 
 
 " United States V. Atchison, T. & Southern Ry. Co. 189 Fed. 471; 
 
 S. F. Ry. Co. 212 Fed. 1000; United Washington, P. & C. Ry. Co. v. 
 
 States V. Northern Pacific Ry. Co. 215 Magruder, 198 Fed. 218; United 
 
 Fed. 64. States v. Kansas City Southern Ry. 
 
 •55 United States V. Southern Pacific Co. 202 Fed. 828; Missouri, K. & 
 
 Co. 209 Fed. 502; 126 C. C. A. 384; T. Ry. Co. v. United States, 231 
 
 United States v. Kansas City South- U. S. 112; 34 Sup. Ct. 26; 58 L. 
 
 ern Ry. Co. 202 Fed. 828. Ed. — . 
 
 ^^ United States v. Galveston, H. '' United States v. Missouri, K. & 
 
 & S. A. Ry. Co. (unreported); Janu- T. Ry. Co. (unreported) May 30, 
 
 ary 12, 1912. 1912, but affirmed 231 U. S. 112; 34 
 
 " United States v. Kansas City Sup. Ct. 26; 58 L. Ed. — . 
 
 Southern Ry. Co. 189 Fed. 471; "United States v. Kansas City 
 
 United States v. Kansas City South- Southern Ry. Co. 189 Fed. 471; 
 
 ern Ry. Co. 202 Fed. 828. Washington, P. & C. Ry. Co. v. 
 
 «8 United States v. Northern Pacific Magruder, 198 Fed. 218. 
 
 Co. (unreported) February 13, 1914. "Missouri, K. & T. Ry. Co. v. 
 
 « United States v. Kansas City United States, 231 U. S. 112; 34 
 
 Southern Ry. Co. 189 Fed. 471; Sup. Ct. 26; 58 L Ed.—. Per contra. 
 
 United States v. Kansas City South- United States v. Milwaukee & St. P. 
 
 ern Ry. Co. 202 Fed. 828. Ry. Co. 212 Fed. 574. 
 
 " United States v. Kansas City '* United States v. Chicago, M.
 
 538 FEDERAL SAFETY APPLIANCE ACT. 
 
 or passing trains,'^ by poor coal,"'' by pulled-out or broken 
 drawbars,'' by running for or taking water,'® by unneces- 
 sary hauling of defective cars by means of chains instead 
 of drawbars,''^^ by waiting for a helper engine,®" by w^aiting 
 for orders,®^ by wrecks, if preventable by the exercise of 
 diligence and foresight,®- by train breaking in two from 
 unknown cause.®^ 
 
 § 366. Sudden illness of operator. — "While sudden illness 
 of an operator will not in all cases justify the retention of 
 another employee on duty in excess of the permitted pe- 
 riods, such illness, coupled with the inability of the carrier 
 to procure a relief operator, may in certain circumstances 
 constitute an emergency wdthin the purview of the act.®* 
 Such was held to be the case where a railway company had 
 at a day and night office three operators, each of whom 
 worked eight hours, and one was taken suddenly ill and no 
 other operator could be obtained in his place ; and the next 
 day and as soon as possible the company sent a relief man, 
 but the train he was on was wrecked, causing further delay, 
 in consequence of which the two remaining operators each 
 worked tw^elve hours for four or five successive days.®^ 
 
 & P. S. Ey. Co. 197 Fed. 624; United ^» United States v. Missouri, K. 
 
 States V. Kansas City Southern Ry. & T. Ry. Co. (unreported) May 30, 
 
 Co. 202 Fed. 828; 121 C. C. A. 136; 1912, affirmed 231 U. S. 112; 34 Sup. 
 
 United States v. Northern Pacific Ct. 26; 58 L. Ed. — . 
 
 Ry. Co. 213 Fed. 539; Osborne v. ^^ United States v. Atchison, T. & 
 
 Cincinnati, N. O. & T. P. Ry. Co. S. F. Ry. Co. 212 Fed. 1000. 
 
 158 Ky. 176; 164 N. W. 818. 8° United States v. Chicago, M. 
 
 " United States v. Kansas City & P. S. Ry. Co. 197 Fed. 624. 
 
 Southern Ry. Co. 189 Fed. 471; »' United States v. Northern Pacific 
 
 United States v. Southern Pacific Co. Ry. Co. (unreported) February 13, 
 
 157 Fed. 459; United States v. Denver 1914. 
 
 & R. G. R. Co. 197 Fed. 629; United ^^ United States v. Kansas City 
 
 States V. Kansas City Southern Ry. Southern Ry. Co. 189 Fed. 471. 
 
 Co. 202 Fed. 828; Great Northern " United States v. Southern Pacific 
 
 Ry. Co. V. United States, 211 Fed. Co. 220 Fed. 745. 
 
 309. 8^ United States v. Southern Pacific 
 
 '« United States v. Kansas City Co. 209 Fed. 562; 126 C. C. A. 384: 
 
 Southern Ry. Co. 189 Fed. 471; San Pedro, L. A. & S. L. R. Co. v. 
 
 Wa,shington, P. & C. Ry. Co. v. United States, 220 Fed. 737. 
 
 Magruder, 198 Fed. 218; United « San Pedro, L. A. & S. L. R. Co. 
 
 States V. Kansas City Southern Ry. v. United States, 220 Fed. 737. See 
 
 Co. 202 Fed. 828. a similar in.stance, Oregon-Washing- 
 
 '' United States v. Galveston, H. ton I^ & Nav. Co. v. United States, 
 
 & S. Ry. Co. (unreported) January 223 Fed. 596. 
 12, 1912.
 
 HOURS OF LABOR. 
 
 539 
 
 § 367. Economical reasons. — A defense based on the 
 ground of economy is never available.^** 
 
 § 368. Action to recover penalty — Civil action — Plead- 
 ings. — Proceedings on behalf of the government for the 
 recovery of a penalty provided by the act is a civil action. 
 "The pleader is not required to state his cause of action 
 with the exactness and particularity that would be neces- 
 sary in a criminal indictment. In the nature of things, in. 
 most cases arising under the acts, facts bring the case within 
 the knowledge of the railroad, and the government should 
 not be required to allege that of which it knows nothing 
 simply to conform to a mere technicality of pleading. If 
 facts existed that would bring the case within the excep- 
 tion, they constituted a defense that the railroad should 
 have pleaded and proved. "^^ The burden is on the govern- 
 ment to prove the violation of the act as alleged in 
 its petition.^^ If two employees were overworked at the 
 same time on the same train, two separate actions may be 
 maintained.®^ 
 
 § 369. Defense. — If the defendant railroad desires to de- 
 fend under the provisions of any of the provisos of the 
 statute, it must set up such defense by answer; and it has 
 the burden to prove the allegations contained therein.*"^ 
 
 § 369a. Injury to employee — Right of action. — Anyone 
 
 *^ United States v. Kansas City '* United States v. Kansas City 
 
 Southern Ry. Co. 202 Fed. 828; Southern Ry. Co. 202 Fed. 828; 121 
 
 121 C. C. A. 136. C. C. A. 136. 
 
 " United States V. Houston, B. & T. «» Missouri, K. & T. Ry. Co. v. 
 
 Ry. Co. 205 Fed. 344; United States United States, 231 U. S. 112; 34 
 
 V. Kansas City Southern Ry. Co. Sup. Ct. 26; 58 L. Ed. — . 
 
 202 Fed. 828; United States v. At- s" Great Northern R. Co. v. United 
 
 lantic Coast Line R. Co. 211 Fed. States, 218 Fed. 302; United States 
 
 897; Missouri, K. & T. Ry. Co. v. v. Houston, B. & T. Ry. Co. 205 
 
 United States, 231 U. S. 112; 34 Fed. 344; United States v. Kansas 
 
 Sup. Ct. 26; 58 L. Ed. — ; United City Southern Ry. Co. 202 Fed. 828; 
 
 States V. St. Louis S. W. Ry. Co. 189 121 C. C. A. 136. 
 Fed. 954; United States v. Oregon-W. 
 R. & N. Co. 213 Fed. 688.
 
 540 FEDERAL, SAFETY APPLIANCE ACT. 
 
 who is injured by reason of the fact that an employee is 
 kept at work in violation of the hours-of-labor statute can 
 recover damages, and the employee thus kept at labor who 
 is injured by reason of that fact may also recover damages, 
 "if by reason of his dazed mental condition, caused by his 
 protracted emploj'ment beyond the limits of the time fixed 
 by the statute, he was unable to apprehend clearly his 
 duties," and a condition was brought about by him — as a 
 collision — whereby he was injured. "The bare fact of the 
 performance of the work prohibited, with the injury re- 
 sulting, is proof of negligence. "'^^ But the violation of the 
 statute must itself be the proximate cause of the accident.^^ 
 
 § 370. Liability to passenger for delay. — A carrier can- 
 not escape liability to a passenger for laying off a train 
 and consequently delaying his arrival at his destination, on 
 the theory that such a course may have been necessary in 
 order to avoid a violation of the act, if the delay respon- 
 sible for the situation was attributable to its own negli- 
 gence.^^ 
 
 § 371. Penalty, measure — Fixing-. — The penalty is de- 
 terrent, not compensative. "The amount is not measured 
 by the harm to the employees, but by the fault of the car- 
 rier, and being punitive, rightly was determined by the 
 judge. "^* Violations of the Hours of Service Act is held 
 
 *' Pelin V. New York Central R. hours out of 57 hours, was held to 
 
 Co. 92 App. Div. 71; 92 N. Y. Supp. have assumed the risk of injury by 
 
 468, affirmed without opinion, 188 reason of his exhausted condition, and 
 
 N. Y. 565; 91 N. E. 1171. The court could not recover even under the 
 
 cites on the point in the quotation Employer's Liability Act. Schweig 
 
 Marino v. Lehmaier, 173 N. Y. 530; v. Chicago, M. & St. P. Ry. Co. 
 
 66 N. E. 572; 61 L. R. A. 811. Ap- 216 Fed. 750. 
 
 proved in People v. Erie R. Co. 198 *' Bjornsen v. Northern Pacific Ry. 
 
 N. Y. 369; 91 N. E. 849, reversing Co. (Wash.) 146 Pac. 575. 
 
 135 N. Y. App. Div. 767; 119 N. Y. "^ giack v. Charleston & W. C. Ry. 
 
 Supp. 873; Baltimore & O. Ry. Co. Co. 87 S. C. 241; 69 S. E. 230. 
 
 v. Collins, 30 Ohio Cir. Ct. Rep. 110; ^^ Missouri, K. & T. Ry. Co. v. 
 
 St. Louis, I. M. & S. R. Co. v. Mc- United States, 231 U. S. 112; 34 
 
 Whirter, 145 Ky. 427; 140 S. W. 672 Sup. Ct. 26; 58 L. Ed. — ; United 
 
 (reversed 229 U. S. 265; 33 Sup. Ct. States v. Atlantic Coast Line R. 
 
 858; 57 L. Ed. 1179). Co. 173 Fed. 764; 98 C. C. A. 110; 
 
 An employee of an interstate rail- Atchison, T. & S. F. R. Co. v. United 
 
 way, who worked for more than 54 States, 178 Fed. 12; 101 C. C. A. 140.
 
 HOURS OF LABOR. 54.]^ 
 
 hy the courts to be a more serious offense than those vio- 
 lations of the Safety Appliance Act, or of the Twenty-eight 
 Hour La\v.°^ A substantial violation of the act should 
 never be satisfied by a merely nominal penalty.''*' It pre- 
 scribes a separate penalty for each and every employee who 
 remains on duty in excess of the permitted periods. ^^ The 
 amounts of the penalties are determinable by the courts.^^ 
 
 § 372. Question for jury. — Whether or not there was 
 just cause for keeping a train crew at work more than six- 
 teen consecutive hours within the provisions of the proviso 
 of section three, is a question for the jury under the in- 
 struction of the courts.^^ 
 
 § 373. Reports to Interstate Commerce Commission. — A 
 
 statute^°° empowers the Interstate Commerce Commission 
 to require reports of instances where any railroad em- 
 ploye has been on duty for a longer period than the 
 statute prohibits. But a carrier inadvertently and hon- 
 estly omitting from its report an instance of that kind is 
 not guilty of a violation of the statute.^"^ 
 
 ^5 United States v. Minneapolis, *' United States v. Kansas City 
 
 St. P. & S. S. AI. Ry. Co. (unre- Southern Ry. Co., Appendix G; 
 
 ported). United States v. Lehigh Valley R. 
 
 96 United States v. Cleveland, C. Co. 219 Fed. 532. 
 C. & St. L. Ry. Co. (unreported). 1™ Appendix F. p. 69.5. 
 
 " Missouri, K. & T. Rv. Co. 231 '"' Oregon-Washington R. & Nav. 
 
 U. S. 112; 34 Sup. Ct. 26; 58 L. Ed. — . Co. v. United States, 222 Fed. 887. 
 
 ss Ibid.
 
 APPENDICES. 
 
 543
 
 APPENDIX A. 
 
 EMPLOYERS' LIABILITY ACTS. 
 
 [Act of 190G.] 
 
 An Act relating to liability of 
 common carriers in the District 
 of Columbia and Territories, 
 and common carriers engaged in 
 commerce between the States 
 and between the States and for- 
 eign nations to their employes. 
 
 [Act of 1906.] 
 
 Be it enacted by the Senate and 
 House of Representatives of the 
 United States in Congress assem^ 
 hied, That every common carrier 
 engaged in trade or commerce in 
 the District of Columbia, or in 
 any Territory of the- United 
 States, or between the several 
 States, or between any Territory 
 and another, or between any Ter- 
 ritory or Territories and any 
 State or States, or the District of 
 Columbia, or with foreign na- 
 tions, or between the District of 
 Columbia and any State or States 
 or foreign nations, shall be liable 
 to any of its employes, or in the 
 case of his death, to his personal 
 representative for the benefit of 
 his widow and children, if any; if 
 none, then for his parents; if 
 none, then for his next of kin de- 
 pendent upon him, for all dam- 
 ages which may result from the neg- 
 ligence of any of its officers, agents, 
 or employes, or by reason of any 
 defect or insufficiency due to its 
 
 [Act of 1908.] 
 
 An Act relating to the liability of 
 common carriers by railroad to 
 their employes in certain cases. 
 
 [Act of 1908.] 
 
 Be it enacted hy the Senate and 
 House of Representatives of the 
 United States of America in Con- 
 gress assembled, That every com- 
 mon carrier by railroad while en- 
 gaging in commerce between any 
 of the several States or Territo- 
 ries, or between any of the States 
 and Territories, or between the 
 District of Columbia and any of 
 the States or Territories, or be- 
 tween the District of Columbia, or 
 any of the States or Territories 
 and any foreign nation or nations, 
 shall be liable in damages to any 
 jierson suffering injury while he is 
 employed by such carrier in such 
 commerce, or, in case of the death 
 of such employe, to his or her per- 
 sonal representative for the benefit 
 of the surviving widow or husband 
 and children of such employe; and 
 if none, then of such employe's 
 parents, and if none, then to the 
 next of kin dependent upon such 
 employe for such injury or death 
 resulting in whole or in part from 
 the negligence of any of the offi- 
 cers, agents or employes of such 
 carrier, or by reason of any defect 
 or insufficiency due to its negli- 
 
 545
 
 546 
 
 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 gence in its cars, engines, appliances, 
 machinery, track, roadbed, ways or 
 works. 
 
 Sec. 2. That in all actions here- 
 after brought against any common 
 carrier to recover damages for per- 
 sonal injuries to an employe, or 
 where such injuries have resulted 
 in his death, the fact that the em- 
 ploye may have been guilty of con- 
 tributory negligence shall not bar 
 a recovery where his contributor_v 
 negligence was slight and that of 
 the emploj^r was gross in com- 
 parison, but the damages shall be 
 diminislied by the jury in i)ropor- 
 tion to the amount of negligence 
 attributable to sucli employe. All 
 questions of negligence and con- 
 tributory negligence sliall h<' for 
 the jury. 
 
 gence, in its cars, engines, appli- 
 ances, machinery, track, road-bed, 
 works, boats, wharves, or other 
 equipment. 
 
 Sec. 2. That every common car- 
 rier by railroad in the Territories, 
 the District of Columbia, the Pan- 
 ama Zone, or other possessions of 
 the United States, shall be liable 
 in damages to any person suffer- 
 ing injury while he is employed 
 by such carrier in any of said ju- 
 risdictions, or in case of the death 
 of such employe, to his or her 
 personal representatives, for the 
 benefit of the surviving widow or 
 husband and children of such em- 
 ploye; and if none, then of such 
 employe's parents; and if none, 
 then of the next of kin dependent 
 upon such employe, for such injury 
 or death resulting in whole or in 
 part from the negligence of any of 
 the officers, agents or employes of 
 such carrier, or by reason of any 
 defect or insufficiency due to its 
 negligence in its cars, engines, ap- 
 pliances, machinery, track, road- 
 bed, works, boats, wharves or other 
 equipment. 
 
 Sec. 3. That in all actions 
 hereafter brougnt against any such 
 common CE^rrier by railroad under 
 or by virtue of the provisions of 
 this act to recover damages for 
 personal injury to an employe, or 
 where such injuries have resulted 
 in his death, tlie fact that the em- 
 ploye may have been guilty of con- 
 tributory negligence shall not bar 
 a recover" but the damages shall 
 be diminished by tlie jury in pro- 
 ])ortion to the amount of negli- 
 gence attributable to such em- 
 I)loye: Provided, however, That no 
 sucli employe who may be injured 
 or killed shall l)e held to have 
 luM'n guilty of contributory negli-
 
 APPENDIX A. 
 
 547 
 
 Sec. 3. That no contract of em- 
 ployment, insurance, relief benefit, 
 or indemnity for injury or cteatli 
 entered into by or on behalf of 
 any employe, nor the acceptance of 
 any such insurance, relief benefit, 
 or indemnity by the person enti- 
 tled thereto, shall constitute any 
 bar or defense to any action 
 brought to recover damages for 
 personal injuries to or death of 
 such employe: Provided, liowver. 
 That upon the trial of s.uch ac- 
 tion against any common carrier 
 the defendant may set off therein 
 any sum it has contributed toward 
 any such insurance, relief benefit, 
 or indemnity that may have been 
 paid to the injured employe, or in 
 case of his death, to his personal 
 representative. 
 
 Sec. 4. That no action shall be 
 maintained under this act, unless 
 commenced within one year from 
 the time the cause of action ac- 
 crued. 
 
 gence in any case where the vio- 
 lation by such common carrier of 
 any statute enacted for the safety 
 of employes contributed to the in- 
 jury or death of such employe. 
 
 Sec. 4. That in any action 
 brought against any common car- 
 rier under or by virtue of any of 
 the provisions of this act to re- 
 cover damages for injuries to, or 
 the death of, any of its employes, 
 such employe shall not be held to 
 have assumed the risk of his em- 
 ployment in any case where the 
 violation by such common carrier 
 of any statute enacted for the 
 safety of employes contributed to 
 the injury or death of such em- 
 ploye. 
 
 Sec. 5. That any contract, 
 rule, regulation, or device what- 
 soever, the purpose and intent of 
 which shall be to enable any com- 
 mon carrier to exempt itself from 
 any liability created by this act, 
 shall to that extent be void: Pro- 
 vided, That in any action brought 
 against any such common carrier 
 under or by virtue of any of the 
 provisions of this act, such com- 
 mon carrier may set off therein 
 any sum it has contributed or 
 paid to any insurance, or relief 
 benefit, or indemnity that may 
 have been paid to the injured em- 
 ploye, or the person entitled 
 thereto, on account of the injury 
 or death for which said action was 
 brought. 
 
 Sec. 6. That no action shall be 
 maintained under this act unless 
 commenced within two years from 
 the day the cause of action ac- 
 crued. Under this Act an action 
 may be brought in a circuit court 
 of the United States, in the district 
 of the residence of the defendant, 
 or in which tlK- cause of action 
 arose, or in which defendant shall
 
 548 
 
 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 Sec. 5. That nothing in this act 
 shall be held to limit tlie duty of 
 common carriers by railroads, or 
 impair the rights of their em- 
 ployes under the Safety Appliance 
 Act of March 2, 1893, as amended- 
 April 1, 1896, and March 2, 1903. 
 
 Approved June 11, 1906; 34 
 Stat, at Large, 232 c. 3073. 
 
 be doing business at the time of 
 commencing such action. The jur- 
 isdiction of the courts of the 
 United States under this Act shall 
 be concurrent with that of the 
 courts of the several states, and 
 no case arising under this Act and 
 brought in any state court of com- 
 petent jurisdiction shall be re- 
 moved to any court of the United 
 States. (As amended April 5, 
 1910.) 
 
 Sec. 7. That the term "com- 
 mon carrier" as used in this act 
 shall include the receiver or re- 
 ceivers, or other persons or corpo- 
 rations charged with the duty of 
 the management of the business of 
 a common carrier. 
 
 Sec. 8. That nothing in this 
 act shall be held to limit the duty 
 or liability of common carriers or 
 impair the rights of their em- 
 ployes under any other act or acts 
 of Congress, or to affect the prose- 
 cution of any pending proceeding 
 or right of action under the act of 
 Congress, entitled, "An act relat- 
 ing to liability ol common carriers 
 in the District of Columbia and 
 Territories, and to common car- 
 riers engaged in commerce be- 
 tween the States and between the 
 States and foreign nations to their 
 employes," approved June 11, 
 1906. ' 
 
 Approved April 22, 1908. 
 
 Sec. 9. That any right of action 
 given by this Act to a person suf- 
 fering injury sliall survive to his 
 or her personal representative, for 
 tho benefit of the surviving widow 
 or liusband, and children of such 
 emploj'ee, and, if none, tlien of 
 such employee's parents; and, if 
 none, then of the next of kin de- 
 pendent upon sucli employee, but 
 in such cases there shall be only 
 one recovery for tlie same injury. 
 (As amended April 5, 1010.)
 
 APPENDIX A. 
 
 549 
 
 POOR PERSON. 
 
 [Public— No. 317.] 
 
 [S. 5836.] 
 
 An Act to amend section one, 
 chapter two hundred and nine, of 
 the United States Statutes at 
 Large, volume twenty-seven, enti- 
 tled "An Act providing when plain- 
 tiff may sue as a poor person and 
 when counsel shall be assigned by 
 the court," and to provide for the 
 prosecution of writs of error and 
 appeals in forma pauperis, and for 
 other purposes. 
 
 Be it enacted by the Senate and 
 House of Representatives of the 
 United States of America in Con- 
 gress assembled, That section one 
 of an Act entitled "An Act provid- 
 ing when plaintiflF may sue as a 
 poor person and wlien counsel shall 
 be assigned by the court," approved 
 July twentieth, eighteen hundred 
 and ninety-two, be, and the same is 
 hereby, amended so as to read as 
 follows : 
 
 "That any citizen of the United 
 States entitled to commence or 
 defend any suit or action, civil or 
 criminal, in any court of the 
 United States, may, upon the order 
 of the court, commence and prose- 
 cute or defend to conclusion any 
 
 suit or action, or a writ of error, 
 or an appeal to the Circuit Court 
 of Appeals, or to the Supreme 
 Court in such suit or action, in- 
 cluding all appellate proceedings, 
 unless the trial court shall certify 
 in writing that in the opinion of 
 the court such appeal or wi-it of 
 error is not taken in good faith, 
 without being required to prepay 
 fees or costs or for the printing of 
 the record in the Appellate Court 
 or give security therefor, before or 
 after bringing suit or action, or 
 upon suing out a writ of error 
 or appealing, upon filing in said 
 court a statement under oath in 
 writing that because of his poverty 
 he is unable to pay the costs of 
 said suit or action or of such writ 
 of error or appeal, or to give se- 
 curity for the same, and that he 
 believes that he is entitled to the 
 redress he seeks by such suit or 
 action or writ of error or appeal, 
 and setting forth briefly the nature 
 of his alleged cause of action, or 
 appeal." 
 Approved, June 25, 1910. 
 
 EMPLOYEES OF THE UNITED STATES. 
 
 [Public— No. 176.] 
 
 [H. R. 21844.] 
 
 An Act granting to certain em- 
 ployees of the United States the 
 right to receive from it compensa- 
 tion for injuries sustained in the 
 course of their employment. 
 
 Be it enacted by the Senate and 
 House of Representatives of the 
 United States of America in Con- 
 gress assembled. That when, on or 
 after August first, nineteen hun-
 
 550 
 
 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 dred and eight, any person em- 
 ployed by the United States as an 
 artisan or laborer in any of its 
 manufacturing establishments, ar- 
 senals, or navy -yards, or in the 
 construction of river and harbor 
 or fortification work or in hazard- 
 ous employment on construction 
 work in the reclamation of arid 
 lands or the management and con- 
 trol of the same, or in hazardous 
 employment under the Isthmian 
 Canal Commission, is injured in 
 the course of such employment, 
 such employee shall be entitled to 
 receive for one year thereafter, 
 unless such employee, in the opin- 
 ion of the Secretary of Commerce 
 and Labor, be sooner able to re- 
 sume workj the same pay as if he 
 continued to be employed, such 
 payment to be made under such 
 regulations as the Secretary of 
 Commerce and Labor may pre- 
 scribe : Provided, That no compen- 
 sation shall be paid under this Act 
 where the injury is due to the neg- 
 ligence or misconduct of the em- 
 ployee injured, nor unless said in 
 jury shall continue for more than 
 fifteen days. All questions of neg- 
 ligence or misconduct shall be de- 
 termined by the Secretary of Com- 
 merce and Labor. 
 
 Sec. 2. That if any artisan or 
 laborer so employed shall die dur- 
 ing the said year by reason of such 
 injury received in the course of 
 such employment, leaving a wido^', 
 or a child or children under sixteen 
 years of age, or a dependent 
 parent, such widow and child or 
 children and dependent parent 
 shall be entitled to receive. 
 
 in such portions and under such 
 regulations as the Secretary of 
 Commerce and Labor may pre- 
 scribe, the same amount, for the 
 remainder of the said year, that 
 said artisan or laborer would be 
 entitled to receive as pay if such 
 employee were alive and continued 
 to be employed: Provided, That if 
 the widow shall die at any time 
 during the said year her portion of 
 said amount shall be added to the 
 amount to be paid to the remain- 
 ing beneficiaries imder the provi- 
 sions of this section, if there be 
 any. 
 
 Sec. 3. That whenever an acci- 
 dent occurs to any employee em- 
 braced within the terms of the first 
 section of this Act, and which 
 results in death or a probable in- 
 capacity for work, it shall be the 
 duty of the official superior of suca 
 employee to at once report such 
 accident and the injury resulting 
 therefrom to the head of his Bu- 
 reau or independent office, and his 
 report shall be immediately com- 
 municated through regular ofiicial 
 channels to the Secretary of Com- 
 merce and Labor. Such report 
 shall state, first, the time, cause, 
 and nature of the accident and 
 injury and the probable duration of 
 the injury resulting therefrom; 
 second, whether the accident arose 
 out of or in the course of the 
 injured person's employment; third, 
 whether the accident was due to 
 negligence or misconduct on the 
 part of the employee injured; 
 finirth, any other matters refjuired 
 by such rules and regulations as 
 the Secretary of Commerce and
 
 APPENDIX A. 
 
 551 
 
 Labor may prescribe. The head of 
 each DepartiiK>rit or intiepciident 
 office shall have power, however, to 
 charge a special official with the 
 duty of making such reports. 
 
 Sec. 4. That in the case of any 
 accident which shall result in 
 death, the persons entitled to com- 
 pensation under this Act or their 
 legal representatives shall, within 
 ninety days after such death, file 
 with the Secretary of Commerce 
 and Labor an affidavit setting forth 
 their relationship to the deceased 
 and the ground of their claim for 
 compensation under the provisions 
 of this Act. This shall be accom- 
 panied by the certificate of the at- 
 tending physician setting forth the 
 fact and cause of death, or the 
 nonproduction of the certificate 
 shall be satisfactorily account- 
 ed for. In the case of in- 
 capacity for work lasting more 
 than fifteen days, the injured party 
 desiring to take the benefit of this 
 Act shall, within a reasonable pe- 
 riod after the expiration of such 
 time, file with his official superior-, 
 to be forwarded through regular 
 official channels to the Secretary of 
 Commerce and Labor, an affidavit 
 setting forth the grounds of his 
 claim for compensation, to be ac- 
 companied by a certificate of the 
 attending physician as to the cause 
 and nature of the injury and prob- 
 able duration of the incapacity, 
 or the nonproduction of the certifi- 
 cate shall be satisfactorily ac- 
 counted for. If the Secretary of 
 Commerce and Labor shall find 
 from the report and affidavit or 
 other evidence produced by the 
 
 claimant or his or her legal repre- 
 sentatives, or from such addition il 
 investigation as the Secretary of 
 Commerce and Labor may direct, 
 that a claim for compensation ia 
 established under this Act, the 
 com{)ensation to be paid shall be 
 determined as provided under this 
 Act and approved for payment by 
 the Secretary of Commerce and 
 Labor. 
 
 Sec. 5. That the employee shall, 
 whenever and as often as required 
 by the Secretary of Commerce and 
 Labor, at least nnce in six months, 
 submit to medical examination, to 
 be provided and paid for under the 
 direction of the Secretary, and if 
 such employee refuses to submit 
 to or obstructs such examination 
 his or her right to compensation 
 shall be lost for the period cov- 
 ered by the continuance of such 
 refusal or obstruction. 
 
 Sec. 6. That payments under 
 this Act are only to be made to the 
 beneficiaries or their legal repre- 
 sentatives other than assignees, and 
 shall not be subject to the claims 
 of creditors. 
 
 Sec. 7. That the United States 
 shall not exempt itself from lia- 
 bility under this Act by any con- 
 tract, agreement, rule, or regula- 
 tion, and any such contract, agree- 
 ment, rule, or regulation shall be 
 pt'o tanto void. 
 
 Sec. 8. That all Acts or parts 
 of Acts in conflict herewith or pro- 
 viding a different scale of compen- 
 sation or otherwise regulating its 
 payment are hereby repealed. 
 Approved, May 30, 1908.
 
 552 
 
 FEDERAL EMPLOYERS LIABILITY ACT. 
 
 GRANTING TO CERTAIN EMPLOYEES OF THE UNITED STATES 
 THE RIGHT TO RECEIVE FROM IT COxMPENSATION FOR 
 INJURIES SUSTAINED IN THE COURSE OF THEIR EMPLOY- 
 MENT. 
 
 ;Mat 12, 1908. — Committed to the Committee of the Whole House on the 
 state of the Union and ordered to be printed. 
 
 Mr. Alexander, of New York, from the Committee on the 
 Judiciary, submitted the following 
 
 REPORT. 
 
 [To accompany H. R. 21844.] 
 
 The Committee on the Judiciary 
 have had under consideration the 
 bill (H. R. 21844), granting to 
 certain employees of the United 
 States the right to receive from it 
 compensation for injuries sustained 
 in the course of their employment, 
 and recommend that the same do 
 pass. 
 
 The purpose of this bill is to 
 compensate Government employees 
 engaged in hazardous occupations. 
 Such employment is practically con- 
 fined to arsenals, navy-yards, man- 
 ufacturing establishments ( such as 
 armories, clothing depots, ship- 
 yards, proving grounds, powder 
 factories, etc.), to construction of 
 river and harbor work, and to work 
 upon the Isthmian Canal. The bill 
 provides that the wages of such 
 an employee who is injured in tlie 
 course of such employment, with- 
 out contributory negligence or mis- 
 conduct, shall be continued for one 
 year unless he is sooner able to 
 resume work. If such an one is 
 killed, or subsequently dies during 
 the year, an amount equal to a 
 year's wages or the remainder 
 thereof is paid in equal portions 
 to his widow, children under six- 
 teen years of age, and dependent 
 mother, or to the survivor or sur- 
 vivors. 
 
 All payments are maflo under the 
 direction of the Secretary of Com- 
 
 merce and Labor, who is authorized 
 to pass upon questions of negli- 
 gence and misconduct and to make 
 such rules and regulations as may 
 be necessary to safeguard the in- 
 terests of the Government and of 
 the beneficiaries. From his deci- 
 sion no appeal is allowed. Sections 
 3 to 9 (inclusive) make ample pro- 
 vision for the protection of the 
 Government^ requiring notice of ac- 
 cident, investigations, medical ex- 
 aminations from time to time, etc. 
 Section 10 repeals all acts in con- 
 flict. 
 
 The principle of this measure is 
 not new to our Government. For 
 five years railway postal clerks 
 have been thus compensated, and 
 since JNIay 4, 1882, members of 
 the Life-Saving Service have en- 
 joyed similar benefits. In case of 
 injury a postal clerk is paid hi-i 
 wages for one year, unless sooner 
 able to resume work, ranging from 
 $800 to $1,000. If he is killed or 
 dies witiiin one year, his family 
 receives a lump sum of $1,000. A 
 surfman in the Life-Saving Service, 
 if injured, may receive his wages 
 for two years, unless sooner able 
 to resume work, ranging from $050 
 to $1,560 for the two years. If 
 killed, his family receives a like 
 amount. Under the provisions of 
 this hill a Government artisan or 
 laborer, if injured, receives one
 
 APPENDIX A. 
 
 553 
 
 year's wages, unless sooner able to 
 resume work, ranging from $300 
 (boys) to $1,GOO (foreman and ex- 
 perts), being an average of about 
 $800. If killed, his family receives 
 a like amount. 
 
 There is insufficient data as to 
 the number and character of ac- 
 cidents occurring to Government 
 employees upon which to base an 
 accurate estimate of the cost under 
 this bill. In the railway mail serv- 
 ice there are 14,347 postal clerks, 
 and last year it cost tlie Govern- 
 ment $98,143.95 because of acci- 
 dents. The Life-Saving Seiwiee 
 employs 1,898 surfmen, and the 
 Government during the last year 
 paid for accidents and deaths 
 $41,270.51. This amount al.«!0 in- 
 cludes sums i^aid for sickness con- 
 tracted in the service. 
 
 There are approximately 6,600 
 artisans and laborers employed in 
 arsenals, armories, ajid otlier man- 
 ufacturing establishments of the 
 War Department, and during the 
 past ten years eight were killed 
 and forty-one more or less se- 
 riously injured. The average ab- 
 sence from work because of these 
 injuries was about two and one- 
 half months. Under this bill the 
 Government would have paid 
 during the ten years a total of 
 about $20,000, or an average of 
 $2,000 a year. It ought to be 
 added that tne fewness of the acci- 
 dents arising in the workshops of 
 the War Department is largely due 
 to the excellent condition of the 
 machinery and the discipline exer- 
 cised by the officers in charge. 
 
 The thirty-one na-\^-yards, naval 
 stations, training stations, and 
 naval magazines under the Navy 
 Department employ approximately 
 25,000 men, but no statistics are 
 available showing the number of 
 accidents. Under the Isthmian Ca- 
 nal Commission approximately 
 11,000 men are engaged in hazard- 
 
 ous occupations, their wages rang- 
 ing from $500 (unskilled laborers* 
 to $2,200 (locomotive engineers). 
 During the calendar year 1907 
 there were 142 accidents resulting 
 in death and approximately 1,300 
 treated in the hospitals. As no 
 statistics are available showing th«j 
 wages received by those killed or 
 injured, no estimate can be made 
 of the probable cost of compensa- 
 tion under this bill. The number 
 of injured in proportion to those 
 employed is very large, although it 
 is likely that many accideirts were 
 slight and many due to the con- 
 tributory negligence of the em- 
 ployees. 
 
 The Government in its river and 
 harbor work employs approxi- 
 mately 12,800 artisans and labor- 
 ers, tlieir wages ranging from $400 
 to $3,600j with an approximate 
 average of $1,200. The perfect 
 machinery and the discipline exer- 
 cised over the employees have re- 
 sulted in a very few accidents, sev- 
 enty-five approximately having 
 occurred since and including the 
 year 1894. Of those injured only 
 two were killed and one died. 
 
 The bill covers approximately 
 55,400 employees out of a total of 
 337,751 connected Avith the classi- 
 fied and unclassified civil service 
 of the United States. If to this 
 amount be added the postal clerks 
 and members of the Life-Saving 
 Service, the aggregate who may be 
 cared for, if injured, will be in- 
 creased to 71,600. 
 
 This measure is not as compre- 
 hensive or as liberal as many de- 
 sire. Bills have been introduced 
 extending relief to all employees 
 of the Government. Some of theso 
 bills exclude negligence; others al- 
 low actions to be brought in Fed- 
 eral courts, with and without 
 limitation as to the amount recov- 
 erable-, others, following the rule 
 of compensation adopted in this
 
 554 
 
 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 measure, double and treble the 
 amount to be paid in case of in- 
 jury or death. Nevertheless, it has 
 seemed wise to the committee to 
 confine compensation so far as pos- 
 sible to hazardous occupations, 
 and to adhere not only to the 
 system already adopted by the 
 Treasury and Post-Office Depart- 
 ments, but to dispense relatively 
 about the same amount of relief. 
 
 This plan, uniformly advocated 
 by such employees of the Grovern- 
 ment as appeared before the com- 
 mittee, seemg to be much more 
 satisfactory because it gives food to 
 the family at a time when the 
 employee cannot earn wages. In- 
 deed, a strong feeling was evi- 
 denced at the hearings that some 
 less expensive system of compen- 
 sating accidents should be adopted 
 than the lawsuit, which involves 
 delay, produces uncertainty, Avith- 
 holds money when most needed, and 
 works other hardships. What the 
 injured employee seems to desire 
 is to have his family supported 
 while he ig unable to earn wages, 
 and he seems to prefer to take a 
 less amount, to be used at such a 
 time, than to await the result of a 
 slow lawsuit, even though it may, 
 if he succeeds, bring him two or 
 three times as much. 
 
 Several of the governments of 
 Europe have adopted this system 
 of compensation. Under the provi- 
 sions of the English workmen's 
 compensation Act of 1897 an em- 
 ployee of the Government, if it*- 
 jured, receives for a period not 
 exceeding six months one-half his 
 average weekly earnings during the 
 previous twelve months; if killed, 
 his family receives an amount 
 ranging from $730 to $1,460. 
 
 In France certain Government 
 employees in state, departmental, 
 and communal establisliments are 
 paid two-tliird» of tlieir annual 
 
 wages for permanent total disable- 
 ment and one-half for temporary 
 disability, besides medical anJ 
 surgical benefits. When death oc- 
 curs, those dependent upon him 
 receive sixty per cent, of his an- 
 nual wages until the widow 
 remarries and until the children 
 reach the age of sixteen. 
 
 In Germany employees of the 
 Government in the industrial es- 
 tablishments of the army and navy 
 and in the postal, telegraph, and 
 railway service receive for totivl 
 disability from one-half to two- 
 thirds of their diaily wages and a 
 less amount for partial disability. 
 In case of death dependents receive 
 sixty per cent, of their wages until 
 widow remarries, ete. 
 
 Similar compensation is pro- 
 vided in Austria and other Euro- 
 pean countries. The money so paid 
 seems to be derived for the most 
 part from accident insurance, for 
 which the governments pay in 
 whole or in part. In Austria, for 
 illustration, an employee receives 
 sixty per cent, of his wages for 
 the first four weeks from the re- 
 quired sick benefit insurance, for 
 which the employee pays two- 
 thirds and the Goveninient one- 
 third; thereafter during disability 
 he receives the same amount from 
 the required accident insurance 
 fund, of which the employee pays 
 ten per cent, and the Government 
 ninety per cent. In Belgium em- 
 ployees of the Government are com- 
 pensated under the compulsory 
 accident insurance law, the Gov- 
 ernment paying the whole premium. 
 The entire cost under the work- 
 men's compensation Act of France 
 is borne by the Government. In 
 German}' sickness and accident in- 
 surance is compulsory, except in 
 the case of soldiers and other ex- 
 cepted classes, which are otherwise 
 l^rovidcd for.
 
 APPENDIX A. 
 
 555 
 
 ACCIDENT REPORTS ACT. 
 
 An Act requiring common carriers 
 engaged in interstate and foreign 
 commerce to make full reports of 
 all accidents to the Interstate 
 Commerce Commission, and author- 
 izing investigations thereof by said 
 Commission. 
 
 Be it enacted by the Senate and 
 House of Representatives of the 
 United States of America in Congress 
 assembled, That it shall be the duty 
 of the general manager, superintend- 
 ent, or other proper officer of every 
 common carrier engaged in interstate 
 or foreign commerce by railroad to 
 make to the Interstate Commerce 
 Commission, at its office in Washing- 
 ton, District of Columbia, a monthly 
 report, under oath, of all collisions, 
 derailments, or other accidents re- 
 sulting in injury to persons, equip- 
 ment, or roadbed arising from the 
 operation of such railroad under such 
 rules and regulations as may be pre- 
 scribed by the said Commission, 
 which report shall state the nature 
 and causes thereof and the circum- 
 stances connected therewith: Pro- 
 vided, That hereafter all said carriers 
 shall be relieved from the duty of 
 reporting accidents in their annual 
 financial and operating reports made 
 to the Commission. 
 
 Sec. 2. That any common carrier 
 failing to make such report within 
 thirty days after the end of any 
 month shall be deemed guilty of a 
 misdemeanor, and upon conviction 
 thereof by a court of competent 
 jurisdiction shall be punished by a 
 fine of not more than one hundred 
 dollars for each and every offense 
 and for every day during which it 
 shall fail to make such report after 
 the time herein specified for making 
 the same. 
 
 Sec. 3. That the Interstate Com- 
 merce Commission shall have authori- 
 ty to investigate all collisions, de- 
 railments, or other accidents re- 
 
 sulting in serious injury to person or 
 to the property of a railroad occurring 
 on the line of any common carrier 
 engaged in interstate or foreign com- 
 merce by railroad. The Commission, 
 or any impartial investigator there- 
 unto authorized by said Commission, 
 shall have authority to investigate 
 such collisions, derailments, or other 
 accidents aforesaid, and all the attend- 
 ing facts, conditions, and circum- 
 stances, and for that purpose may 
 subpoena witnesses, administer oaths, 
 take testimony, and require the pro- 
 duction of books, papers, orders, 
 memoranda, exhibits, and other evi- 
 dence, and shall be provided by said 
 carriers with all reasonable facilities: 
 Provided, That when such accident is 
 investigated by a commission of the 
 State in which it occurred, the Inter- 
 state Commerce Commission shall, 
 if convenient, make any investigation 
 it may have previously determined 
 upon, at the same time as, and in 
 connection with, the state commission 
 investigation. Said Commission shall, 
 when it deems it to the public interest, 
 make reports of such investigations, 
 stating the cause of accident, together 
 with such recommendations as it 
 deems proper. Such reports shall be 
 made public in such manner as the 
 Commission deems proper. 
 
 Sec. 4. That neither said report nor 
 any report of said investigation nor 
 any part thereof shall be admitted as 
 evidence or used for any purpose in 
 any suit or action for damages grow- 
 ing out of any matter mentioned in 
 said report or investigation. 
 
 Sec. 5. That the Interstate Com- 
 merce Commission is authorized to 
 prescribe for such common carriers 
 a method and form for making the 
 reports hereinbefore provided. 
 
 Sec. 6. That the Act entitled "An 
 Act requiring common carriers en- 
 gaged in interstate commerce to make 
 full reports of all accidents to the 
 Interstate Commerce Commission,"
 
 556 
 
 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 approved March third, nineteen 
 hundred and one, is hereby repealed. 
 Sec. 7. That the term "interstate 
 commerce," as used in this Act, shall 
 include transportation from any State 
 or Territory or the District of Colum- 
 bia to any other State or Territory or 
 the District of Columbia, and the 
 
 term "foreign commerce," as used in 
 this Act, shall include transportation 
 from any State or Territory or the 
 District of Columbia to any foreign 
 country and from any foreign country 
 to any State or Territory or the 
 District of Columbia. 
 
 MEDALS OF HONOR ACT. 
 
 An Act to promote the security of 
 travel upon railroads engaged in 
 interstate commerce, and to en- 
 courage the saving of life. 
 
 Be it enacted by the Senate and 
 House of Representatives of the 
 United States of America in Congress 
 assembled. That the President of 
 the United States be, and he is 
 hereby, authorized to cause to be 
 prepared bronze medals of honor, 
 with suitable emblematic devices, 
 which shall be bestowed upon any 
 persons who shall hereafter, by ex- 
 treme daring, endanger their own 
 lives in saving, or endeavoring to 
 save, lives from any wreck, disaster, 
 or grave accident, or in preventing or 
 endeavoring to prevent such wreck, 
 disaster, or grave accident, upon any 
 railroad within the United States 
 engaged in interstate commerce: 
 Provided, That no award of said 
 medal shall be made to any person 
 until sufficient evidence of his de- 
 ser\ing shall have been furnished and 
 placed on file, under such regulations 
 as may be prescribed by the President 
 of the United States. 
 
 Sec. 2. That the President of the 
 United States be, and he is hereby, 
 authorized to issue to any person to 
 whom a medal of honor may be 
 awarded under the provisions of 
 this Act a rosette or knot, to be worn 
 in Ueu of the medal, and a ribbon to be 
 worn with the medal; said rosette 
 or knot and ribbon to be each of a 
 pattern to be prescribed by the 
 President of the United States: 
 Provided, That whenever a ribbon 
 issued under the provisions of this 
 Act shall have been lost, destroyed, 
 or rendered unfit for use without 
 fault or neglect on the part of the 
 person to whom it was issued, a new 
 ribbon shall be issued to such person 
 without charge therefor. 
 
 Sec. 3. That the appropriations for 
 the enforcement and execution of the 
 provisions of the Acts to promote 
 the safety of employees and travelers 
 upon railroads are hereby made avail- 
 able for carrying out the provisions 
 of this Act. 
 
 Public, No. 98, approved February 
 23, 1905.
 
 APPENDIX B. 
 
 EEPOET OF HOUSE JUDICIAL COMMITTEE ON" 
 FEDERAL EMPLOYES' LIABILITY ACT. 
 
 The Committee on the Judiciary, to whom was referred 
 House Bill 20310, have had the same under consideration, and 
 report it to the House with a recommendation that it pass. 
 
 This bill relates to common carriers by railroad engaged in 
 interstate and foreign commerce and in commerce in the Dis- 
 trict of Columbia, the Territories, the Canal Zone, and other 
 possessions of the United States. It is intended in its scope 
 to cover all commerce to w^hich the regulative power of Con- 
 gress extends. 
 
 The purpose of this bill is to change the common-law lia- 
 bility of employers of labor in this line of commerce, for per- 
 sonal injuries received by employees in the service. It abol- 
 ishes the strict common-law rule of liability which bars a re- 
 covery for the personal injury or death of an employee, oc- 
 casioned by the negligence of a fellow-servant. It also re- 
 laxes the common-law rule which makes contributory negli- 
 gence a defense to claims for such injuries. It permits a 
 recovery by an employee for an injury caused by the negli- 
 gence of a co-employee ; nor is such a recovery barred even 
 though the injured one contributed by his own negligence 
 to the injury. The amount of the recovery, however, is di- 
 minished in the same degree that the negligence of the in- 
 jured one contributed to the injur3^ It makes each party re- 
 sponsible for his own negligence, and requires each to bear 
 the burden thereof. The bill also provides that, to the extent 
 that any contract, rule, or regulation seeks to exempt the em- 
 
 557
 
 558 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 ployer from liability created by this act, to that extent such 
 contract, rule or regulation shall be void. 
 
 Many of the States have already changed the common-law 
 rule in these particulars, and by this bill it is hoped to fix a 
 uniform rule of liability throughout the Union with reference 
 to the liability of common carriers to their employees. 
 
 Sections 1 and 2 of this bill provide that common carriers 
 by railroad, engaged in interstate and foreign commerce, in 
 commerce in the District of Columbia, the Territories, the 
 Panama Canal Zone, and other possessions of the United 
 States, shall be liable to its employees for personal injuries re- 
 sulting from its negligence or by reason of any defect or in- 
 sufficiency due to its negligence in its roads, equipment, or 
 methods. It is not a new departure, but rather goes back to 
 the old law which made the master liable for injury occasioned 
 by the negligence of his servant, either to a co-servant or to 
 a third person. 
 
 The doctrine of fellow-servant was first enunciated in Eng- 
 land in 1837, and since that time it has been generally fol- 
 lowed in that country and this, except where abrogated or 
 modified by statute. Whatever reason may have existed for 
 the doctrine at the time it was first announced, it can not be 
 said to exist now, under modern methods of commerce by rail- 
 road. It is possible that a century ago, under industrial meth- 
 ods and systems as they then existed, co-employees could have 
 some influence over each other tending to their personal safety. 
 It is possible that they could know something of the habits 
 and characteristics of each other. Under present industrial 
 methods and systems this can not be true. Then they worked 
 with simple tools and were closely associated with each other 
 in their work. Now they work with powerful and complex 
 machinery, with widely diversified duties, and are distributed 
 over hirger areas and often widely separated from each other. 
 Under present methods, personal injuries have become a pro- 
 digious burden to the employees engaged in our industrial 
 and coirimercial systems. 
 
 The master should be made wholly responsible for injury
 
 APPENDIX B. 559 
 
 to the servant by reason of the negligence of a co-servant. 
 He exercises the authority of choosing the employees and if 
 made responsible for their acts while in line of duty he will 
 be induced to exercise the highest degree of care in selecting 
 competent and careful persons and will feel bound at all 
 times to exercise over employees an authority and influence 
 which will compel the highest degree of care on their part 
 for the safety of each other in the performance of their 
 duties. 
 
 These sections make the employer liable for injury caused 
 by defects or insufficiencies in the roadbed, tracks, engines, 
 machinery, and other appliances used in the operation of rail- 
 roads. Over these things the employee has absolutely no au- 
 thority. The employer has complete authority over them, 
 both in their construction and in their maintenance. It is 
 a very hard rule, indeed, to compel men, who by the exigen- 
 cies and necessities of life are bound to labor, to assume the 
 risks and hazards of the employment, when these risks and 
 hazards could be greatly lessened by the exercise of proper 
 care on the part of the employer in providing safe and proper 
 machinery and equipment with which the employee does his 
 work. We believe that a strict rule of liability of the em- 
 ployer to the employee for injuries received for defective 
 machinery will greatly lessen personal injuries on that ac- 
 count. The common-law rules of fellow-servants and assump- 
 tion of risk still prevail in many of the States, and Avithout 
 any apparent good reason. In recent years many of the 
 countries of Europe have adopted new rules of liability, 
 which greatly relieve the harshness of the common law as 
 it still exists in some of the States. 
 
 In 1888 England passed an act which abolished the doctrine 
 of fellow-servant with reference to the operation of railroad 
 trains, and in 1897 it extended this law to apply to many 
 of the hazardous employments of the country. 
 
 For many years the doctrine in Germany has been yielding 
 step by step to better rules, until for the last quarter of a
 
 560 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 century it does not apply to any of the hazardous occupa- 
 tions. 
 
 In 1869 Austria passed a law making railroad companies 
 liable for all injuries to their employees except where the 
 injury was due to the victim's own negligence. 
 
 The Code Napoleon made the employer answerable for all 
 injuries received by his workmen, and this code is still in 
 force in Belgium and Holland. 
 
 Other European countries have from time to time made 
 laws fixing the liability of the master for damages caused by 
 the negligent act of his servant. 
 
 Many of the States have passed laws modifying the doc- 
 trine as changing conditions required it and justice to the 
 employee demanded it. 
 
 Alabama in 1885 eliminated the doctrine so far as it re- 
 lates to railroads, and in other particulars. 
 
 Arkansas in 1893 qualified the doctrine as to railroad em- 
 ployment. 
 
 Georgia in 1856 entirely abolished the doctrine as to rail- 
 roads. 
 
 Iowa abolished it as to train operatives in 1862. 
 
 Kansas did the same thing in 1874. 
 
 The latest statute in Wisconsin on the subject abolished 
 the fellow-servant doctrine as to employees actually engaged 
 in operating trains. 
 
 ]\Iinnesota did the same thing in 1887. 
 
 Florida. Ohio, Mississippi, and Texas have changed the 
 doctrine to the advantage of the employee. 
 
 North Carolina, North Dakota, and ^Massachusetts have 
 practically eliminated the doctrine as regards the operation 
 of railroad trains. 
 
 Colorado in 1901 abolished the doctrine in toto. 
 
 Other States have either abolished it or modified it as re- 
 gards the operation of railroads. 
 
 As r^omparofl with tbe law now in force in other countries 
 anrl in many of tbo Stfifos. the chancres made in the law of 
 fellow-servant by this bill are not radical. The doctrine as
 
 APPENDIX B. 561 
 
 regards the hazardous occupations is being relegated every- 
 where. 
 
 A Federal Statute of this character will supplant the num- 
 erous State Statutes on the subject so far as they relate to in- 
 terstate commerce. It will create uniformity throughout the 
 Union, and the legal status of such employer's liability for 
 personal injuries, instead of being subject to numerous rules, 
 will be fixed by one rule in all the States. 
 
 It is thought that the adoption of the rule, as provided in 
 this section, will be conducive to greater care in the operation 
 of railroads. As it is now, where the doctrine of fellow- 
 servant is in force, no one is responsible for the injury or 
 death of an employee if caused by the carelessness of a co- 
 employee. The co-servant who is guilty of negligence result- 
 ing in the injury may be liable, but as a rule he is not re- 
 sponsible, and hence the injury is not compensated. The em- 
 ployee is not held by the employer to such strict rules of cau- 
 tion for the safety of his co-employee, because the employer 
 is not bound to pay the damages in case of injury. If he 
 were held liable for damages for every injury occasiond by 
 the negligence of his servant, he would impose the same strict 
 rules for the safety of his employees as he does for the safety 
 of passengers and strangers. Pie will make the employment 
 of his servant and his retention in the service dependent 
 upon the exercise of higher care, and this will be the stronger 
 inducement to the employee to act with a higher regard for 
 the safety of his fellow-workmen. 
 
 Section 3 is a modification of the common-law rule of con- 
 tributory negligence. It does not abolish the law. Under its 
 provisions contributory negligence still bars a recovery for 
 personal injury so far as the injury is due to the contributory 
 negligence of the employee, but entitles the employee to re- 
 cover for the injury so far as it is due to the negligence of 
 the employer. It differs from the Act passed by Congress in 
 June, 1906. on this point, in this: That law provided that 
 contributory negligence did not bar a recovery if the negli- 
 gence of the employee was slight and that of the employer
 
 562 FEDERAL EMPLOYERS' LL^ILITY ACT. 
 
 was gross in comparison. That law modified the common- 
 law rule of contributory negligence and also contained a mod- 
 ification of the common-law doctrine of comparative negli- 
 gence. We are unable to see any justification whatever in the 
 common-law doctrine of comparative negligence anywhere. 
 It is the only rule of negligence that permits an employee to 
 recover damages for injury to which his own negligence con- 
 tributed. Comparative negligence is absolutely wrong in 
 principle, for the reason that it permits the employee to re- 
 cover full damages for injury, even though his own negligence 
 contributed to it. It is true, as the law states it, he can only 
 recover damages when his contributory negligence is slight 
 and that of the employer is gross in comparison. But that 
 rule does not undertake to diminish the verdict in proportion 
 to the negligence of the employee. This may be said in behalf 
 of the doctrine of contributory negligence in its common-law 
 purity, and it is the only reason, so far as we know, that has 
 ever been assigned for its existence : It tends to make the 
 employee exercise a higher degree of care for his own safety. 
 
 If that is a good reason for the existence of that rule, then 
 we believe that Section 3 of this bill is a very great improve- 
 ment on that doctrine, for the reason that it imposes the bur- 
 den of the employer's negligence on the employer, and he 
 will thus be induced to exercise higher care in the selection 
 of his employees, and in other ways, for the safety of persons 
 in his employment. If the law imposes on the employee the 
 burden of his owii negligence, that is certainly sufficient, and 
 that is what this section seeks to do, and it also seeks to im- 
 pose upon the employer the burden of his negligence. It 
 provides that contributory negligence shall not bar a recov- 
 ery for injury due to the negligence of the employer. It pro- 
 vides that the jury shall diminish the damages sufl^ered by 
 the injured employee in proportion to the amount of negli- 
 gence attril)utal)le to such employee. 
 
 It is urged by some that such a provision is impracticable 
 of administration and that juries will not divide the damages 
 in accordance with the negligence committed by each. The
 
 APPENDIX B. 563 
 
 same objection can be urged against the provision of the bill 
 passed by Congress in 1906, which provided that only slight 
 negligence should not bar a recovery, but that the jury should 
 diminish damages in proportion to such slight negligence. 
 Under that provision the jury would have the same difficulty, 
 if any, in apportioning the damages according to the negli- 
 gence of each party. We submit, further, that this section 
 of the bill is free from the very unjust principle contained in. 
 the common-law doctrine of comparative negligence which al- 
 lowed the employee to recover full damages for injury to 
 which his own negligence contributed in some degree. It is 
 not a just criticism of a law, conceding the righteousness of 
 its principles, to say that it is impracticable of administra- 
 tion. We submit that the principle in this section is ideal 
 justice, against which no fair argument can be made. It is 
 better that legislatures pass just and fair laws, even though 
 they may be difficult of administration by the courts, rather 
 than to pass unjust and unfair laws because they may be more 
 easily administered by the courts. Courts ought not to be 
 compelled to administer the common-law doctrine of con- 
 tributory negligence, which puts upon the employee the whole 
 burden of negligence, even though his negligence was slight 
 and that of the employer was gross. That law might to some 
 extent induce higher care on the part of the employee, but 
 in the same degree, and for the same reason, it induces the 
 employer to have less regard and less care for the safety of 
 his employees. 
 
 It is urged that juries under this law will wholly ignore 
 the negligence committed by the employee and charge all the 
 injury to the negligence of the employer. We do not believe 
 that this will be the result of the administration of this sec- 
 tion. We believe it will appeal to juries as eminently just 
 and they will undertake to enforce it literally to the best of 
 their skill. If juries under the common-law rule of contribu- 
 tory negligence have been disposed to assess damages in spite 
 of the fact that the defendant contributed to the injury by 
 his own negligence, it may be said that the jury recognizes
 
 56-i FEDERAL EMPLOYERS' LIABirjTY ACT. 
 
 the injustice of the law and undertakes to correct it by what 
 they consider a just and righteous verdict. There is nothing 
 in this law that will induce such a sentiment in the minds 
 of the jury, but it will appeal to them as the true principle, 
 and, in our judgment, they will seek to apply it fairly in the 
 courts. 
 
 Beach, in his work on contributory Negligence, page 136, 
 comments on the law as provided in this section as follows : 
 
 "jMuch may be said in favor of the rule which counts the 
 plaintiff's negligence in mitigation of the damages in those 
 cases which frequently arise, wherein, on one hand, a real 
 injury has been suffered by the plaintiff by reason of the cul- 
 pable negligence of the defendant, and yet, where, on the 
 other hand, the plaintiff's conduct was such as to some ex- 
 tent contribute to the injury, but in so small a degree that 
 to impose upon him the entire loss seems not to take a just 
 account of the defendant's negligence. In those cases, which 
 may be denominated 'hard cases,' the Georgia and Tennessee 
 rule in mitigation of damages without necessarily sacrificing 
 the principle upon which the law as to contributory negli- 
 gence rests is a rule against which, in respect of justice and 
 humanity, nothing can be said. Where the severity of the 
 general rule might refuse the plaintiff any remedy whatever, 
 as the sheer injustice of the rule, as laid down in Davis v. 
 Mann, would impose the whole liability upon the defendant, 
 it is quite possible to conceive a case where the application 
 of the rule which mitigates the damages in proportion to the 
 plaintiff's misconduct, but does not decline to impose them 
 at all, would work substantial justice between the parties." 
 
 i^hoarman and "Rodfield on the Law of Negligence, fifth edi- 
 tion, page 158, in speaking of this rule, say: 
 
 "This is substantially an adoption of the admiralty rule, 
 whieh is f^ortainly nearer ideal justice, if juries could be 
 trusted to act upon it." 
 
 The United States has adhered much closer to the common- 
 law doctrine of contributory negligence than the leading 
 countries o-f Europe. The laws of England, Germany, and
 
 APPENDIX B. 
 
 565 
 
 Italy go much further to discharge the employee from the 
 responsibility of his own act than does the common-law doc- 
 trine of comparative negligence. 
 
 The laws of France, Switzerland, and Russia are in prac- 
 tical accord with the provisions of section 3 of this bill. 
 
 The rule provided for in this section is recognized to some 
 extent in this country. Maryland and some of the other 
 States have passed statutes seeking to divide the responsibility 
 where both parties are guilty of negligence. 
 
 The provisions of this section are certainly just. What can 
 be more fair than that each party shall suffer the conse- 
 quences of his own carelessness? It certainly appeals more 
 strongly to the fair mind than the proposition that the em- 
 ployee shall have no redress whatever, even though his injury 
 is due mainly to the negligence of another. As a consequence 
 of this legislation, we believe there will be fewer accidents. 
 By the responsibility imposed, both parties will be induced to 
 the exercise of greater diligence, and as a result the public 
 will travel and property will be transported in greater safety. 
 
 The proviso in section 3 is to the effect that contributory 
 negligence shall not be charged to the employee if he is in- 
 jured or killed by reason of the violation, by the employer, of 
 any statute enacted for the safety of employees. The effect 
 of the provision is to make a violation of such a statute neg- 
 ligence per se on the part of the employer. The courts of 
 some States have held this as a principle of the common-law. 
 Other States have enacted it into statute. 
 
 Section 4 provides, in effect, that the employee shall not be 
 charged with the assumption of risk in case he is injured by 
 reason of the violation of the employer of a statute enacted 
 for the safety of employees. This section likewise makes the 
 violation of such a statute negligence per se on the part of the 
 employer, and is already the law in many of the States of the 
 Union. 
 
 Section 5 renders void any contract or rule whereby a com- 
 mon carrier seeks to exempt itself from liability created by 
 this act. Many of the States have enacted laws making void
 
 566 FEDERAL EMPLOYERS* LIABILITY ACT. 
 
 sucli contracts and regulations, and, so far as we are informed, 
 these statutes have been sustained by the courts. The fol- 
 lowing States have incorporated into their statutes language 
 similar to the language contained in this bill on this question : 
 Arkansas, California, Colorado, Florida, Georgia, Indiana, 
 Iowa, Massachusetts, Minnesota, Mississippi, Montana, Ne- 
 braska, Nevada, New York, North Carolina, North Dalcota, 
 Ohio, Oregon, South Carolina, South Dakota, Texas, Virginia, 
 Wisconsin, and Wyoming. The Supreme Court of Ohio held 
 that a contract exempting a railroad company from liability 
 for injuries was void under the common law as against public 
 safety. Likewise the Supreme Court of Arkansas and the 
 court of appeals of Virginia have held the same doctrine. The 
 Courts of New York have held that such contracts, though 
 based on a consideration, are void as against public policy. 
 The statutes of Ohio and Iowa fixing the liability of employer 
 to employees, containing provisions similar to this section, 
 have been held constitutional by the Federal Courts, although 
 the cases in which these decisions were rendered did not ex- 
 pressly turn on that question. The courts of Alabama have 
 held such contracts void, regardless of statute. In Georgia 
 •and Pennsylvania such contracts have been held valid, but 
 since the decision in Georgia that State has adopted a statute 
 making them void. 
 
 This provision is necessary in order to make effective sec- 
 tions 1 and 2 of the bill. Some of the railroads of the coun- 
 try insist on a contract with their employees discharging the 
 company from liability for personal injuries. 
 
 In any event, the employees of many of the common car- 
 riers of the country are to-day working under a contract of 
 employment which by its terms releases the company from 
 liability for damages arising out of the negligence of other 
 employees. As an illustration we quote one paragraph from 
 a blank form of application for a situation with the xVmerican 
 Express Company, and entitled "Rules governing employ- 
 ment by this company:" 
 
 "I do further agree, in consideration of my employment by
 
 APPENDIX B. 567 
 
 said American Express Company, that I will assume all risks 
 of accident or injury which I shall meet with or sustain in 
 the course of such employment, whether occasioned by the 
 negligence of said company or any of its members, officers, 
 agents, or employees, or otherwise; and that in case I shall 
 at any time suffer any such injury, I will at once execute and 
 deliver to said company a good and sufficient release, under 
 my hand and seal, of all claims, demands, and causes of ac- 
 tion arising out of such injury or connected therewith or re- 
 sulting therefrom; and I hereby bind myself, my heirs, ex- 
 ecutors, and administrators, with the payment to said express 
 company, on demand, of any sum which it may be compelled 
 to pay in consequence of any such claim or in defending the 
 same, including all counsel fees and expenses of litigation 
 connected therewith. ' ' 
 
 "While many of the States have enacted statutes making 
 such contracts void, yet the United States Supreme Court, 
 there being no Federal statute on the subject, have held a 
 similar contract valid in the case of Voigt v. Baltimore and 
 Ohio Southivestern Railroad (176 U. S., p. 498). In this case 
 the railroad company entered into a contract with an express 
 company whereby it agreed to carry the business of the ex- 
 press company, to furnish it with cars and certain facilities 
 over its road, and to carry its messengers, in consideration 
 of which the express company agreed to save harmless the 
 railroad company for all claim for damages for personal in- 
 jury received by its employees, whether the injuries were 
 caused by the negligence of the railroad company or other- 
 wise. 
 
 Voigt entered the service of the express company as mes- 
 senger, and by the contract of his employment he agreed to 
 assume all the risk of accident and injury and to indemnify 
 and save harmless the express company from all claims that 
 might be made against it for injury he might suffer, whether 
 resulting from negligence or otherwise, and to execute a re- 
 lease for the same. 
 
 Voigt was injured and sued. The court said :
 
 568 FEDERAL EMPLOYERS' LIABILITY ACT, 
 
 "He was not constrained to enter into the contract where- 
 by the railroad company was exonerated from liability to him, 
 but entered into the same freely and voluntarily, and ob- 
 tained the benefit of it by securing his appointment as such 
 messenger, and that such a contract did not contravene pub- 
 lic policy." 
 
 In the case of O'Brien v. C. and N. W. By. Co. (Fed. Kep. 
 vol. 116, p. 502), which involved the statute of Iowa making 
 such contracts invalid, the court said: 
 
 "That while such contracts would be effective to protect 
 the railroad company from liability at common-law, under 
 such statutory provisions declaratory of the public policy 
 of the State they were invalid and constituted no defense to 
 an action against it for the death of the messenger occurring 
 in the State of Iowa by reason of the wrecking of the express 
 car in which he was employed, through the negligence and 
 want of ordinary care of defendant or its servants, whether 
 the messenger be regarded as an employee of the defendant 
 or not." 
 
 This section of the bill, however, provides that the common 
 carrier may set off against any claim for damages whatever 
 it has contributed toward such insurance, relief benefit, or 
 indemnity that may have been paid to the injured employee, 
 which would seem to be entirely fair and all that ought to be 
 required of the employee. 
 
 Some of the roads of the country have established what are 
 called "relief departments," which seek to operate a species 
 of insurances for the employee against the hazards of the em- 
 ployment, but, so far as we know, all their forms of contracts, 
 used by these relief departments to insure the employee, dis- 
 charge the company from every possible liability for personal 
 injuries to the employee. This release is made by its terms of 
 agreement in consideration of the contributions of the com- 
 pany to the relief fund. 
 
 The following is one of the paragraphs from the form of 
 application for niemborship in the relief department used by 
 the Baltimore and Ohio Railroad Company:
 
 APPENDIX B. 569 
 
 "I further agree that, in consideration of the contributions 
 of said company to the relief department and of the guar- 
 anty by it of the payment of the benefits aforesaid, the ac- 
 ceptance of benefits from such relief feature for the injury or 
 death shall operate as a release of all claims against said com- 
 pany, or any company owning or operating its branches or 
 divisions, or any company over whose railroad, right of way, 
 or property the said Baltimore and Ohio Railroad Company 
 or any company owning or operating its branches or divisions 
 shall have the right to run or operate its engines or cars or 
 send its employees in the performance of their duty, for dam- 
 ages by reason of such injury or death which could be made 
 by or through me ; and that the superintendent may require, 
 as a condition precedent to the payment of such benefits, that 
 all acts by him deemed appropriate or necessary to effect the 
 full release and discharge of the said companies from all such 
 claims be done by those who might bring suit for damages 
 by reason of such injury or death ; and also that the bringing 
 of such a suit by me, my beneficiary or legal representative, 
 or for the use of my beneficiary alone, or with others, or the 
 payment by any of the companies aforesaid of damages for 
 such injury or death recovered in any suit or determined by 
 a compromise or any costs incurred therein, shall operate as 
 a release in full to the relief department of all claims by rea- 
 son of membership therein." 
 
 The form of other application used by other companies are 
 similar in terms to the cited, and make acceptance of benefits 
 from said fund a release of all claims for damages for injury 
 or death. 
 
 By an act concerning common carriers engaged in inter- 
 state commerce and .their employees, approved June 1, 1898, 
 knowTi as the "arbitration law," it is made a misdemeanor 
 on the part of any employer subject to the provisions of that 
 act: 
 
 "To require any employee or any person seeking employ- 
 ment, as a condition of such employment, to enter into a con- 
 tract whereby such employee or applicant for employment
 
 570 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 shall agree to contribute to any fund for charitable, sociable, 
 or beneficial purposes; to release such employer from legal 
 liability for any personal injury by reason of any benefit 
 arising from the employer's contribution to such fund." 
 
 We believe this bill meets the objections of the Supreme 
 Court to the act of June 11, 1906, knowTi as the ''employers' 
 liability act" in the case of Howard, administratrix etc., v. 
 Illinois Central Railroad Company, et al. 6 Cong. Record, 1st 
 Sess. pp. 4434-4436. 
 
 HOUSE REPORT ON AMEND- 
 MENTS OF 1910. 
 
 LIABILITY OF COMMON CARRIERS TO THEIR EM- 
 PLOYEES IN CERTAIN CASES. 
 
 Febeuakt 22, in 10. — Referred to the House Calendar and ordered to be 
 
 printed. 
 
 Mr. Sterling, from the Committee on the Judiciary, sub- 
 mitted the following 
 
 REPORT. 
 
 [To accompany H. R. 17263.] 
 
 The Committee on the Judiciary, to whom was referred 
 the bill (H. R. 17263) to amend an act entitled, "An act 
 relating to the liability of common carriers by railroad to 
 their employees in certain cases," approved April 22, 1908, 
 having had the same under consideration, beg leave to 
 report it to the House witli a recommendation that the 
 ,bill do pass. 
 
 In considering the advisability of amending the act enti- 
 tled "An act relating to the liability of common carriers by
 
 APPENDIX B. 571 
 
 railroads to their employees in certain cases," approved 
 April 22, 1908, it is important at the outset to understand 
 that the purpose of Congress in the passage of this act was 
 to extend further protection to employees. This was its 
 manifest purpose, as is apparent from a consideration of 
 the circumstances of its enactment. It is manifest from a 
 consideration of the reports, both of the Senate and House 
 committees, when the measure was pending before those 
 bodies prior to its enactment, that the purpose of the statute 
 was to extend and enlarge the remedy provided by law to 
 employees engaged in interstate commerce in cases of death 
 or injury to such employees while engaged in such service. 
 No purpose or intent on the part of Congress can be found 
 to limit or to take away from such an employee any right 
 theretofore existing by which such employees were entitled 
 to a more extended remedy than that conferred upon them 
 by the act. 
 
 The effect of decisions of cases so far adjudicated under 
 the act has been in general to recognize the true intent of 
 Congress and to extend and make more amj^le the right to 
 recover damages for death or injury to interstate servants, 
 yet in some particulars its operation has been to limit a 
 recovery which otherwise would have been open to the em- 
 ployee or his representative. 
 
 One result of the passage of the law may be to nullify 
 state laws affording a remedy in certain cases for death or 
 injury in railroad service. The state laws which had been 
 operative and which were valid even in their application 
 to those engaged in service in interstate commerce appear 
 to have been rendered, as to interstate servants, ineffective 
 when Congress acted upon this subject. That this seems to 
 have been the effect of the passage of this law was expressly 
 decided in a well-considered opinion by Judge Rogers in 
 the case of Fulgam v. IMidland Valley R. Co. (167 Fed., 660, 
 p. 662) : 
 
 Tt is clear that the act of April 22, 1908, supra, superseded and took 
 the place of all state statutes regulating relations of employers and 
 employees engaged in interstate commerce by railroads. It covered not
 
 572 FEDERAL EMPLOYERS' LIABILITY ACT, 
 
 only injuries sustained by employees engaged in that commerce resulting 
 from the negligence of the master and his servants, and from defects in 
 tlie designated instrumentalities in use in that commerce, but also dealt 
 with contributoi-y and comparative negligence and assumed risk, making, 
 in certain cases at least, the master an insurer of the safety of the 
 servant while in his employment in that commerce. It covers and over- 
 laps the whole state legislation, and is therefore exclusive. 
 
 All state legislation on that subject must give way before that act 
 (Miss. Railroad Commission v. 111. Cent. E. R. Co., 203 U. S., 335; 27 
 Sup. Ct., 90: 51 L. Ed.. 209; Sherlock et al. v. Ailing, administrator 
 93 U. S., 104; 23 L. Ed., 819.) Tliese last cases serve to show thae, 
 until Congress has acted with reference to the regulation of interstate 
 commerce, state statutes regailating the relations of master and servant 
 and incidentally affecting interstate commerce, but not regulating or 
 obstructing it, may be given effect; but when Congress has acted upon a 
 given subject state legislation must yield. 
 
 In Galf, Colorado, etc., Railroad Co. v. Hefley (158 U. S., 
 Q9; 19 Sup. Ct., 804; 39 L. Ed., 910) the court said: 
 
 "When a state statute and a federal statute operate upon the same 
 subject-matter, and prescribe diti'erent rules concerning it, the state 
 statute must give way." 
 
 "When Congress acted upon the subject of the regulation 
 of the liability of interstate carriers for injuries to their 
 servants engaged in interstate commerce, "the State was 
 thereby precluded from enacting any law of that sort which 
 would have that effect, for the field of policy and legisla- 
 tion was thus assumed by Congress and withdrawn from 
 State competency." (Wisconsin v. C, M. & St. P. Ry. Co., 
 117 N. W., 686.) 
 
 In the course of his opinion in the case above cited. Justice 
 Dodge, delivering the unanimous opinion of the Supreme 
 Court of Wisconsin, very clearly stated this doctrine and 
 the authority upon which it was based, as follows: 
 
 Within the field of authorized congressional action the federal power 
 must, in the nature of things, be supreme in all parts of the United 
 States. "This Constitution, and the laws of the United States whicii 
 shall be niade in pursuance tliereof * * * shall be the supreme law 
 of the land; and the judges in every State shall be bound thereby, any 
 thing in the constitution or laws of any state to the contraiy not- 
 withstanding." (Art. VI, par. 2, Const. U. S.). In Cooley v. 
 Ik>ard of Wardens (12 How., 299, 318), it was said of this 
 class of legislation: "It is not the mere existence of such power, but 
 its exercise by Congress, which may be incompatible with the exercise of 
 the same power by the States, and that the States may legislate in the
 
 APPENDIX B. 
 
 573 
 
 absence of congressional legislation." In Pennsylvania v. Wheeling, 
 etc., Co. (18 How., 431), where a state law authorized the building 
 of a bridge over a navigable water, is was declared that even in the 
 matter of a bridge, "if Congress chooses to act, its action necessarily 
 precludes the action of the State." 
 
 In United States v. Colorado & N. W. R. Co. (157 Fed. 
 Rep., 321, 330), Sanborn, J., remarks: 
 
 "The Constitution reserved to the nation the unlimited power to regu- 
 late interstate and foreign commerce, and if that power can not bj 
 effectually exercised without affecting intrastate commerce, tiien Con- 
 gress may undoubtedly in that sense regulate intrastate commerce so 
 far as necessary in order to regulate interstate commerce fully and 
 effectually. * * * That power is not subordinate, but is paramount 
 to all the powers of the States. If its independent and lawful exerc'ise 
 of this congressional power and the attempted exercise by a State of 
 any of its powers impinge or conflict, the former must prevail and the 
 latter must give way." (See also Gibbona v. Ogden, 9 Wheat., 1, 209, 
 210.) 
 
 It will be observed from these utterances that it is not a mere ques- 
 tion of conflicting laws in the two jurisdictions, so that the law of a 
 State will be valid so far as not antagonistic to a federal law. The 
 question is more properly one of jurisdiction over the subject, the hold- 
 ing being that within the second class of subjects above outlined silence 
 of Congress is deemed a relegation to the States of such jurisdiction 
 and authority, but action by Congress upon the particular subject is 
 deemed an assertion of the federal power, a declaration of the policy 
 that the subject shall be under federal and not state regulation, anJ 
 that, therefore, the power shall no longer rest in the State to exercise 
 that authority which by the Constitution of the United States was sur- 
 rendered to the Federal Government when and if Congress deemed its 
 exercise advisable. 
 
 In a recent decision of the court of civil appeals, State of 
 Texas, the court unanimously stated this doctrine as fol- 
 lows: 
 
 It is well settled that the power of Congress to regulate interstate 
 commerce under tlie provisions of the Constitution before mentioned is 
 plenary and includes the power to prescribe the qualifications, duties, 
 and liabilities of employees of railway companies engaged in interstate 
 commerce, and any legislation by CongTess on such subject supersedes 
 any state law upon the same subject. (Railway Co. v. Alabama, 128 
 U. S., 99; Howard v. Railway Co., 207 U. S., 463.) 
 
 The constitutional right of Congress to legislate upon this subject 
 having been exercised by that body, the right of the State to invade 
 this field of legislation ceased, or, at all events, no act of a state legis- 
 lature in conflict with the act of Congress u[X)n the same subject can be 
 held valid. The supreme courts of Missouri and Wisconsin in passing 
 upon the vailidity of statutes of said States similar to the act we are 
 considering, hold such statutes void upon the ground of conflict with 
 the act of Congress before mentioned. (State v. Mo. Pac. Rv. Co., Ill 
 S. W., 500; State v. C. M. & St. P. Ry. Co., 117 N. W., 686.)
 
 574 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 Judge Cooley, in his work on Constitutional Limitations, 
 
 seventh edition, 856, said : 
 
 It is not doubted that Congress has the power to go beyond the 
 general regulation of oonmierce which it is accustomed to establish, and 
 to descend to the most minute directions, if it shall be deemed advisable; 
 and that to wliatevcr extent ground shall be covered by these directions, 
 the exercise of state power is excluded. 
 
 It is therefore undoubtedly the law that congressional 
 action upon the liability of carriers engaged in interstate 
 commerce, for injuries to their employees, supersedes all 
 state legislation upon the same subject, and renders them, 
 as long as the Federal law remains in operation, of no avail 
 as providing a legal remedy. 
 
 Many of the States provide by statute for the survival of 
 any action which the deceased may have had for the injury 
 to his estate, and for any expenditures during his lifetime 
 resulting from the injury. 
 
 In the phraseology of the existing Employers' Liability 
 Act — that is, the Act of April 22, 1908 — the expression used 
 is, as to the question now under consideration: 
 
 Shall be liable in damages * * * in case of the death of such 
 employee, to his or her personal representative for the benefit of the 
 surviving widow or husband and children of such employee; and if 
 none, then of such employee's parents; and if none, then of the next 
 of kin dependent iipon such employee, for such injury or death result- 
 ing in whole or in part from the negligence of any of its officers, agents, 
 employees, * * *." 
 
 In the case of Fulgam v. Midland Valley R. R. Company, 
 hereinbefore cited, the court said: 
 
 In the opinion of the court, right of action given to the injured 
 employee by the act of April 22, 1908, does not svirvive to his personaJ 
 representative in the event of liis deatli, but, at common law, perishes 
 with the injured person. 
 
 In the case of Walsh, admx., v. New York, New Haven 
 and Hartford Railroad Company, Circuit Judge Lowell, 
 who delivered the opinion of the court, said in a case arising 
 under the Employers' Liability Act of April 22, 1908, after 
 quoting the case of Fulgam v. Midland Valley R. R. Co. 
 (167 Fed., 660) :
 
 APPENDIX B. 575 
 
 The defendant has further demurred to counts one and four, contend- 
 ing that the employee's cause of action to recover for his conscious 
 su&ering did not survive to his administratrix, although the existence 
 of some of the statutory relatives was alleged. As the cause of action 
 is given by a federal statute, this court can not have recourse to a 
 state statute in order to determine whether the cause of action survives 
 or not. (Schreiber v. Sharpless, 110 U. S., 76, 80; B. & 0. R. R. v. Joy 
 173 U. S., 226, 230; U. S. v. DeGoer, 38 Fed., 80; U. S. v. Riley, lul 
 Fed., 275.) Revised Statutes, section 955, provides that "When either 
 of the parties, whether plaintiff or petitioner, or defendant, in any suit 
 in any court of the United States, dies before final judgment, the 
 executor or administrator of such deceased party may, in case the cause 
 of action survives by law, prosecute or defend any such suit to final judg- 
 ment." This section does not itself provide what causes of action shall 
 survive, but in the absence of other controlling statute leaves the matter 
 to the common law. In the case at bar, therefore, the state otatutes 
 are inapplicable. There is no general federal statute, and the particular 
 statute in question, the act of 1908, says nothing about survival. 
 
 Tlius remitted to the common law, at which survi\ial is out of the 
 question, we must here hold that the cause of action did not survive 
 and so that counts one and four are demurrable. ( Fulgam v. Midland 
 Valley Co., 167 Fed., 660.) The court is justified in saying that this 
 result has been reached with reluctance. Tlie maxim "Actio personalis 
 moritur cum persona" has not always commended itself. (Pollock on 
 Torts, Webb's ed., p. 71.) The survival of the cause of action in this 
 case is allowed by the statutes of many States. That one who has 
 suffered in body and in purse by the fault of another, and so has a 
 cause of action against the wrongdoer, should, as to his own estate, be 
 deprived of this remedy by the delays of the law, or without such 
 delay, by his death, before or after action brought, whether connected 
 or unconnected with his first injury, seems to me, as to Sir Frederick 
 Pollock, a barbarous rule. The intent or the oversight of the legislature 
 has established the rule in this case. 
 
 The language of the statute should be made clear so that 
 the uncertainty and obscurity suggested by Judge Lowell 
 would be removed. So important a statute should be made 
 so certain in its terms that the intent of Congress may be 
 made manifest and clear. 
 
 It certainly should be as broad, as comprehensive, and as 
 inclusive in its terms as any of the similar remedial statutes 
 existing in any of the States, which are suspended in their 
 operation by force of the Federal legislation upon the 
 subject. 
 
 Note. — The remainder of this report is incorporated in that of the 
 Senate's following.
 
 576 
 
 FEDERAL EMPLOYERS LIABILITY ACT. 
 
 SENATE REPORT ON AMEND- 
 MENTS OF 1910. 
 
 AIMENDING EMPLOYEES' LIABILITY ACT. 
 
 March 22, 1910.— Ordered to be printed. 
 
 Mr. Borah, from the Committee on the Judiciary, submitted 
 
 the following 
 
 REPORT. 
 [To accompany H. R. 17263.] 
 
 The Committee on the Judiciary, having under considera- 
 tion House bill 17263, reports as follows: 
 
 It is of importance at the outset that Congress give care- 
 ful and serious consideration to remedying any defects in 
 the practical operation of the Employers' Liability Lav/ from 
 time to time as such defects are developed by proceedings 
 in court. This serious attention seems demanded because 
 the good faith of Congress in passing the original act has been 
 made the subject of attack in a publication which has been 
 given wide circulation among railroad counsel of the 
 country. At page 83 of this publication entitled, "Uncon- 
 stitutionality of the Federal Employers' Liability Act," pub- 
 lished by the Price, Lee & Adkins Company, in the course 
 of an argument of Mr. Edward D. Robbins, general counsel 
 of the New York, New Haven and Hartford Railroad Com- 
 pany, in two cases, Mondou v. New York, New Haven and 
 Hartford Railroad Company ajid Hoxie v. New York, New 
 Haven and Hartford Railroad Company (73 Atl. Rep., 754), 
 appears the following : 
 
 Does any member of this court believe that this statute would ev-ir 
 have Ikjcu passed except on tlic eve of a presidential elcctiDn under 
 the influence of the great railway unions of this country? If this act 
 did not have so many votes behind it, ^vould tlie executive department 
 of tlie United States be here, participating in private litigation, for tha 
 purpose of defending its constitutionality? 
 
 If there ever was a case in which the courts might properly be 
 appealed to, to set up the fundamental "law of the land" as a bulwarrc 
 against the arbitrary exercise of ymwer by a Democratic majority and 
 by elected Representatives who fear that majority, I think this is that
 
 APPENDIX B. 577 
 
 We may remark in passing that this gratuitous statement 
 could have no proper place in a legal discussion, for the 
 Supreme Court of the United States said in the McCray case 
 (196 U. S., 27) — 
 
 the decisions of this court from the beginning lend no support whatever 
 to the assumption tliat the judiciary may restrain the exercise of 
 lawful power on the assumption that a wrongful piu'pose or motive has 
 caused the power to be exerted. 
 
 As such an argument could receive no recognition from 
 any court as a basis of judicial action, as has been pointed 
 out by the Supreme Court in the McCray case, it is strange 
 that it should find its place in the presentation of a serious 
 matter to a court. This subject is referred to here only 
 for the purpose of calling upon Congress to make entirely 
 manifest the good faith of the legislature in the enactment 
 of the Employers' Liability Law, which places such stringent 
 liability upon the railroads for injuries to their employees 
 as to compel the highest safeguarding of the lives and limbs 
 of the men in this dangerous employment. The tremendous 
 loss of life and limb on the railroads of this country is 
 appalling. The total casualties to train men of the inter- 
 state railroads of the United States for the year 1908 was 
 281,645. 
 
 It was the intention of Congress in the enactment of this 
 law originally, and it may be presumed to be the intention 
 of the present Congress to shift the burden of the loss re- 
 sulting from these casualties from "those least able to bear 
 it," and place it upon those who can, as the Supreme Court 
 said in the Taylor case (211 U. S., 281), "measurably con- 
 trol their causes." 
 
 The passage of the original act and the perfection thereof 
 by the amendments herein proposed, stand forth as a dec- 
 laration of public policy to radically change as far as con- 
 gressional power can extend, those rules of the common law 
 which the President in a recent speech at Chicago char- 
 acterized as "unjust." President Taft in his address at 
 Chicago, September 16, 1909, referred "to the continuance
 
 578 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 of unjust rules of law exempting employers from liability 
 fcr accidents to laborers," 
 
 This public policj^ which we now declare is based upon 
 the failure of the common -law rules as to liability for acci 
 dent to meet the modern industrial conditions, and is based 
 not alone upon the failure of these rules in the United 
 States, but their failure in other countries as well. Mr. 
 Asquith, present prime minister of England, said : 
 
 It was revolting to sentiment and judgment that men who met with 
 accidents through the necessary exigencies of daily occupation, should 
 be a charge upon their own families. 
 
 The passage of the law was urged upon the strongest and 
 highest considerations of justice and promotion of the pub- 
 lic welfare. It was largely influenced by the strong mes- 
 sage of President Roosevelt to the Sixtieth Congress in 
 December, 1907, in which the basis of the legislation was 
 clearly and strongly placed upon the ground of justice to 
 the railroad workmen of this country and in which legis- 
 lation was urged to the limit of congressional power upon 
 this subject. In the message President Roosevelt said: 
 
 The practice of piitting the entire burden of loss to life or limb upon 
 the victim or the victim's family is a form of social injustice in whicu 
 the United States stands in unenWable prominence. In both our federal 
 and our state legislation we have, with few exceptions, scarcely gone 
 farther than the repetvl of the fellow-servant principle of the old law 
 of liability, an in some of our States even this slight modification of a 
 completely outgro\ATi principle has not yet been secured. The legislation 
 of the rest of the industrial world stands out in striking contrast to 
 our backwardness in tliis respect. Since 1.S95 practically every country 
 in Europe, together with Grent Britain, New Zeland, Australia, British 
 Columbia, and the 'Cape of G-ood Hope has enacted legislation embodying 
 in one form or another the complete recogiiition of the principle which 
 places uj)on the employer the entire trade risk in the various lines of 
 industry. 
 
 In the second volume of Labatt on "Master aud Servant,'* 
 at page 1325, the learned author, after an able discussion 
 of the reasons given by tlie courts of the doctrine denying 
 a remedy to servants injured by the negligence of fellow-' 
 servants, says: 
 
 It would appear, therefore, tliat the doctrine of common employment 
 stands in the singular j)redicanient that it rests very largely, if not 
 entirely, u]Km ii Imsis of suggested facts wliich we are asked to accept 
 upon the mere ipse dixit of a certain numlwr of gentlemen who have
 
 APPENDIX B. 579 
 
 attained greater or less distinction in a profession which, to say the 
 very least, does not specially qualify them to form a reliable opinion 
 in respect to the subject-matter. 
 
 This situation, which would, in any event, be extremely unsatis- 
 factory, is reduced to something like an absurdity by the fact that the 
 judicial theory as to the supposed inevitable consequences of allowing 
 servants to recover for the negligence of their coemployecs lias long 
 since been exploded by the logic of actual occurrences, the signific;inco 
 of which is unmistakable. In England and her colonies, as well as in 
 America, statutes have been passed which have greatly restricted 
 the operation of the doctrine of common employment. (See Chapters 
 XXXVII-XL, post.) No one would have the hardihood to maintain, in 
 the absence of any specific evidence pointing to that conclusion, that, 
 as a result of the legislation, servants have become to a marked degree 
 less careful and etiiciont, or that industrial development has been 
 crippled and retarded to an appreciable extent. The practical inference 
 is manifest. If, in countries where the doctrine of common emplojinent 
 has been more or less circumscribed, none of the evil results which it 
 is declared to have obviated can be detected, it may be safely concluded 
 that no harm would have been produced if the doctrine had never beea 
 applied, and that no harm will result if it should be entirely abrogated 
 by the legislatures, the only authoa-ity by which such a change in the 
 law can now be effected. 
 
 This general consideration of the importance of the sub- 
 ject involved in the legislation and the justice of the rule 
 which Congress has established upon this subject is intro- 
 ductory to the specific questions involved in the pending 
 measure. These questions have been so thoroughly covered 
 and fully treated by the report of the House committee that 
 we quote and adopt quite fully the discussion on that sub- 
 ject in the House committee report. 
 
 The proposed amendments to the employers' liability bill 
 may be considered under three heads : First, as to the venue 
 of sucli an action ; second, as to the concurrent jurisdiction 
 of the courts of the several States; and, third, as to the 
 survival of the right of action. 
 
 (1) As to venue. The amendment proposed as to in- 
 serting in section 6 after the words therein, "that no such 
 action shall be maintained under this act unless commenced 
 within two years from the day cause of action accrued," 
 the following: 
 
 Under this act an action may be brought in a circuit court of the 
 United States, in the district of the residence of either plaintiff or the 
 defendant, or in which the cause of action arose, or in which the 
 defendant shall be found at the time of the commencement of such 
 action.
 
 580 FEDERAL EMPLOYERS' LLVBILITY ACT. 
 
 In his special message of January 7, 1910, President Taft, 
 after referring to a proposed amendment to give the Inter- 
 state Commerce Commission power to determine the uniform 
 construction of sill steps, ladders, hand brakes, etc., said : 
 
 The question has arisen in the operation of the interstate commerce 
 employers' liability act as to wliether suit can be brought against the 
 employer company in any place other than that of its home office. The 
 right to bring the suit under this act should be as easy of enforcement 
 as the right of a private person not in the company's employ to sue 
 on an ordinary claim, and process in such suit should be sufficiently 
 seined if upon the station agent of the company upon wliom service is 
 authorized to be made to bind the company in ordinary actions arising 
 under state laws. Bills for both the foregoing purposes have been 
 considered by the House of Representatives, and have been passed, and 
 are now before the Interstate Commerce Committee of the Senate. I 
 earnestly urge that they be enacted into law. 
 
 [Note. — This is copied verbatim by the Senate from the House report 
 until the Survival of Actions is discussed.] 
 
 AMENDMENT AS TO JURISDICTION— PLACE WHERE SUIT MAY 
 BE BROUGHT. 
 
 This amendment is necessary in order to avoid great in- 
 convenience to suitors and to make it unnecessary for an 
 injured plaintiff to proceed only in the jurisdiction in which 
 the defendant corporation is an ''inhabitant." 
 
 This is held by the courts to be the jurisdiction in which 
 the charter of the defendant corporation was issued. This 
 may be at a place in a distant State from the home of the 
 plaintiff, and may be a thousand miles or more from the 
 place where the injury was occasioned. 
 
 The extreme difficulty, if not impossibility, of a poor man 
 who is injured while in railroad employ, securing the attend- 
 ance of the necessary witnesses at such a distant poini 
 makes the remedy given by the law of little avail under such 
 circumstances. 
 
 That such is the state of law is established by reference 
 to the case of Cound v. Atchison, Topeka and Santa Fe 
 Railway Company, decided November 6, 1909, in the United
 
 APPENDIX B. 581 
 
 States Circuit Court for the El Paso division of the western 
 district of Texas by Judge Maxey. Judge Maxey in the 
 case before him sustained the railroad's plea to the jurisdic- 
 tion and dismissed a suit brought in Texas under the 
 Employers' Liability Act on the ground that there was di- 
 versity of citizenship in a suit based on a law of the United 
 States. 
 
 In his opinion Judge Maxey says : 
 
 Referring to the statute and eliminating the federal feature of the 
 present case, the jurisdiction of the court would be clear beyond contro- 
 versy, since in that case the jurisdiction would be founded only on the 
 fact of diverse citizenship. But here there appear two sources of juris- 
 diction, the one founded on diverse citizenship and the other upon the 
 fact that the suit arises under a law of the United States. In the 
 former case the statute authorizes suit to be brought in the district of 
 the residence of eitlier the plaintifl' or the defendant, where the juris- 
 diction is founded only on the fact that the action is between citizens 
 of different States; while in the latter suit must be brought in the 
 district of which the defendant is an inhabitant. 
 
 The position taken by Judge Maxey in the case just cited 
 is fortified by the opinion of the Supreme Court of the United 
 States in the case of Macon Grocery Co. v. Atlantic Coast 
 Line Railroad et al., decided within a few weeks. 
 
 It seems clear from these decisions that a suit in a Federal 
 court under this law, where jurisdiction is founded on the 
 fact that the case involves a Federal statute, must be brought 
 in the district of which the defendant is an inhabitant. 
 
 No argument is necessary to convince that this is a grave 
 injustice to the plaintiff. 
 
 Such an embarrassing situation ought not to be permitted 
 to exist where any plaintiff is proceeding in a Federal court 
 on a right based on the law of the United States. 
 
 But to permit it to be a practical barrier to the maintenance 
 of an action for death or personal injuries of employees who 
 may be presumed to be unable to meet the expense of pre- 
 senting their case in a jurisdiction far from their homes 
 would be an injustice too grave and serious to be longer per- 
 mitted to exist.
 
 582 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 CONCURRENT JURISDICTION OF STATE COURTS. 
 
 It is proposed to further amend the act by making the 
 jurisdiction of the courts of the United States "concurrent 
 with the courts of the several States." 
 
 This is proposed in order that there shall be no excuse for 
 courts of the States to follow in the error of the Supreme 
 Court of errors of Connecticut in the case of Hoxie v. N. Y. 
 N. H. & H. R. R. Co. (73 Atlantic Rep., 754), in which case 
 the court declined jurisdiction upon the ground, mter alia, 
 that Congress did not intend that jurisdiction of cases arising 
 under the act should be assumed by state courts. 
 
 It is clear under the decisions of the Supreme Court of the 
 United States that this conclusion of the Connecticut court 
 is erroneous. And the reasons recited by the Connecticut 
 court lead to an opposite conclusion from that which the 
 opinion declares upon the subject. But no harm can come, 
 and much injustice and wrong to suitors may be prevented 
 by an express declaration that there is no intent on the part 
 of Congress to confine remedial actions brought under the 
 Employers' Liability Act to the courts of the United States. 
 
 In declaring that the jurisdiction of the United States 
 courts shall be "concurrent mth the courts of the several 
 States," Congress is clearly within its rights and powers. 
 
 The first precedent for such declaration is found in the 
 
 action of the First Congress. In the act of September 24, 
 
 1789, it was enacted that the district courts of the United 
 
 States — 
 
 shall also have cognizance, concurrent with the courts of the several 
 States, or the circuit courts, as the case may be, of all causes where 
 an alien sues for a tort only in violation of the law of nations or a 
 treaty of the United States, (r) And shall also have cognizance, con- 
 current as last mentioned, of all suits at common law where the United 
 States sue, and the matter in disj)ute amounts, exclusive of costs, to the 
 Bum or value of one hundred dollars (U. S. Stat. L., Vol. I, p. 77). 
 
 This precedent lias repeatedly been followed in Federal 
 legislation. Thus early was it established by those who under- 
 stood tlic full scope and operation of the Constitution of the 
 United States, that the "supreme law of the land" did not
 
 APPENDIX B. 583 
 
 lose any of its imperative obligation at the door of a state 
 court. 
 
 The express declaration of the United States Constitution 
 says of laws enacted by Congress in pursuance of its dele- 
 gated powers, "and the judges in every State shall be bound 
 thereby, anything in the constitution or laws of any State 
 to the contrary notwithstanding." 
 
 This declaration of the Constitution is not meaningless. 
 That the "judges in every State shall be bound" by a Fed- 
 eral law imposes a binding duty to enforce it. 
 
 This provision leaves no discretion to a judge of a state 
 court to deny justice to a suitor because his right is based on 
 a Federal law. 
 
 The Connecticut court says that this Federal statute known 
 as the Employers' Liability Act, "would also compel courts 
 established by a sovereign power, and maintained at its ex- 
 pense for the enforcement of what is deemed justice, to en- 
 force what it deemed injustice," We may disregard for the 
 moment the suggestion of the injustice of a particular statute. 
 The local opinion of the justice of a particular law is no ob- 
 stacle to its enforcement if it be a binding law. We will 
 therefore consider the proposition solely as if the factor of 
 local opinion as to its justice was eliminated from controversy. 
 A court may err in its estimate of what its state really did 
 * ' consider injustice. ' ' 
 
 Does the fact that state courts are "established by a sov- 
 ereign power and maintained at its expense" permit denial 
 of enforcement in such courts of a right founded on a Federal 
 statute ? 
 
 This question is squarely answered in a case which, 
 strangely enough, is cited by the court in the Hoxie case. 
 ( Claflin V. Houseman, 93 U. S., 130, ) In this case Mr, Justice 
 Bradley says: 
 
 The fact that a state court derives its existence and functions from 
 the state laws is no reason why it should not afford relief, because it 
 is subject also to the laws of the United States, and is just as much 
 bound to recognize these as operative within the State as it is to 
 recognize the state laws.
 
 584 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 Chancellor Kent, in his Commentaries (1 Com., 400), says: 
 
 In judicial matters the concurrent jurisdiction of the state tribunals 
 depends altogether upon the pleasure of Congress, and may be revoked 
 and extinguished whenever they thinlc proper, iu every case in which 
 the subject-matter can constitutionally be made cognizable in the federal 
 courts; and that, without an express provision to the contrary, the 
 state courts will retain a concurrent jvirisdiction in all cases where they 
 had jurisdiction originally over the subject-matter. 
 
 To quote from Cooley's Principles of Constitutional Law, 
 
 pages 32-33 : 
 
 A state law must yield to the supreme law, whether expressed in the 
 Constitution of the United States or in any of its laws or treaties, so 
 far as they come in collision, and whether it be a law in existence 
 when the "supreme law'" was adopted or enacted afterwards. The same 
 is true of any provision in the constitution of any State which is 
 found to be repugnant to the Constitution of the Union. And not only 
 must '"the judges in every State" be bound by such supreme law, but so 
 must the State itself, and every official in all its departments, and every 
 citizen. n 
 
 And in the notes, pages 33-35, we read : 
 
 The United States is a government with authority extending over the 
 whole territory of the Union, acting upon the States and the people 
 of the States. While it is limited in the number of its powers, so far 
 as its sovereignty extends it is supreme. No state government cau 
 exclude it from the exercise of any authority conferred upon it by the 
 Constitution, obstruct its authorized officers against its will, or witlihold 
 from it for a moment the cognizance of any subject which that instru- 
 ment has committed to it (Tennessee v. Davis, 100 U. S., 257, per 
 (Strong, J.; see also In re Debs, petitioner, 158 U. S., 534; Logan v. 
 United States, 144 U. S., 263; * * * Dodge v. Wolsey, 18 How., 
 331 ; Jefferson Branch Bank v. Skelly, 1 Black., 436 ; Cummings v. 
 Missouri, 4 \\'all., 277; Railroad Co. v. McClure, 10 Wall., oil; White 
 V. Hart, 13 Wall., 640; Guim v. Barry, 15 Wall., 610; Pacific Railroad 
 Co. V. ;^iagui^e, 20 Wall., 36; St. Louis, &c., Ry. Co. v. Vickers, 122 
 U. S., 360.) A state can not control the conduct of an agency of the 
 Federal Government within its limits, if the result would be a conflict 
 with nationa/1 law or an impairment of the efficiency of the agency. 
 (Davis V. Elmira Savings Bank, 161 U. S.. 275; ^McClellan v. Chipman, 
 164 U. S., '347. Compare Reagan v. Mercantile Trust Co., 154 U. S., 
 413.) 
 
 Whenever the terms in whifli a power is granted to Congress, or the 
 nature of the power, require that it should be exercised exclusively by 
 Congress, the subject is as completely taken from, the state legislature 
 as if they had been expressly forbidden to act. (Marshall, C. J., in 
 Sturges V. Crowninshiold, 4 Wheat., 122.) 
 
 In Robb V. Connolly (111 U. S., 637), Justice Harlan said: 
 
 Upon the state cxjurts, equally with the courts of the Union, rests 
 the (rbligution to guard, enforce, and protect every right granted '>r 
 secured by the Constitution of the United States and the laws made in
 
 APPENDIX B. 585 
 
 pursuance thereof. Wherever those rights are involved in any suit or 
 proceeding before them; for the judges of the state courts are required 
 to take an oatli to supjx)rt that Constitution, and they are bound by it. 
 and the laws of the United States made in i)ursuance thereof, and all 
 treaties; made under their authority, as the supreme law of the land, 
 •'anytliing in the constitution or laws of any State to the contrary 
 notwithstanding." If they fail therein, and withhold or deny rights or 
 immunities secured by the Constitution and laws of the United States, 
 the party aggrieved may bring the case from the highest court of the 
 State in which the question could be decided to tliis court for final and 
 conclusive determination. 
 
 In re Matthews (122 Fed. Rep., 248, p. 251) : 
 
 The second clause of article 6 of the Federal Constitution is in these 
 words : 
 
 "This Constitution and the laws of the United States, which shall 
 be made in pursuance thereof, and all treaties made or which shall 
 l)e made under the authority of the United States, shall be the supreme 
 law of the land; and the judges in every State shall be bovmd thereby, 
 anything in the constitution or laws of any State to the contrary 
 notwithstanding." 
 
 A recent writer in the American Law Review^ has had tliis 
 
 to say concerning this clause, to-wit : 
 
 "This provision presupposes that the judges in every State will have 
 some knowledge of the Constitution, the laws, and the treaties of the 
 Federal Government by which they are thus to be bound; and this 
 community of interest and obligation obviously makes the judicial 
 officers of the several States, in a certain high sense, members of tlie 
 federal judiciary." 
 
 In the case of Rohh v. Connolly (111 U. S., 637; 4 Sup. 
 
 Ct., 551; 28 L. Ed., 542), Mr. Justice Harlan said: 
 
 "A state court of original jurisdiction, having the parties before it, 
 may, consistently with existing federal legislation, determine cases at 
 law or in equity arising under the Constitution and laws of the 
 United States, or involving rights dependent ujxin such Constitution or 
 laws." 
 
 And again : 
 
 "Upon the state courts, equally with the courts of the Union, rests 
 the obligation to guard, enforce, and protect every right granted or 
 secured by the Constitution of the United States, and the laws made 
 in pursuance thereof, whenever these rights are involved in any suit or 
 proceeding before them." 
 
 In the case of Ex parte Royall, supra, J\Ir. Justice Harlan 
 
 said: 
 
 In Taylor v. Carryl (20 How., 595; 15 L. Ed., 1038) It was said 
 to be a recognized portion of the duty of this court (and, we will add, 
 of all other courts, national and state) "to give preference to sucn 
 principles and methods or procedure as shall seem to conciliate the
 
 586 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 distinct and independent tribunals of the States and of the Union, so 
 that they may co-operate as liarmonious members of a judicial system, 
 coextensive with the United States, and submitting to the paramount 
 authority of tlie same Constitution, laws^ and federal obligations." 
 And in Covell v. Heyman (111 U. S., 182; 4 Sup. Ct., 358; 28 L. Ed., 
 390) it was declared "that the forbearance which courts of co-ordinate 
 jurisdiction, administered under a single system, exercise toward each 
 other, whereby conflicts are avoided by avoiding interference with the 
 process of the other, is a principle of comity, with perhaps no higher 
 sanction than the ability of which comes from concord ; but betweea 
 state courts and those of the United States it is something more. It 
 is a principle of right and of law, and therefore of necessity." 
 
 Pomeroy, "Introduction to the Constitutional Law of the 
 United States," third edition, 503, Section 743: 
 
 Strip the National Government of an authority to apply a sanction 
 commensurate with its power to legislate, and just so far we subtract 
 from that legislation the necessary element of a command. Strip the 
 Government of the ability to make that sanction supreme, and we 
 equally invalidate the authority of the legislative utterance. This 
 attribute of supremacy would be destroyed by permitting the state 
 courts, for example, to decide upon the effect of national laws, and 
 by making their decisions in the ]iarticular State where made of aa 
 equal authority with those pronounced upon the same subject by the 
 national judges. This difficulty thus to be apprehended from the action 
 of state tribunals could only be prevented in one of two ways — either 
 by removing from them the power to decide at all upon rights and 
 duties which spring from the national legislation and conferring the 
 function exclusively upon the United States courts, or by permitting 
 the state judiciary to exercise a jurisdiction in such cases, but making 
 that jurisdiction subordinate to the autliority of tlie national courts 
 and rendering the local decisions reviewable by the United States 
 judges, who could in this manner enforce their attribute of supremacy 
 in relation to the matters under consideration. 
 
 In theory the former of these plans woiild have been the more simple 
 and perfect. But it was perhaps best, from some motives of axpediency, 
 that the Constitution should not expressly determine between these two 
 methods, but should clothe Congress with the power of making such a 
 choice of tlio alternatives as should be found to promote the convenience 
 of the peoj)]e. Congress possesses such an authority; it might make all 
 this jurisdiction exclusive in the national courts, but has done so only 
 in particular cases; it might suffer the state tribunals to exercise a 
 complete (concurrent power, subject to an equally complete liability to 
 review, but has done so only to a limited extent. Wliether Congress 
 shall adopt one or the otlier alternative is a mere question of ])olicy; it 
 may do either. * ♦ * 
 
 The Supreme Court of the United States, in Teal v. Fulton 
 (53 U. S., 292), referrint? to this subject, said: 
 
 Wo will add tliat the legislation of Congress immediately after the 
 (Jonstitiition was carried into operation confirms the conclusion of the 
 learncrd judge. We find in tlie t\v<'nty-fifth section of the judiciary act
 
 APPENDIX B. 587 
 
 of 1789, under which this case is before us, that such a concurrent 
 jurisdiction in the courts of the States and the United States was 
 contemplated, for its first provision is for a review of cases adjudicated 
 in the forum, "where is drawn in question tlie validity of a treaty or a 
 statute of, or an autlioi-ity exercised by, tlie United States, and the 
 decision is against their validity." 
 
 The Supreme Court of the United States decided in this 
 case of Teal v. Fulton, that a state court had jurisdiction to 
 try an action brought against a postmaster who refused to 
 deliver a newspaper on which there was ''an initial" unless 
 the addressee would pay letter postage, the action being 
 founded on the thirteenth and thirtieth sections of the act of 
 Congress passed in 1825 forbidding a writing or memorandum 
 on a newspaper or other printed matter, pamphlet, or maga- 
 zine transmitted by mail. The court said, Mr, Justice Wayne 
 delivering the opinion: 
 
 But it is said that the courts of New York had not jurisdiction to 
 try the case. The objection may be better answered by reference to the 
 laws of the United States in respect to the services to be rendered in 
 the transmission of letters and newspapers by mail and by tlie (Con- 
 stitution of the United States than it can by any general reasoning 
 upon the concurrent civil jurisdiction of the courts of the United States 
 and the courts of the States, or concerning the exclusive jurisdiction 
 given by the Constitution to the former. 
 
 The United States undertakes, at fixed rates of postage, to convey 
 letters and newspapers for those to whom they are directed, and the 
 postage may be prepaid by the sender or be paid when either reach 
 their destination by the person to whom they are addressed. When 
 tendered by the latter or by his agent he has the right to the immediate 
 possession of them, though he has not had before the actual possession. 
 If they be wrongfully withheld for the oliarge of unlawful postage, 
 it is a conversion for which suit may be brought. His right to sue 
 existing, he may sue in any court having civil jurisdiction of such a 
 case, unless for some cause the suit brought is an exception to the 
 general jurisdiction of the court. 
 
 Now, the courts of New York having jurisdiction in trover, the case 
 in hand can only be excepted from it by such a case as this having 
 been made one of exclusive jurisdiction in the courts of the United 
 States by the Constitution of the United States. That such is not the 
 case, we can not express our view better than Mr. Justice Wright has 
 done in his opinion in this case in the court of appeals. After citing 
 the second section of the third article of the Constitution, he adds, 
 "This is a mere grant of jurisdiction to the federal courts, and limits 
 the extent of their power, but without words of exclusion or any 
 attempt to oust the state courts of concurrent jurisdiction in any of 
 the specified cases in which concurrent jurisdiction existed prior to the 
 adoption of the Constitution. The apparent object was not to curtail 
 the powers of the state courts, but to define the limits of those granted 
 to the federal judiciary."
 
 588 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 We will add that the legislation of Congress, immediately after the 
 Constitution was carried into operation, oonhrms the conclusion of the 
 learned judge. We find in tlie twenty-fifth section of the judiciary act 
 of 1789, under which this case is before us, that such a concurrent 
 jurisdiction in the courts of the States and of the United States was 
 contemplated, for its first provision is for a review of cases adjudicated 
 in the former, "'Where is drawn in question the validity of a treaty 
 or statute of, or an authority exercised under the United States, and 
 the decision is against their validity." We are satisfied that there was 
 no error in the decision of the court of appeals in tnis case, and the 
 same is affirmed by this court. 
 
 In the case of The Moses Taylor (1866, 4 Wall., U. S., 428) 
 the court said: 
 
 * » * 'pjjg judiciarj' act of 1789, in its distribution of jurisdic- 
 tion to the several feueral courts, recognizes and is framed U2Jon the 
 theory that in all cased to wiiich tlie judicial power of the United 
 States extends Congress may rightfully vest exclusive jurisdiction in 
 the federal courts. It declares that in some cases, from their com- 
 mencement, such jurisdiction sliall be exclusive; in other cases it deter- 
 mines at what stage of procedure such jurisdiction shall attach, and 
 how long and how far concurrent jurisdiction of the state courts shall 
 be permitted. Thus, cases in which the United States are parties, 
 civil causes of admiralty and maritime jurisdiction, and cases against 
 consuls and vice-consuls, except for certain ofi'enses, are placed, from 
 their commencement, exclusively under the cognizance of the federal 
 courts. 
 
 On the other hand, some cases, in which an alien or a citizen of 
 another State is made a party, may be brought either in a federal or a 
 state court, at the option of the plaintiff; and if brought in the state 
 court may be prosecuted until the appearance of the defendant, and 
 then, at his option, may be suffered to remain there, or may be trans- 
 ferred to the jurisdiction of the federal courts. Other cases, not 
 included under these heads, but involving questions under the Con- 
 stitution, laws, treaties, or authority of the United States, are only 
 drawn within the control of the federal courts upon appeal or writ of 
 error, after final judgment. By subsequent legislation of Congress, and 
 particularly by the legislation of the last four years, many of the oases, 
 which by the judiciary act could only come under the cognizance of the 
 federal courts after final judgment in the state courts, may be with- 
 drawn from tlie concurrent jurisdiction of the latter courts at earlier 
 stages, upon the application of the defendant. The constitutionality 
 of these provisions can not be seriously (juestioned, and is of frequent 
 recognition by both state and federal courts. 
 
 It is difficult to understand why the Connecticut court cites 
 the case of Claflin v. Houseman (93 U. S., 130) as authority 
 for the remarkable position taken, for a careful consideration 
 of the opinion of Mr. Justice Bradley in that case shows 
 conclusively that the opinion affords no basis for the con- 
 tention made by the court that the state court is not author-
 
 APPENDIX B. 
 
 589 
 
 ized and required to enforce Federal statutes. In his opinion, 
 Mr. Justice Bradley said: 
 
 The general question, whether state courts can exercise concurrent 
 jurisdiction witli the federal courts in cases arising under the Con 
 fetitutioii. laws, and treaties of the United States has been elaborately 
 discussed, both on the bench and ''i published treatises; sometimes with 
 a leaning in one direction and sometimes in the other; but the result 
 of these discussions lias, in our judgment, been, as seen in the above 
 cases, to affirm the jurisdiction where it is not excluded by express 
 provision or by incompatibility in its exercise arising from the nature 
 of the particular case. 
 
 When we consider the structure and true relations of the federal and 
 state governments, there is really no just foundation for excluding the 
 state courts from all such jurisdiction. 
 
 The laws of the United States are laws of the several (States, and 
 just as much binding on the citizens and courts thereof as state 
 laws are. 
 
 The United States is not a foreign sovereignty as regards the several 
 States, but is a concurrent and, within its jurisdiction, paramount 
 sovereignty. Every citizen of a State is a subject of two distinct 
 sovereignties, having concurrent jurisdiction in the .State: concurrent 
 as to place and persons, though distinct as to subject-matter. Legal 
 or equitable rights, acquired under either system of laws, may be 
 enforced in any court of either sovereignty com'petent to hear and 
 determine such kind of rights and not restrained by its constitutioa 
 in the exercise of such jurisdiction. Thus a legal or equittible right 
 acquired under state laws may be prosecuted in the state courts, and 
 also, if the parties reside in diflerent States, in the federal courts. 
 
 So rights, whether legal or equitable, acquired under the laws of 
 the United States may be prosecuted in the United States courts or 
 in the state courts competent to decide rights of the like charact-er 
 and class, subject, however, to this qualification, tliat where a right 
 arises under a law of the United States, Congi'ess may, if it see fit, 
 give to the federal courts exclusive jurisdiction. 
 
 See remarks of IMx. Justice Field in The Moses Tavlor (4 Wall., 42'J; 
 71 U. S., XVIII, 401), and Story, J., in Martin v. Hunter (1 Wheat., 
 334), and Mr. Justice Swavne in Ex imrte McNeil (13 Wall., 236; 
 80 U. S., XX, 624). 
 
 This jurisdiction is sometimes exclusive by express enactment and 
 sometimes by implication. 
 
 If an act of Congress gives a penalty to a party aggrieved, without 
 specifying a remedy for its enforcement, there is no reason why it 
 should not be enforced, if not provided otherwise by some act of 
 Congress, by a proper action in a state court. 
 
 The fact that a state court derives its existence and functions from 
 the state laws is no reason why it should not afford relief, because it is 
 subject also to the laws of the United States, and is just as much 
 bound to recognize these as operative within the State as it is to 
 recognize the state laws. The two together form one system of juris- 
 prudence which constitutes the law of the land for the State; and the 
 courts of the two jurisdictions are not foreign to each other, nor to be 
 treated by each other as such, but as courts of the same country, 
 having jurisdiction partly different and partly concurrent.
 
 590 ii^EDERAL employers' li.vbility act. 
 
 The disposition to regard the laws of the United States as emanating 
 from a foreign jurisdiction is founded on erroneous views of the 
 nature and relations of the state and federal govemmenta. 
 
 It is often the cause or the consequence of an unjustitiable jealousy of 
 the United States Government which has been the occasion of disastrous 
 evils to the country. 
 
 It is true the sovereignties are distinct, and neither can interfere 
 with the proper jurisdiction of the other, as was so clearly shoA\-n by 
 Chief Justice 'laney in the case of Ableman v. Booth (21 How., 506: 
 62 U. S., XVI, 169), and hence state courts have no power to revise 
 the action of the federal courts, nor the federal the state, except where 
 the Federal Constitution or laws are in^iolved. But this is no reason 
 why state courts should not be open for the prosecution of rights 
 growing out of the laws of the United 'States, to w^hich their jurisdiction 
 is competent and not denied. * « * 
 
 In Ex parte Siebold (100 U. S.) the court said: 
 
 The power of Congress, as we have seen, is paramount, and may be 
 exercised at any time and to any extent which it deems expedient; and 
 so far as it is exercised and no further the regulations effected supersede 
 those of the State which are inconsistent therewith. 
 
 As a general rule, it is no doubt expedient and wise that the opera- 
 tions of the state and national governments should, as far as prac- 
 ticable, be conducted separately, in order to avoid undue jealousies and 
 jars and confiiets of jurisdiction and power. But thei-e is no reason 
 for laying this down as a rule of universal application. It should never 
 be made to override the plain and manifest dictates of the Constitution 
 itself. 
 
 We can not yield to such a transcendental view of state sovereignty. 
 The Constitution and laws of the United States are the supreme law 
 of the land, and to these every citizen of every State owes obedience, 
 whether in his indiviuual or official capacity. 
 
 There are very few subjects, it is true, in which our system of 
 government, complicated as it is, requires or gives room for conjoint 
 action between the state and national sovereignties. Generally, the 
 powers given by the Constitution to the Government of the United 
 States are given over distinct branches of sovereignty from which the 
 state governments, either expressly or by necessary implication, are 
 excluded. 
 
 But in this case expressly, and in some others by implication, as we 
 Ihave seen in the case of pilotage, a concurrent jurisdiction is contem- 
 plated, that of the State, however, being subordinate to that of the 
 United States, whereby all question of precedency is eliminated. 
 
 The position assumed by the court on this question is with- 
 out precedent and is entirely untenable in the light of the 
 judicial history of the United States. If a Federal right can 
 not bo tbe basis of a plaintiff's claim in a state court; if those 
 courts derive their power and authority and compensation 
 from tbe States for tbe purpose of deciding only controver- 
 sies arising under the law of tbe State, written and unwritten,
 
 APPENDIX B. 591 
 
 then a defense based upon a Federal right would be equally- 
 unenforceable in said courts. If they refuse to try Federal 
 questions for a plaintiff, because they are without jurisdic- 
 tion, how can they consent to try a Federal question when 
 asserted as a ground of defense by the party proceeded 
 against ? 
 
 In a comparatively recent ease the Supreme Court of the 
 United States, in the case of the Defiance Water Co. v. De- 
 fiance (191 U. S., 194), Chief Justice Fuller, in delivering the 
 opinion of the court, used the following language : 
 
 Moreover, the state courts are perfectly competent to decide federal 
 questions arising before them and it is their duty to do so. (Robb 
 V. Connolly, 111 U. S., G24, 637, 28 L. Ed., 542, 546, 4 Sup. Ct. Rep. 
 544; Missouri P. R. Co. v. P'itzgerald, 100 U. S., 556, 583, 40 L. Ed., 33G, 
 543, 16 Sup. Ct. Rep., 389. 
 
 And we repeat, the presumption is in all cases that the state courts 
 will do wliat the Constitution and laws of the United States require. 
 (Chicago & A. R. Co. v. Wiggins Ferry Co., 108 U. S., 18, 27 L. ed., 
 636, 1 Sup. Ct. Rep., 614. 617; Shreveport v. Cole, 129 U. S., 36, 32 
 L Ed., 589, 9 Sup. Ct. Rep., 210; Neal v. Delaware, 103 U. S., 370, 381), 
 26 L. Ed., 567, 571; New Orleans v. Benjamin, 153 U. S., 411, 424, 
 38 L. Ed., 764, 769, 14 Sup. Ot. Rep., 905.) 
 
 If error supervenes the remedy is found in paragraph 709 of the 
 Revised Statutes. (U. S. Oomp. Stat., 1901, p. 575.) 
 
 In Claflin v. Houseman, ante, the court said: 
 
 The United States is not a foreign sovereignty as regards the several 
 States, but is a concurrent and, within its jurisdiction, paramoimt 
 sovereignty. * * * 
 
 The disjiosition to regard the laws of the United States as emanating 
 from a foreign jurisdiction is founded on erroneous views of the 
 nature and relations of the state and federal governments. 
 
 It is often the cause or the consequence of an unjustifiable jealousy 
 of the United States Government, which has been the occasion of dis- 
 astrous evils to the country. 
 
 Mr. Justice Shiras, in commenting upon the concurrent 
 
 jurisdictional power of the state and federal courts, in the 
 
 case of Murray v. Chicago and N. W. Ry. Co. (62 Fed. Rep., 
 
 24) , said : 
 
 A further point is made in support of the demurrer, to the effect 
 that this court succeeds only to the jurisdiction of the state court in 
 which the action was originally brought, and that state courts have 
 no jurisdiction over cases arising out of interstate commerce, the argu- 
 ment being that, as the State can not legislate touching interstate 
 commerce, the state courts are without power to determine cases of the 
 like character. This position is not well taken. Tlie limitations upon
 
 592 FEDERAJj employers' LIABILITY ACT. 
 
 the legislative power of the nation and of the several States do not 
 necessarily apply to the judicial branches of the national and state 
 governments. The legislature of a State can not abrogate or modify 
 any of the provisions of the Federal Constitution nor of the acts of 
 Congress touching matters within congressional control, but the courts 
 of the State, in the absence of a prohibitory provision in the Federal 
 Constitution or acts of Congress, have full jurisdiction over cases 
 arising under the Constitution and laws of the United States. 
 
 The courts of the States are constantly called upon to hear ajid 
 decide cases arising under the Federal Constitution and laws, just 
 as the courts of the United States are called upon to hear and decide 
 cases arising under the law of the State when the adverse parties are 
 citizens of different States. The duty of the court is to explain, apply, 
 and enforce the existing law in the particular cases brought before them. 
 If the law applicable to a given case is of federal origin, the legislature 
 of the State can not abrogate or change it, but the courts of the State 
 may apply and enforce it; and hence the fact that a given subject, like 
 interstate commerce, is beyond legislative control does not, ipso facto, 
 prevent the courts of the State from exercising jurisdiction over cases 
 which grow out of this commerce. Had this action remained in the 
 state court in which it was originally brought, the court would havo 
 had jurisdiction to hear and determine the issues between the parties, 
 because Congress had not enacted that jurisdiction over cases of this 
 character is confined exclusively to the courts of the United States. 
 and therefore the jurisdiction of the state court was full and complete. 
 
 The discussion by Judge Baldwin of the right of a state 
 court to refuse to enforce such a statute as the one in question 
 and his reference to the "public policy" of a State as a 
 ground for such a refusal to take jurisdiction indicate clearly 
 that he had in mind the decisions as to the exercise of 
 "comity" by the courts of one State in taking jurisdiction 
 of foreign laws ; that is, the laws of another State. There 
 are many decisions upon the right of a party to enforce in 
 one State the statutes of another. 
 
 If this was such a case, there is authority for the position 
 taken in the Hoxie case. But the decision in these cases is 
 justified on the ground that statutes of other States (foreign 
 laws) have no extraterritorial force. Such decisions have no 
 bearing when the question before a state court is the enforce- 
 ment of a Federal law. This is not a mere question of comity; 
 it is a question of aiitliority. 
 
 The Federal law is imi)erative, mandatory, and paramount 
 over every foot of the soil of every State. It is in no sense 
 foreign wlicn its application or enforcement is sought in the
 
 APPENDIX B. 503 
 
 courts of a State. No policy of a State can impair its impera- 
 tive obligation. No official of a State, sworn to support the 
 Constitution of the United States can deny the enforcement 
 of a statute of the United States, made in pursuance of the 
 United States Constitution. Such law by the Constitution is 
 made "the supreme law of the land, anything in the Con- 
 stitution or laws of any State to the contrary notwith- 
 standing. ' ' 
 
 How can a judge of a state court deny the imperative obli- 
 gation of a Federal statute on any occasion in his court? 
 Before he can lawfully assume the duties as such state judge 
 he is bound by oath in obedience to the express requirements 
 of the Constitution (Art. VI, sec. 3) to support the Con- 
 stitution of the United States, which in express terms makes 
 Federal statutes "the supreme law of the land," and the 
 judges in every State shall be bound thereby, "anything in 
 the Constitution or laws of any State to the contrary not- 
 withstanding. ' ' 
 
 Federal laws are not dependent upon the judicial courtesy 
 of state courts, to be enforceable in the courts of some States 
 and to be refused enforcement in others. They are "the su- 
 preme law of the land, and the judges in every State- shall be 
 bound thereby. ' ' 
 
 SURVIVAL OF ACTION, 
 
 In considering the advisability of amending the act enti- 
 tled "An act relating to the liability of common carriers by 
 railroads to their employees in certain cases, ' ' approved April 
 22, 1908, it is important at the outset to understand that the 
 purpose of Congress in the passage of this act was to extend 
 further protection to employees. This was its manifest pur- 
 pose, as is apparent from a consideration of the circum- 
 stances of its enactment. It is manifest from a consideration 
 of the reports, both of the Senate and House committees, w^heu 
 the measure was pending before those bodies prior to its enact- 
 ment, that the purpose of the statute was to extend and 
 enlarge the remedy provided by law to employees engaged
 
 594 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 in interstate commerce in cases of death or injury to such 
 employees while engaged in such service. No purpose or in- 
 tent on the part of Congress can be found to limit or to take 
 away from such an employee any right theretofore existing 
 by which such employees were entitled to a more extended 
 remedy than that conferred upon them by the act. 
 
 The effect of decisions of cases so far adjudicated under 
 the act has been in general to recognize the true intent of 
 Congress and to extend and make more ample the right to 
 recover damages for death or injury to interstate servants, 
 yet in some particulars its operation has been to limit a re- 
 covery which otherwise would have been open to the em- 
 ployee or his representative. 
 
 One result of the passage of the law may be to nullify state 
 laws affording a remedy in certain cases for death or injury 
 in railroad service. The state laws which had been operative 
 and which were valid even in their application to those en- 
 gaged in service in interstate commerce appear to have been 
 rendered, as to interstate servants, ineffective Avhen Congress 
 acted upon this subject. That this seems to have been the 
 effect of the passage of this law was expressly decided in a 
 well-considered opinion by Judge Rogers in the ease of Fulgam 
 v. Midland Valley E. Co. (167 Fed., 660, p. 662) : 
 
 It is clear that the act of April 22, 1908, supra, superseded and took 
 the place of all state statutes regulating relations of employers and 
 employees engaged in interstate commerce by railroads. It covered not 
 only injuries sustained by employees engaged in that commerce result- 
 ing from the negligence of the master and his servants, and from 
 defects in the designated instrumentalities in use in that commerce, but 
 also dealt with contributory and comparative negligence and assumed 
 risk, making, in certain cases at least, the master an insurer of the 
 safety of the servant while in his employment in that commerce. It 
 covers and overlaps the whole state legislation, and is therefore exclu- 
 sive. 
 
 All state legislation on tliat subject must give way before that act. 
 (Miss. Railroad Gommis.sion v. 111. Cent. R. R. Co., 203 U. S. 335; 
 27 Sup. Ct., 00; 51 L. Ed., 2(M» ; Siierlock et al. v. Ailing, administrator, 
 93 U. S., 104; 23 L. Kd., %S10.) Tlie.s© last cases serve to show that, 
 until Omgress has acted with reference to the regulation of interstate 
 commerce, state statutes regulating (he rehvtions of master and servant 
 and incich'ntally afrecting interstate commerce, but not regulating or 
 obstructing it, may be given <'irect ; but wlien Congress has acted upon 
 a given subject state legisilation must yield.
 
 APPENDIX B. 595 
 
 In Gulf, Colorado, etc., Railroad Co. v. Hefley (158 U. S., 99; 19 
 Sup. Ct., 804; 3c> L. Ed., 910) the court said: "When a state statute 
 and a federal statute operate upon the same subject-matter, and pre- 
 scribe different rules concerning it, the state statute must give way." 
 
 When Congress acted upon the subject of the regulation 
 of the liability of interstate carriers for injuries to their serv- 
 ants engaged in interstate commerce, "the State was thereby- 
 precluded from enacting any law of that sort which would 
 have that effect, for the field of policy and legislation was 
 thus assumed by Congress and withdrawn from state com- 
 petency." (Wisconsin v. C. M. & St. P. By. Co., 117 N. 
 W., 686.) 
 
 In the course of his opinion in the case above cited, Justice 
 Dodge, delivering the unanimous opinion of the supreme court 
 of Wisconsin, very clearly stated this doctrine and the au- 
 thority upon which it was based, as follows : 
 
 Within the field of authorized congressional action the federal power 
 must, in the nature of things, be siupreme in all parts of the United 
 States. "This Constitution, and the laws of the United States whic'i 
 shall be made in pursuance thereof * * * siiall be the supreme 
 law of the land; and the judges in every State sliall be bound thereby, 
 anything in the constitution or laws of any State to the contrary not- 
 withstanding." (Art. VI, par. 2, Const. U. S.) In Cooley v. Board of 
 Wardens (12 How., 299, 318), it was said of this class of legislation: 
 "It is not the mere existence of such power, but its exercise by Con- 
 gress, which may be incompatible with the exercise of the same power 
 by the States, and that the States may legislate in the absence of 
 congressional legislation." In Pennsylvania v. Wheeling, etc., Co. ( 18 
 How., 431), where a state law authorized the building of a bridge over 
 a navigable water, it was declared that even in the matter of a bridge 
 "if Congress chooses to act, its action necessarily precludes the action 
 of the State." 
 
 In United States v. Colorado & N. W. R. (157 Fed. Rep., 
 321, 330), Sanborn, J., remarks: 
 
 "The Constitution reserved to the nation the unlimited power to 
 regulate interstate and foreign commerce, and if that power can not 
 be effectually exercised without affecting intrastate commerce, then 
 Congress may undoubtedly in that sense regulate intrastate commerce 
 so far as necessary in order to regulate interstate commerce fully and 
 effectually. * * * That power is not subordinate but is paramount 
 to all the powers of the States. If its independent and lawful exercise 
 of this congressional power and the attempted exercise by a State of 
 any of its powers impinge or conHict, the former must prervail and the 
 latter must give way." (See also Gibbons v. Ogden, 9 Wheat., 1 209 
 2110.)
 
 596 FEDERAL EMPLOYERS' LLIBILITY ACT. 
 
 It will be observed fi-om these utterances that it is not a mere 
 question of conflicting laws in the two jurisdictions, so that the law of 
 a State will be valid so far as not antagonistic to a federal law. The 
 question is more properly one of jurisdiction over the subject, the 
 holding beiiig that within the second class of subjects above outlined 
 silence of Congress is deemed, a relegation to the States of such juris- 
 diction and authority, but action by Congress upon the particular 
 subject is deemed an assertion of the federal power, a declaration of 
 the policy that the subject shall be under federal and not state regula- 
 tion, and that, therefore, the power shall no longer rest in the State 
 to exercise that authority which by the Constitution of the United States 
 was surrendered to the Federal Government when and if Congress 
 deemed its exercise advisable. 
 
 In a recent decision of the court of civil appeals, State of 
 Texas, the court unanimously stated this doctrine as follows : 
 
 It is Avell settled that the power of Congress to regulate interstate 
 commerce under the provisions of the Constitution before mentioned is 
 plenary and includes the power to prescribe the qualifications, duties, 
 and liabilities of employees of railway companies engaged in interstate 
 commerce, and any legislation by Congress on such subject supersedes 
 anv state law upon the same subject. (Railway Co. v. Alabama, 128 
 U.'S., 99; Howard v. Eailway Co., 207 U. S., 4C3.) 
 
 The constitutional right of Congress to legislate upon this subject 
 having been exercised by that body, the right of the State to invade 
 this field of legislation ceased, or, at all events, no act of a state legis- 
 lature in conflict with the act of Congress upon the same subject can 
 be held valid. The supreme courts of INIissouri and Wisconsin, in pass- 
 ing upon the validity of statutes of said States similar to the act we 
 are considering, hold such statutes void upon the ground of conflict 
 with the act of Congress before mentioned. ( State v Mo. Pac. Rv. Co., 
 Ill S. W., 500; State v. C. M. & St. P. Ry. Co., 117 N. W., 686'.) 
 
 Judge Cooley, in his work on Constitutional Limitations, 
 
 seventh edition, 856, said : 
 
 It is not doubted that Congress has the power to go beyond the 
 general regulation of commcice whicii it is accustomed to establish, and 
 to descend to the most minute directions, if it shall be deemed advisable; 
 and that to whatever extent gi-ound shall be covered by these directions, 
 the exercise of sta/te power is excluded. 
 
 It is therefore undoubtedly the law that congressional ac- 
 tion upon the liability of carriers engaged in interstate com- 
 merce, for injuries to their employees, supersedes all state 
 legislation upon tlie same subject, and renders them, as long 
 as the Federal law remains in operation, of no avail as pro- 
 viding a legal remedy. 
 
 Many of the States provide by statute for the survival of 
 any action which the deceased may have had for the injury
 
 APPENDIX B, 597 
 
 to his estate, and for any expenditures during his lifetime 
 
 resulting from the injury. 
 
 In the phraseology of the existing Employers' Liability Act 
 
 — that is, the Act of April 22, 1908 — the expression used is, 
 
 as to the question now under consideration : 
 
 Shall be liable in damages * * * in case of the death of such 
 employee, to his or her |>ersonal representative for the benefit of the 
 surviving widow or husband and children of such employee; and if 
 none, then of such employee's parents; and if none, then of the next 
 of kin dependent upon such employee, for such injury or death resulting 
 in whole or in part from the negligence of any of its officers, agents, 
 employees, * * *." 
 
 In the case of Fulgam v. Midland Valley R. R. Company, 
 
 hereinbefore cited, the court said : 
 
 In the opinion of the court, right of action given to the injured 
 employee by the act of April 22, 1908, does not survive to his personal 
 representative in the event of his death, but, at common law, perishes 
 with the injured person. 
 
 In the ease of Walsh, admx., v. New York, New Haven and 
 Hartford Railroad Company, Circuit Judge Lowell, who de- 
 livered the opinion of the court, said in a case arising under 
 the Employers' Liability Act of April 22, 1908, after quoting 
 the case of Fulgam v. Midland Valley R. R. Co. (167 Fed., 
 660): 
 
 The defendant has further demurred to counts one and four, con- 
 tending that the employee's cause of action to recover for his conscious 
 suffering did not survive to his administratrix, although the existence 
 of some of the statutory relatives was alleged As the cause of action 
 is given by a federal statute, this court can not have recourse to a 
 state statute in order to determine whether the cause of action survives 
 or not. (Schreiber v. Sharpless, 110 U. S., 76, 80; H. & O. R. R. v. 
 Joy, 173 U. S., 2'26, 230; U. S. v DeGoer, 38 Fed., 80; U. S. v. Riley, 
 104 Fed., 275.) Revised Statutes, section 955, provides that "When 
 either of the parties, M'hether plaintiff or petitioner, or defendant, in 
 any suit in any court of the United (States, dies before final judgment, 
 the executor or administrator of such deceased party may, in case the 
 cause of action survives by law, prosecute or defend any such suit to 
 final judigment." This section does not itself provide what causes of 
 action snail survive, but in the absence of other controlling statute 
 leaves the matter to the common law. In the case at bar, therefore, 
 the state statutes are inapplicable. There is no general federal statute, 
 and the particular s-tatute in question, the act of 1908, says nothing 
 about survival. 
 
 Thus remitted to the common law, at which survival is out of the 
 question, we must here hold that the cause of action did not survive 
 and so that counts one and four are demurrable. (Fulgam v. Midland
 
 598 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 Valley Co., 167 Fed., 660.) The court is justified in saying that this 
 result has been reached with reluctance. The maxim "Actio personalis 
 moritur cum persona" has not always commended itself. (Pollock on 
 Torts, Webb's ed., p. 71.) The survival of the cause of action in this 
 case is allowed by the statutes of many States. That one who ha? 
 suffered in body and in purse by the fault of another, and so has a 
 cause of action against the wrongdoer, should, as to his own estate, be 
 deprived of this remetly by the delays of the law, or without sucli delay, 
 by his death, before or after action brought, whether connected or 
 unconnect-ed with his first injury, seems to me, as to Sir Frederictc 
 Pollock, a barbarous rule. The intent or the oversight of the legislature 
 has established the rule in this case. 
 
 The language of the statute should be made clear so that 
 the uncertainty and obscurity suggested by Judge Lowell 
 would be removed. So important a statute should be made so 
 certain in its terms that the intent of Congress may be made 
 manifest and clear. 
 
 It certainly should be as broad, as comprehensive, and as 
 inclusive in its terms as any of the similar remedial statutes 
 existing in any of the States, which are suspended in their 
 operation by force of the Federal legislation upon the subject.
 
 APPENDIX C. 
 
 ENGLISH EMPLOYERS' LIABILITY ACT. 
 
 The English Employers' Liability Act of 1880^ provides: 
 ■"Where * * * personal injury is caused to a work- 
 man (1) By reason of any defect in the condition of the 
 ways, work, machinery or plant connected with or used in 
 the business of the employer; or (2) By reason of the 
 negligence of any person in the service of the employer who 
 has any superintendence entrusted to him whilst in the ex- 
 ercise of such superintendence; or (3) By reason of the 
 negligence of any person in the service of the employer to 
 whose orders or directions the workman at the time of the 
 injury was bound to conform, and did conform, where such 
 injury resulted from his having to conform; or (4) By rea- 
 son of the act or omission of any person in the service of 
 the employer done or made in obedience to the rules or by- 
 laws of the employer or in obedience to particular instruc- 
 tions given by any person delegated with the authority of 
 the employer in that behalf; or (5) By reason of the negli- 
 gence of any person in the service of the employer who has 
 the charge or control of any signal, points, locomotive en- 
 gine, or train upon a railway, the workman, or in case the 
 injury results in death, the legal personal representatives 
 of the workman, and any persons entitled in case of 
 death, shall have the same right of compensation 
 and remedies against the employer as if the workman 
 had not been a workman of nor in the service of 
 the employer, nor engaged in his w^ork. " "A workman 
 shall not be entitled under this act to any right 
 
 1 43 and 44 Vict. 42. 
 
 599
 
 600 ENGLISH employers' LIABILITY ACT. 
 
 of compensation or remedy against the employer in 
 any of the following cases; that is to say: (1) Under sub- 
 section one of Section one, unless the defect therein men- 
 tioned arose from, or had not been discovered or remedied 
 owing to the negligence of the employer, or -of some person 
 in the service of the emploA^er, and entrusted by him with 
 the duty of seeing that the ways, works, machinery, or plant 
 were in proper condition; (2) Under sub-section four of 
 Section one, unless the injury resulted from some impro- 
 priety or defect in the rules, by-laws, or instructions therein 
 mentioned; provided, that where a rule or by-law has been 
 approved or has been accepted as a proper rule or by-law 
 by one of Her Majesty's Principal Secretaries of State, or 
 by the Board of Trade, or any other department of the 
 government, under or by virtue of any act of Parliament, it 
 shall not be deemed for the purposes of this act to be an 
 improper or defective rule or by-law; (3) In any case where 
 the workman knew of the defect or negligence which caused 
 his injury, and failed within a reasonable time to give, or 
 cause to be given, information thereof to the employer or 
 some person superior to himself in the service of the em- 
 ployer, unless he was aware that the employer or such 
 superior already knew of the said defect or negligence." 
 
 ENGLISH ACT CONSTRUED. 
 
 In Roberts' Duty and Liability of Employers it is said 
 of this act: "It does not altogether abolish the defense of 
 common employment.- It does not make the employer re- 
 sponsible for the acts of persons who either are not his 
 servants, or are not acting within the scope of their employ- 
 ment as such. It does not make him responsible for acts or 
 omissions which do not constitute a breach of duty.^ It 
 
 'Citing r!ibb.s v. Great Western R., p. 1161; Hamilton v. Hyde 
 
 R. Co. 12 Q. B. Div. 211; Robins Tark Foundry 22 Sc. L. R. 709; 
 
 V. Cubit. I4f; L. T. 535. \Valsh v. Whitely, 21 Q. B Div, 
 
 'Citing Glrant v. Drysdale, 10 371.
 
 APPENDIX C. 601 
 
 does not create a new cause of action where none was in 
 existence previously,* but only adds a remedy against a per- 
 son other than the wrongdoer, or, in other words, directs an 
 old cause of action against a new defendant. It does not 
 give an absolute right of action, but merely removes one 
 defense,^ placing the workman even when all the conditions 
 have been satisfied, only in the position of one of the public.® 
 From which it follows that it does not make the employer 
 responsible where the workman has been guilty of contribu- 
 tory negligence;^ or has, within the meaning of the maxim, 
 volenti non fit injuria, voluntarily undertaken the conse- 
 quences of that which but for his acceptance of the risk 
 would have constituted a breach of duty on the part 
 of the employer.** It does not impose any liability on the 
 employer in favor of either the representatives or the rela- 
 tives of an injured workman, unless the workman's death 
 results from the injury. And lastly, it does not, as we have 
 seen, deprive the workman of any right of action against 
 the employer which is given him by the common law. ' ' ^ 
 
 * Citing Thomas v. Quarter- ' Citing Yarmouh v. France, 19 
 
 main, 18 Q. B. Div., pp. 692, 693; Q. B. Div., 659. 
 
 Morrison v. Baird, 10 R., p. 277; 'Roberts Employers' Liability 
 
 Robertson v. Russell, 12 R., p. 638. Act, p. 248. 
 
 ° Citing Yarmouth v. France, 19 
 
 Q. B. Div., p. 659 ; Morrison v. ^ Note. — similar sta4;utes have 
 
 Baird, 10 R., pp. 277, 278 (S. C.) been held constitutional. Holden v. 
 
 •Citing Thomas v. Quartermain, Hardy, 169 U. S. 366; 18 Sup. Ct. 
 
 18 Q. B. Div., p. 693; Stuart v. Rep. 383. But see Ritchie v. Peo- 
 
 Evans, 31 W. R. 706. pie, 155 111. 98; 40 N. E. Rep. 
 
 ^ Citing Thomas v. Quartermain, 454 ; 29 L. R. A. 79 ; and Low v. 
 
 at p. 698. Rees Printing Co. 41 Neb. 127; 
 
 69 Pac. Rep. 362; 24 L. R. A. 702.
 
 APPENDIX D. 
 
 SAFETY APPLIANCE ACTS. 
 
 An act to promote the safety of employes and travelers 
 upon railroads b}^ compelling common carriers engaged 
 in interstate commerce to equip their cars with auto- 
 matic couplers and continuous brakes and their loco- 
 motives with driving-wheel brakes, and for other 
 purposes. 
 
 Sec. 1. Be it enacted iy the Senate and House of Repre- 
 sentatives of the United States of America in Congress as- 
 sembled. That from and after the first day of January, 
 eighteen hundred and ninety-eight, it shall be unlawful for 
 any common carrier engaged in interstate commerce by rail- 
 road to use on its line any locomotive-engine in moving inter- 
 state traffic not equipped with a power driving-wheel brake 
 and appliances for operating the train brake system or to run 
 any train in such traffic after said date that has not a suffi- 
 cient number of oars in it so equipped with power or train 
 brakes that the engineer on the locomotive drawing such train 
 can control its speed without requiring brakeman to use the 
 common hand brake for that purpose. 
 
 Sec. 2. That on and after the first day of January, 
 eighteen hundred and ninety-eight, it shall be unlawful for 
 any such common carrier to haul or permit to be hauled or 
 used on its line any car used in moving interstate traffic not 
 equipped with couplers coupling automatically by impact, 
 and which cau Ix' uncoupled without the necessity of men 
 going between the ends of llic cars. 
 
 Note. — A comma should be inserted after the word "uncoupled" in 
 Section 2. Johnson v. Southern Pacific (Jo., 196 U. S., 1; 25 Sup. Ct., 
 1.58; 49 L. IM., 3G3, revcrsinf,' 117 Fed., 4(i2; 54 C. C. A., 508; Cliicago, 
 M. & St. P. Ry. Co. V. Voelkcr, 12'J Fed., 522; see United States v. 
 Erie K. Co., IGG Fed., 352. 
 
 602
 
 APPENDIX D. 603 
 
 Sec. 3. That when any person, firm, company, or cor- 
 poration engaged in interstate commerce by railroad shall 
 have equipped a sufficient number of its cars so as to com- 
 ply with the provisions of Section one of this act, it may 
 lawfully refuse to receive from connecting lines of road or 
 shipper any cars not equipped sufficiently, in accordance 
 with the first section of this act, with such power or train 
 brakes as will work and readily interchange with the brakes 
 in use on its own cars, as required by this act. 
 
 Sec. 4. That from and after the first day of July, eighteen 
 hundred and ninety-five, until otherwise ordered by the In- 
 terstate Commerce Commission, it shall be unlawful for any 
 railroad company to use any car in interstate commerce that 
 is not provided with secure grab irons or handholds in the 
 ends and sides of each car for greater security to men in 
 coupling and uncoupling cars. 
 
 Sec. 5. That within ninety days from the passage of this 
 act the American Railway Association is authorized hereby 
 to designate to the Interstate Commerce Commission the 
 standard height of draw bars for freight cars measured per- 
 pendicular from the level of the tops of the rails to the 
 centers of the draw bars, for each of the several gauges of 
 railroads in use in the United States, and shall fix a maxi- 
 mum variation from such standard height to be allowed be- 
 tween the draw bars of empty and loaded cars. Upon their 
 determination being certified to the Interstate Commerce 
 Commission, said Commission shall at once give notice of the 
 standard fixed upon to all common carriers, owners, or lessees 
 engaged in interstate commerce in the United States by such 
 means as the Commission may deem proper. But should said 
 association fail to determine a standard as above provided, 
 it shall be the duty of the Interstate Commerce Commission 
 to do so, before July first, eighteen hundred and ninety- 
 four, and immediately to give notice thereof as aforesaid. 
 And after July first, eighteen hundred and ninety-five, no 
 cars, either loaded or unloaded, shall be used in interstate
 
 604 FEDERAL EMPLOYERS' SAFETY APPLIANCE ACT. 
 
 traffic ■which do not comply with the standard above pro- 
 vided for. 
 
 Sec. 6. That any such common carrier using any loco- 
 motive engine, running any train, or hauling or permitting 
 to be hauled or used on its line any car in violation of any 
 of the provisions of this act, shall be liable to a penalty of 
 one hundred dollars for each and every such violation, to be 
 recovered in a suit or suits to be brought by the United States 
 district attorney in the District Court of the United States 
 having jurisdiction in the locality where such violation shall 
 have been committed ; and it shall be the duty of such dis- 
 trict attorney to bring such suits upon duly verified informa- 
 tion being lodged with him of such violation having occurred ; 
 and it shall also be the duty of the Interstate Commerce 
 Commission to lodge with the proper district attorneys in- 
 formation of any such violations as may come to its knowl- 
 edge, Provided, That nothing in this act contained shall 
 apply to trains composed of four-wheeled cars or to trains 
 composed of eight-wheel standard logging cars where the 
 height of such car from top of rail to center of coupling does 
 not exceed twenty-five inches, or to locomotives used in haul- 
 ing such trains when such cars or locomotives are exclusively 
 used for the transportation of logs. (As amended April 1, 
 1896, 29 U. S. Stat, at L., 85, ch. 87.) 
 
 Sec. 7. That the Interstate Commerce Commission may 
 from time to time upon full hearing and for good cause ex- 
 tend the period within which any common carrier shall com- 
 ply with the provisions of this act. 
 
 Sec. 8. That any employe of any such carrier who may 
 be injured by any locomotive, car, or train in use contrary 
 to the provisions of this act shall not be deemed thereby to 
 have assumed the risk thereby occasioned, although continu- 
 ing in the employment of such carrier after the unlawful 
 use of siu'h locomotive, car, or train had been brought to 
 his knowledge. 
 
 Approved, March 2, 1893, 27 U. S. Stat, at Large, 531, 
 ch. 190. 
 
 XoiK. — ^As to juristliction of tlie Circuit Court of the District of 
 CoJuinbia, tme UnitesI Slates v. IJaltimore & II. Co., 2G App. D. €., 851.
 
 APPENDIX D. 605 
 
 An act to amend an act entitled, "An act to promote the 
 safety of employes and travelers upon railroads by com- 
 pelling common carriers engaged in interstate commerce 
 to equip their cars with automatic couj^lers and continu- 
 ous brakes and their locomotives with driving-wheel 
 brakes, and for other purposes," approved March second, 
 eighteen hundred and ninety-three, and amended April 
 first, eighteen hundred and ninety-six. (Public No. 133, 
 approved March 2, 1903.) 
 
 Sec. 1. Be it enacted hy the Senate and House of Rep- 
 resentatives of the United State of America in Congress as- 
 sembled, That the provisions and requirements of the Act 
 entitled "An Act to promote the safety of employees and 
 travelers upon railroads by compelling common carriers en- 
 gaged in interstate commerce to equip their cars with auto- 
 matic couplers and continuous brakes, and their locomotives 
 with driving-wheel brakes, and for other purposes," approved 
 March second, eighteen hundred and ninety-three, and 
 amended April first, eighteen hundred and ninety-six, shall 
 be held to apply to common carriers by railroads in the 
 Territories and the District of Columbia and shall apply in 
 all cases, whether or not the couplers brought together are 
 of the same kind, make, or type, and the provisions and 
 requirements hereof and of said Acts relating to train brakes, 
 automatic couplers, grab irons, and the height of drawbars 
 shall be held to apply to all trains, locomotives, tenders, 
 cars and similar vehicles used on any railroad engaged in 
 interstate commerce, and in the Territories and the District 
 of Columbia, and to all other locomotives, tenders, cars, and 
 similar vehicles used in connection therewith, excepting 
 those trains, cars, and locomotives exempted by the provisions 
 of section six of said Act of March second, eighteen hundred 
 and ninety-three, as amended by the Act of April first, 
 eighteen hundred and ninety-six. or which are used upon 
 street railways. 
 
 Sec. 2. That whenever, as provided in said Act, any train
 
 606 FEDER.y:, employers' safety appliance act. 
 
 is operated with power or train brakes, not less 
 than fifty per centum of the cars in such train 
 shall have their brakes used and operated by the 
 the engineer of the locomotive drawing such train ; 
 and all power-braked cars in such train which are 
 associated together with said fifty per centum shall have 
 their brakes so used and operated; and, to more fully carry 
 into effect the objects of said Act the Interstate Commerce 
 Commission may, from time to time, after full hearing, in- 
 crease the minimum percentage of cars in any train required 
 to be operated with power or train brakes which must 
 have their brakes used and operated as aforesaid ; and failure 
 to comply with any such requirement of the said Interstate 
 Commerce Commission shall be subject to the like penalty as 
 failure to comply with any requirement of this section. 
 
 Sec. 3. That the provisions of this Act shall not take 
 effect until September first, nineteen hundred and three. 
 Nothing in this Act shall be held or construed to relieve any 
 common carrier, the Interstate Commerce Commission, or 
 any United States District attorney from any of the provi- 
 sions, powers, duties, liabilities, or requirements of said Act 
 of March second, eighteen hundred and ninety-three, as 
 amended by the Act of April first, eighteen hundred and 
 ninety-six; and all of the provisions, powers, duties, require- 
 ments and liabilities of said Act of March second, eighteen 
 hundred and ninety-three, as amended by the Act of April 
 first, eighteen hundred and ninety-six, shall, except as spe- 
 cifically amended by this Act, apply to this Act. 
 
 LADDERS, HAND BRAKES, HAND HOLDS. 
 
 [Public No. 133.] 
 
 [H. R. 5702.] 
 
 A>' Act to siipploniont "An Act to promote the safety of omployoos 
 and triivelers ujjon ruilroads by compelling common carriers engaged in 
 interstate eommerce to ecpiip their cars with automatic couplers and 
 continuous brakes and their locomotives with driving wheel brakes and
 
 APPENDIX D. 607 
 
 for other purposes," and other safety appliance Acts, and for otlier 
 purposes. 
 
 Be it enacted by the Senate and House of Representatives 
 of the United States of America in Congress assembled, That 
 the provisions of this Act sliall apply to every common carrier 
 and every vehicle subject to the Act of March second, eighteen 
 hundred and ninety-three, as amended April first, eighteen 
 hundred and ninety-six, and March second, nineteen hundred 
 and three, commonly known as the ' ' Safety Appliance Acts. ' ' 
 
 Sec. 2. That on and after July first, nineteen hundred and 
 eleven, it shall be unlawful for any common carrier subject 
 to the provisions of this Act to haul, or permit to be hauled 
 or used on its line any car subject to the provisions of this 
 Act not equipped with appliances provided for in this Act, 
 to-wit : All cars must be equipped with secure sill steps and 
 efficient hand brakes ; all cars requiring secure ladders and 
 secure running boards shall be equipped with such ladders 
 and running boards, and all cars ha\'ing ladders shall also be 
 equipped with secure hand holds or grab irons on their roofs 
 at the tops of such ladders : Provided, That in the loading 
 and hauling of long commodities, requiring more than one 
 car, the hand brakes may be omitted on all save one of the 
 cars while they are thus combined for such purpose. 
 
 Sec. 3. That within six months from the passage of this 
 Act the Interstate Commerce Commission, after hearing, shall 
 designate the number, dimensions, location, and manner of 
 application of the appliances provided for by section two of 
 this Act and section four of the Act of March second, eighteen 
 hundred and ninety-three, and shall give notice of such desig- 
 nation to all common carriers subject to the provisions of this 
 Act by such means as the commission may deem proper, and 
 thereafter said number, location, dimensions, and manner of 
 application as designated by said commission shall remain as 
 the standards of equipment to be used on all cars subject to 
 the provisions of this Act, unless changed by an order of said 
 Interstate Commerce Commission, to be made after full hear- 
 ing and for good cause shoAvn; and failure to comply with
 
 608 FEDERAL, EMPLOYERS' SAFETY APPLIANCE ACT. 
 
 any such requirement of the Interstate Commerce Commis- 
 sion, to be made after full hearing, and for good cause shown ; 
 and failure to comply with any such requirement of the 
 Interstate Commerce Commission shall be subject to a like 
 penalty as failure to comply with any requirement of this 
 Act: Provided, That the Interstate Commerce Commission 
 may. upon full hearing and for good cause, extend the period 
 within which any common carrier shall comply wdth the pro- 
 visions of this section with respect to the equipment of cars 
 actually in service upon the date of the passage of this Act. 
 Said commission is hereby given authority, after hearing, to 
 modify or change, and to prescribe the standard height of 
 drawbars and to fix the time within which such modification 
 or change shall become effective and obligatory, and prior to 
 the time so tixed it shall be unlawful to use any car or vehicle 
 in interstate or foreign traffic which does not comply with 
 the standard now fixed or the standard so prescribed, and 
 after the time so fixed it shall be unlawful to use any car or 
 vehicle in interstate or foreign traffic which does not comply 
 with the standard so prescribed by the commission. 
 
 Sec. 4. That any common carrier subject to this Act using, 
 hauling, or permitting to be used or hauled on its line, any 
 car subject to the requirements of this Act not equipped as 
 provided in this Act, shall be liable to a penalty of one hun- 
 dred dollai-s for each and every such violation, to be recov- 
 ered as provided in section six of the Act of March second, 
 eighteen hundred and ninety-three, as amended April first, 
 eighteen hundred and ninety-six: Provided, That where any 
 car shall have been properly equipped, as provided in this 
 Act and the other Acts mentioned herein, and such equip- 
 ment shall have become defective or insecure while such car 
 was being used by such carrier upon its line of railroad, such 
 car may be hauled from the place where such equipment was 
 first discovered to be defective or insecure to the nearest 
 available point w^hore sucli car can be repaired, without lia- 
 bility for the penalties imposed by section four of this Act
 
 APPENDIX D. 609 
 
 or section six of the Act of March second, eighteen liundred 
 and ninety-three as amended by the Act of April first, 
 eighteen hundred and ninety-six, if such movement is neces- 
 sary to make such repairs and such repairs can not be made 
 except at such repair point; and such movement or hauling 
 of such car shall be at the sole risk of the carrier, and nothing 
 in this section shall be construed to relieve such carrier from 
 liability in any remedial action for the death or injury of 
 any railroad employee caused to such employee by reason of 
 or in connection with the movement or hauling of such car 
 with equipment which is defective or insecure or which is not 
 maintained in accordance with the requirements of tliis Act 
 and the other Acts herein referred to; and nothing in this 
 proviso shall be construed to permit the hauling of defective 
 cars by means of chains instead of drawbars, in revenue trains 
 or in association with other cars that are commercially used, 
 unless such defective cars contain live stock or "perishable" 
 freight. 
 
 Sec. 5. That except that, within the limits specified in the 
 preceding section of this Act, the movement of a car with 
 defective or insecure equipment may be made without in- 
 curring the penalty provided by the statutes, but shall in all 
 other respects be unlawful, nothing in this Act shall be held 
 or construed to relieve any common carrier, the Interstate 
 Commerce Commission, or any United States attorney from 
 any of the provisions, powers, duties, liabilities, or require- 
 ments of said Act of ]\rarch second, eighteen hundred and 
 ninety-three, as amended by the Acts of April first, eighteen 
 hundred and ninety -six, and March second, nineteen hundred 
 and three ; and, except as aforesaid, all of the pro^dsions, 
 powers, duties, requirements and liabilities of said Act of 
 March second, eighteen hundred and ninety-three, as amended 
 by the Acts of April first, eighteen hundred and ninety-six, 
 and March second, nineteen hundred and three, shall apply 
 to this Act. 
 
 Sec. 6. That it shall be the duty of the Interstate Com- 
 merce Commission to enforce the provisions of this Act, and
 
 610 FEDERAL EMPLOYERS' SAFETY APPLIANCE ACT. 
 
 all powers heretofore granted to said commission are hereby 
 extended to it for the purpose of the enforcement of this 
 Act. 
 
 Approved, April 14, 1910. 
 
 ORDER OF THE INTERSTATE COMMERCE COMMIS- 
 SION, JUNE 6, 1910. 
 
 IN THE MATTER OF REQUIRING AN INCREASE IN 
 THE MINIMUM PERCENTAGE OF BRAKES. 
 
 The Commission having under consideration the question 
 of requiring an increase in the minimum percentage of power 
 brakes to be used and operated on trains and railroads en- 
 gaged in interstate commerce, as provided by section two of 
 the Act of March 2, 1903, and it appearing to the Commis- 
 sion, after full hearing had on May 5, 1909, due notice of 
 which was given all common carriers, owners and lessees 
 engaged in interstate commerce by railroad in the United 
 States, and at which time all interested parties were given 
 an opportunity to be heard and submit their views, that to 
 secure more fully the objects of the Act to promote the safety 
 of employees and travelers on railroads, the minimum per- 
 centage of power-brake cars to be used in trains, as established 
 by its order of November 15, 1905, should be further in- 
 creased. 
 
 It is ordered, That on and after September 1, 1910, on all 
 railroads used in interstate commerce, whenever, as required 
 by the Safety Appliance Act as amended March 2, 1903, any 
 train is operated with power or train brakes, not less than 
 85% of the cars of such train shall have their brakes used 
 and operated by the engineer of the locomotive drawing such 
 train, and all power-brake cars in every such train which are 
 associated together with the 85% shall have their brakes so 
 used and operated.
 
 APPENDIX D. 611 
 
 ORDER OF THE INTERSTATE COMMERCE COMMIS- 
 SION, OCTOBER 10, 1910. 
 
 IN THE MATTER OF THE STANDARD HEIGHT OF 
 DRAWBARS. 
 
 "Whereas, By the third section of an Act of Congress ap- 
 proved April 14, 1910, entitled "An Act to supplement 'An 
 Act to promote the safety of employees and travelers upon 
 railroads by compelling common carriers engaged in inter- 
 state commerce to equip their cars with automatic couplers 
 and continuous brakes, and their locomotives with driving- 
 wheel brakes, and for other purposes,' and other safety appli- 
 ance acts, and for other purposes," it is provided, among 
 other things, that the Interstate Commerce Commission is 
 hereby given authority, after hearing, to modify or change 
 and to prescribe the standard height of drawbars, and to fix 
 the time within which such modification or change shall 
 become effective and obligatory; and 
 
 Whereas, A hearing in the matter of any modification or 
 change in the standard height of drawbars was held before 
 the Interstate Commerce Commission at its office in Wash- 
 ington, D. C, on June 7, 1910; 
 
 Now, THEREFORE, In pursuance of and in accordance with 
 the provisions of said Section 3 of said Act. 
 
 It is ordered, That (except on cars specified in the proviso 
 in Section 6 of the Safety Appliance Act of March 2, 1893, 
 as the same was amended April 1, 1896), the standard height 
 of drawbars heretofore designated in compliance with law 
 is hereby modified and changed in the manner hereinaftei 
 prescribed, to-wit : The maximum height of drawbars foi 
 freight cars measured perpendicularly from the level of the 
 tops of rails to the centers of drawbars for standard-gauge 
 railroads in the United States subject to said Act shall be 
 341/t inches, and the minimum height of drawbars for freight 
 cars on such standard-gauge railroads measured in the same 
 manner shall be 31 V2 inches, and on narrow-gauge railroads 
 in the United States subject to said Act the maximum height
 
 612 FEDERAL EMPLOYERS' S.AJETY APPLL\NCE ACT. 
 
 of drawbars for freight cars measured from the level of the 
 tops of rails to the centers of drawbars shall be 26 inches, 
 and the minimum height of drawbars for freight cars on 
 such narrow-gauge railroads measured in the same manner 
 shall be 23 inches, and on 2-foot-gauge railroads in the United 
 States subject to said Act the maximum height of drawbars 
 for freight cars measured from the level of the tops of rails 
 to the centers of drawbars shall be 11 Yo inches, and the 
 minimum height of drawbars for freight cars on such 2-foot- 
 gauge railroads measured in the same manner shall be 14i'2 
 inches. 
 
 And it is further ordered, That such modification or change 
 shall become effective and obligatory December 31, 1910. 
 
 Commissioners. 
 
 At a General Session op the Interstate Commerce Com- 
 mission, HELD at its Office in Washington, D. C, on 
 THE 13th Day of March, A. D., 1911. 
 
 Present : 
 
 JuDSON C. Clements, 
 Charles A. Prouty, 
 Franklin K. Lane, 
 Edgar E. Clark, 
 James S. Harlan, 
 Charles C. McChord, 
 Balthasar H. Meyer, 
 
 IN THE ^MATTER OF DESIGNATING THE NUMBER, 
 DIMENSIONS, LOCATION, AND MANNER OF APPLI- 
 CATION OF CERTAIN SAFETY APPLIANCES. 
 
 Whereas by the third section of an act of Congress approved 
 April 14, 1910, entitled "An act to supplement *An act to 
 promote the safety of employees and travelers upon railroads 
 by compelling common carriers engaged in interstate com- 
 merce to equip their cars with automatic couplers and con- 
 tinuous brakes and their locomotives ^\^th driving-wheel
 
 APPENDIX D. 613 
 
 brakes, and for other purposes,' and other safety appliance 
 acts, and for other purposes," it is provided, among otlier 
 things, "That within six months from tlie passage of tliis act 
 the Interstate Commerce Commission, after hearing, shall des- 
 ignate the number, dimensions, location, and manner of appli- 
 cation of the appliances provided for by Section two of this 
 act and Section four of the act of March second, eighteen 
 hundred and ninety-three, and shall give notice of such desig- 
 nation to all common carriers subject to the provisions of 
 this act by such means as the Commission may deem proper, 
 and thereafter said number, location, dimensions, and manner 
 of application as designated by said Commission shall remain 
 as the standards of equipment to be used on all cars subject 
 to the provisions of this act, unless changed by an order of 
 said Interstate Commerce Commission, to be made after full 
 hearing and for good cause shown; and failure to comply 
 with such requirement of the Interstate Commerce Commission 
 shall be subject to a like penalty as failure to comply with 
 any requirement of this Act: Provided, That the Interstate 
 Commerce Conmiission may, upon full hearing and for good 
 cause, extend the period within which any common carrier 
 shall comply with the provisions of this section with respect 
 to the equipment of cars actually in service upon the date of 
 passage of this act;" and 
 
 Whereas hearings in the matter of the number, dimensions, 
 location, and manner of application of the appliances, as pro- 
 \dded in said section of said act, were held before the Inter- 
 state Commerce Commission at its office in Washington, D. C, 
 on September 29th and 30th and October 7th, 1910, respec- 
 tively ; and February 27th, 1911 ; 
 
 Now, therefore, in pursuance of and in accordance with the 
 provisions of said Section three of said act, and superseding 
 the Commission's order of October 13, 1910, relative thereto 
 
 It is ordered, That the number, dimensions, location, and 
 manner of application of the appliances provided for by 
 Section two of the Act of April 14, 1910, and Section four of 
 the Act of March 2, 1893, shall be as follows :
 
 614 FEDER.IL employers' SAEETY APPLIANCE ACT. 
 
 BOX AND OTHER HOUSE CARS. 
 Hand-brakes. 
 
 Number: Each box or other house ear shall be equipped 
 with an efficient hand-brake which shall operate in harmony 
 with the power-brake thereon. 
 
 The hand-brake may be of any efficient design, but must 
 provide the same degree of safety as the design shown on 
 Plate A. 
 
 Dimensions : The brake-shaft shall be not less than one and 
 one-fourth (I14) inches in diameter, of wrought iron or steel 
 "Without weld. 
 
 The brake-wheel may be flat or dished, not less than fifteen 
 (15), preferably sixteen (36) inches in diameter, of 
 malleable iron, wrought iron or steel. 
 
 Location: The hand-brake shall be so located that it can 
 be safely operated while car is in motion. 
 
 The brake-shaft shall be located on end of car, to the left 
 of and not less than seventeen (17) nor more than twenty-two 
 (22) inches from center. 
 
 Manner op Application : There shall be not less than four 
 (4) inches clearance around rim of brake-wheel. 
 
 Outside edge of brake-wheel shall be not less than four (4) 
 inches from a vertical plane parallel with end of car and pass- 
 ing through the inside face of knuckle when closed with 
 coupler-horn against the buffer-block or end-sill. 
 
 Top brake-shaft support shall be fastened with not less than 
 one-half (I/2) iiich bolts or rivets. (See Plate A.) 
 
 A brake-shaft step shall support the lower end of brake- 
 shaft. A brake-shaft step which will permit the brake-chain 
 "to drop under the brake-shaft shall not be used. U-shaped 
 form of brake-shaft step is preferred. (See Plate A.) 
 
 Brake-sliaft shall be arranged with a square fit at its upper 
 end to secure the hand-brake wheel ; said square fit shall be 
 not less than seven-eighths ("%) of an inch square. Square-fit 
 taper; nominally two (2) in twelve (12) inches. (See 
 Plate A.)
 
 APPENDIX D. 615 
 
 Brake-chain shall be of not less than three-eighths (%), 
 preferably seven-sixteenths (7-16) inch wrought iron or steel, 
 with a link on the brake-rod end of not less than seven- 
 sixteenths (7-16), preferably one-half (Yo) inch wrought iron 
 or steel, and shall be secured to brake-shaft drum by not less 
 than one-half (i/^) inch hexagon or square-headed bolt. Nut 
 on said bolt shall be secured by riveting end of bolt over nut. 
 (See Plate A.) 
 
 Lower end of brake-shaft shall be provided with a trunnion 
 of not less than three-fourths {%), preferably one (1) inch 
 in diameter extending through brake-shaft step and held in 
 operating position by a suitable cotter or ring. (See Plate A.) 
 
 Brake-shaft drum shall be not less than one and one-half 
 (II/2) inches in diameter. (See Plate A.) 
 
 Brake ratchet-wheel shall be secured to brake-shaft by a 
 key or square fit ; said square fit shall be not less than one 
 and five-sixteenths (1 5-16) inches square. Wlien ratchet- 
 wheel with square fit is used provision shall be made to prevent 
 ratchet-wheel from rising on shaft to disengage brake-pawl. 
 (See Plate A.) 
 
 Brake ratchet-wheel shall be not less than five and one- 
 fourth (514), preferably five and one-half (5i^) inches in 
 diameter and shall have not less than fourteen (14), prefer- 
 ably sixteen (16) teeth. (See Plate A.) 
 
 If brake ratchet-wheel is more than thirty-six (36) inches 
 from brake-wheel, a brake-shaft support shall be provided to 
 support this extended upper portion of brake-shaft; said 
 brake-shaft support shall be fastened with not less than one- 
 half (iy4) inch bolts or rivets. 
 
 The brake-pawl shall be pivoted upon a bolt or rivet not 
 less than five-eighths (%) of an inch in diameter, or upon a 
 trunnion secured by not less than one-half (I/2) inch bolt or 
 rivet, and there shall be a rigid metal connection between 
 brake-shaft and pivot of pawl. 
 
 Brake-wheel shall be held in position on brake-shaft by a 
 nut on a threaded extended end of brake-shaft ; said threaded 
 portion shall be not less than three-fourths (%) of an inch in
 
 616 FEDERAL EMPLOYERS' SAPETY APPLL\NCE ACT. 
 
 diameter : said nut shall be secured by riveting over or by the 
 use of a lock-nut or suitable cotter. 
 
 Brake-wheel shall be arranged with a square tit for brake- 
 shaft in hub of said wheel; taper of said fit, nominally two 
 (2) in twelve (12) inches. (See Plate A.) 
 
 Brake-step. 
 
 If brake-step is used, it shall be not less than 
 twenty-eight (28) inches in length. Outside edge shall be not 
 less than eight (8) inches from face of car and not less than 
 four (4) inches from a vertical plane parallel with end of car 
 and passing through the inside face of knuckle when closed 
 with coupler-horn against the buffer-block or end-sill. 
 
 ]Manner of Application: Brake-step shall be supported 
 by not less than two metal braces having a minimum cross- 
 sectional area three-eighths (%) by one and one-half (IV2) 
 inches or equivalent, which shall be securely fastened to body 
 of car with not less than one-half (i/o) inch bolts or rivets. 
 
 Running-boards. 
 
 Number: One (1) longitudinal running-board. 
 
 On outside-metal-roof cars two (2) latitudinal extensions. 
 
 Dimensions : Longitudinal running-board shall be not less 
 than eighteen (18), preferably twenty (20) inches in ^^ddth. 
 
 Latitudinal extensions shall be not less than twenty-four 
 (24) inches in width. 
 
 Location : Full length of car, center of roof. 
 
 On outside-metal-roof cars there shall be two (2) latitudinal 
 extensions from longitudinal running-board to ladder loca- 
 tions, except on refrigerator cars where such latitudinal ex- 
 tensions can not be applied on account of ice hatches. 
 
 M.\nner op Application : Running-boards shall be continu- 
 ous from end to end and not cut or hinged at any point : Pro- 
 vidfd, That the length and width of ninning-boards may be 
 mad*' uf) of ;i ntinilxT of pieces securely fastened to saddle- 
 bloeks with screws or bolts.
 
 APPENDIX D. 617 
 
 The ends of longitudinal running-board shall be not less 
 than six (6) nor more than ten (10) inches from a vertical 
 plane parallel with end of car and passing through the inside 
 face of knuckle when closed with coupler-horn against the 
 buffer-block or end-sill; and if more than four (4) inches from 
 edge of roof of car, shall be securely supported their full width 
 by substantial metal braces. 
 
 Running-boards shall be made of wood and securely fastened 
 to car. 
 
 Sill-steps. 
 
 Number: Four (4). 
 
 Dimensions: Minimum cross-sectional area one-half (i/^) 
 by one and one-half (1|4) inches, or equivalent, of wrought 
 iron or steel. 
 
 ^Minimum length of tread, ten (10), preferably twelve (12) 
 inches. 
 
 Minimum clear depth, eight (8) inches. 
 
 Location: One (1) near each end on each side of car, so 
 that there shall be not more than eighteen (18) inches from 
 end of car to center of tread of sill-step. 
 
 Outside edge of tread of step shall be not more than four 
 (4) inches inside of face of side of car, preferably flush -with 
 side of car. 
 
 Tread shall be not more than twenty-four (24), preferably 
 not more than twenty-two (22) inches above the top of rail. 
 
 ]\Ianner of Application : Sill-steps exceeding twenty-one 
 (21) inches in depth shall have an additional tread. 
 
 Sill-steps shall be securely fastened with not less than one- 
 half (i/o) inch bolts with nuts outside (when possible) and 
 riveted over, or with not less than one-half (^) inch rivets. 
 
 Ladders. 
 
 Number: Four (4), 
 
 Dimensions: ^linimura clear length of tread: Side ladders 
 sixteen (16) inches; end ladders fourteen (14) inches.
 
 618 FEDERAL EMPLOYERS' SAPETY APPLIANCE ACT. 
 
 Maximum spacing between ladder-treads, nineteen (19) 
 inches. 
 
 Top ladder-tread shall be located not less than twelve (12) 
 nor more than eighteen (18) inches from roof at eaves. 
 
 Spacing of side ladder treads shall be uniform within a limit 
 of two (2) inches from top ladder tread to bottom tread of 
 ladder. 
 
 Maximum distance from bottom tread of side ladder to top 
 tread of sill-step, twenty-one (21) inches. 
 
 End ladder treads shall be spaced to coincide with treads 
 of side ladders, a variation of two (2) inches being allowed. 
 Where construction of car will not permit the application of a 
 tread of end ladder to coincide with bottom tread of side 
 ladder, the bottom tread of end ladder must coincide with 
 second tread from bottom of side ladder. 
 
 Hard-wood treads, minimum dimensions one and one-half 
 (11/^) by two (2) inches. 
 
 Iron or steel treads, minimum diameter five-eighths (%) of 
 an inch. 
 
 IMinimum clearance of treads, two (2), preferably two and 
 one-half (2iA) inches. 
 
 Location: One (1) on each side, not more than eight (8) 
 inches from right end of car; one (1) on each end, not more 
 than eight (8) inches from left side of ear; measured from 
 inside edge of ladder-stile or clearance of ladder treads to 
 corner of car. 
 
 Manner of Application : ]\Ietal ladders without stiles near 
 corners of cars shall have foot guards or upward projections 
 not less than two (2) inches in height near inside end of 
 bottom treads. 
 
 Stiles of ladders, projecting two (2) or more inches from 
 face of car, will serve as foot-guards. 
 
 Ladders shall be securely fastened "with not less than one- 
 half (i/o) inch bolts with nuts outside (when possible) and 
 riveted over, or witli not less than one-half (I/2) inch rivets. 
 Tfiree-eighths (%) inch bolts may be used for wooden treads 
 which are gained into stiles.
 
 APPENDIX D. 
 
 End-ladder Clearance. 
 
 619' 
 
 No part of car above end-sills within thirty (30) inches 
 from side of car, except buffer-block, brake-shaft, brake- 
 wheel or uncoupling-lever shall extend to within twelve (12) 
 inches of a vertical plane parallel with end of car and pass- 
 ing through the inside face of knuckle when closed witli 
 coupler-horn against the buft'er-block or end-sill, aud no 
 other part of end of car or fixtures on same abovj end-sills, 
 other than exceptions herein noted, shall extend beyond tlie 
 outer face of buffer-block. 
 
 Side-handholds. 
 
 Number: One (1) over each ladder. 
 
 One (1) right angle handhold may take the place of two 
 (2) adjacent specified roof -handholds, provided the dimen- 
 sions and locations coincide, and that an extra leg is securely 
 fastened to car at point of angle. 
 
 Dimensions: Minimum diameter, five-eighths (%) of an 
 inch, wrought iron or steel. 
 
 Minimum clear length, sixteen (16) inches. 
 
 Minimum clearance, two (2), preferably two and one-half 
 (21/0) inches. 
 
 Location: On roof of car: One (1) parallel to treads of 
 each ladder, not less than eight (8) nor more than fifteen (15) 
 inches from edge of roof, except on refrigerator cars where 
 ice hatches prevent, when location may be nearer edge of roof. 
 
 Manner of Application : Roof-handholds shall be securely 
 fastened with not less than one-half (I/2) inch bolts with nuts 
 outside (when possible) and riveted over, or with not less 
 than one-half (i/o) inch rivets. 
 
 Side-hand-piolds. 
 
 Number: Four (4). 
 
 [Tread of side-ladder is a side-handhold.] 
 Dimensions: Minimum diameter, five-eighths (%) of an 
 inch, M^rought iron or steel.
 
 620 
 
 FEDERAL EMPLOYERS SAFETY ArPLLA.NCE ACT. 
 
 ^Minimum clear length, sixteen (16) inches, preferably 
 twenty-four (24) inches. 
 
 Minimum clearance, two (2), preferably two and one-half 
 (21/2) inches. 
 
 Location: Horizontal: One (1) near each end on each 
 side of car. 
 
 Side-handholds shall be not less than twenty-four (24) nor 
 more than thirty (30) inches above center line of coupler, 
 except as provided above, where tread of ladder is a handhold. 
 Clearance of outer end of handhold shall be not more than 
 eight (8) inches from end of car. 
 
 Manner op Application : Side-handholds shall be securely 
 fastened with not less than one-half (%) inch bolts with nuts 
 outside (when possible) and riveted over, or with not less 
 than one-half {Vo) inch rivets. 
 
 Horizontal End-handholds. 
 
 Number: Eight (8) or more. [Four (4) on each end of 
 car.] 
 
 [Tread of end-ladder is an end-handhold.] 
 
 Dimensions: Minimum diameter, five-eighths (%) of an 
 inch, wrought iron or steel. 
 
 jMinimum clear length, sixteen (16) inches, preferably 
 twenty-four (24) inches. 
 
 A liandhold fourteen (14) inches in length may be used 
 where it is impossible to use one sixteen (16) inches in length. 
 
 ]\Iinimum clearance, two (2), preferably two and one-half 
 (21/2) inches. 
 
 Location: One (1) near each side on each end of car, not 
 less than twenty-four (24) nor more than thirty (30) inches 
 above center line of coupler, except as provided above, when 
 tread of end-ladder is an end-handhold. Clearance of outer 
 end of handhohl shall be not more than eight (8) inches from 
 side of car. 
 
 One (1) near each side of each end of car on face of end-sill 
 or sheathing over end-sill, projecting outward or do^vnward.
 
 APPENDIX D. 621 
 
 Clearance of outer end of handhold shall be not more than 
 sixteen (16) inches from side of car. 
 
 One each end of cars with platform end-sills six (6) or more 
 inches in width, measured from end-post or siding and ex- 
 tending entirely across end of car, there shall be one addi- 
 tional end-handhold not less than twenty-four (24) inches in 
 length, located near center of car, not less than thirty (30) 
 nor more than sixty (60) inches above platform end-sill. 
 
 Manner of Application : Plorizontal end-handholds shall 
 be securely fastened with not less than one-half (I/2) inch 
 bolts wath nuts outside (when possible) and riveted over, or 
 with not less than one-half (I/2) i^ich rivets. 
 
 Vertical End-handholds. 
 
 Number: Two (2) on full-wadth platform end-sill cars, 
 as heretofore described. 
 
 Dimensions: Minimum diameter five-eighths (%) of an 
 inch, wrought iron or steel. 
 
 Minimum clear length, eighteen (18), preferably twenty- 
 four (24) inches. 
 
 Minimum clearance two (2), preferably two and one-half 
 (2V2) inches. 
 
 Location: One (1) on each end of car opposite ladder, not 
 more than eight (8) inches from side of car; clearance of 
 bottom end of handhold shall be not less than twenty-four (24) 
 nor more than thirty (80) inches above center line of coupler. 
 
 Manner of Application: Vertical end-handholds shall be 
 securely fastened with not less than one-half (i/o) inch bolts 
 with nuts outside (when possible) and riveted over, or with 
 not less than one-half ("^,'2) inch rivets. 
 
 Uncoupling-levers. 
 
 Number: Two (2). 
 
 Uncoupling-levers may be either single cr double, and of 
 any efficient design.
 
 622 FEDERAL EMPLOYERS' SAFETY APPLIANCE ACT. 
 
 Dimensions : Handles of uncoupling-levers, except those 
 shown on Plate B or of similar designs, shall be not more than 
 six (6) inches from sides of ear. 
 
 Uncoupling-levers of design shown on Plate B and of 
 similar designs shall conform to the following-prescribed 
 limits : 
 
 Handles shall be not more than twelve (12), preferably 
 nine (9) inches from sides of cars. Center lift-arms shall be 
 not less than seven (7) inches long. 
 
 Center of eye at end of center lift-arm shall be not more 
 than three and one-half (Si/o) inches beyond center of eye 
 of iineoupling-pin of coupler when horn of coupler is against 
 the buffer-block or end-sill. (See Plate B.) 
 
 Ends of handles shall extend not less than four (4) inches 
 below bottom of end-sill or shall be so constructed as to give 
 a minimum clearance of two (2) inches around handle, 
 ]\Iinimum drop of handles shall be twelve (12) inches; maxi- 
 mum, fifteen (15) inches over all. (See Plate B.) 
 
 Handles of uncoupling-levers of the "rocking" or "push- 
 doA\Ti" type shall be not less than eighteen (18) inches from 
 top of rail when lock-block has released knuckle, and a suitable 
 stop shall be provided to prevent inside arm from flying up 
 in case of breakage. 
 
 Location: One (1) on each end of car. 
 
 When single lever is used it shall be placed on left side of 
 end of car. 
 
 HOPPER CARS AND HIGH-SIDE GONDOLAS WITH 
 FIXED ENDS. 
 
 [Cars with sides more than thirty-six (36) inches above the 
 fioor are high-side cars.] 
 
 Hand-brakes. 
 
 Number: Same as specified for "Box and other house 
 cars.'* 
 
 Dimensions: Same as specified for "Box and other house 
 cars."
 
 APPENDIX D. 623 
 
 Location : Each hand-brake shall be so located that it 
 can be safely operated while car is in motion. 
 
 The brake-shaft shall be located on end of car to the left of, 
 and not more than twenty-two (22) inches from, center. 
 
 Manner op Application : Same as specified for ' ' Box and 
 other house cai*s." 
 
 Brake-step. 
 Same as specified for "Box and other house ears." 
 
 SlIiL-STEPS. 
 
 Same as specified for "Box and other house cars." 
 
 L.IDDERS. 
 
 Number : Same as specified for ' ' Box and other house cars. ' * 
 
 Dimensions: Same as specified for "Box and other house 
 ears," except that top-ladder tread shall be located not more 
 than four (4) inches from top of car. 
 
 Location : Same as specified for ' ' Box and other house 
 cars. ' ' 
 
 Manner of Application : Same as specified for ' ' Box and 
 other house cars." 
 
 Side-handholds. 
 Same as specified for "Box and other house cars." 
 
 Horizontal End-handholds. 
 Same as specified for "Box and other house cars." 
 
 Vertical End-handholds. 
 Same as specified for "Box and other house ears." 
 
 Uncoupling-levers. 
 Same as specified for "Box and other house cars." 
 
 End-ladder Clearance. 
 
 No part of car above end -sills within thirty (30) inches 
 from side of car, except buffer-block, brake-shaft, brake-
 
 624 FEDERAL EMPLOYERS' SAFETY APPLIANCE ACT. 
 
 wheel, brake-step or uncoupling lever shall extend to within 
 twelve (12) inches of a vertical plane parallel with end of 
 car and passing through the inside face of knuckle when 
 closed with coupler-horn against the buffer-block or end- 
 sill, and no other part of end of car or fixtures on same 
 above end-sills, other than exceptions herein noted, shall 
 extend beyond the outer face of buffer-block. 
 
 DROP-END HIGH-SIDE GONDOLA CARS. 
 Hand-brakes. 
 
 Number : Same as specified for ' ' Box and other house cars. *' 
 
 Dimensions: Same as specified for "Box and other house 
 cars. ' ' 
 
 Location : Each hand-brake shall be so located that it can 
 be safely operated while car is in motion. 
 
 The brake-shaft shall be located on end of car to the left 
 of center. 
 
 Manner of Application: Same as specified for "Box and 
 other house cars." 
 
 Sill-steps. 
 Same as specified for "Box and other house cars." 
 
 Ladders. 
 
 Number: Two (2). 
 
 Dimensions: Same as specified for "Box and other house 
 cars," except that top-ladder tread shall be located not more 
 than four (4) inches from top of car. 
 
 Location: One (1) on each side, not more than eight (8) 
 inches from right end of car, measured from inside edge of 
 ladder-stile or clearance of ladder-treads to corner of car. 
 
 Manner of Application: Same as specified for "Box and 
 other house cars." 
 
 SiDE-IIANDllOLDS. 
 
 Same as specified for "Box and other house cars."
 
 APPENDIX D. 
 
 625 
 
 Horizontal End-handholds. 
 
 Number: Four (4). 
 
 Dimensions: Same as specified for "Box and other house 
 ears. ' ' 
 
 Location: One (1) near each side of eaeli end of car on 
 face of end-sill. Clearance of outer end of handhold shall be 
 not more than sixteen (16) inches from side of car. 
 
 Manner of Application: Same as specified for "Box and 
 other house cars." 
 
 IIncoupling-levers. 
 Same as specified for "Box and other house cars." 
 
 End-ladder Clearance. 
 
 No part of ear above end-sills within thirty (30) inches 
 from side of car, except buffer-block, brake-shaft, brake- 
 wheel or uncoupling-lever shall extend to within twelve (12) 
 inches of a vertical plane parallel with end of car and pass- 
 ing through the inside face of knuckle when closed with 
 coupler-horn against the buffer-block or end-sill, and no 
 other part of end of car or fixtures on same above end-sills, 
 other than exceptions herein noted, shall extend beyond the 
 outer face of buffer-block. 
 
 FIXED-END LOW-SIDE GONDOLA AND LOW-SIDE 
 HOPPER CARS. 
 
 [Cars with sides thirty-six {36) inches or less above the 
 floor are low-side cars.] 
 
 Hand-brakes. 
 
 Number: Same as specified for "Box and other house 
 cars. ' ' 
 
 Dimensions: Same as specified for "Box and other house 
 cars. ' ' 
 
 Location : Each hand-brake shall be so located that it can 
 be safely operated while car is in motion.
 
 626 FEDERAL EMPLOYERS' SAPETY APPLIANCE ACT. 
 
 The brake-shaft shall be located on end of car, to the left 
 of and not more than twenty-two (22) inches from center. 
 
 Manner op Application : Same as specified for ' ' Box and 
 other house cars." 
 
 Brake-step. 
 Same as specified for "Box and other house cars." 
 
 SiLL-STEPS. 
 
 Same as specified for ' ' Box and other house cars. ' ' 
 
 SlDE-HANDHOI>DS. 
 
 Number: Same as specified for "Box and other house 
 cars. ' ' 
 
 Dimensions: Same as specified for "Box and other house 
 cars." 
 
 Location: Horizontal: One (1) near each end on each side 
 of car, not less than twenty-four (24) nor more than thirty 
 (30) inches above center line of coupler, if car construction 
 will permit, but handhold shall not project above top of side. 
 Clearance of outer end of handhold shall be not more than 
 eight (8) inches from end of car. 
 
 Manner of Application : Same as specified for ' ' Box and 
 other house cars." 
 
 Horizontal End-handholds. 
 
 Number: Same as specified for "Box and other house 
 cars." 
 
 Dimensions: Same as specified for "Box and other house 
 cars. ' ' 
 
 Location: One (1) near each side on each end of car not 
 less than twenty-four (24) nor more than thirty (30) inches 
 above center line of coupler, if car construction will permit. 
 Clearance of outer end of handhold shall be not more than 
 eight (8) inches from side of car. 
 
 One (1 ) near each side of caeli end of car on face of end-sill, 
 projecting outward or downward. Clearance of outer end of
 
 APPENDIX D. 
 
 627 
 
 handhold shall bo not more than sixteen (16) inches from side 
 of ear. 
 
 Manner of Application : Same as specified for ' ' Box and 
 other house cars." 
 
 Uncoupling-levers. 
 Same as specified for "Box and other house cars." 
 
 End-ladder Clearance. 
 
 No part of car above end-sills within thirty (30) inches 
 from side of car, except bufii'er-block, brake-shaft, brake-step, 
 brake-wheel or uncoupling-lever shall extend to within twelve 
 (12) inches of a vertical plane parallel with end of car and 
 passing through the inside face of knuckle when closed with 
 coupler-horn against the buffer-block or end-sill, and no other 
 part of end of car or fixtures on same above end-sills, other 
 than exceptions herein noted, shall extend beyond the outer 
 face of buffer-block. 
 
 DROP-END LOW-SIDE GONDOLA CARS. 
 
 Hand-brakes. 
 
 Number: Same as specified for "Box and other house 
 cars. ' ' 
 
 Dimensions: Same as specified for "Box and other house 
 cars." 
 
 Location : Each hand-brake shall be so located that it can 
 be safely operated while car is in motion. 
 
 The brake-shaft shall be located on end of car to the left 
 of center. 
 
 Manner of Application : Same as specified for ' ' Box and 
 other house cars," provided that top brake-shaft support may 
 be omitted. 
 
 Sill-steps. 
 Same as specified for "Box and other house cars."
 
 628 federal employers' safety appliance act, 
 
 Side-handholds. 
 
 Number : Same as specified for ' ' Box and other house 
 cars. ' ' 
 
 Dimensions : Same as specified for ' ' Box and other house 
 cars." 
 
 Location: Horizontal: One (1) near each end on each side 
 of car, not less than twenty-four (24) nor more than thirty 
 (30) inches above center line of coupler, if car construction 
 will permit, but handhold shall not project above top of side. 
 Clearance of outer end of handhold shall be not more than 
 eight (8) inches from end of car. 
 
 ]\Ianner of Application: Same as specified for "Box and 
 other house cars." 
 
 End-handholds. 
 
 Number: Four (4). 
 
 Dimensions: Same as specified for "Box and other house 
 cars." 
 
 Location : Horizontal : One ( 1 ) near each side of each end 
 of car on face of end-sill. Clearance of outer end of handhold 
 shall be not more than sixteen (16) inches from side of car. 
 
 I\L4.NNER OF Application : Same as specified for * ' Box and 
 other house cars." 
 
 Uncoupling-levebs. 
 
 Same as specified for "Box and other house cars." 
 
 End-ladder Clearance. 
 
 No part of car above end-sills within thirty (30) inches 
 from side of car, except buffer-block, brake-shaft, brake-wheel, 
 or uncoupling-lever shall extend to within twelve (12) inches 
 of a vertical plane parallel with end of car and passing 
 through the insid(? face of knuckle Avhen closed with coupler- 
 horn against the bnffer-l)lock or end-sill, and no other part 
 of end of car or fixtures on same above end-sills, other than 
 exceptions herein noted, shall extend beyond the outer face 
 of buffer-block.
 
 APPENDIX D. 629 
 
 FLAT CARS. 
 
 [Cars with sides twelve (12) inches or less above the floor 
 may be equipped the same as flat cars.] 
 
 Hand-brakes. 
 
 Number: Same as specified for "Box and other house 
 cars. ' ' 
 
 Dimensions : Same as specified for ' ' Box and other house 
 cars. ' ' 
 
 Location : Each liand-brake shall be so located that it can 
 be safely operated while car is in motion. 
 
 The brake-shaft shall be located on the end of car to the 
 left of center, or on side of ear not more than thirty-six (36) 
 inches from right-hand end thereof. 
 
 Manner of Application : Same as specified for ' ' Box and 
 other house cars." 
 
 Sill-steps. 
 Same as specified for "Box and other house cars." 
 
 Side-handholds. 
 
 Number: Same as specified for "Box and other house 
 cars. ' ' 
 
 Dimensions: Same as specified for "Box and other house 
 cars. ' ' 
 
 Location: Horizontal: One (1) on face of each side-sill 
 near each end. Clearance of outer end of handhold shall be 
 not more than twelve (12) inches from end of car. 
 
 Manner of Application : Same as specified for * ' Box and 
 other house cars." 
 
 End Handholds. 
 
 Number: Four (4). 
 
 Dimensions: Same as specified for "Box and other house 
 cars." 
 
 Location: Horizontal: One (1) near each side of each end 
 of car on face of end-sill. Clearance of outer end of handhold 
 shall be not more than sixteen (16) inches from side of car.
 
 630 FEDERAL EMPLOYERS' SAFETY APPLLiNCE ACT, 
 
 Manner of Application : Same as specified for ' ' Box and 
 other house cars." 
 
 Uncoupling-levers. 
 Same as specified for "Box and other house cars." 
 
 TANK CARS WITH SIDE-PLATFORMS. 
 
 Hand-brakes. 
 
 Number: Same as specified for "Box and other house 
 cars. ' ' 
 
 Dimensions: Same as specified for "Box and other house 
 cars. ' ' 
 
 Location : Each hand-brake shall be so located that it can 
 be safely operated while car is in motion. 
 
 The brake-shaft shall be located on end of car to the left 
 of center. 
 
 Manner of Application : Same as specified for ' ' Box and 
 other house cars." 
 
 Sill Steps. 
 Same as specified for "Box and other house cars." 
 
 Side-handholds. 
 
 Number: Four (4) or more. 
 
 Dimensions: Same as specified for "Box and other house 
 cars. ' ' 
 
 Location: Horizontal: One (1) on face of each side-sill 
 near each end. Clearance of outer end of handhold shall be 
 not more than twelve (12) inches from end of ear. 
 
 If side safety-railings are attached to tank or tank bands, 
 four (4) additional vertical handholds shall be applied, one 
 (1) as nearly as possible over each sill-step and securely 
 fastened to tank or tank band. 
 
 ^Tanner of Application: Same as specified for "Box and 
 other house cars."
 
 appendix d. 631 
 
 End-handholds. 
 
 Number: Four (4). 
 
 Dimensions: Same as specified for "Box and other house 
 cars. ' ' 
 
 Location: Horizontal: One (1) near each side of each end 
 of car on face of end-sill. Clearance of outer end of handhold 
 shall be not more than sixteen (16) inches from side of car. 
 
 ^Manner op Application : Same as specified for ' ' Box and 
 other house cars." 
 
 Tank-head Handholds. 
 
 Number: Two (2). [Not required if safety -railing runs 
 around ends of tank.] 
 
 Dimensions: Minimum diameter five-eighths (%) of an 
 inch, wrought iron or steel. Minimum clearance two (2), 
 preferably two and one-half (21/0) inches. Clear length of 
 handholds shall extend to within six (6) inches of outer 
 diameter of tank at point of application. 
 
 Location: Horizontal: One (1) across each head of tank 
 not less than thirty (30) nor more than sixty (60) inches 
 above platform. 
 
 ]\Ianner of Application: Tank-head handholds shall be 
 securely fastened. 
 
 Safety-railings. 
 
 Number: One (1) continuous safety-railing running arounci 
 sides and ends of tank, securely fastened to tank or tank 
 bands at ends and sides of tank; or two (2) running full 
 length of tank at sides of car supported by posts. 
 
 Dimensions: Not less than three-fourths (%) of an inch, 
 iron. 
 
 Location : Running full length of tank either at side sup- 
 ported by posts or securely fastened to tank or tank bands, 
 not less than thirty (30) nor more than sixty (60) inches 
 above platform. 
 
 Manner op Application : Safety-railings shall be securely 
 fastened to tank body, tank bands or posts.
 
 632 federal employers' safety appliance act. 
 
 Uncoupling-levers. 
 
 Same as specified for "Box and other house ears." 
 
 End-ladder Clearance. 
 
 No part of ear above end-sills ^\'ithin thirty (30) inches 
 from side of car, except buffer-block, brake-shaft brackets, 
 brake-wheel or uncoupling-lever shall extend to within 
 twelve (12) inches of a vertical plane parallel with end of 
 car and passing through the inside face of knuckle when 
 closed with coupler-horn against the buffer-block or end- 
 sill, and no other part of end of car or fixtures on same 
 above end-sills, other than exceptions herein noted, shall 
 extend beyond the outer face of buffer-block. 
 
 TANK CARS WITHOUT STDE-STLLS AND TANK CARS 
 WITH SHORT SIDE-SILLS AND END-PLATFORMS. 
 
 Hand-brakes. 
 
 Number: Same as specified for "Box and other house 
 cars." 
 
 Dimensions: Same as specified for "Box and other house 
 cars. ' ' 
 
 Location : Each hand-brake shall be so located that it can 
 be safely operated while car is in motion. 
 
 The brake-shaft shall be located on end of car to the left 
 of center. 
 
 ^Manner of Application : Same as specified for ' ' Box and 
 other house cars." 
 
 Running-boards. 
 
 Number: One (1) continuous running-board around sides 
 and ends; or two (2) running full length of tank, one (1) on 
 each side. 
 
 Dimensions: "Minimum width on sides, ten (10) inches. 
 
 jMinimum width on ends, six (6) inches.
 
 APPENDIX D. 633 
 
 Location : Continuous aronnd sides and ends of cars. On 
 tank cars having end platforms extending to bolsters, run- 
 ning-boards shall extend from center to center of bolsters, one 
 (1) on each side. 
 
 Manner of Application: If side running-boards are 
 applied below center of tank, outside edge of running-boards 
 shall extend not less than seven (7) inches beyond bulge of 
 tank. 
 
 The running-boards at ends of car shall be not less than 
 six (6) inches from a point vertically above the inside face of 
 knuckle when closed with coupler-horn against the buffer- 
 block, end-sill or back-stop. 
 
 Running-boards shall be securely fastened to tank or tank 
 handhold. 
 
 Sill-steps. 
 
 Number: Same as specified for "Box and other house 
 ears." 
 
 Dimensions: Same as specified for "Box and other house 
 cars. ' ' 
 
 Location: One (1) near each end on each side under side- 
 handhold. 
 
 Outside edge of tread of step shall be not more than four 
 (4) inches inside of face of side of car, preferably flush with 
 side of car. 
 
 Tread shall be not more than twenty-four (24), preferably 
 not more than twenty-two (22) inches above the top of rail. 
 
 Manner of Application : Same as specified for * ' Box and 
 other house cars." 
 
 Ladders. 
 
 [// running-hoards are so located as to make ladders 
 necessary.] 
 
 Number: Two (2) on cars with continuous running, 
 boards. 
 
 Four (4) on cars with side running-boards. 
 
 Dimensions: Minimum clear length of tread, ten (10) 
 inches.
 
 634 FEDERAL EMPLOYERS' SAEETY APPLIANCE ACT. 
 
 Maximum spacing of treads, nineteen (19) inches. 
 
 Hard-wood treads, minimum dimensions, one and one-half 
 (li/o) by two (2) inches. 
 
 Wrought iron or steel treads, minimum diameter, tive- 
 eighths (%) of an inch. 
 
 Minimum clearance, two (2), preferably two and one-half 
 (21/2) inches. 
 
 Location : On cars with continuous running-boards, one 
 (1) at right end of each side. 
 
 On cars with side running-boards, one (1) at each end of 
 each running-board. 
 
 Manner of Application: Ladders shall be securely 
 fastened with not less than one-half (Vo) inch bolts or rivets. 
 
 SlOE-HANDIIOLDS. 
 
 Number: Four (4) or more. 
 
 Dimensions: Same as specified for "Box and other house 
 cars." 
 
 Location: Horizontal: One (]) on face of each side-sill 
 near each end on tank cars Math short side-sills, or one (1) 
 attached to top of running-board projecting outward above 
 sill-steps or ladders on tank ears without side-sills. Clearance 
 of outer end of handhold shall be not more than twelve (12) 
 inches from end of car. 
 
 If side safety-railings are attached to tank or tank bands 
 four (4) additional vertical handholds shall be applied, one 
 (1) as nearly as possible over each sill-step and securely 
 fastened to tank or tank band. 
 
 Manner of Application : Same as specified for ' ' Box and 
 other house cars." 
 
 End-handholds. 
 
 NiTMBER: Four (4). 
 
 Dimensions: Same as specified for "Box and other house 
 cars." 
 
 Location: Horizontal: One (1) near each side of each end 
 of car on face of end-sill. Clearance of outer end of hand-
 
 APPENDIX D. 
 
 635 
 
 hold shall be not more than sixteen (IG) inches from side of 
 car. 
 
 Manner of Application : Same as specified for ' * Box and 
 other house ears." 
 
 Tank-head Handholds. 
 
 Number: Two (2). [Not required if safety -railing runs 
 around ends of tank.] 
 
 Dimensions: Minimum diameter five-eighths (%) of an 
 inch, wrought iron or steel. 
 
 Minimum clearance two (2), preferably two and one-half 
 (21/2) inches. 
 
 Location: Horizontal: One (1) across each head of tank 
 not less than thirty (30) nor more than sixty (60) inches 
 above platform on running-board. Clear length of hand- 
 holds shall extend to within six (6) inches of outer diameter 
 of tank at point of application. 
 
 Manner of Application: Tank-head handholds shall be 
 securely fastened. 
 
 Safety-railings. 
 
 Number: One (1) running around sides and ends of tank 
 or two (2) running full length of tank. 
 
 Dimensions: Minimum diameter, seven-eighths (%) of an 
 inch, wrought iron or steel. 
 
 Minimum clearance, two and one-half (21/2) inches. 
 
 Location : Running full length of tank, not less than thirty 
 (30) nor more than sixty (60) inches above platform or 
 running-board. 
 
 Manner of Application : Safety-railings shall be securely 
 fastened to tank or tank-bands and secured against end 
 shifting. 
 
 Uncoupling-levers. 
 
 Same as specified for "Box and other house cars." 
 End-ladder CiiEARANCE. 
 
 No part of car above end-sills -vvnthin thirty (30) inches 
 from side of car, except buffer-block, brake-shaft, brake-shaft
 
 636 FEDERAL EMPLOYERS' SAFETY APPLIANCE ACT. 
 
 brackets, brake-wheel, running-boards or uncoupling-lever 
 shall extend to within twelve (12) inches of a vertical plane 
 parallel with end of car and passing through the inside face 
 of knuckle when closed with coupler-horn against the buffer- 
 block or end-sill, and no other part of end of car or fixtures 
 on same, above end-sills, other than exceptions herein noted, 
 shall extend beyond the outer face of buffer-block. 
 
 TANK CARS WITHOUT END-SILLS. 
 
 Hand-brakes. 
 
 Number: Same as specified for "Box and other house 
 cars." 
 
 Dimensions: Same as specified for "Box and other house 
 ears. ' ' 
 
 Location : Each hand-brake shall be so located that it can 
 be safely operated while car is in motion. The brake-shaft 
 shall be located on end of car to the left of center. 
 
 Manner of Application : Same as specified for ' ' Box and 
 other house cars." 
 
 Brake-step. 
 Same as specified for "Box and other house cars." 
 
 Running-boards. 
 
 Number: One (1). 
 
 Dimensions: Minimum width on sides, ten (10) inches. 
 
 Minimum width on ends, six (6) inches. 
 
 Location : Continuous around sides and ends of tank. 
 
 Manner of Application: If running-boards are applied 
 below center of tank, outside edge of running-boards shall 
 extend not less than seven (7) inches beyond bulge of tank. 
 
 Running-boards at ends of car shall be not less than six 
 (fi) inches from a point vertically above the inside face of 
 knuckle when closed with coupler-horn against the buffer- 
 block, end-sill or baelc-stop. 
 
 Running-boards shall be securely fastened to tank or tank 
 bands.
 
 appendix d. 637 
 
 Sill-steps. 
 
 Number: Four (4). [// tank has high running-boards, 
 making ladders necessary, sill-steps must meet ladder re- 
 quirements.] 
 
 Dimensions: Same as specified for "Box and other house 
 cars. ' ' 
 
 Location: One (1) near each end on each side, flush with 
 outside edge of running-board as near end of car as prac- 
 ticable. 
 
 Tread not more than twenty-four (24), preferably not 
 more than twenty-two (22) inches above the top of rail. 
 
 Manner of Application: Steps exceeding eighteen (18) 
 inches in depth shall have an additional tread and be laterally 
 braced. 
 
 Sill-steps shall be securely fastened with not less than one- 
 half (1/^) inch bolts with nuts outside (when possible) and 
 riveted over, or with one-half (i/o) inch rivets. 
 
 Side-handholds. 
 
 Number: Four (4) or more. 
 
 Dimensions: Same as specified for "Box and other house 
 cars." 
 
 Location: Horizontal: One (1) near each end on each 
 side of car over sill-step, on running-board, not more than 
 two (2) inches back from outside edge of running-board, pro- 
 jecting downward or outward. 
 
 Where such side-handholds are more than eighteen (18) 
 inches from end of car, an additional handhold must be 
 placed near each end on each side not more than thirty (30) 
 inches above center line of coupler. 
 
 Clearance of outer end of handhold shall be not more than 
 twelve (12) inches from end of car. 
 
 If safety-railings are on tank, four (4) additional vertical 
 handholds shall be applied, one (1) over each sill-step on 
 tank. 
 
 l\LvNNER OP Application : Same as specified for ' ' Box and 
 other house cars."
 
 638 federal employers' safety appliance act. 
 
 End-handholds. 
 
 Number: Four (4). 
 
 Dimensions: Same as specified for "Box and other house 
 cars. ' ' 
 
 Location: Horizontal: One (1) near each side on each 
 end of car on running-board, not more than two (2) inches 
 back from edge of running-board projecting doA\Tiward or 
 outward, or on end of tank not more than thirty (30) inches 
 above center line of coupler. 
 
 Manner of Application: Same as specified for "Box and 
 other house cars." 
 
 Safety-raiijngs. 
 
 Number: One (1). 
 
 Dimensions: Minimum diameter seven-eighths {%) of an 
 inch, wrought iron or steel. 
 
 Minimum clearance two and one-half (2I/2) inches. 
 
 Location : Safety-railings shall be continuous around sides 
 and ends of car, not less than thirty (30) nor more than sixty 
 (60) inches above running-board. 
 
 Manner of Application : Safety-railings shall be securely 
 fastened to tank or tank bands, and secured against end 
 shifting. 
 
 Uncoupijng-levers. 
 
 Number: Same as specified for "Box and otlier house 
 cars. ' ' 
 
 Dimensions: Same as specified for "Box and other house 
 ears," except that minimum length of uncoupling-lever shall 
 be forty-two (42) inches, measured from center line of end 
 of car to handle of lever. 
 
 Location : Same as specified for ' ' Box and other house 
 cars," except that uncoupling-lever shall be not more than 
 thirty (30) inches above center line of coupler. 
 
 End-ladder Clearance. 
 
 No part of car above buffer-l)lock within thirty (30) 
 inches from side of car, except, brake-shaft, brake-shaft
 
 APPENDIX D. 639 
 
 brackets, brake-wheel or uncoupling-lever shall extend to 
 within twelve (12) inches of a vertical plane parallel with 
 end of car and passing through the inside face of knuckle 
 when closed with coupler-horn against the buffer-block or 
 back-stop, and no other part of end of car or fixtures on 
 same, above buffer-block, other than exceptions herein noted, 
 shall extend beyond the face of buffer-block. 
 
 CABOOSE CARS WITH PLATFORMS. 
 Hand-brakes. 
 
 Number: Each caboose car shall be equipped with an effi- 
 cient hand-brake which shall operate in harmony with the 
 power-brake thereon. 
 
 The hand-brake may be of any efficient design, but must 
 provide the same degree of safety as the design shown on 
 Plate A. 
 
 Dimensions : Same as specified for ' ' Box and other house 
 ears." 
 
 Location : Each hand-brake shall be so located that it can 
 be safely operated while car is in motion. 
 
 The brake-shaft on caboose cars with platforms shall be 
 located on platform to the left of center. 
 
 ]\Ianner of Application : Same as specified for ' ' Box and 
 other house cars." 
 
 Running-boards. 
 
 Number: One (1) longitudinal running-board. 
 
 Dimensions: Same as specified for "Box and other house 
 cars. ' ' 
 
 Location: Full length of car, center of roof. [On caboose 
 cars with cupolas, longitudinal running-hoards shall extend 
 from cupola to ends of roof.] 
 
 Outside-metal-roof cars shall have latitudinal extensions 
 leading to ladder locations. 
 
 Manner of Application : Same as specified for ' ' Box and 
 other house cars."
 
 640 federal employers' sapety appllince act. 
 
 Ladders. 
 
 Number: Two (2). 
 Dimensions: None specified, 
 Location: One (1) on each end. 
 
 ]\Ianner of Application : Same as specified for ' ' Box and 
 other house cars." 
 
 Roof-handholds. 
 
 Number: One (1) over each ladder. 
 
 Where stiles of ladders extend twelve (12) inches or more 
 above roof, no other roof-handholds are required. 
 
 Dimensions: Same as specified for "Box and other house 
 cars. ' ' 
 
 Location: On roof of caboose, in line with and running 
 parallel to treads of ladder, not less that eight (8) nor more 
 than fifteen (15) inches from edge of roof. 
 
 Manner of Application: Same as specified for "Box and 
 other house cars." 
 
 Cupola-handholds. 
 
 Number: One (1) or more. 
 
 Dimensions: Minimum diameter, five-eighths (%) of an 
 inch, wrought iron or steel. 
 
 IMinimum clearance two (2), preferably two and one-half 
 (21^) inches. 
 
 Location : One ( 1 ) continuous handhold extending around 
 top of cupola not more than three (3) inches from edge of 
 cupola-roof. 
 
 Four (4) right-angle handholds, one (1) at each comer, 
 not less than sixteen (16^ inches in clear length from point 
 of angle, may take the place of the one (1) continuous hand- 
 hold specified, if locations coincide. 
 
 Manner of Application : Cupola-handholds shall be se- 
 curely fastened with not less than one-half (1/2) inch bolts 
 with nuts outside and riveted over or with not less than one- 
 half (1/2) iiK^h rivets.
 
 appendix d. 641 
 
 Side-handholds. 
 
 Number: Four (4). 
 
 Dimensions: ]\linimum diameter, five-eightlis (%) of an 
 inch, wrought iron or steel. 
 
 Minimum clear length, thirty-six (36) inches. 
 
 Minimum clearance, two (2), preferably two and one-half 
 (21/^) inches. 
 
 Location: One (1) near each end on each side of car, 
 curving downward toward center of car from a point not 
 less than thirty (30) inches above platform to a point not 
 more than eight (8) inches from bottom of ear. Top end of 
 handhold shall be not more than eight (8) inches from 
 outside face of end-sheathing. 
 
 Manner of Application: Same as specified for "Box and 
 other house cars." 
 
 End-handholds. 
 
 Number: Four (4). 
 
 Dimensions: Same as specified for "Box and other house 
 cars, ' ' 
 
 Location : Horizontal : One ( 1 ) near each side on each end 
 of car on face of platform end-sill. Clearance of outer end 
 of handhold shall be not more than sixteen (16) inches from 
 end of platform end-sill. 
 
 Manner of Application : Same as specified for ' ' Box and 
 other house ears." 
 
 End-platform Handholds. 
 
 Number: Four (4). 
 
 Dimensions : IMinimum diameter, five-eighths (%) of an 
 inch, wrought iron or steel. 
 
 Minimum clearance, two (2), preferably two and one-half 
 (2i/2)i inches. 
 
 Location: One (1) right-angle handhold on each side of 
 each end extending horizontally from door-post to corner of 
 car at approximate height of platform-rail, then downward 
 to within twelve (12) inches of bottom of car.
 
 642 FEDERAL EMPLOYERS' SAFETY APPLIANCE ACT. 
 
 .Manner of Application: Handholds shall be securely- 
 fastened with bolts, screws or rivets. 
 
 Caboose Platform-steps. 
 
 Safe and suitable box steps leading to caboose platforms 
 shall be provided at each corner of caboose. 
 
 Lov.-er tread of step shall be not more than twenty-four 
 (24) inches above top of rail. 
 
 Uncoupling-levers. 
 Same as specified for "Box and other house cars." 
 
 CABOOSE CARS WITHOUT PLATFORMS. 
 Hand-brakes. 
 
 Number : Same as specified for ' ' Box and other house 
 cars." 
 
 Dimensions: Same as specified for **Box and other house 
 cars. ' ' 
 
 Location: Each hand-brake shall be so located that it can 
 be safely operated while car is in motion. 
 
 The brake-shaft on caboose cars without platforms shall be 
 located on end of car to the left of center. 
 
 Manner of Application : Same as specified for ' ' Box and 
 other house cars." 
 
 Brake-step. 
 
 Same as specified for "Box and other house cars." 
 
 Running-boards. 
 
 Number: Same as specified for "Box and other house 
 cars. ' ' 
 
 Dimensions: Same as specified for "Box and other house 
 cars. ' ' 
 
 Location: Full length of car, center of roof. [On caboose 
 cars with cupolas, longitudinal running-hoards shall extend 
 from cupola to ends of roof.]
 
 APPENDIX D. 
 
 643 
 
 Outside-metal-roof ears shall have latitudinal extensions 
 leading to ladder locations. 
 
 Manner op Application : Same as specified for ' ' Box and 
 other house cars." 
 
 Sill-steps. 
 
 Same as specified for "Box and other house cars." 
 
 Side-door Steps. 
 
 Number: Two (2) [if caboose has side-doors]. 
 
 Dimensions: Minimum length, five (5) feet. 
 
 Minimum width, six (6) inches. 
 
 Minimum thickness of tread, one and one-half (li/^) inches. 
 
 ]\Iinimum height of back-stop, three (3) inches. 
 
 Minimum height from top of rail to top of tread, twenty- 
 four (24) inches. 
 
 Location: One (1) under each side-door. 
 
 Manner of Application: Side-door steps shall be sup- 
 ported by two (2) iron brackets having a minimum cross- 
 sectional area seven-eighths {%) by three (3) inches or 
 equivalent, each of which shall be securely fastened to car 
 by not less than two (2) three-fourth (%) inch bolts. 
 
 Ladders. 
 
 Number: Four (4). 
 
 Dimensions: Same as specified for "Box and other house 
 cars. ' ' 
 
 Location: Same as specified for "Box and other house 
 cars" except when caboose has side doors, then side-ladders 
 shall be located not more than eight (8) inches from doors. 
 
 Manner of Application : Same as specified for ' ' Box and 
 other house cars. ' ' 
 
 End-l.u)der Clearance. 
 
 No part of car above end-sills within thirty (30) inches 
 from side of car, except buffer-block, brake-shaft, brake- 
 wheel, brake-step, running-board or uncoupling-lever shall 
 extend to within twelve (12) inches of a vertical plane
 
 644 
 
 FEDERAL EMPLOYERS SAFETY APPLL\NCE ACT, 
 
 parallel with end of car and passing through the inside 
 face of knuckle when closed with coupler-hom against the 
 buffer-block or end-sill, and no other part of end of car 
 or fixtures on same above end-sills, other than exceptions 
 herein noted, shall extend beyond the outer face of buffer- 
 block, 
 
 RoOF-HANDHOLDS. 
 
 Number: Four (4). 
 
 Dimensions: Same as specified for "Box and other house 
 cars. ' ' 
 
 Location: One (1) over each ladder, on roof in line with 
 and running parallel to treads of ladder, not less than eight 
 (8) nor more than fifteen (15) inches from edge of roof. 
 
 Where stiles of ladders extend twelve (12) inches or more 
 above roof, no other roof -handholds are required. 
 
 Manner of Application : Roof-handholds shall be securely 
 fastened with not less than one-half (1/2) inch bolts with nuts 
 outside (when possible) and riveted over, or with not less 
 than one-half (^4) inch rivets. 
 
 Cupola-handholds, 
 
 Number: One (1) or more. 
 
 Dimensions: Minimum diameter five-eighths (%) of an 
 inch, wrought iron or steel. 
 
 Minimum clearance, two (2), preferably two and one-half 
 (21^), inches. 
 
 Location: One (1) continuous cupola-handhold extending 
 around top of cupola, not more than three (3) inches from 
 edge of cupola-roof. 
 
 Four (4) right-angle handholds, one (1) at each corner, 
 not less than sixteen (16) inches in clear length from point 
 of angle, may take the place of the one (1) continuous hand- 
 hold specified, if locations coincide. 
 
 ]\Ianner of Application : Cupola-handhold shall be se- 
 curely fastened with not less than one-half (l^) inch bolts 
 with nuts outside and riveted over or with not less than 
 on(!-half XYo) inch rivets.
 
 appendix d. 645 
 
 Side-handholds. 
 
 Number: Four (4), 
 
 Dimensions : Same as specified for ' ' Box and other house 
 cars. ' ' 
 
 Location: Horizontal: One (1) near each end on each side 
 of car, not less than twenty- four (24) nor more than thirty 
 (30) inches above center line of coupler. Clearance of outer 
 end of handhold shall be not more than eight (8) inches from 
 end of car. 
 
 Manner of Application: Same as specified for **Box and 
 other house cars. ' ' 
 
 Side-door Handholds, 
 
 Number: Four (4) : Two (2) curved, two (2) straight. 
 
 Dimensions: Minimum diameter, five-eighths (%) of an 
 inch, wrought iron or steel. 
 
 Minimum clearance two (2), preferably two and one-half 
 (21/2) inches. 
 
 Location: One (1) curs^ed handhold, from a point at side 
 of each door opposite ladder, not less than thirty-six (36) 
 inches above bottom of car, curving away from door down- 
 ward to a point not more than six (6) inches above bottom 
 of car. 
 
 One (1) vertical handhold at ladder side of each door from 
 a point not less than thirty-six (36) inches above bottom of 
 car to a point not more than six (6) inches above level of 
 bottom of door. 
 
 Manner of Application : Side-door handholds shall be 
 securely fastened with not less than one-half (i/o) inch bolts 
 with nuts outside (when possible) and riveted over, or with 
 not less than one-half (I/2) iiich rivets. 
 
 Horizontal End-hakdholds. 
 
 Number: Same as specified for "Box and other house 
 cars. ' ' 
 
 Dimensions: Same as specified for "Box and other house 
 cars. ' '
 
 646 FEDERAL EMPLOYERS' SAFETY APPLL\.NCE ACT. 
 
 Location: Same as specified for ''Box and other house 
 cars," except that one (1) additional end-handhold shall be 
 on each end of cars with platform end-sills as heretofore de- 
 scribed, unless car has door in center of end. Said handhold 
 shall be not less than twenty-four (24) inches in length, 
 located near center of car, not less than thirty (30) nor more 
 than sixty (60) inches above platform end-sill. 
 
 Manner of Application : Same as specified for * * Box and 
 other house cars. ' ' 
 
 Vertical End-handholds. 
 Same as specified for "Box and other house cars." 
 
 Uncoupling-levers. 
 Same as specified for "Box and other house cars." 
 
 PASSENGER-TRAIN CARS WITH WIDE VESTIBULES. 
 Hand-brakes. 
 
 Number : Each passenger-train car shall be equipped with 
 an efficient hand-brake, which shall operate in harmony with 
 the power-brake thereon. 
 
 Location : Each hand-brake shall be so located that it can 
 be safely operated while car is in motion. 
 
 Side-handholds. 
 
 Number: Eight (8). 
 
 Dimensions: Minimum diameter, five-eighths (%) of an 
 inch, metal. 
 
 Minimum clear length, sixteen (16) inches. 
 
 i\Iinimum clearance, one and one-fourth (ll^), preferably 
 one and one-half (IV2) inches. 
 
 Location: Vertical: One (1) on oacli vestibule door-post. 
 
 ]\Ianner of Application : Sido-handholds shall be securely 
 fastened with bolts, rivets or screws.
 
 appendix d. 647 
 
 End-handholds. 
 
 Number: Four (4). 
 
 Dimensions: Minimum diameter, five-eighths (%) of an 
 inch, wrought iron or steel. 
 
 Minimum clear length, sixteen (16) inches. 
 
 Minimum clearance, two (2), preferably two and one-half 
 (21/2) inches. 
 
 Handholds shall be flush with or project not more than one 
 (1) inch beyond vestibule face. 
 
 Location : Horizontal : One near each side on each end 
 projecting downward from face of vestibule end-sill. Clear- 
 ance of outer end of handhold shall be not more than sixteen 
 (16) inches from side of car. 
 
 Manner of Application : End-handholds shall be securely 
 fastened with bolts or rivets. 
 
 When marker-sockets or brackets are located so that they 
 cannot be conveniently reached from platforms, suitable steps 
 and handholds shall be provided for men to reach such sockets 
 or brackets. 
 
 Uncoupling-levers. 
 
 Uncoupling attachments shall be applied so they can be 
 operated by a person standing on the ground. 
 
 Minimum length of ground uncoupling-attachment, forty- 
 two (42) inches, measured from center line of end of car to 
 handle of attachment. 
 
 On passenger-train cars used in freight or mixed-train 
 service, the uncoupling attachments shall be so applied that 
 the coupler can be operated from left side of car. 
 
 PASSENGER-TRAIN CARS WITH OPEN END- 
 PLATFORMS. 
 
 Hand-brakes. 
 Number : Each passenger-train ear shall be equipped with 
 an efficient hand-brake, which shall operate in harmony with 
 the power-brake thereon.
 
 648 FEDERAL EMPLOYERS* SAFETY APPLIANCE ACT. 
 
 Location : Each hand-brake shall be so located that it can 
 be safely operated while car is in motion. 
 
 E ND-H ANDHOLDS. 
 
 Number: Four (4). 
 
 Dimensions: j\Iinimum diameter, five-eighths (%) of an 
 inch, wrought iron or steel. 
 
 IMinimum clear length, sixteen (16) inches. 
 
 Minimum clearance, two (2), preferably two and one-half 
 (21/^), inches. 
 
 Handholds shall be flush with or project not more than 
 one (1) inch beyond face of end-sill. 
 
 Location: Horizontal: One (1) near each side of each end 
 on face of platform end-sill, projecting downward. Clear- 
 ance of outer end of handhold shall be not more than sixteen 
 (16) inches from end of end-sill. 
 
 Manner of Application : End-handholds shall be securely 
 fastened with bolts or rivets. 
 
 E ND-H ANDHOLDS. 
 
 Number: Four (4). [Cans equipped with safety-gates do 
 not require end-platform handholds.] 
 
 Dimensions: Minimum clearance two (2), preferably two 
 and one-half (2i/o) inches metal. 
 
 Location : Horizontal from or near door-post to a point 
 not more than twelve (12) inches from corner of car, then 
 approximately vertical to a point not more than six (6) inches 
 from top of platform. Horizontal portion shall be not less 
 than twenty-four (24) inches in length nor more than forty 
 (40) inches above platform. 
 
 IManner of Application : End-platform handholds shall be 
 securely fastened with bolts, rivets or screws. 
 
 Uncoupling-levers. 
 T^ncoupling attachments shall be applied so they can be 
 operated by a person standing on the ground.
 
 APPENDIX D. 
 
 649 
 
 Minimum length of ground uncoupling-attachment, forty- 
 two (42) inches, measured from center of end of car to handle 
 of attachment. 
 
 On passenger-train ears used in freight or mixed-train 
 ser^ace the uncoupling attachments shall be so applied that 
 the coupler can be operated from left side of car. 
 
 PASSENGER-TRAIN CARS WITHOUT END- 
 PLATFORMS. 
 
 Hand-brakes. 
 
 Number : Each passenger-train car shall be equipped ^vith 
 an efficient hand-brake which shall operate in harmony with 
 the power-brake thereon. 
 
 Location : Each hand-brake shall be so located that it can 
 be safely operated while car is in motion. 
 
 Sill-steps. 
 
 Number: Four (4). 
 
 Dimensions: Minimum length of tread ten (10), prefer- 
 ably twelve (12) inches. 
 
 ]\Iinimum cross-sectional area one-half (i/o) by one and one- 
 half (li/o) inches or equivalent, wrought iron or steel. 
 
 Minimum clear depth eight (8) inches. 
 
 Location: One (1) near each end on each side not more 
 than twenty-four (24) inches from corner of car to center of 
 tread of sill-step. 
 
 Outside edge of tread of step shall be not more than two 
 (2) inches inside of face of side of car. 
 
 Tread shall be not more than twenty-four (24), preferably 
 not more than twenty-two (22) inches above the top of rail. 
 
 Manner op Application: Steps exceeding eighteen (18) 
 inches in depth shall have an additional tread and be laterally 
 braced. 
 
 Sill-steps shall be securely fastened with not less than 
 one-half (i^) inch bolts with nuts outside (when possible)
 
 650 FEDERAL EMPLOYERS' SAFETY APPLIANCE ACT. 
 
 and riveted over, or with not less than one-half (i^) inch 
 rivets. 
 
 Side-handholds. 
 
 Number: Four (4). 
 
 Dimensions: Minimum diameter, five-eighths (%) of an 
 inch, wrought iron or steel. 
 
 Minimum clear length, sixteen (16) preferably t\venty- 
 four (24) inches. 
 
 Minimum clearance, two (2), preferably two and one-half 
 (21/2) inches. 
 
 Location : Horizontal or vertical : One ( 1 ) near each end 
 on each side of car over sill-step. 
 
 If horizontal, not less than twenty-four (24) nor more than 
 thirty (30) inches above center line of coupler. 
 
 If vertical, lower end not less than eighteen (18) nor more 
 than twenty-four (24) inches above center line of coupler. 
 
 ]\Ianner op Application : Side-handholds shall be securely 
 fastened with bolts, rivets or screws. 
 
 End-iiandholds. 
 
 Number: Four (4). 
 
 Dimensions: Minimum diameter, five-eighths (%) of an 
 inch, wrought iron or steel. 
 
 Minimum clear length, sixteen (16) inches. 
 
 Minimum clearance, two (2), preferably two and one-half 
 (21/2) inches. 
 
 Location: Horizontal: One (1) near each side on each end 
 projecting downward from face of end-sill or sheathing. 
 Clearance of outer end of handhold shall be not more than 
 sixteen (16) inches from side of car. 
 
 Manner of Application : Handholds shall l)e flush with or 
 project not more tlian one (1) inch beyond face of end-sill. 
 
 End-handholds sluill be securely fastened v/ith bolts or 
 rivets. 
 
 When marker-sockets or ])rackets are located so that they 
 cannot be conveniently readied from platforms, suitable steps
 
 V 
 
 APPENDIX D. 651 
 
 and handholds shall be provided for men to reach such sockets 
 or brackets. 
 
 End-handrails. 
 
 [On cars unth projecting end-sills.] 
 
 Number: Four (4). 
 
 Dimensions: Minimum diameter, five-eighths (%) of an 
 inch, wrought iron or steel. 
 
 Minimum clearance, two (2), preferably two and one-half 
 (21/2) inches. 
 
 Location: One (1) on each side of each end, extending 
 horizontally from door-post or vestibule-frame to a point not 
 more than six (6) inches from corner of car, then approxi- 
 mately vertical to a point not more than six (6) inches from 
 top of platform end-sill ; horizontal portion shall be not less 
 than thirty (30) nor more than sixty (60) inches above plat- 
 form end-sill. 
 
 Manner op Application : End hand-rails shall be securely 
 fastened with bolts, rivets or screws. 
 
 Side-door Steps. 
 
 Number: One (1) under each door. 
 
 Dimensions: Minimum length of tread, ten (10), prefer- 
 ably twelve (12) inches. 
 
 Minimum cross-sectional area, one-half (I/2) by one and 
 one-half (ly^) inches or equivalent, wrought iron or steel. 
 
 Minimum clear depth, eight (8) inches. 
 
 Location : Outside edge of tread of step not more than 
 two (2) inches inside of face of side of car. 
 
 Tread not more than twenty-four (24), preferably not more 
 than twenty-two (22) inches above the top of rail. 
 
 Manner of Application: Steps exceeding eighteen (18) 
 inches in depth shall have an additional tread and be laterally 
 braced. 
 
 Side-door steps shall be securely fastened with not less than 
 one-half (V2) iiich bolts \\ath nuts outside (when possible) 
 and riveted over, or \nth not less than one-half (i/o) inch 
 rivets.
 
 652 federaij employers' safety appllvnce act. 
 
 A vertical handhold not less than twenty-four (24) inches 
 in clear length shall be applied above each side-door step on 
 door-post. 
 
 Uncoupling-levers. 
 
 Uncoupling attachments shall be applied so they can be 
 operated by a person standing on the ground. 
 
 Minimum length of ground uncoupling-attachment, forty- 
 two (42) inches, measured from center line of end of car 
 to handle of attachment. 
 
 On passenger-train cars used in freight or mixed-train 
 sendee, the uncoupling attachment shall be so applied that 
 the coupler can be operated from the left side of car. 
 
 STEAM LOCOMOTIVES USED IN ROAD SERVICE. 
 
 Tender Sill-steps. 
 
 Number: Four (4) on tender. 
 
 Dimensions: Bottom tread not less than eight (8) by 
 twelve (12) inches, metal. 
 
 [May have wooden treads.] 
 
 If stirrup-steps are used, clear length of tread shall be not 
 less than ten (10), preferably twelve (12) inches. 
 
 Location: One (1) near each corner of tender on sides. 
 
 Manner of Application : Tender sill-steps shall be securely 
 fastened with bolts or rivets. 
 
 Pilot Sill-steps. ' 
 
 Number: Two (2). 
 
 Dimensions: Tread not less than eiglit (8) inches in width 
 by ten (10) inches in Icngtli, metal. 
 
 [May have ivooden treads.] 
 
 Location: One (1) on or near each end of buffer-beam 
 outside of rail and not more than sixteen (16) inches above 
 rail. 
 
 ]\Ianner of Application : Pilot sill-steps shall be securely 
 fastened with bolts or rivets.
 
 appendix d. 653 
 
 Pilot-beam Handholds. 
 
 Number: Two (2). 
 
 Dimensions : Minimum diameter, five-eighths ( % ) of an 
 inch, wrought iron or steel. 
 
 Minimum clear length, fourteen (14), preferably sixteen 
 (16), inches. 
 
 ]\Iinimum clearance, two and one-half (21^) inches. 
 
 Location: One (1) on each end of buffer-beam. 
 
 [// uncoupling -lever extends across front end of locomotive 
 to within eiglxt (8)inches of end of huffer-deam, and is seven- 
 eighths (%) of an inch or more in diameter, securely fastened, 
 with a clearance of two and one-half (-2I/2) inches, it is a 
 handhold.] 
 
 IManner of Application : Pilot-beam handholds shall be 
 securely fastened with bolts or rivets. 
 
 Side-h andholds. 
 
 Number: Six (6). 
 
 Dimensions : ]\Iinimum diameter, if horizontal, five-eighths 
 (%) of an inch; if vertical, seven-eighths (%) of an inch, 
 wrought iron or steel. 
 
 Horizontal, minimum clear length, sixteen (16) inches. 
 
 Vertical, clear length equal to approximate height of tank. 
 
 Minimum clearance two (2), preferably two and one-half 
 (21/2) inches. 
 
 Location: Horizontal or vertical: If vertical, one (1) on 
 each side of tender within six (6) inches of rear or on corner, 
 if horizontal, same as specified for "Box and other house 
 cars. ' ' 
 
 One (1) on each side of tender near gangway; one (1) on 
 each side of locomotive at gangway; applied vertically. 
 
 j\L4Nner of Application : Side-handholds shall be securely 
 fastened with not less than one-half (i/^) inch bolts or rivets. 
 
 Rear-end Handholds. 
 Number: Two (2). 
 
 Dimensions: Minimum diameter, five-eighths (%) of an 
 inch, wrought iron or steel.
 
 654 FEDERAL EMPLOYERS' SAFETY APPLLUS'CB ACT. 
 
 Minimum clear length, fourteen (14) inches. 
 
 Minimum clearance two (2), preferably two and one-half 
 (21/2) inches. 
 
 Location: Horizontal: One (1) near each side of rear end 
 of tender on face of end-sill. Clearance of outer end of hand- 
 hold shall be not more than sixteen (16) inches from side of 
 tender. 
 
 Manner of Application: Rear-end handholds shall be se- 
 curely fastened with not less than one-half (^) inch bolts 
 or rivets. 
 
 Uncoupling-levers. 
 
 Number: Two (2) double levers, operative from either 
 side. 
 
 Dimensions: Rear-end levers shall extend across end of 
 tender wdth handles not more than twelve (12), preferably 
 nine (9) inches from side of tender with a guard bent on 
 handle to give not less than two (2) inches clearance around 
 handle. 
 
 Location: One (1) on rear end of tender and one (1) on 
 front end of locomotive. 
 
 Handles of front-end levers shall be not more than twelve 
 (12), preferably nine (9) inches from ends of buffer-beam, 
 and shall be so constructed as to give a minimum clearance 
 of two (2) inches around handle. 
 
 ]\Ianner of Application : Uncoupling-levers shall be se- 
 curely fastened with bolts or rivets. 
 
 Couplers. 
 Locomotives shall bo equipped "udth automatic couplers 
 at rear of tender and front of locomotive. 
 
 STEAM LOCOMOTIVES USED IN SWITCHING 
 SERVICE. 
 
 Footboards. 
 Number: Two (2) or more. 
 
 Dimensions: Minimum width of tread, ten (10) inches, 
 wood.
 
 APPENDIX D. 655 
 
 Minimum thickness of tread, one and one-half (1V2)> 
 preferably two (2) inches. 
 
 Minimum height of back-stop, four (4) inches above tread. 
 
 Height from top of rail to top of tread, not more than 
 twelve (12) nor less than nine (9) inches. 
 
 Location : Ends or sides. 
 
 If on ends, they shall extend not less than eighteen (18) 
 inches outside of gauge of straight track, and shall be not 
 more than twelve (12) inches shorter than buffer-beam at 
 each end. 
 
 Manner op Application: End footboards may be con- 
 structed in two (2) sections, provided that practically all 
 space on each side of coupler is filled; each section shall be 
 not less than three (3) feet in length. 
 
 Footboards shall be securely bolted to two (2) one (1) by 
 four (4) inches metal brackets, provided footboard is not cut 
 or notched at any point. 
 
 If footboard is cut or notched or in two (2) sections, not 
 less than four (4) one (1) by three (3) inches metal brackets 
 shall be used, two (2) located on each side of coupler. Each 
 bracket shall be securely bolted to buffer-beam, end-sill or 
 tank-frame by not less than two (2) seven-eighths {Y%) inch 
 bolts. 
 
 If side footboards are used, a substantial handliold or rail 
 shall be applied not less than thirty (30) inches nor more 
 than sixty (60) inches above tread of footboard. 
 
 Sill-steps. 
 
 Number: Two (2) or more. 
 
 Dimensions: Lower tread of step shall be not less than 
 eight (8) by twelve (12) inches, metal. {May have wooden 
 treads.] 
 
 If stirrup-steps are used, clear length of tread shall be not 
 less than ten (10), preferably twelve (12) inches. 
 
 Location: One (1) or more on each side at gangway se- 
 cured to locomotive or tender. 
 
 I\Ianner of Application : Sill-steps shall be securely 
 fastened with bolts or rivets.
 
 656 federal employers' safety appliance act. 
 
 End-handholds. 
 
 Number: Two (2). 
 
 Dimensions: Minimum diameter, one (1) inch, wrought 
 iron or steel. 
 
 Minimum clearance, four (4) inches, except at coupler 
 casting or braces, when minimum clearance shall be two (2) 
 inches. 
 
 Location: One (1) on pilot buffer-beam; one (1) on rear 
 end of tender, extending across front end of locomotive and 
 rear end of tender. Ends of handholds shall be not more 
 than six (6) inches from ends of buffer-beam or end-sill, 
 securely fastened at ends. 
 
 Manner of Application : End-handholds shall be securely 
 fastened with bolts or rivets. 
 
 Side-handholds. 
 
 Number: Four (4). 
 
 Dimensions: Minimum diameter, seven-eighths (%) of an 
 inch, wrought iron or steel. 
 
 Clear length equal to approximate height of tank. 
 
 Minimum clearance, two (2), preferably two and one-half 
 (21/2) inches. 
 
 Location: Vertical: One (1) on each side of tender near 
 front corner; one (1) on each side of locomotive at gangway. 
 
 Manner of Application : Side-handholds shall be securely 
 fastened with bolts or rivets. 
 
 Uncoupling-levers. 
 
 Number: Two (2) double levers, operative from either 
 side. 
 
 Dimensions : Handles of front-end levers shall be not more 
 than twelve (12), preferably nine (9) inches from ends of 
 buffer-beam, and shall be so constructed as to give a minimum 
 clearance of two (2) inches around handle. 
 
 Rear-end levers shall extend across end of tender with 
 handles not more than twelve (12), preferably nine (9), 
 inches from side of tender, with a guard bent on handle to 
 give not less than two (2) inches clearance around handle.
 
 APPENDIX D. 657 
 
 Location: One (1) on rear end of tender and one (1) on 
 front end of locomotive. 
 
 Handrails and Steps for Headlights. 
 Switching-locomotive with sloping tenders with manhole 
 or headlight located on sloping portion of tender shall be 
 equipped with secure steps and handrail or Avith platform 
 and handrail leading to such manhole or headlight. 
 
 End-ladder Clearance. 
 
 No part of locomotive or tender except draft-rigging, 
 coupler and attachments, safety-chains, buffer-block, foot- 
 board, brake-pipe, signal-pipe, steam-heat pipe or arms of 
 uncoupling-lever shall extend to within fourteen (14) inches 
 of a vertical plane passing through the inside face of knuckle 
 when closed with horn of coupler against buffer-block or 
 end-sill. 
 
 Couplers. 
 
 Locomotives shall be equipped with automatic couplers 
 at rear of tender and front of locomotive. 
 
 SPECIFICATIONS COMMON TO ALL STEAM 
 LOCOMOTIVES. 
 
 Hand-brakes. 
 
 Hand-brakes will not be required on locomotives nor on 
 tenders when attached to locomotives. 
 
 If tenders are detached from locomotives and used in special 
 service, they shall be equipped with efficient hand-brakes. 
 
 Running-boards. 
 
 Number: Two (2). 
 
 Dimensions: Not less than ten (10) inches wide. If of 
 wood, not less than one and one-half (l^/^) inches in thick- 
 ness; if of metal, not less than three-sixteenths (3-16) of an 
 inch, properly supported. 
 
 Location: One {V) on each side of boiler extending fi-om 
 cab to front end near pilot-beam. [Bimning-boards may be
 
 658 FEDERAL EMPLOYERS' SAFETY APPLLiNCE ACT. 
 
 in sections. Flat-top steam-chests may form section of 
 running-hoard.] 
 
 ^Ianner op Application : Running boards shall be securely 
 fastened with bolts, rivets or studs. 
 
 Locomotives having Wootten type boilers with cab located 
 on top of boiler more than twelve (12) inches forward from 
 boiler-head shall have suitable running-boards running from 
 cab to rear of locomotive, with handrailings not less than 
 twenty (20) nor more than forty-eight (48) inches above out- 
 side edge of running-boards, securely fastened with bolts, 
 rivets or studs. 
 
 Handrails. 
 
 Number: Two (2) or more. 
 
 Dimensions: Not less than one (1) inch in diameter, 
 wrought iron or steel. 
 
 Location: One (1) on each side of boiler extending from 
 near cab to near front end of boiler, and extending across 
 front end of boiler, not less than twenty-four (24) nor more 
 than sixty-six (66) inches above running-board. 
 
 i\lANNER OF Application : Handrails shall be securely 
 fastened to boiler. 
 
 Tenders of Vanderbilt Type. 
 
 Tenders known as the Vanderbilt type shall be equipped 
 with running-boards; one (1) on each side of tender not less 
 than ten (10) inches in width and one (1) on top of tender 
 not less than forty-eight (48) inches in width, extending 
 from coal space to rear of tender. 
 
 There shall be a handrail on eacli side of top running-board, 
 extending from coal space to rear of tank, not less than one 
 (1) inch in diameter and not less than twenty (20) inches in 
 height above running-board from coal space to manhole. 
 
 There shall be a handrail extending from coal space to 
 within twelve (12) inches of rear of tank, attached to 
 each side of tank above side running-board, not less than 
 thirty (30) nor more than sixty-six (66) inches above running- 
 board.
 
 APPENDIX D. 659 
 
 There shall be one (1) vertical end-handhold on each side 
 of Vanderbilt type of tender, located within eight (8) inches 
 of rear of tank extending from within eight (8) inches of top 
 of end-sill to within eight (8) inches of side handrail. Post 
 supporting rear end of side rnnning-board if not more than 
 two (2) inches in diameter and properly located, may form 
 section of handhold. 
 
 An additional horizontal end-handhold shall be applied on 
 rear end of all Vanderbilt type of tenders which are not 
 equipped with vestibules. Handhold to be located not less 
 than thirty (30) nor more than sixty-six (66) inches above 
 top of end-sill. Clear length of handhold to be not less than 
 forty-eight (48) inches. 
 
 Ladders shall be applied at forward ends of side running- 
 boards. 
 
 Handrails and Steps for Headlights. 
 
 Locomotives having headlights which can not be safely 
 and conveniently reached from pilot-beam or steam-chests 
 shall be equipped with secure handrails and steps suitable 
 for the use of men in getting to and from such headlights. 
 
 A suitable metal end or side-ladder shall be applied to all 
 tanks more than forty-eight (48) inches in height, measured 
 from the top of end-sill, and securely fastened with bolts or 
 rivets. 
 
 Couplers. 
 
 Locomotives shall be equipped with automatic couplers 
 at rear of tender and front of locomotive. 
 
 Cars of construction not covered specifically in the fore- 
 going sections, relative to handholds, sill-steps, ladders, hand- 
 brakes and running-boards may be considered as of special 
 construction, but shall have, as nearly as possible, the same 
 complement of handholds, sill-steps, ladders, hand-brakes and 
 running-boards as are required for cars of the nearest ap- 
 proximate type. 
 
 ''Right" or "Left" refers to side of person when facing 
 end or side of ear from ground.
 
 660 FEDERAL EMPLOYERS' SAFETY APPLIANCE ACT. 
 
 To provide for the usual inaccuracies of manufacturing and 
 for wear, where sizes of metal are specified, a total variation 
 of five (5) per cent, below size given is permitted. 
 
 And it is further ordered, That a copy of this order be at 
 once served on all common carriers, subject to the provisions 
 of said act, in a sealed envelope by registered mail. 
 By the Commission : 
 
 Edward A. LIoseley, Secretary. 
 A true copy. 
 
 EoviT. A. Moseley, 
 
 Secretary. 
 
 INTERSTATE COMMERCE COMMISSION. 
 ORDER. 
 
 At a General Session of the Interstate Commerce Com- 
 mission, Held at its Office in Washington, D. C, on 
 THE 13th Day of March, A. D. 1911. 
 
 Present: 
 
 JuDSON C. Clements, 
 
 Charles A. Prouty, 
 
 Franklin K. Lane, v ^, 
 
 ^ ^ _, ) Commissioners. 
 
 Edgar E. Clark, 
 
 James S. Harlan, 
 
 Charles C. McChord, 
 
 Balthasae H. Meyer, 
 
 IN THE MATTER OF THE EXTENSION OF THE 
 PERIOD WITHIN WHICH COMMON CARRIERS 
 SHALL COMPLY WITH THE REQUIREMENTS OF 
 AN ACT ENTITLED, "AN ACT TO SUPPLEMENT 
 'AN ACT TO PROMOTE THE SAFETY OF EM- 
 PLOYEES AND TRAVELERS UPON RAILROADS BY 
 COMPELLING COMMON CARRIERS ENGAGED IN 
 INTERSTATE COMMERCE TO EQUIP THEIR CARS 
 WITH AUTOMATIC COUPLERS AND CONTINUOUS
 
 INTERSTATE COMMERCE COMMISSION 
 
 PLATES ILLUSTRATING UNITED 
 
 STATES SAFETY APPLIANCE 
 
 STANDARDS 
 
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 APPENDIX D. 681 
 
 BRAKES AND THEIR LOCOMOTIVES WITH DRIV- 
 ING-WHEEL BRAKES AND FOR OTHER PUR- 
 POSES,' AND OTHER SAFETY APPLIANCE ACTS, 
 AND FOR OTHER PURPOSES," APPROVED APRIL 
 14, 1910, AS AMENDED BY "AN ACT MAKING AP- 
 PROPRIATIONS FOR SUNDRY CIVIL EXPENSES 
 OF THE GOVERNMENT FOR THE FISCAL YEAR 
 ENDING JUNE 30, 1912, AND FOR OTHER PUR- 
 POSES," APPROVED MARCH 4, 1911. 
 
 Whereas, Pursuant to the provisions of the act above stated, 
 the Interstate Commerce Commission, by its orders duly made 
 and entered on October 13, 1910, and March 13, 1911, has 
 designated the number, dimensions, location, and manner of 
 application of the appliances provided for by Section 2 of 
 the act aforesaid and Section 4 of the act of ]\Tarch 2, 1893, 
 as amended April 1, 1896, and March 2, 1903, known as the 
 "Safety Appliance Acts"; and whereas the matter of ex- 
 tending the period within which common carriers shall comply 
 with the provisions of Section 2 of the act first aforesaid 
 being under consideration, upon full hearing and for good 
 cause shown: 
 
 It is ordered, That the period of time within wliich said 
 common carriers shall comply with the provisions of Section 
 3 of said act in respect of the equipment of cars in service 
 en the 1st day of July, 1911, be, and the same is hereby, ex- 
 tended as follows, to-wit: 
 
 Freight-train Cars. 
 
 (a) Carriers are not required to change the brakes from 
 right to left side on steel or steel-underframe cars with plat- 
 form end-sills, or to change the end-ladders on such cars, 
 except when such appliances are renewed, at which time they 
 must be made to comply with the standards prescribed in said 
 order of March 13, 1911. 
 
 (6) Carriers are granted an extension of five years from 
 July 1, 1911, to change the location of brakes on all cars other
 
 682 FEDERAL EMPLOYERS' SAFETY APPLIANCE ACT. 
 
 than those designated in paragraph (a) to comply vnXh the 
 standards prescribed in said order. 
 
 (c) Carriers are granted an extension of five years from 
 July 1, 1911, to comply with the standards prescribed in said 
 order in respect of all brake specifications contained therein, 
 other than those designated in paragraphs (a) and (&), on 
 ears of all classes. 
 
 (d) Carriers are not required to make changes to secure 
 additional end-ladder clearance on cars that have ten or more 
 inches end-ladder clearance, v^athin thirty inches of side of 
 car, until ear is shopped for work amounting to practically 
 rebuilding body of car, at which time they must be made to 
 comply with the standards prescribed in said order. 
 
 (e) Carriers are granted an extension of five years from 
 July 1, 1911, to change cars having less than ten inches end- 
 ladder clearance, within thirty inches of side of car, to comply 
 with the standards prescribed in said order. 
 
 (/) Carriers are granted an extension of five years from 
 July 1, 1911, to change and apply all other appliances on 
 freight-train cars to comply with the standards prescribed 
 in said order, except that when a car is shopped for work 
 amounting to practically rebuilding body of car, it must then 
 be equipped according to the standards prescribed in said 
 order in respect to handholds, running-boards, ladders, sill- 
 steps, and brake-staffs : Provided, That the extension of time 
 herein granted is not to be construed as relieving carriers 
 from complying with the provisions of Section 4 of the 
 Act of March 2, 1893, as amended April 1, 1896, and March 2, 
 1903. 
 
 (g) Carriers are not required to change the location of 
 handholds (except end-handholds under end-sills), ladders, 
 sill-steps, brake-wheels, and brake-staffs on freight-train cars 
 where the appliances are within three inches of the required 
 location, except that when cars undergo regular repairs they 
 must be made to comply with the standards prescribed in 
 said order.
 
 appendix d, 683 
 
 Passenger-train Cars. 
 (h) Carriers are granted an extension of three years from 
 July 1, 1911, to change passenger-train cars to comply with 
 the standards prescribed in said order. 
 
 Locomotives, Switching. 
 (i) Carriers are granted an extension of one year from 
 July 1, 1911, to change switching locomotives to comply with 
 the standards prescribed in said order. 
 
 Locomotives, Other Than Switching. 
 (j) Carriers are granted an extension of two years from 
 July 1, 1911, to change all locomotives of other classes to 
 comply with the standards prescribed in said order. 
 A true copy. 
 
 Edw. a. Moseley, 
 
 Secretary. 
 
 BOILER INSPECTION LAW. 
 
 36 U. S. Stat, at L. 913. 
 
 An Act to promote the safety of employees and travelers 
 upon railroads by compelling common carriers engaged in 
 interstate commerce to equip their locomotives wdth safe and 
 suitable boilers and appurtenances thereto. 
 
 Be it enacted hy the Senate and House of Representatives 
 of the United States of America in Congress assembled, That 
 the provisions of this Act shall apply to any common carrier 
 or carriers, their officers, agents, and employees, engaged in 
 the transportation of passengers or property by railroad in 
 the District of Columbia, or in any territory of the United 
 States, or from one state or territory of the United States or 
 the District of Columbia to any other state or territory of the 
 United States or the District of Columbia, or from any place 
 in the United States to an adjacent foreign country, or from 
 any place in the United States through a foreign country to 
 any other place in the United States. The term ' ' railroad ' ' as
 
 684 FEDERAL EMPLOYERS' SAFETY APPLIANCE ACT. 
 
 used in this Act shall include all the roads in use by any 
 common carrier operating a railroad, whether owned or 
 operated under a contract, agreement, or lease ; and the term 
 "employees" as used in this Act shall be held to mean persons 
 actually engaged in or connected with the movement of any 
 train. 
 
 Sec. 2. That from and after the first day of July, nineteen 
 hundred and eleven, it shall be unlawful for any common 
 carrier, its officers or agents, subject to this Act to use any 
 locomotive engine propelled by steam power in moving inter- 
 state or foreign traffic unless the boiler of said locomotive and 
 appurtenances thereof are in proper condition and safe to 
 operate in the service to which the same is put, that the same 
 may be employed in the active service of such carrier in 
 moving traffic without unnecessary peril to life or limb, and 
 all boilers shall be inspected from time to time in accordance 
 with the provisions of this Act, and be able to -uHithstand such 
 test or tests as may be prescribed in the rules and regulations 
 hereinafter provided for. 
 
 Sec. 3. That there shall be appointed by the President, 
 by and vntli the advice and consent of the Senate, a chief 
 inspector and two assistant chief inspectors of locomotive 
 boilers, who shall have general superintendence of the inspec- 
 tors hereinafter provided for, direct them in the duties hereby 
 imposed upon them, and see that the requirements of this Act 
 and the rules, regulations, and instructions made or given 
 hereunder are observed by common carriers subject hereto. 
 The said chief inspector and his two assistants shall be se- 
 lected with reference to their practical knowledge of the con- 
 struction and repairing of boilers, and to their fitness and 
 ability to systematize and carry into effect the provisions 
 hereof relating to the inspection and maintenance of locomo- 
 tive boilers. The chief inspector shall receive a salary of four 
 thousand ($4000) dollars per year, and the assistant chief 
 inspectors shall each receive a salary of three thousand 
 ($3000) dollars per year; and each of the three shall be paid 
 his traveling expenses incurred in the performance of his
 
 APPENDIX D. 685 
 
 duties. The office of the chief inspector shall be in Washing- 
 ton, District of Columbia, and the Interstate Commerce Com- 
 mission shall provide such stenographic and clerical help as 
 the business of the offices of the chief inspector and his said 
 assistants may require. 
 
 Sec. 4. That immediately after his appointment and quali- 
 fication the chief inspector shall divide the territory com- 
 prising the several states, the territories of New Mexico and 
 Arizona, and the District of Columbia into fifty locomotive 
 boiler-inspection districts, so arranged that the service of the 
 inspector appointed for each district shall be most effective, 
 and so that the work required of each inspector shall be sub- 
 stantially the same. Thereupon there shall be appointed by 
 the Interstate Commerce Commission fifty inspectors of loco- 
 motive boilers. Said inspectors shall be in the classified 
 service, and shall be appointed after competitive examination 
 according to the law and the rules of the Civil Service Com- 
 mission governing the classified service. The chief inspector 
 shall assign one inspector so appointed to each of the dis- 
 tricts hereinbefore named. Each inspector shall receive a 
 salary of one thousand eight hundred ($1,800) dollars per 
 year and his traveling expenses while engaged in the per- 
 formance of his duty. He shall receive in addition thereto 
 an annual allowance for office rent, stationery, and clerical 
 assistance, to be fixed by the Interstate Commerce Commission, 
 but not to exceed in the case of any district inspector six hun- 
 dred ($600) dollars per year. In order to obtain the most 
 competent inspectors possible, it shall be the duty of the chief 
 inspector to prepare a list of questions to be propounded to 
 applicants with respect to construction, repair, operation, 
 testing, and inspection of locomotive boilers, and their prac- 
 tical experience in such work, which list, being approved by 
 the Interstate Commerce Commission, shall be used by the 
 Civil Service Commission as a part of its examination. No 
 person interested, either directly or indirectly, in any 
 patented article required to be used on any locomotive under 
 supervision, or who is intemperate in his habits, shall be
 
 686 FEDERAL EMPLOYERS' SAFETY APFIJANCE ACT, 
 
 eligible to hold the office either of chief inspector or assistant 
 or district inspector. 
 
 Sec. 5. That each carrier subject to this Act shall file its 
 rules and instructions for the inspection of locomotive boilers 
 with the chief inspector within three months after the ap- 
 proval of this Act, and after hearing and approval by the 
 Interstate Commerce Commission, such rules and instructions, 
 with such modifications as the Commission requires, shall be- 
 come obligatory upon such carrier: Provided, however, that 
 if any carrier subject to this Act shall fail to file its rules and 
 instructions, the chief inspector shall prepare rules and in- 
 structions not inconsistent herewith for the inspection of loco- 
 motive boilers, to be observed by such carrier; which rules 
 and instructions, being approved by the Interstate Commerce 
 Commission, and a copy thereof being served on the president, 
 general manager, or general superintendent of such carrier, 
 shall be obligatory, and a violation thereof punished as here- 
 inafter provided: Provided, also, that such common carrier 
 may, from time to time, change the rules and regulations 
 herein provided for, ])ut such change shall not take effect, and 
 the new rules and regulations be in force, until the same shall 
 have been filed with and approved by the Interstate Com- 
 merce Commission. The chief inspector shall also make all 
 needful rules, regulations, and instructions not inconsistent 
 herewith for the conduct of his office, and for the government 
 of the district inspectors : Provided, liowever, that all such 
 rules and instructions shall be approved by the Interstate 
 Commerce Commission before they take effect. 
 
 Sec. 6. That it shall be the duty of each inspector to be- 
 come familiar, so far as practicable, with the condition of 
 each locomotive boiler ordinarily housed or repaired in his 
 district, and if any locomotive is ordinarily lioused or repaired 
 in two or more districts, then the chief inspector or an as- 
 sistant shall make such division between inspectors as will 
 avoid the necessity for duplication of work. Each inspector 
 slijill iiiMlcf siidi personal inspection of the locomotive boilers 
 under his care, from time to time, as may be necessary to
 
 APPENDIX D. 
 
 687 
 
 fully carry out the provisions of this Act, and as may be 
 consistent with his other duties, but he shall not be required 
 to make such inspections at stated times or at re^lar 
 intervals. His first duty shall be to see that the carriers make 
 inspections in accordance with the rules and regulations 
 established or approved by the Interstate Commerce Com- 
 mission, and that carriers repair the defects which such in- 
 spections disclose before the boiler or boilers or appurte- 
 nances pertaining thereto are again put in service. To this 
 end each carrier subject to this Act shall file with the inspec- 
 tor in charge, under the oath of the proper officer or em- 
 ployee, a duplicate of the report of each inspection required 
 by such rules and regulations, and shall also file with such 
 inspector, under the oath of the proper officer or employee, a 
 report showdng the repair of the defects disclosed by the in- 
 spection. The rules and regulations hereinbefore provided for 
 shall prescribe the time at which such reports shall be made. 
 Whenever any district inspector shall, in the performance of 
 his duty, find any locomotive boiler or apparatus pertaining 
 thereto not conforming to the requirements of the law or rules 
 and regulations established and approved as hereinbefore 
 stated, he shall notify the carrier in writing that the locomo- 
 tive is not in serviceable condition, and thereafter such boiler 
 shall not be used until in serviceable condition : Provided, 
 that a carrier, when notified by an inspector in writing that 
 a locomotive boiler is not in serviceable condition, because of 
 defects set out and described in said notice, may, ^^'ithin five 
 days after receiving said notice, appeal to the chief inspector 
 by telegraph or by letter to have said boiler re-examined, and 
 upon receipt of the appeal from the inspector's decision, the 
 chief inspector shall assign one of the assistant chief in- 
 spectors, or any district inspector other than the one from 
 whose decision the appeal is taken, to re-examine and inspect 
 said boiler within fifteen days from date of notice. If on 
 such re-examination the boiler is found in serviceable con- 
 dition, the chief inspector shall immediately notify the carrier 
 in writing, whereupon such boiler may be put into service
 
 688 FEDERAL EMPLOYERS' SAFETY APPLIANCE ACT, 
 
 without further delay; but if the re-examination of said 
 boiler sustains the decision of the district inspector, the chief 
 inspector shall at once notify the carrier owning or operating 
 such locomotive that the appeal from the decision of the in- 
 spector is dismissed, and upon receipt of such notice the 
 carrier may, within thirty days, appeal to the Interstate Com- 
 merce Commission, and, on such appeal, and after hearing, 
 said Commission shall have power to revise, modify, or set 
 aside such action of the chief inspector and declare that said 
 locomotive is in serviceable condition, and authorize the same 
 to be operated : Provided, further, that pending either appeal 
 the requirements of the inspector shall be effective. 
 
 Sec. 7. That the cliief inspector shall make an annual 
 report to the Interstate Commerce Commission of the work 
 done during the year, and shall make such recommendations 
 for the betterment of the service as he may desire. 
 
 Sec. 8. That in the case of accident resulting from failure 
 from any cause of a locomotive boiler, or its appurtenances, 
 resulting in serious injury or death to one or more persons, 
 a statement forthwith must be made in writing of the fact of 
 such accident, by the carrier owning or operating said loco- 
 motive, to the chief inspector. Whereupon the facts con- 
 cerning such accident shall be investigated by the chief in- 
 spector or one of his assistants, or such inspector as the chief 
 inspector may designate for that purpose. And where the 
 locomotive is disabled to the extent that it can not be run by 
 its own steam, the part or parts affected by the said accident 
 shall be preserved by said carrier intact, so far as possible, 
 without hindrance or interference to traffic until after said 
 inspection. The chief inspector or an assistant, or the desig- 
 nated inspector making the investigation, shall examine or 
 cause to be examined thoroughly the boiler or part affected, 
 making full and detailed report of the cause of the accident 
 to the chief inspector. 
 
 The Interstate Commerce Commission may, at any time, 
 call on the chief inspector for a report of any accident em- 
 braced in this section, and, on the receipt of said report, if
 
 APPENDIX D. 689 
 
 it deems it to the public interest, make reports of such in- 
 vestigations, stating the cause of accident, together with such 
 recommendations as it deems proper. Such reports shall be 
 made public in such manner as the Commission deems proper. 
 Neither said report nor any report of said investigation, nor 
 any part thereof, shall be admitted as evidence or used for 
 any purpose in any suit or action for damages growing out of 
 any matter mentioned in said report or investigation. 
 
 Sec. 9. That any common carrier violating this Act, or 
 any rule or regulation made under its provisions, or any 
 lawful order of any inspector, shall be liable to a penalty of 
 one hundred ($100) dollars for each and every such violation, 
 to be recovered in a suit or suits to be brought by the United 
 States attorney in the district court of the United States hav- 
 ing jurisdiction in the locality where such violation shall have 
 been committed; and it shall be the duty of such attorneys, 
 subject to the direction of the Attorney-General, to bring such 
 suits upon duly verified information being lodged with them, 
 respectively, of such violations having occurred; and it shall 
 be the duty of the chief inspector of locomotive boilers to give 
 information to the proper United States attorney of all viola- 
 tions of this Act coming to his knowledge. 
 
 Sec. 10. That the total amounts directly appropriated to 
 carry out the provisions of this Act shall not exceed for any 
 one fiscal year the sum of three hundred thousand ($300,000) 
 dollars. 
 
 Approved, February 17, 1911.
 
 APPENDIX E. 
 
 ASH PANS 
 
 An act To promote the safety of employees on railroads. 
 
 Be it enacted hy the Senate and House of Representatives 
 of the United States of America in Congress assembled, 
 That on and after the first day of January, nineteen hundred 
 and ten, it shall be unlawful for any common carrier engaged 
 in interstate or foreign commerce by railroad to use any loco- 
 motive in moving interstate or foreign traffic, not equipped 
 with an ash pan, which can be dumped or emptied and 
 cleaned without the necessity of any employee going under 
 such locomotive. 
 
 Sec. 2. That on and after the first day of January, nine- 
 teen hundred and ten, it shall be unlawful for any common 
 carrier by railroad in any Territory of the United States 
 or of the District of Columbia to use any locomotive not 
 equipped with an ash pan, which can be dumped or emptied 
 and cleaned without the necessity of any emplo^'^ee going 
 under such locomotive. 
 
 Sec. 3. That any any such common carrier using any 
 locomotive in violation of any of the provisions of this Act 
 shall be liable to a penalty of two hundred dollars for each 
 and every such violation, to be recovered in a suit or suits 
 to be brought by the United States district attorney in the 
 district court of the United States having jurisdiction in the 
 locality whore such violation shall have been committed; 
 and it shall be the duty of such district attorney to bring 
 such suits upon duly verified information being lodged with 
 him of such violation having occurred; and it shall also be 
 the duty of the Interstate Commerce Commission to lodge 
 690
 
 APPENDIX E. 691 
 
 with the proper district attorneys information of any such 
 violations as may come to its knowledge. 
 
 Sec. 4. That it shall be the duty of the Interstate Com- 
 merce Commission to enforce the provisions of this Act, and 
 all powers heretofore granted to said Commission are hereby 
 extended to it for the purpose of the enforcement of this Act, 
 
 Sec. 5. That the term "common carrier" as used in this 
 Act shall include the receiver or receivers or other persons 
 or corporations charged with the duty of the management 
 and operation of the business of a common carrier. 
 
 Sec. 6. That nothing in this Act contained shall apply to 
 any locomotive upon which, by reason of the use of oil, 
 electricity, or other such agency, an ash pan is not necessary. 
 
 ' Approved, May 30, 1908.
 
 APPENDIX F. 
 
 HOURS OF LABOR FOR RAILROAD MEN. 
 
 An act To promote the safety of employees and travelers 
 upon railroads by limiting the hours of service of em- 
 ployees thereon. 
 
 Be it enacted hy the Senate and House of Representatives 
 of the United States of America in Congress assembled, 
 That the provisions of this Act shall apply to any common 
 carrier or carriers, their officers, agents, and employees, en- 
 gaged in the transportation of passengers or property by 
 railroad in the District of Columbia or any Territorj^ of the 
 United States, or from one State or Territory of the United 
 States or the District of Columbia to any other State or 
 Territory of the United States or the District of Columbia, 
 or from any place in the United States to an adjacent foreign 
 country, or from any place in the United States through a 
 foreign country to any other place in the United States. The 
 term "railroad" as used in this Act shall include all bridges 
 and ferries used or operated in connection with any railroad, 
 and also all the road in use by any common carrier operating 
 a railroad, whether oMmed or operated under a contract, 
 agreement, or lease; and the term "employees" as used in 
 this Act shall be held to mean persons actually engaged in 
 or connected with the movement of any train. 
 
 Sec. 2. That it shall be unlawful for any common carrier, 
 its officers or agents, subject to this Act to require or j^ermit 
 any employee subject to this act to be or remain on duty for 
 a longer period than sixteen consecutive hours, and whenever 
 any such employee of such connnon carrier shall have been 
 continuously on duty for sixteen hours he shall be relieved 
 692
 
 APPENDIX F. 693 
 
 and not required or permitted again to go on duty until 
 he has had at least ten consecutive hours off duty ; and no such 
 employee who has been on duty sixteen hours in the aggre- 
 gate in any twenty-four-hour period shall be required or 
 permitted to continue or again go on duty without having 
 had at least eight consecutive hours off duty; Provided, That 
 no operator, train dispatcher, or other employee who by the 
 use of the telegraph or telephone dispatches reports, trans- 
 mits, receives or delivers orders pertaining to or affecting 
 train movements shall be required or permitted to be or 
 remain on duty for a longer period than nine hours in any 
 twenty-four-hour period in all towers, offices, places, and sta- 
 tions continuously operated night and day, nor for a longer 
 period than thirteen hours in all towers, offices, places and 
 stations operated only during the daytime, except in case 
 of emergency, when the employees named in this proviso 
 may be permitted to be and remain on duty for four ad- 
 ditional hours in a twenty-four-hour period on not exceed- 
 ing three days in any week: Provided further, The Inter- 
 state Commerce Commission may after full hearing in a 
 particular case and for good cause shown extend the period 
 within which a common carrier shall comply with the pro- 
 visions of this proviso as to such case. 
 
 Sec. 3. That any such common carrier or any officer or 
 agent thereof, requiring or permitting any employee to go, 
 be, or remain on duty in violation of the second section 
 hereof, shall be liable to a penalty of not to exceed five 
 hundred dollars for each and every violation, to be re- 
 covered in a suit or suits to be brought by the United States 
 district attorney in the district court of the United States 
 having jurisdiction in the locality where such violation shall 
 have been committed; and it shall be the duty of such dis- 
 trict attorney to bring such suits upon satisfactory informa- 
 tion being lodged with him ; but no such suit shall be brought 
 after the expiration of one year from the date of such viola- 
 tion ; and it shall also be the duty of the Interstate Commerce 
 Commission to lodge with the proper district attorneys in-
 
 694 FEDERAL HOURS OF LABOR ACT. 
 
 formation of any such violations as may come to his knowl- 
 edge. In all prosecutions under this Act the common 
 carrier shall be deemed to have had knowledge of all acts of 
 all its officers and agents: Provided, That the provisions of 
 this Act shall not apply in any case of casualty or unavoid- 
 able accident or the act of God nor where the delay was the 
 result of a cause not known to the carrier or its officer or 
 agent in charge of such employee at the time said employee 
 left a terminal, and which could not have been foreseen: 
 Provided further, That the provisions of this Act shall not 
 apply to the crews of wrecking or relief trains. 
 
 Sec. 4. It shall be the duty of the Interstate Commerce 
 Commission to execute and enforce the provisions of this 
 Act and all powers granted to the Interstate Commerce 
 Commission are hereby extended to it in the execution of 
 this Act. 
 
 Sec. 5. That this Act shall take effect and be in force 
 one year after its passage. 
 
 Approved, March 4, 1907, 11 :50 a. m.
 
 APPENDIX F. g95 
 
 EEPORTS OF EAILI^OADS TO INTERSTATE COM- 
 MERCE COMMISSION. 
 
 Excerpt from Section 20 of the Act (to Regulate Commerce) of 
 
 February 4, 1887 (24 Stat, at L. 379), as Amended June 
 
 29, 1906 (34 Stat, at L. 584), and June 18, 
 
 1910 (36 Stat, at L. 539.) 
 
 Said detailed reports shall contain all the required statistics 
 for the period of twelve months, ending on the thirtieth day 
 of June in each year, or on the thirty-first day of December 
 in each year if the commission by order substitute that period 
 for the year ending June thirtieth, and shall be made out under 
 oath, and filed with the commission at its office in Washington 
 within three months after the close of the year for which the 
 report is made, unless additional time he granted in any case 
 by the commission; and if any carrier, person, or corporation 
 subject to the provisions of this act shall fail to make and file 
 said annual reports within the time above specified, or within 
 the time extended by the commission, for making and filing the 
 same, or shall fail to make specific answer to any question au- 
 thorized by the provisions of this section within thirty days from 
 the time it is lawfully required so to do, such party shall for- 
 feit to the United States the sum of one hundred dollars for 
 each and every day it shall continue to be in default with re- 
 spect thereto. The commission also shall have authority by 
 general or special orders to require said carriers, or any of them, 
 to file monthly reports of earnings and expenses, and to file 
 periodical or special, or both periodical and special, reports 
 concerning all matters about which the commission is author- 
 ized or required by this or any other law to inquire, or to keep 
 itself informed, or wliich it is required to enforce; and such 
 periodical or special reports shall be under oath whenever tlie 
 commission so requires; and if any such carrier shall fail to
 
 596 ' FEDERAL HOURS OF LABOR ACT. 
 
 make and file any such periodical or special report, within the 
 time fixed by the commission, it shall be subject to the forfeit- 
 ures last above provided. 
 
 OEDERS OF THE INTERSTATE COMMERCE COM- 
 MISSION CONCERNING HOURS OF SERVICE 
 
 Order of June 28, 1911, in re Method and Form of Monthly 
 
 Reports of Hours of Service of Employees on Railroads, 
 
 Subject to the Act of March 4, 1907. 
 
 The method and form of monthly reports of hours of service 
 of employees upon railroads, subject to the Act of March 4, 
 1907, having been considered by the commission: 
 
 It is ordered, That all carriers subject to the provisions of the 
 act entitled "An act to promote the safety of employees and 
 travelers upon railroads by limiting the hours of service of em- 
 ployees thereon," approved March 4, 1907, report within 30 
 days after the end of each month, under oath, all instances 
 where employees subject to said act have been on duty for a 
 longer period than that provided in said act. 
 
 It is furilier ordered, That the accompanying forms entitled 
 "Interstate Commerce Commission Hours of Service Report," 
 and the method embodied in the instructions therein set forth, 
 be, and the same are hereby, adopted and prescribed; and all 
 common carriers subject to said act are hereby notified to use 
 and follow the said prescribed forms and method in making 
 monthly reports of hours of service of employees on duty for a 
 longer period tlian that named in said act, commencing with 
 and making the first report for the month of July, 1907. 
 
 And it is further ordered, That copies of said forms, together 
 with a copy of this order, be forthwith served on all common 
 carriers subject to said act.
 
 APPENDIX F. 
 
 697 
 
 Order of April 8, 1912, in re Alteration of the Metliod and Form 
 
 of Monthly Reports of Hours of Service of Employees 
 
 on Eailroads, Suhject to the Act of March 4, 1907. 
 
 The matter of alteration in the method and form of monthly 
 reports of hours of service of employees on railroads, subject to 
 the Act of March 4, 1907, being under consideration: 
 
 It is ordered, That the accompanying forms entitled "Inter- 
 state Commerce Commission Hours of Service Eeport," and 
 designated as Form No. 1 — Oath and summary for use when 
 there is excess service. Form No. 8 — Oath for use when there 
 is no excess service. Form No. 2 — Employees on duty more than 
 16 consecutive hours. Form No. 3 — Employees returned to duty 
 after 16 hours continuous service, without 10 consecutive hours 
 off duty. Form No. 4 — Employees, returned to duty, after 
 aggregate service of 16 hours, without 8 consecutive hours oflf 
 duty. Form No. 5 — Employees continued on duty after aggre- 
 gate service of 16 hours. Form No. 6 — Employees at continu- 
 ously operated day and night offices, who dispatch, report, trans- 
 mit, receive, or deliver orders affecting train movements, and 
 who were on duty more than 9 hours in any 24-hour period. 
 Form No. 7 — Employees at offices operated only during the day- 
 time, or not to exceed 13 hours in a 24-hour period, who dis- 
 patch, report, transmit, receive, or deliver orders affecting train 
 movements, and who are on duty for a longer period than 13 
 hours in any 24-hour period ; and the method embodied in the 
 instructions therein set forth, be, and the same are hereby, 
 adopted and prescribed ; and all common carriers subject to said 
 act are hereby notified to use and follow the said prescribed 
 forms and method in making monthly reports of hours of serv- 
 ice -of employees on duty for a longer period than that named 
 in said act, commencing with and making the first report for 
 the month of July, 1912. 
 
 And it is further ordered, That copies of said forms, together 
 with a copy of this order, be forthwith served on all common 
 carriers subject to said act.
 
 698 FEDERAL, HOURS OF LABOR ACT. 
 
 ADMINISTRATIVE RULINGS OF THE INTERSTATE 
 COMMERCE COMMISSION. 
 
 March 16, 1908. No, 287. General iNTERPRETATioisr of 
 THE Hours of Service Act. — (a) The provisions of this act 
 apply to all common carriers by railroad in the District of 
 Columbia, or in any Territory of the United States, or engaged 
 in the movement of interstate or foreign traffic; and to all 
 employees of such common carriers who are engaged in or con- 
 nected with the movement of any train carrying traffic in the 
 District of Columbia, or in any Territory, or carrying inter- 
 state or foreign traffic. 
 
 (See rule 56.) 
 
 (&) Sec. 2. The requirement for 10 consecutive hours off 
 duty applies only to such employees as have been on duty for 
 16 consecutive hours. The requirement for 8 consecutive hours 
 off duty applies only to employees who have not been on duty 
 16 consecutive hours, but have been on duty 16 hours in the 
 aggregate out of a 24-hour period. Such 24-hour period begins 
 at the time the employee first goes on duty after having had 
 at least eight consecutive hours off duty. The term "on duty" 
 includes all the time during which the employee is performing 
 service, or is held responsible for performance of service. An 
 employee goes "on duty" at the time he begins to perform serv- 
 ice, or at which he is required to be in readiness to perform 
 service, and goes "off duty" at the time he is relieved from 
 service and from responsibility for performance of service. 
 
 (Qualified by Rule 74.) 
 
 (c) The act does not specify the classes of employees that 
 are subject to its terms. All employees engaged in or con- 
 nected with the movement of any train, as described in section 
 1, are within its scope. Train dispatchers, conductors, en- 
 gineers, telegraphers, firemen, brakemen, train baggagemen who, 
 by rules of carriers, are required to perform any duty in con- 
 nection with the movement of trains, yardmen, switch tenders, 
 tower men, block signal operators, etc., come within the pro- 
 visions of the statute.
 
 APPENDIX F. 
 
 699 
 
 (Qualified by rules 108 and 275. See also rule 88.) 
 
 (d) The proviso in section 2 covers every employee who, 
 by the use of the telegraph or telephone, handles orders pertain- 
 ing to or affecting train movements. In order to preserve the 
 obvious intent of the law, this provision must be construed to 
 include all employees who, by the use of an electrical current, 
 handle train orders or signals which control movements of 
 trains. 
 
 (See rule 88.) 
 
 (e) The prime purpose of this law is to secure additional 
 safety by preventing employees from working longer hours than 
 those specified in the act. Therefore a telegraph or telephone 
 operator, who is employed in a night and day office, may not 
 be required to perform duty in any capacity or of any kind 
 beyond 9 hours of total service in any 24-hour period. 
 
 (/) The phrase "towers, offices, places, and stations" is in- 
 terpreted to mean particular and definite locations. The pur- 
 pose of the law and of the proviso for 9 hours of service may 
 not be avoided by erecting offices, stations, depots, or buildings 
 in close proximity to each other, and operating from one a part 
 of the day while the other is closed, and vice versa. The statute 
 is remedial in its intent, and must have a broad construction, 
 so that the purpose of the Congress may not be defeated. 
 
 (g) The commission interprets the phrase "continuously 
 operated night and day" as applying to all offices, places, and 
 stations operated during a portion of the day and a portion of 
 the night a total of more than 13 hours. 
 
 The phrase "operated only during the daytime" refers to sta- 
 tions which are operated not to exceed 13 hours in a 2-4-hour 
 period, and is not considered as meaning that the operator 
 thereat may be employed only during the daytime. 
 
 (h) The act provides that operators employed at night and 
 day stations or at daytime stations may, in case of emergency, 
 be required to work 4 additional hours on not exceeding 3 days 
 in any week. Manifestly, the emergency must be real, and one 
 against which the carrier cannot guard. 'Tn any week" is con- 
 strued to mean in any calendar week, beginning with Sunday. 
 
 (t) Sec. 3. The instances in which the act will not apply
 
 700 FEDERAL HOURS OF LABOR ACT. 
 
 include only such occurrences as could not be guarded against; 
 those which involved no neglect or lack of precaution on the 
 part of the carrier, its agents, or officers; and they serve to 
 waive the application of the law to employees on trains only 
 until such employees, so delayed, reach a terminal or relay point. 
 
 (See rule 88.) 
 
 "Casualty," like its synonyms "accident" and "misfortune," 
 may proceed or result from negligence or other cause, known or 
 unknown. (Words and Phrases Judicially Defined, vol. 2, 1003.) 
 
 "Act of God." Any accident due to natural causes directly 
 and exclusively without human intervention, such as could not 
 have been prevented by any amount of foresight and pains and 
 care reasonably to have been expected. 
 
 (Bouvier's Law Dictionary, vol. 1, 79.) 
 
 (;) It will be noted that the penalties for violation of this 
 act are against the "common carriers, or any officer or agent 
 tliereof, requiring or permitting any employee to go, be, or 
 remain on duty" in violation of the law. It is clear that the 
 officers and agents of carriers, who are liable to the penalties 
 provided in the act, are those who have official direction or 
 control of the employees; and that the penalties do not attach 
 to the employees who, subject to such supervision or control, 
 perform tlie services proliibited. 
 
 (l-) Sec. 4. To enforce this act the Interstate Commerce 
 Commission has all tlie j^owers which have been granted to it 
 for the enforcement of the act to regulate commerce, including 
 authority to appoint employees, to require reports, to examine 
 books, papers, and documents, to administer oaths, to issue 
 su1)pocnas, and to interrogate witnesses. 
 
 April 7, 1908. iSTo. 56. Street Eailways. Upon inquiry 
 whether tlic Hours of Service T^aw applies to electric steel car 
 lines which are interstate carriers: Held, That it applies to all 
 railroads sul)jcct to the provisions of the act to regulate com- 
 merce, as amended, inchidiiig street railroads when engaged in 
 interstate commerce. (See rule 287.) 
 
 May 5, 1908. Xo. 74. Dkadiieadtng. Employees dead- 
 lieading on passenger trains or on freiglit trains, and not re- 
 quireil to perform, and not licld I'c.^ponsihU' for tlie perform-
 
 APPENDIX F, 
 
 701 
 
 ance of, any service or duty in connection with the movement 
 of the train upon which they are deadheading, are not while so 
 deadheading "on duty" as that phrase is used in the act regu- 
 lating the hours of labor, (See rule 287-b.) 
 
 June 25, 1908. No. 88. Provisos in Sections 2 and 3. 
 
 (a) The specific proviso (in section 2) of the law in regard 
 to hours of service is : 
 
 "That no operator, train dispatcher, or other employee who, 
 by use of the telegraph or telephone, dispatches, reports, trans- 
 mits, receives, or delivers orders pertaining to or affecting train 
 movements, shall be required or permitted to be or remain on 
 duty for a longer period than 9 hours in any 24-hour period 
 in all towers, offices, places, and stations continuously operated 
 night and day, nor for a longer period than 13 hours in all 
 towers, offices, places, and stations operated only during the 
 daytime, except in case of emergency, when the employees 
 named in this proviso may be permitted to be and remain on 
 duty for 4 additional hours in a 24-hour period, or not exceed- 
 ing 3 days in any week." 
 
 These provisions apply to employees in towers, offices, places 
 and stations, and do not include train employees who, by the 
 terms of the law, are permitted to be or remain on duty 16 
 hours consecutively or 16 hours in the aggregate in any 24-hour 
 period, and who may occasionally use telegraph or telephone 
 instruments for the receipt or transmission of orders affecting 
 the movement of trains. (See rule 287.) 
 
 (h) Section 3 of the law provides (inter alia) that: 
 
 "The provisions of this act shall not apply in any case of 
 casualty or unavoidable accident or the act of God; nor where 
 the delay was the result of a cause not known to the carrier or 
 its officer or agent in charge of such employee at the time said 
 employee left a terminal, and which could not have been fore- 
 seen." 
 
 Any employee so delayed may therefore continue on duty to 
 the terminal or end of that run. The proviso quoted removes 
 the application of the law to that trip. (See rule 287.) 
 
 November 10, 1908. No. 108. Ferry Employees. The 
 Hours of Service Law does not apply to employees on a ferry.
 
 702 FEDERAL, HOURS OF LABOR ACT. 
 
 even thongli the ferry be owned by a railroad company. The 
 law applies to employees connected with the movement of trains, 
 and hence does not embrace employees engaged only in the 
 operation of a ferry. This ruling does not apply to car ferries. 
 (See rule 287.) 
 
 April 4, 1910. Xo. 275. Train Baggagemen. The provi- 
 sions of section 1, of the Hours of Service Law, apply to train 
 baggagemen who are employees of the railway company, and 
 who are required by the rules of the company to perform or to 
 hold themselves in readiness, when called on, to perform any 
 duty connected with the movement of any train. (See rules 
 74 and 287.) 
 
 February 12, 1912. No. 342. Use by Trainmen of the 
 Telegraph or Telephone. A trainman required, by the rules 
 of the carrier, in conjunction with his duties as trainman, to 
 send, receive, or deliver orders affecting the movement of trains, 
 comes vs'ithin the proviso of section 2 of the Hours of Service 
 Act, and therefore a carrier may not require a trainman, who 
 has been on duty longer than the limit of time fixed for a tele- 
 phone or telegraph operator, to send, receive or deliver orders 
 affecting the movement of trains, as a part of the duties regu- 
 larly assigned to him. 
 
 But upon inquiry whether the practice of requiring con- 
 ductors of trains delayed at stations where there is no regularly 
 assigned telegraph or telephone operator on duty, and con- 
 ductors of trains about to be overtaken by superior trains, to 
 telephone or telegraph the train dispatcher for instructions is 
 in accord with the act and with the commission's order of inter- 
 pretation of June 25, 1908: Held, That a trainman, who has 
 been on duty for more than 9 hours, or for more than 13 hours, 
 is not prohibited from occasionally using the telegraph or tele- 
 phone to meet an emergency.
 
 APPENDIX G. 
 
 DECISIONS UNREPORTED (MARCH 23, 1909), UNDER 
 THE SAFETY APPLIANCE ACTS. 
 
 [My thanks are due to Mr. Edward A. Moseley and Mr. George B. Mc- 
 Ginty, Secretaries of the Interstate Commerce Commission, for these decisions. 
 The first two are taken from the pamphlet published by the Interstate Com- 
 merce Commission, April 1, 1907. The remainder are on separate sheets fur- 
 nished me by Mr. Moseley, and subsequently by his successor Mr. McGinty.] 
 
 UNITED STATES v. EL PASO AND SOUTHWESTERN 
 RAILROAD COMPANY. 
 
 (In the District Court of the Second Judicial District of the Territory 
 
 of Arizona.) 
 
 1. Though the complaint for violation of the Federal safety appliance 
 
 acts in this case does not allege that the defendant is a common 
 carrier engaged in interstate commerce, it does allege that the de- 
 fendant is a common carrier engaged in commerce by railroad 
 among the several Territories of the United States, particularly 
 the Territories of Arizona and New Mexico, and that is sufficient, 
 as the interterritorial commerce therein alleged is equivalent, un- 
 der the Safety-Appliance Act of 1903, to interstate commerce under 
 the original act of 1893. 
 
 2. Where a coupler couples by impact, but cannot be uncoupled unless 
 
 the employe goes between or over the cars, or around the end of 
 the train, in order to reach the appliance on the connecting car, 
 such a coupling is defective and prohibited by law, as it makes it 
 reasonably necessary for the emploj'e to go between the ends of the 
 cars to uncouple such a car. 
 
 J. L. B. Alexander, United States Attorney, for the 
 United States. 
 
 Herring, Sorin & Elmwood and Hawkins & Franklin, 
 for the defendant. 
 
 (Decided January SO, 1907.) 
 
 703
 
 704 FEDERAL SAFETY APPLIANCE ACT. 
 
 DoAN Judge : 
 
 This action was brought under the act of Congress 
 known as the "safety-appliance act," approved March 2, 
 1893, as amended by an act approved April 1, 1896, and as 
 amended by an act approved March 2, 1903, contained re- 
 spectively in the Twenty-seventh Statutes at Large, page 531, 
 in the Twenty-ninth Statutes at Large, page 85, and in the 
 Thirty-second Statutes at Large, page 943. 
 
 The plaintiff alleged that the defendant "is a common 
 carrier engaged in commerce by railroad among the several 
 Territories of the United States, and particularly the Ter- 
 ritories of Arizona and New Mexico," and then alleged that 
 in violation of the said act as amended the "defendant on 
 March 3, 1906, hauled over its line of railroad a certain oar 
 generally engaged in the movement of interstate traffic, when 
 the coupling and uncoupling apparatus on the A end of 
 said car was out of repair and inoperative, necessitating a 
 man or men going between the ends of the cars to couple 
 or uncouple them, and when said car was not equipped with 
 couplers coupling automatically by impact, and which could 
 be uncoupled without the necessity of a man or men going 
 between the ends of the cars, as required by section 2 of 
 the said "safety-appliance act, as amended by section 1 of 
 the act of March 2, 1903," and by reason of the violation 
 of the said act the defendant was liable to the plaintiff in 
 the sum of $100. 
 
 The second and third causes of action were for similar 
 acts in violation of the law alleged as to certain other cars 
 hauled by the defendant on its said road, on or about the 
 same date, and the fourth was for using at the same time 
 on its line of railroad one locomotive for switching at its 
 yards in Dougljis, Ariz., cars containing interstate traffic. 
 
 It was urged by the defendant that the "safetv-appliance 
 act" was confined in its oi)erations to common carriers en- 
 gaged in interstate commerce l)y railroad, and that there
 
 APPENDIX G. 705 
 
 was no allegation in the complaint in this instance that the 
 defendant was engaged in interstate coramefce. 
 
 Section 1 of the act of 1893 provides: "It shall be un- 
 lawful for any common carrier engaged in interstate com- 
 merce to use on its line," etc. 
 
 Section 2 provides: 
 
 It sliall be unlawful for any such common carrier to haul, or to 
 permit to be hauled or used on its line, any car used in moving inter- 
 state traffic not equipped with couplers coupling automatically by im- 
 pact, and which can be uncoupled without the necessity of a man going 
 between the ends of the cars, etc. 
 
 The act of March 2, 1903, provides in section 1 : 
 
 That the provisions and requirements of the act . . . approved 
 March 2, 181)3, and amended April 1, 1896, shall be held to apply to 
 common carriers by railroad in the Territories and the District of Co- 
 lumbia. 
 
 The plaintiff in this case in each instance has alleged 
 that the car alleged to have been handled in violation of the 
 act was "a car generally used in the movement of interstate 
 traffic," or "was engaged in moving traffic in and between 
 the Territories of the United States," and although the com- 
 plaint did not in so many words allege that the defendant 
 was "a common carrier engaged in interstate commerce by 
 railroad," it did allege that it was "a common carrier en- 
 gaged in commerce by railroad among the several Territories 
 of the United States, particularly the Territories of Arizona 
 and New Mexico," which allegation, under the provisions 
 of section 1 of the act of 1903, that declares that the "safety- 
 appliance act" shall be held to apply to common carriers by 
 railroad in the Territories and the District of Columbia, is 
 sufficient. The interterritorial commerce therein alleged 
 being equivalent under the act of 1903 to interstate com- 
 merce under the original act of March 2, 1893. 
 
 The violations of the act were established by the un-
 
 706 FEDERAL SAFETY APPLIANCE A€T. 
 
 disputed testimony in the case, except in the one instance 
 where it was proven that the coupling appliances on one 
 end of the ear hauled were perfect, and that the coupling 
 appliances on the other end of the car were such as would 
 couple by impact; and and it was alleged by the defendant 
 that although the coupling appliances on the end of the car 
 complained of were so damaged, and thereby imperfect, that 
 they could not be operated by a man without the necessity 
 of his going between the cars, that when coupled to the ad- 
 joining car on which the appliances were in perfect order 
 the car could be uncoupled from the adjoining car without 
 a man or men going in between the cars. The proof devel- 
 oped that this car was coupled into the body of a train, and 
 that if a brakeman was sent along the train to uncouple 
 the car on the side of the train on which this coupling rod 
 should be that the coupling rod on the adjoining car would 
 naturally be on the other side of the train, and it presented 
 a question (in the absence of proof on the part of the de- 
 fendant that the adjoining car was furnished with a double 
 arm or rod — that is, one extending on each side of the car, 
 as is in some instances provided) whether the car so coupled 
 that it could not be uncoupled on the side to which the 
 brakeman would naturally be sent to uncouple it without the 
 necessity of a man going between the cars for the purpose of 
 uncoupling, but that it could be uncoupled by operating 
 the coupling rod on the adjoining car by the brakeman go- 
 ing around the end of the train in order to reach it on the 
 other side, or by his climbing up the car, crossing over the 
 top and climbing down on the other side, was, in the con- 
 templation of the law, one which "could be uncoupled with- 
 out the necessity of a man going between the cars." 
 
 It was contended by the defendant that in construing 
 this statute we must take into consideration the fact that 
 it is a penal fftatute, and therefore should be strictly con- 
 strued, while the plaintiff insisted that it is a remedial
 
 APPENDIX G. 707 
 
 statute, and is enacted for the protection of the lives and 
 limbs of the numerous railroad employees and therefore 
 should be liberally construed. We feel justified in giving a 
 sufficiently liberal construction to the language employed to 
 enable the statute to conserve the ends evidently intended 
 by the legislators, and while it may not be successfully main- 
 tained that a car coupled as above renders it absolutely ne- 
 cessary for a man to go between the ends of the cars to 
 uncouple it, our knowledge of the manner in which freight 
 trains of our interstate railroads are handled convinces us 
 that it is reasonably necessary for the man to go between 
 the ends of the cars to uncouple such a car. There is no 
 assurance that the conditions of the track or the length 
 of the train would be such at the time that the car might 
 need to be uncoupled that the brakeman could go around 
 the end of a train to the operating rod on the other side of 
 the adjoining car and effect the uncoupling in the time al- 
 lowed for such purpose, or that the condition of the car 
 or the adjoining car would be such that he could climb over 
 the top of the car and down the other side, even if sufficient 
 time were allowed, without incurring fully as much danger 
 to his person as by stepping in between the ends of the 
 cars and effecting the uncoupling by hand. It is reasonably 
 certain that in a great majority of cases, if not, in fact, in- 
 variably, the brakeman, confronted with the necessity of 
 adopting one of these three courses, would go in between 
 the ears and effect the uncoupling by hand. We consider 
 that hauling a car with a coupling in such damaged or im- 
 perfect condition as to present the necessity of this election 
 to the employee is a violation of the act in the ordinary 
 meaning of the words used, according to the true intent 
 of the legislators. 
 
 Judgment is rendered for the plaintiff in accordance 
 with the prayer of the complaint in the four several causes 
 of action.
 
 708 FEDERAL SAPETY APPLIANCE ACT. 
 
 UNITED STATES OF AMERICA v. EL PASO & SOUTH- 
 WESTERN RAILROAD COMPANY AND EL PASO 
 & SOUTHWESTERN RAILROAD COMPANY 
 OF TEXAS. 
 
 (U. S. District Court, Western District of Texas.) 
 
 1. The allegation that this action was brought "upon suggestion of the 
 
 Attorney-General of the United States, at the request of the Inter- 
 state Commerce Commission, and upon information furnished by 
 said Commission," substantially complies with section 6 of the act 
 of March 2, 1893, as amended, when it appears that such informa- 
 tion was furnished to the Commission by inspectors of safety ap- 
 pliances, who are acting under oath of office. 
 
 2. In stating a cause of action to recover a penalty under the Safety 
 
 Appliance Acts, it is not necessary that there be an allegation that 
 the acts complained of were intentionally and willfully done. 
 
 3. The highest degree of care in inspection and making such repairs as 
 
 that inspection disclosed is not in any way a defense in an action 
 brought to recover a penalty for violation of the Safety Appliance 
 Act. 
 
 Charles A. Boynton, United States Attorney, and 
 Luther M. Walter, special assisto/nt United States attorney, 
 for the United States. 
 
 Patterson, Buckler & Woodson and Hawkins & 
 Franklin, for the defendants. 
 
 The following pleading was filed by the defendants: 
 
 Now come the defendants in the above-styled cause and 
 say that they are common carriers engaged in commerce by 
 railroad in the Territories of Arizona and New Mexico and 
 in the State of Texas, and they except specially to the com- 
 plaint of the plaintiff filed herein for the reason that the 
 same is not verified as required by the provisions of section 
 6 of the act of .March 2, 1893, and amended by the act of 
 April 1, 1896 (Chapter 87, 29 Stat. L., p. 85). 
 
 2d. Said defendants except specially to said complaint 
 for the reason that it does not appear from the same that
 
 APPENDIX G. 709 
 
 duly verified information respecting the matters therein al- 
 leged was ever filed with the United States District Attorney. 
 
 3rd. Defendants except specially to the first count in 
 said complaint for the reason that it is not alleged that 
 the acts therein complained of were intentionally or willfully 
 done. 
 
 4th. And defendants except specially to the second 
 count in said complaint contained for the reason that it is 
 not alleged that the acts therein complained of were inten- 
 tionally or willfully done. 
 
 5th. And defendants except specially to the third count 
 in said complaint contained for the reason that it is not al- 
 leged that the acts therein complained of were intentionally 
 or willfully done. 
 
 6th. Defendants except specially to said complaint for 
 the reason that the same does not show that it was filed 
 in any way in accordance with or under the provisions of 
 section 6 of the act of March 2, 1893, and amended by the 
 act of April 1, 1896 (chapter 87, 29 Stat. L., p. 85). 
 
 7th. Defendants except specially to said complaint for 
 the reason that it does not appear from the same that this 
 court has jurisdiction over this cause. 
 
 8th. And further answering, defendants say that they 
 are not guilty of the wrongs and acts complained of in this 
 cause, and they deny all and singular the allegations in the 
 plaintiff's complaint contained and of this they put them- 
 selves upon the country. 
 
 9th. And for further answer in this behalf, these de- 
 fendants say that if said grab irons, couplers, and appliances 
 mentioned in the petition of the plaintiff were in anywise 
 defective, insufficient, or not in conformity with the laws 
 of the United States that then such facts w^ere not within 
 the knowledge of these defendants or either of them, nor 
 could the same have been discovered by these defendants by 
 the highest degree of care in inspection; that immediately 
 before using the said cars mentioned in said petition, these
 
 710 FEDERAL SAFETY APPLIANCE ACT. 
 
 defendants gave the said cars a rigorous inspection and used 
 the highest degree of care and diligence to discover any de- 
 fective condition about the same, or any grab irons, couplers, 
 or other appliances thereof, and that by the use of such 
 care they did not and could not discover the same; that if 
 said cars were moved as alleged by plaintiff, which defend- 
 ants deny, when any of the same, their appliances, couplers 
 or grab irons were in a defective condition, that then the 
 same was done by defendants inadvertently, without the 
 knowledge of either of them, and without the consent of 
 either of them, all of which these defendants are ready to 
 verify. 
 
 jMaxey, District Judge, rendered the following judgment : 
 
 On this the 8th day of April, A. D. 1907, came on for 
 trial by regular call the above numbered and entitled cause, 
 whereupon came the plaintiff and the defendants, by their 
 respective attorneys, and came on to be heard the demurrers 
 and special exceptions of defendants, and the court having 
 heard and considered the same is of the opinion that the 
 same are not well taken and that the law is not with the 
 defendants in the matter of the exceptions; and it is there- 
 fore ordered by the court that all of said exceptions be, and 
 the same are hereby, overruled, to which action of the court 
 the defendants excepted; and also came on to be heard and 
 considered by the court the exception and demurrer filed by 
 the plaintiff to the 9th paragraph of the defendants' answer 
 herein, and the court having heard and considered the same 
 is of the opinion that the same is well taken and that the 
 laAV is with the plaintiff in the matter of said exception ; and 
 it is therefore ordered by the court that the said exception 
 be, and the same is hereby, sustained, to which ruling of the 
 court the defendants excepted. 
 
 Whereupon, upon motion of the district attorney, it is 
 ordered by the court that this cause be, and the same is 
 hereby, dismissed as to the defendant El Paso & Southwest- 
 ern Railroad Company.
 
 APPENDIX G. 711 
 
 Whereupon both parties announce ready for trial, and 
 a jury having been expressly waived by written stipulation 
 filed herein, the matters of fact as well as of law were sub- 
 mitted to the court, and the court, after hearing the plead- 
 ings read, considering the evidence introduced and the argu- 
 ment of counsel, is of the opinion, and so finds, that the de- 
 fendant El Paso & Southwestern Railroad Company of Texas, 
 a corporation, is guilty of violations of the act of Congress 
 known as the Safety Appliance Act, as set forth and charged 
 in the three counts contained in plaintiff's petition, and is 
 liable to plaintiff, the United States of America, in the sum 
 of three hundred ($300) dollars. 
 
 It is therefore ordered, adjudged, and decreed by the 
 court that the plaintiff, the United States of America, do 
 have and recover of and from the defendant, El Paso & South- 
 western Railroad Company of Texas, the sum of three hun- 
 dred ($300) dollars, with interest thereon from this date 
 at the rate of six per cent, per annum, together with all costs 
 in this behalf incurred and expended, for which execution 
 may issue. 
 
 To which judgment and ruling of the court the defend- 
 ant El Paso & Southwestern Railroad Company of Texas 
 in open court excepted. 
 
 UNITED STATES v. WABASH RAILROAD COMPANY. 
 
 [In the District Court of the United States for the Eastern District 
 
 of Illinois.] 
 
 [Affirmed as to third count and reversed as to first. 172 Fed. 864.] 
 
 (Syllabus by the court.) 
 
 1. In an action brought to recover the penalty provided in section 6 
 of the Safety Appliance Act for violation of that statute it is no 
 defense to show that defendant has used diligence or care of any 
 degree to keep the cars in a reasonably safe condition. The statute 
 commands a duty. The defendant must perform that duty, and 
 it moves cars in a defective condition at its peril.
 
 712 FEDERAL SAFETY APPLIANCE ACT. 
 
 STATEMENT OF FACTS. 
 
 The Interstate Commerce Commission lodged with the 
 United States attorney information showing violations of 
 the safety appliance law by the Wabash Railroad Company. 
 The declaration was in four counts, each count charging a 
 violation of section 2 of the statute, the allegation being that 
 the couplers were out of repair and inoperative. At the trial 
 defendant offered evidence tending to show diligence and 
 care in keeping the cars in a reasonably safe condition. 
 
 William E. Trautmann, United States attorney, George 
 A. Crow, assistant United States attorney, and Ulysses 
 Butler, special assistant United States attorney, for the 
 United States. 
 
 Bruce Campbell, for defendant. 
 
 (ISlovemler 19, 1901.) 
 
 Francis M. Wright, District Judge (charging jury) : 
 
 The defendant in this case is charged by the United States 
 with having violated what is commonly known as the Safety 
 Appliance Act, an act of Congress with reference to that 
 subject, in four counts. This law was enacted for the pur- 
 pose of securing the safety of persons engaged in operating 
 trains in interstate traffic, and section 2 provides, be- 
 ing the section under which this declaration is framed, that — 
 "On and after the 1st day of January, 1898, it shall be un- 
 lawful for any common carrier to haul or permit to be hauled 
 or used on its line any car used in moving interstate traffic 
 not equipped with couplers coupling automatically by impact, 
 and wliifli can be uncoupled without the necessity of men 
 going between the ends of the cars." 
 
 Now if you believe from the evidence in this case that 
 the engine mentioned in the first count, I think it is, of the
 
 APPENDIX G. 713 
 
 declaration was used in moving interstate traffic, and that 
 it was not equipped with couplers coupling automatically 
 by impact, and which could be uncoupled without the neces- 
 sity of men going between the ends of the cars, then you 
 will find the defendant guilty on that count. And so it is with 
 reference to all the other three counts in the declaration. If 
 you believe from the evidence in the case that the cars, one 
 or all of them, were used in moving interstate traffic, and 
 that they were not equipped with couplers coupling automatic- 
 ally by impact, and which could be uncoupled without the 
 necessity of men going between the ends of the cars, you will 
 find the defendant guilty on all or any of the counts where 
 you so believe. You have heard the testimony of the witnesses 
 upon this subject. The witnesses for the Government have 
 testified that the couplers were so out of order that they 
 could not be coupled without a man going between the cars 
 for that purpose. Now if you believe from the evidence that 
 is true, and if you further believe from the evidence that the 
 ears were used in moving interstate traffic, then you will 
 find the defendant guilty. 
 
 The testimony of the defendant's witnesses as to the 
 inspection of the cars was submitted here for the purpose 
 of tending to show, as far as in your judgment it does tend 
 to show, that the defendant's cars were in good order. The 
 mere fact that the defendant had used diligence or care to 
 keep the cars in a reasonably safe condition is not a question 
 before you. That is no defense to this suit. This statute is 
 commanding, and requires the defendant at its peril to keep 
 the couplers in such condition that the men whose business 
 it is to couple them will not be required to go between the 
 cars to do it ; and if you believe from all the evidence in 
 this case that they were so out of order that they could not 
 be coupled without men going between the cars to do the 
 coupling, then the defendant would be guilty under this 
 declaration, and you will so find. That is about all the 
 law and the evidence there is upon this subject in this case.
 
 714 FEDERAL SAFETY APPLIANCE ACT. 
 
 You have heard the testimony of all the witnesses, and you 
 are the judges of the credibility of all the witnesses and of 
 what the evidence proves, and you must determine the case 
 solely upon the evidence in the case. If you find the defend- 
 ant guilty, you will say: "We, the jury, find the defendant 
 guilty on the first, second, third and fourth counts of the 
 declaration." You may find the defendant guilty on some 
 of the counts and not guilty on the others. In that case the 
 form of your verdict will be : " We, the jury, find the defend- 
 ant guilty" on whatever number of counts you do find the 
 defendant guilty, and "not guilty" on whatever you find 
 the defendant not guilty. If you find the defendant not 
 guilty, you will say: "We, the jury, find the defendant not 
 guilty." 
 
 There seems to be no dispute as to these cars, as to the 
 fact that they were engaged in interstate commerce. That 
 question is hardly necessary for you to consider or necessary 
 for me to submit to you. There is no dispute about that. 
 Interstate commerce, as you understand, of course, is traffic 
 between one state and another state — shipments from one 
 state to another state. That is interstate traffic. 
 
 THE UNITED STATES v. PACIFIC COAST RAILWAY 
 
 COMPANY. 
 
 (In the District Court of the United States for the Southern District 
 of California. ) 
 
 [173 Fed. 453. Alhrmed, 173 Fed. 44S.] 
 
 (Syllabus by the court.) 
 
 i. Under the Federal Safety Appliance Acts, in order to recover the 
 statutory penalty provided for in section thereof, the United 
 States must prove (1) tliat the defendant at the times mentioned 
 in the comjjlaint was a common carrier by railroad engaged in 
 interstate commerce; (2) tliat it hauled, or permitted to be hauled 
 over its line, th.e locomotives, trains and cars mentioned in the
 
 APPENDIX G. 715 
 
 several counts of the complaint; (3) that the locomotives, trains 
 and cars were not provided with the equipment required by the 
 statute. 
 2. A shipment from a point witliout tlio State of California was con- 
 signed to San Jose, in said State. Before the shipment reached 
 California and while in transit, the consignee, by an agreement with 
 one of the carriers, changed the destination from San Jos6 to Ca- 
 reaga. Held, That the traffic being carried from San Jose to Ca- 
 reaga was interstate. Gulf, Colorado & Santa Fe v. Texas, 204 U. 
 S., 403, distinguished. 
 
 Oscar Lawler, United States attorney; Aloysius I. Mc- 
 CoRMiCK, assistant United States attorney, and Roscoe F. 
 Walter, special assistant United States attorney, for 
 plaintiff. 
 
 James A. Gibson and George W. Towle, for defendant. 
 
 Decided June 13, 1908. 
 
 Wellborn, District Judge (charging jury) : 
 
 There being no conflict whatever in the evidence in this 
 case, the parties have submitted motions respectively for 
 peremptory instructions. Taking them up in the order in 
 which they have been submitted, or in the order in which 
 they were presented, the defendant asks the court to peremp- 
 torily instruct the jury to return a verdict in favor of the 
 defendant on all the counts in the complaint. The plaintiff 
 asks that the court peremptorily instruct the jury to return 
 a verdict in its favor on all the counts of the complaint, ex- 
 cepting the eleventh and twenty-third, being duplicates of 
 the ninth and twenty-second counts. 
 
 These two motions are the matters which call on me now 
 for immediate disposition, and of course the disposition that 
 I make of these motions will determine the case, because the 
 jury will then be instructed to find or return a verdict in 
 accordance with the conclusions which I announce. 
 
 I may say, before taking up the merits of these motions, 
 that it is obvious, not only to the court, but even to a casual
 
 716 FEDERAL SAFETY APPLIANCE ACT. 
 
 observer of the progress of this trial, that counsel both for 
 the plaintiff and for the defendant have made their researches 
 into the law of the case with great industry, and the presenta- 
 tion of their respective views has been marked by uncommon 
 ability. If I had no jury in the box and could take the case 
 under advisement for the purpose of preparing an opinion, 
 I should like to review these questions for the reasons which 
 I have just indicated; but this is impracticable, and I shall 
 not undertake to do any more than to announce my conclu- 
 sions, with such reference to the law and the facts in the 
 case as may make the announcement intelligible. 
 
 The first Safety Appliance Act was passed in 1893, and 
 this act as amended April 1, 1896, contains, among others, 
 the following provisions, which are applicable to the case 
 at bar. The first section of the original act reads as follows: 
 
 Be it enacted hy the Senate and House of Representatives of the 
 United States of America, in Congress assemMed, That from and after 
 the first day of January, eighteen hundred and ninety-eiglit, it shall 
 be unlawful for any common carrier engaged in interstate commerce by 
 railroad to use on its line any locomotive engine, in moving interstate 
 traffic, not equipped with a power driving-wheel brake and appliances 
 for operating tlic train-brake system, or to run any train in such traffic 
 after said date that has not a sufficient number of cars in it. so equipped 
 with power or train brakes that the engineer on the locomotive drawing 
 such train can control its speed without requiring the brakeman to use 
 the common hand brake for that purpose. 
 
 I am reading these various provisions because I think 
 it is well that the jury, as well as counsel, should understand 
 the ruling I am going to make. The second section reads as 
 follows : 
 
 Rec. 2. That on and after the first day of January, eighteen hun- 
 dred and ninety-eiglit, it sliall be unlawful for any such common car- 
 rier to haul, or permit to be hauled or used on its line, any car used 
 in moving int<'rstate traffic not ('(|uipped with couplers coupling auto- 
 inaticiilly liy impact, and wliicli can 1k' uncoupled without the necessity 
 of men going between the ends of the cars. 
 
 Section 6, as amended in 1896: 
 
 That any sncli coiniiioii carrier using any locomotive engine running 
 any train, or liauling or permitting to be hauled or used on its line any 
 car in violation of any of the provisions of this act, shall lie liable to a
 
 APPENDIX G. 717 
 
 penalty of one hundred dollars for each and every such violation, to be 
 recovered in a suit or suits to be brought by the United States District 
 Attorney in the District Court of the United States having jurisdiction 
 in the locality where such violation shall have been committed; and it 
 shall be the duty of such District Attorney to bring such suits, upon 
 duly verified information being lodged with him of such violations hav- 
 ing occurred, etc. 
 
 The act was further amended March 2, 1903, and this 
 last amendment provided, among other things, in section 1 
 of the act that the provisions and requirements of the act 
 entitled "An act to promote the safety of employees and 
 travelers upon railroads, by common carriers engaged in inter- 
 state commerce, approved IMarch 2, 1893, and amended April, 
 1896, shall be held to apply to all common carriers by rail- 
 road in the Territories and in the District of Columbia, and 
 shall apply in all cases, whether or not the couplers brought 
 together are of the same kind, make, or type ; and the pro- 
 visions and requirements hereof, and of said acts, relating to 
 train brakes, automatic couplers, grab irons, and the height 
 of draw bars, shall be held to apply to all trains, locomotives, 
 tenders, ears, and similar vehicles used on any railroad en- 
 gaged in interstate commerce, and in the Territories and Dis- 
 trict of Columbia, and to all other locomotives, tenders, cars, 
 and similar vehicles, used in connection therewith, excepting 
 those trains, cars, and locomotives exempted by the provisions 
 of section 6 of said act of March 2, 1893, as amended by the 
 act of April 1, 1896, or which are used upon street railways." 
 
 I am of opinion that that part of the amendatory act 
 of 1903 which provides, ''and the provisions and require- 
 ments hereof and the said act relating to train brakes, au- 
 tomatic couplers, grab irons, and the height of drawbars, 
 shall be held to apply to all trains, locomotives, tenders, cars, 
 and similar vehicles used on any railroad engaged in inter- 
 state commerce, and to all other locomotives, tenders, cars, 
 and similar vehicles, used in connection therewith," broadens 
 the original act of 1893 so as to make its requirements con- 
 cerning train brakes, automatic couplers, grab irons, and the 
 height of drawbars apply not only to trains, locomotives,
 
 718 FEDERAL S.APETY APPLIANCE ACT. 
 
 tenders, and cars employed in the movement of interstate 
 traffic, but to all trains, locomotives, tenders, and cars used 
 on any railroad engaged in interstate commerce. In other 
 words, for the Government to recover under the amendatory 
 act of 1903, it is not necessary, as it was under the original 
 act of 1893, to show that the car with the defective equip- 
 ment was employed in interstate movement at the time this 
 defect was discovered, but it is only necessary to show that 
 said car was hauled over the line or used by a railroad en- 
 gaged in interstate commerce. Z7. S. v. Chicago, 31. tC' St. 
 P. By. Co., 149 Fed., 436. The case just cited is the case 
 which was read by Judge Gibson, and which had not been 
 called to my attention previously ; but the views which I have 
 announced are in complete accord with the views expressed 
 by Judge JMcPherson in the case which I have just cited. 
 Unless the amendatory act is so construed, those parts of it 
 last quoted are entirely without effect and useless. 
 
 To further illustrate the effect of this amendatory act, 
 I will read the following statement by a Member of the House 
 of Representatives while that body had the act under consi- 
 derations : 
 
 ]\Ir. Wanger: ]\Ir. Speaker, the purpose of this act is to make more 
 efficient the provisions of the act of March 2, 1893, for the promotion 
 of tlie safety of employes upon railways. It has been held by some 
 courts that the tender of a locomotive is not a car, and is therefore not 
 affected by the provisions of the act. It has also been held that the 
 act only aj)plies to cars in interstate movement, and cars are very fre- 
 quently, although generally designed for and used in the movement of 
 interstate traffic, in use which is not interstate movement that requires 
 the services of operatives u])on them. Whenever an action for damages 
 is brought by reason of the death or injury of a railroad employe, of 
 course every defense is made; and, although the car may not be equipped 
 as directed by the act of Congress, yet that direction, as it stands, only 
 applies when the car is being used in the movement of interstate com- 
 merce; therefore the burden is on the plaintifT in every such action to 
 establish tliat fact, and is frecjueully an impossibility, because fre- 
 quently the injury or death does not happen wiien the car is so engaged 
 in interstate commerce. 
 
 It is, therefore, of tlie liigliest importance to make the act of Con- 
 gress, as everyl)o(ly su])posed it would be. efl'ective, so far as we have 
 the power and autliority, for the prf)tection of employes by requiring 
 the equipment referred to in tlie act on all cars used on railroads en- 
 gaged in inUirstate commerce. That is the purpose of the first section
 
 APPENDIX G. 719 
 
 of the bill. The purpose of the second section is to require a more gen- 
 eral and iinifi)rni use of air and air brakes, so as to have less need for 
 the operation of hand brakes. The present act, as I recollect it. is that 
 there must be suflicient air-braking apparatus used to enable the engi- 
 neer to control the train. That, of course, dill'ers, perhaps, in the judg- 
 ment of every engineer. Therefore it seems ajipropriate that there 
 should be a certain percentage of the cars of every train required to be 
 op(Mated by air brakes, whether it is actually essential for tli3 proper 
 control of the train or not. 
 
 To the same effect, the Interstate Commerce Commission, 
 in its Seventeenth Annual Report, page 84, after the act had 
 become a law: 
 
 The necessity of showing that a car was engaged in interstate com- 
 merce was another difhculty in the way of enforcing the law. It was 
 necessary to get at the billing showing destination of cars, and to prove 
 in each case that the car complained of was actually moving or used 
 in interstate commerce at the time its defect was discovered. The 
 amendment in question has obviated this difficulty. The law now ap- 
 plies to all equipment on the lines of carriers engaged in interstate 
 commerce, without regard to the service in which it is used. 
 
 I am of the opinion that under said acts as above ex- 
 plained there were only three things which the Government 
 must prove in order to recover: 
 
 (1) That the defendant, at the timos mentioned in the 
 complaint, was a common carrier by railroad, engaged in 
 interstate commerce; 
 
 (2) That it hauled, or permitted to be hauled, over its 
 lines the locomotives, trains, and cars mentioned in the several 
 counts of the complaint; 
 
 (3) That said trains, locomotives, and cars Avere not 
 provided with the equipment required by said act. 
 
 There is no controversy as to the existence of the second 
 and third ingredients of the plaintiff's causes of action, nor is 
 there any controversy that the defendant was and is a com- 
 mon carrier by railroad. The only issue between the defend- 
 ant and the plaintiff is as to whether or not the proof shows 
 that it was engaged, at the times mentioned in the complaint, 
 in interstate commerce. 
 
 There is no confiiet whatever in the evidence relating to
 
 720 FEDERAL SAFETY APPLIANCE ACT. 
 
 this issue, and from such evidence, following the principles 
 declared in United States v. Colorado Northwestern R. R. Co., 
 157 Fed., 321, some of which had been previously enunciated 
 in the Daniel Ball case, 10 Wall., 557, I am satisfied that the 
 defendant was engaged at the said times in interstate com- 
 merce. The letter of January 25 of the consignor, the National 
 Tube Company, to the general freight agent of the Southern 
 Pacific Company, asking that the destination of the shipments 
 therein named be changed on their arrival at the place to 
 which they were originally consigned, and the direction con- 
 tained in the letter or traingram. signed ''J. INI. Brewer," of 
 date January 29, written more than a month before either of 
 said shipments arrived at San Jose, and some time before 
 they had even reached California, clearly distinguishes the 
 ease from Gulf, Colorado & Santa Fe R. R. Co. v. Texas, 204 
 U. S., 403. I may say here that of course the actual physical 
 diversion of the shipments was not and could not have been 
 made until the arrival of the cars at San Jose, or Los Angeles, 
 or ]\Iojave, whichever may have been the destination ; but 
 the agreement between the National Tube Company, the 
 consignor, and the Southern Pacific Company, as evidenced 
 by the letters which I have just referred to — and the South- 
 ern Pacific Company was one of the carriers who were parties 
 to the contract for the interstate shipment — this agreement 
 between the consignor and the Southern Pacific Company 
 was consummated when the traingram was sent by the 
 Southern Pacific Company pursuant to the request of the 
 National Tube Company, the consignor, to the local agent of 
 the Southern Pacific Company at San Jose. After that order 
 had been sent to the agent at San Jose it was as though the 
 original contract had read that Careaga, or whatever was 
 the point to which it was to be diverted, was the ultimate 
 destination. Tn other words, the original contract was so 
 changed as to substitute Careaga, or the other points on 
 the defendant's local line, for the points on the Southern
 
 APPENDIX G. 721 
 
 Pacific given in the waybill as it was originally executed. I 
 might say that there is another fact that adds some strength, 
 probably, to this conclusion, although the conclusion would 
 have been reached without it — that the testimony of Mr. 
 Garrett, I think it is, showed that the National Tube Com- 
 pany furnished and provided the local agent at San Jose 
 with money to prepay the transportation beyond that point 
 to the new destination under the diversion order. 
 
 Recurring now to the case of Gulf, Colorado & Santa Fe 
 Railroad Company v. Texas, 204 U. S., 403, the court, at 
 page 412, said, among other things : 
 
 In other words, the transportation which was contracted for, and 
 which was not changed by any act of the parties, was transportation 
 of the corn from Hudson to Texarkana — that is, an interstate shipment. 
 
 * * * Neither the Harroim nor the Hardin company changed, or of- 
 fered to change, the contract of sliipnient or tlie place of delivery. 
 
 * * * No new arrangement having been made for transportation, 
 the corn was delivered to the Hardin Company at Texarkana. What- 
 ever may have been the thought or purpose of the Hardin Company in 
 respect to the further disposition of the corn was a matter immaterial, 
 so far as the completed transportation was concerned. 
 
 It is a fair inference from this quotation that if the 
 original contract of shipment had been changed by the 
 parties so as to substitute Goldthwaite for Texarkana, the 
 decision of the court would have been different ; and I am 
 of opinion that the changes of destination shown in the case 
 at bar by the letters above mentioned are the situations 
 which, it is to be inferred from the language of the Supreme 
 Court in the case last cited, would have made the trans- 
 portation there involved an interstate matter and, in my 
 opinion, bring the case at bar fully within United States v. 
 Colorado Northwestern R. R. Co., surpra. 
 
 From the views above expressed as to the law of the case, 
 there being no conflict in the evidence relating to the facts, 
 it follows that the defendant's motion must be denied, and 
 the plaintiff's motion for peremptory instructions must be 
 allowed, and orders to that effect wdll be accordingly entered.
 
 722 FEDERAL SAFETY APPLIANCE ACT. 
 
 UNITED STATES v. WHEELING AND LAKE ERIE 
 RAILROAD COMPANY. 
 
 (In the District Court of the United States for the Northern District 
 
 of Ohio.) 
 
 [1G7 Fed. 198.] 
 
 Decided June 16, 1908. 
 
 ( Syllabus by the court. ) 
 
 1. The Safety Appliance Act of March 2, 1903, amending the act of 
 
 March 2, 1893, as amended April 1, 1896, is constitutional and 
 valid. Employers' Liability cases ( 207 U. S. 463 ) , distinguished. 
 
 2. All the cars used by a railroad engaged in interstate commerce in the 
 
 natural course of their use are instrumentalities of interstate com- 
 merce; whether they carry interstate traific themselves or are 
 hauled in a train which contains interstate traffic, such cars are 
 impressed with an interstate character. 
 
 3. In order effectively to protect the employe engaged in handling a car 
 
 loaded with interstate traffic, Congress lawfully may regulate the 
 appliances used on every car upon which such employe is employed. 
 
 4. It is not necessary that the petition in an* action to recover the stat- 
 
 utory penalty under the Safety Appliance Act allege that the de- 
 fect in the car was due to any want of ordinary care upon the part 
 of the defendant. {Railway Co. v. Taylor, Admx., 210 U. S. 281.) 
 
 5. If a car is one that is regularly used in the movement of interstate 
 
 traffic, and is at the time involved in the movement of a train con- 
 taining interstate traffic, the lading of the car is wholly immaterial. 
 
 William L. Day, United States attorney ; Thomas H. Garry, 
 assistant United States attorney; and Luther M. Walter, 
 special assistant United States attorney, for the United 
 States. 
 
 Squire, Sanders & Dempsey, for defendant. 
 
 OPINION ON DEMURRER TO PETITION. 
 
 Tayler, D. J.: 
 
 The petition in this case, in twenty-three causes of action, 
 seeks to recover from the defendant penalties for alleged 
 failures to ('(|uip certain cars with couplings and grab irons, as 
 required by what is known as the safety appliance act.
 
 APPENDIX G. 
 
 723 
 
 The jurisdictional facts alleged in order to bring the cars 
 referred to within the embrace of the Federal act are : 
 
 1. That the car was itself at the time used in interstate 
 commerce, being loaded with some kind of freight originating 
 outside of the State of Ohio, and being carried within it or 
 being destined to some point outside of the State; or 
 
 2. That it was a car which, being one regularly used in the 
 movement of interstate commerce, w^as, at the time of the 
 violation, being hauled in a train containing interstate com- 
 merce, one car in the train with it, as, for example, Illinois 
 Central 35572, containing baled hay consigned to a point 
 within the State of West Virginia. 
 
 In the counts referred to by this second proposition some 
 of the cars are described as being empty and some as being 
 loaded, but it is not charged that the loaded cars contained 
 interstate traffic. I see no distinction, so far as this case is 
 concerned, between the two. 
 
 It is objected — • 
 
 1. That the act is unconstitutional under the rule laid down 
 in the Employers' Liability cases, 207 U. S., 463. 
 
 2. That, assuming that the cars were originally provided 
 with the safety appliances which the law requires, it does not 
 appear that the condition in which they were at the times 
 named in the petition respectively, was due to any want of 
 ordinary care. 
 
 3. That in the case of empty cars, or cars not loaded with 
 interstate commerce, it does not appear that they were, at 
 the time of the existence of the defects, being used in inter- 
 state commerce. 
 
 These objections will be taken up in their order: 
 The law was originally passed March 2, 1893, and, with an 
 amendment or two later adopted and unimportant, so far as 
 this question is concerned, an amendment was passed on 
 the 2d of March, 1903. which provided that the act of 1893, 
 with its amendments, should "be held to apply to common 
 carriers by railroads in the territories and the District of
 
 724 FEDERAL SAFETY APPLIANCE ACT. 
 
 Columbia, and shall apply in all cases whether or not the 
 couplers brought together are of the same kind, make, or 
 type," and "shall be held to apply to all trains, locomotives, 
 tenders, cars, and similar vehicles used on any railroad en- 
 gaged in interstate commerce." 
 
 It is claimed that since the act of 1903 undertakes to make 
 the act of 1893 apply to trains, locomotives, and so forth, used 
 on any railroad engaged in interstate commerce, it extends 
 the operation of the act to subjects over which Congress has 
 no control, and that this is exactly the effect of the decision 
 of the Supreme Court in the Employers' Liability cases. 
 
 ]\Iany answers suggest themselves to this claim. If the act 
 of 1903 had been incorporated in the original act of 1893, 
 and if it be true that the scope which the act covered was 
 larger than that which Congress had power to legislate upon, 
 and in consequence of that, the act should be held unconsti- 
 tutional because of the impossibility of separation of the 
 unconstitutional part from the constitutional part, still the 
 contention of counsel would not be effective in this case. 
 
 We have here the act of 1893 in full force and effect, with 
 its provisions in no wise diminished or curtailed by the act 
 of 1903. That the act of 1903 is, as the Supreme Court of 
 the United States declared in Johnson v. Railroad Company, 
 196 U. S., 1, affirmative and declaratory, and, in effect, only 
 construes and applies the former act. Now, if the former act 
 is construed and applied by a later act (which, of course, 
 involves the proposition that it remains unrepealed) and the 
 later act is unconstitutional, in that it undertakes to give 
 the former act a wider application than Congress had power 
 to give to it, by what sort of reasoning can it be contended 
 that the former act falls to the ground because it has had 
 plastered upon it by Congress an unconstitutional construc- 
 tion and application? The mere statement of this proposi- 
 tion carries with it its answer and exhibits its unreasonable- 
 ness. 
 
 But much more may be said in favor of the propriety of
 
 APPENDIX G. 725 
 
 this legislation, having in view the decision of the Supreme 
 Court in the Employers' Liability cases. It is true that the 
 Supreme Court in that case held the Employers' Liability 
 act unconstitutional, because it made the railroad company 
 liable to any of its employes, without restricting the liability 
 to those who were engaged in interstate commerce; but a 
 parity of reasoning would not require that we should say 
 the same thing of the Safety Appliance act because it refers 
 to all cars used on any railroad engaged in interstate com- 
 merce. It seems to me that, in the respect complained of, 
 there is no analog;^' between the decision of the Supreme 
 Court in the Employers' Liability cases and the theory of 
 the defendant's counsel as to the constitutionality of the 
 Safety Appliance act. An employe of a railroad company 
 engaged in interstate commerce does not, merely because he 
 is such employe, sustain the same relation to interstate com- 
 merce as a car used on a railroad engaged in interstate com- 
 merce sustains to interstate commerce on that road. Cer- 
 tainly, the Federal Government owes no duty to, and has 
 no authority over, an employe of a railroad which is engaged 
 in interstate commerce, if the emploj^e himself is not engaged 
 in the work of interstate commerce. That employe is subject, 
 in respect to his relations with the railroad company, to the 
 laws of the State in which the service is performed. There 
 is no reason why the power of the State should not be suffi- 
 cient for his protection, or why the Federal Goverment should 
 interfere with respect to that or any other matter relating 
 to that employe in respect to his work with the railroad com- 
 pany, so long as it does not relate to the interstate commerce 
 of the company. 
 
 But this is not true of a car used by a railroad engag:ed 
 in interstate cominerce. All of the cars used by a railroad 
 engaged in interstate commerce, in the natural course of their 
 use, are instrumentalities of interstate commerce; whether 
 they carry interstate traffic themselves or are hauled in a 
 train which contains interstate traffic the effect is the same.
 
 726 FEDERAL SAFETY APPLIANCE ACT. 
 
 They stand in a certain and important relation to that inter- 
 state commerce over which Congress has control ; and it is 
 quite apparent that Congress, in undertaking to determine 
 the manner in which interstate commerce shall be carried on, 
 and especially in making effective the useful and beneficent 
 purpose of providing for the safety of employes, would 
 necessarily have a regard for the cars which the interstate 
 commerce railroad had in use. And thus, discovering a 
 very marked and practical distinction between a car used 
 by an interstate commerce railroad and a person in the em- 
 ploy of an interstate commerce railroad, we see how one, in 
 the nature of things, becomes properly the subject of Federal 
 legislation while the other, depending upon the character of 
 his work, may or may not become properly the subject of 
 Federal legislation. This proposition is amplified in the reply 
 herein made to the third objection to the applicability of 
 the act. 
 
 After all, on this subject of the constitutionality of the 
 act, it seems to me that that question has been fully answered 
 by the determination of the Supreme Court in Johnson v. 
 Railroad Company, supra, wherein it is declared that this 
 act of 1903 only construes and applies the act of 1893, and 
 does not add any new affirmative provision. 
 
 As to the second objection, whatever may be the right of 
 the railroad company to defend against the claim made in a 
 suit of this kind by saying that the coupling became defective 
 or the grabiron lost so recently before the time named in the 
 petition as to make it impossible, in the exercise of ordinary 
 care, to replace or repair, that is purely a matter of defense 
 if it ever can be asserted at all. It can not be urged in sup- 
 port of a demurrer to the cause of action. If it were not 
 so, it would be practically impossible for proof to be made 
 in any case of a violation of the law. There are approxi- 
 mately 2,000,000 cars in use by railroads in this country, and 
 if the contention referred to is sound, it would be necessary, 
 in order to sustain a cause of action in cases under this act, 
 that proof be made that the appliance was in a condition of
 
 APPENDIX G. 727 
 
 unrepair at one time, that it continued to be in that condition 
 of unrepair or in a developing condition of greater unrepair 
 up to another time, the lapse of the intervening time being so 
 great as to show a want of ordinary care on the part of the 
 railroad company. In the meantime the very thing to pre- 
 vent which the law was passed might occur, to-wit, the 
 injury of an employe. The practical administration of justice 
 would be denied and the real enforcement of the law be 
 impossible if the construction contended for was sound. 
 
 But it has been held in several cases that even as a defense 
 on the merits no degree of care, no absence of negligence, can 
 excuse for the failure to perform a duty unqualifiedly imposed 
 by statute. And in the recent case of Railway Company v. 
 Taylor, Admx., decided IMay 18 of the present year by the 
 Supreme Court, the court very pointedly lays the unqualified 
 responsibility upon the railroad for such a condition of un- 
 repair. 
 
 As to the third objection. What shall we do in the case of 
 a car which is regularly used in the movement of interstate 
 traffic but at the time when the defect is known to exist is 
 itself not being used for carrying interstate commerce, but 
 is being hauled in a train containing a car loaded with inter- 
 state commerce ? What is the purpose of the law ? Here is a 
 train which is engaged — at least part of it — in interstate 
 commerce, and so long as that is true every car in the train 
 is impressed, so far as the requirements of this act are con- 
 cerned, with an interstate character. It is a part of the cur- 
 rent. The interstate car can not move except with relation 
 to the empty car. The empty car may at any moment be 
 coupled to the interstate car. A brakeman engaged in per- 
 forming some duty in respect to the interstate car may be 
 compelled to pass over or use a grabiron on the empty car 
 or couple the empty ear to the interstate car. Endless con- 
 fusion would arise if any distinction was made under such 
 conditions between a car loaded with interstate traffic and an 
 empty car regularly used in the movement of interstate 
 traffic, but at the time unloaded and coupled to another
 
 728 FEDERAL SAFETY APPLIANCE ACT. 
 
 ear actually in use in the movement of interstate traffic. 
 Of course the same thing must be said of the loaded car, 
 whatever the character of the freight it carried, if it is a car 
 regularly used in the movement of interstate traffic. 
 
 It seems to me that from every point of view the objections 
 raised to the several causes of action are not well grounded. 
 The demurrer is overruled. 
 
 U. S. V. ATCHISON, TOPEKA & SANTA FE RAILWAY 
 
 COMPANY. 
 
 (In the District Court of tlie United States for the Fourth District of 
 
 Arizona,) 
 
 Decided July 11, 1908. 
 
 ( Syllabus by the court. ) 
 
 1. The height of drawbars of freight cars as required by the Federal 
 
 Safety Appliance Act shall not be more than 34% inches nor less 
 than 311/^ inches, from the top of the rail, the rail being on the 
 same level as the cars equipped with such drawbars. 
 
 2. In prosecutions to recover the penalty under said act the burden 
 
 is on the Government to show by a clear preponderance of evidence 
 the facts as alleged in the petition. 
 
 3. A failure on the part of the inspectors for the railroad company to 
 
 discover defects in the equipment of cars cannot excuse tlie com- 
 pany from liability under the statute. 
 
 4. The inspectors for the Government are not required to notifj^ the 
 
 employes of the railroad company of defects on cars. 
 
 5. Nothing but inability on the part of the common carrier to comply 
 
 with the requirements of the Safety Appliance statute will excuse 
 its non-compliance. The question as to whether it is convenient 
 for a repair to be made at a certain place does not arise. 
 
 6. If a drawbar of a car be piilled out en route it is the duty of the 
 
 carrier to make tlie necessary repairs at the nearest point where 
 such repair can be made, and the hauling of such car in such de- 
 fective condition beyond this point is a violation of the law. 
 
 7. If for any cause a part of tlie coupling or uncoupling mechanism of 
 
 a car be removed, broken, or parts being present and not connected,
 
 APPENDIX G. 
 
 729 
 
 thereby rendering it such that it can not bo operated without the 
 necessity of a man going between the ends of tlie cars, then such 
 car is not equipped in compliance with the law. 
 
 8. The law requires that both ends of each car be equipped as required 
 
 by the statute. 
 
 9. The statute applies to empty cars as well as to loaded cars. 
 
 10. In a prosecution to recover the penalty for the violation of the stat- 
 
 ute within a Territory of the United States, it is not necessary to 
 show that the defendant is engaged in interstate commerce; neither 
 is it necessary to show that the car itself is engaged in interstate 
 traffic. 
 
 11. To constitute a compliance with the law it is not sufficient that the 
 
 coupling or uncoupling apparatus may be operated with great ef- 
 fort without going between the ends of the cars, but it must be 
 in such condition that it can be operated by the use of reasonable 
 effort. 
 
 12. Positive testimony is to be preferred to negative testimony in the 
 
 absence of other testimony or evidence corroborating the one or 
 the other. 
 
 Joseph L. B. Alexander, United States attorney ; Roscoe F. 
 Walter, special assistant United States attorne3\ for the 
 United States. 
 
 Faul Burkes for defendant. 
 
 INSTRUCTIONS TO JURY. 
 
 Sloan, District Judge (charging jury) : 
 
 This suit is brought under the provisions of the Congres- 
 sional act of March 2, 1893, as amended by the law of 1896 
 and by the law of 1903, which act and the said amendments 
 are known as the Safety Appliance acts. Under section 2 
 of the act it is made the duty of common carriers engaged in 
 interstate commerce, and also common carriers within the 
 Territories of Arizona and New Mexico, to equip their cars 
 with couplers coupling automatically by impact and which 
 can be uncoupled without the necessity of men going between 
 the ends of the cars. The act also provides that it shall be un- 
 lawful for any such common carrier to use any freight car 
 equipped with a drawbar which, measuring perpendicularly
 
 730 
 
 FEDERAL SAFETY APPLIANCE ACT. 
 
 from the level of the tops of the rails to the center of such 
 drawbar, shall not be more than 34>^ inches in height or 
 less than 311/^ inches in height; it being assumed in such 
 measurement that the rails are on the same level as the car 
 equipped with such drawbar. 
 
 It is further provided that any violation of either of the 
 provisions of the statute which I have called your attention 
 to renders such common carrier liable to a penalty of $100 
 for each and every such violation, to be recovered in a suit 
 or suits brought by the United States in a court having 
 jurisdiction under the act. 
 
 The complaint in this case contains fifteen distinct counts 
 or causes of action. The first and the tenth counts relate to 
 alleged violations by defendant of the provision of law with 
 reference to the height of drawbars, it being alleged in each 
 of these counts that the defendant company used a freight 
 car with a drawbar which was less than 3114 inches in height, 
 measured perpendicularly from the level of the tops of the 
 rails to the center of such drawbar. Counts 2 to 9, inclusive, 
 and 11 to 15, both inclusive, relate to alleged defects in the 
 couplers with which the various cars named in the counts 
 were equipped, it being charged that each was defective in 
 that it could not be operated so as to uncouple the car to 
 which it was attached without the necessity of a man or men 
 going between the ends of such car and that to which it 
 might be coupled. 
 
 The burden is upon the plaintiff in this cause to show by a 
 clear preponderance of the evidence that the defects in safety 
 appliances alleged to have existed as set out in the complaint 
 did actually exist and the existence of such defects must be 
 established by a fair preponderance of the evidence. 
 
 The burden is laid ui)on the defendant, under the statute, 
 to discover defects in the appliances mentioned under the 
 act, whenever an opportunity is fairly presented for the dis- 
 covery of such d(!f('ets. Any failure or omission on the part 
 of the inspectors of the company to discover such defects,
 
 APPENDIX G. 
 
 731 
 
 after such opportunity is presented, can not excuse the com- 
 pany from liability under the statute. 
 
 The inspectors for the Government are not required to 
 notify the employes of the railroad company of existing de- 
 fects previous to or at the time of movement of defective 
 cars, though such inspectors previously discovered such de- 
 fects. 
 
 I charge you that the law requires a strict compliance on 
 the part of common carriers with the provisions of the Safety 
 Appliance act to which I have called your attention. Nothing 
 but inability on the part of a common carrier to comply with 
 the requirements of the act will excuse its non-compliance. 
 
 I charge you further that in the case of a car which may 
 have its drawbar pulled out en route, it is the duty of the 
 common carrier to make the necessary repair at the nearest 
 point where such repair can be made. It may haul such car 
 to such nearest point and no farther, using such care and 
 caution as may be needed to insure the highest degree of 
 safety and security while being so hauled. The common 
 carrier may not choose its place to make such repair, but must 
 avail itself, for that purpose, of the nearest point where, by 
 the exercise of diligence and foresight, the company may pre- 
 pare to make such repair. Inasmuch as inability alone will 
 excuse the common carrier from a literal compliance with 
 the act, it is the duty of the common carrier to have the mate- 
 rial and facilities on hand at each repair point which may 
 be needed to make repairs of the kind necessary to comply 
 with the requirements of the Safety Appliance acts. It is the 
 duty of the common carrier to use reasonable foresight in 
 providing material and facilities for such purpose. In such 
 a case it is not a matter of convenience merely, but a question 
 of ability on the part of the common carrier to comply with 
 the act. 
 
 In this case the jury is instructed that the defendant com- 
 pany can not excuse, under the Safety Appliance act, the 
 hauling of a car which was without its drawbar from Winslow
 
 v:::.' 
 
 i'i';i)i';i{,\i, HAicicrv wi-hanc.k aci' 
 
 lo ;ii.iiic (illirc iHiiiil lor ri'iiiiir:. 1 1' il. could lnivc hccu vvilliiii 
 llii' |ii)\\ir ..r Hie (Icrriid.iiil (•(iiii|i;iiiy, li;ii| il cviTciHcil roisoii 
 ill))'' i-nn- mill I'ldrMi'liI , In li;i\r ic|i;i ind ij .d, Winslovv, il, 
 liciii," cliJU'L'i'd, ;i!i I liii\r Miiid Im ritrc, udli iln- didy "T li;iviri^^ 
 oil liiitid ;d .'Uiid I'l'itiiii' |>iiiid llic iii;di'n;d ;ind I'jciI d n.; ni'i'dcd 
 lor Hud. |)iir|)OMi- 
 
 Il ill II VKil.d ion ol l.iu rciidi riii;^ llic loininoii I'.iiTnr li.dilt; 
 under llir Hlfllldi' lo ii:;r n cir wdli llir dev i:; pin (d' llic i li;iin 
 coiiiicrj iiii' llic lock lilock lo llir 1 1 1 icon | iJ ii i >' li\cr lirol.cji or 
 rciiio\cd Tor iiny cnii'ic, when I he erfeel would he |o render IIk^ 
 iiiieoiiplin!'; iiiechiini.in iiio|)erid i \'e wilhoid llie nccessily of 
 il, iii.'in I'oin," liclwccii Ihc end; ol' llie cnrM. 
 
 ir d .i|)|)e;ir llnd Ihc eoiipler lie |ircsciil lull llic |i;irlM ;irc 
 (lol- Mo connccled Ih.d Ihc coiijiler c;in lie o|)er,ilcd u illioid IImi 
 iH'ccsHily <d' ,1 Minn or nicii (.'[uirif^ hclvvccn Ihc ciid.s (d" Iln- cjirH, 
 then il i:i iio| ji conipliiiiict' willi liic sliilidc. 
 
 ^'oll lire idso iii;:lnie|ed Ih.il il i:; nol MidlicH'id lli;il oint 
 end ol' cicli c;ir lie e(|iii|i|ied 11;; re<|iiired liy llie ;;l;dide Iml, 
 liolli end:; iiiii!;! lie ;:o ei|iii|i|ied lliid ihe coii|iliii,"; or iincoii|i 
 I III,"; ini'chiiniMii (d' e.icli enr nniy lie o|>cr;i I i\c in d ;el f wil IkhiI- 
 i'c<|iiiriti<^ Ihe iii;ini|inhil loll ol' Ihe device on Ihc ;id.i;icenl aw 
 lo ell'i'cl 11 coii|i|iii:' or iincoii|il III": lo or I'loni .{iieli ;id.|;iccid, 
 I'.ir. 
 
 II i:; nol n v-iiiiiry I hid iiiiy c;ir" in (|ih";|ion he n loiidcd cur 
 
 In conic wilhiii Ihc iiiciiiiin;.^ of Ihc hIiiIhIc. 11' Ihc ciir is 
 lintdiMJ in Ihc did'cclivc <'oii(lil ion, Ihc nIiiIhIc is violiilcd n- 
 ^fMnlh'NM of Ihc fuel whclher Ihe cur lie loiided or nnlo.ided. 
 
 Ncilhcf in il III SHiiry, in He e,i';c .d' n |troMcciili<iii |o rccn\ci- 
 
 Ihc peiuills' Tor II viohdion lh;d occiirM wilhiii llii,'; 'rcrrdory, 
 Hull Ihe c;ir I.e cnj'iij'cd in iiiler:;l.ilc IridTuv il i;; suriiciciil, 
 iinder seclioii I id' Hie ;iiiM'iidiiienl of l!»(i:;, if Hie dcreclivc 
 ciir lie liiiujcd liy II coniiiioii e.irrier williin Hie 'rcrrdory, c\'cn 
 Ihoui^li Ihc currier he nol cii;';i"i'd m inlerslidc coiiiiiiercc, 
 provided Ihc fur doc-i nol conic wdliin Ihe e\cep|ions cm 
 liniccd in r;cc|ion (i ol" Hic orii'inid iicl nw nniendi'd April I, 
 jHl)(i. or is nol. used upon ji sired inilwiiy.
 
 AI'I'IONDIX (]. 7153 
 
 Yoli .'in! iiislriiclccl ilial, il" \\\r. f«<)V(^rrirn(!iii has (ilcjarly 
 jiiid saMsl'aclorily shown hy llic rvidciicc! Miat, IIk; cur, as 
 allcj^cd ill llic lirsl, coiimI oI" llic ( Jovcniiiicnl.'s |K'l.ili(>ii, was 
 (;(liii|)|)f(| will) ;i, (Irawl)ar wliidi, iiicasiii-cd [xirpcndifMilarly 
 I'roMi U\v. level ol" the tops ol" lilt; I'ails l,o IIk; (Hauler of such 
 drawbar, was less lliaii '.W'/- iiielics in liei(^h(,, as re(|iiired hy 
 SOC-iioii f) ol" llie l''edei';il SaTety A|)pliaMee ;iei, iippr'oved 
 March 2, 1S!);{, as ainended April I, IS!)(i ;ui<l March U, 1!)0;{, 
 th(ni you will (ind I he dereiidanl Miiilty on such count.. And so 
 il, is with releceiiee to coiiiil, 10 ol' llie ( loverntiienl, 's petition. 
 
 You ar(! also instructed |h;it if the dloveciniicnt, lias ('.\i",iv\y 
 and salisFactdriiy sliown hy the evideiHte lli;i(, the car, as 
 allej^ed in count 'J of the ( Jovei'iinieiit 's petition, was not, 
 C(|uii)i)<!d with couplers coupiin^^ aut,oitial,i(tally hy impact, and 
 wliicli could he uncoupled without, the necessity ol" n man 
 or men jj;oin^^' hetweeti the ends ol* the car-s, tiien you will liiid 
 tho derendant- j^iiilty on that count. And the same with re- 
 spect t,o couuts :{, 1, r., C, 7, H, !), 11, 13, l:'., ll. and If) of 
 the; fiOV('rrurH!nt,'s |)elilioii. 
 
 On the other hand, if you r;iil to liiid clearly an<l satis- 
 l"a(;l,orily I'rom the evidenc(! that as to any ol' these coiiids 
 then; was a violation of the r-e(pjircmeiits of tlii- statute, then 
 as to sucth count, or c<)uiits you will find the derendnnl not 
 guilly. 
 
 'J'he coiift instructs you that, if you liiid I'rom the evidence 
 that the ahsence ol" the "keeper" did not, destroy the aut,o- 
 matic action ol' the coii|)ler on cars AT'.HiMH, 0()2!)l, and 
 9()2()(), as S(!t out in the (il'th, sixth, ;iiid H(!vcrith couiHs re- 
 sr)(!(',tiv(!ly of plaintiir's comphiint, hut that such couplers 
 could hy the use of reasonahle efforl have been uiicoil|)led 
 by use of the lever (»r their- own iruHihaMism withoid, l,lie 
 necessity ol" a man eoi,i<r hctwcfii the c;irs, notwilhstandint^ 
 the absence; of the "kcwpcr," then you nnist, (ind for the de- 
 f(!ndant on the (ifth, sixlli, and seventh counts. 
 
 Tn eonsideriuf^ the testimony of th(! witnesses who liav<; 
 testified berore you, you have a ri^'ht l,o wiMgh, in niakinf,' up
 
 734 FEDERAL SAFETY APPLIANCE ACT. 
 
 your judgment, the testimony of any witness, but in doing 
 this you will not give either more or less weight to the testi- 
 mony of any witness because of the fact that such witness 
 testifies on behalf of the Government or because of the fact 
 that such witness testifies on behalf of the railroad company. 
 But you will give to the testimony of each witness that weight 
 which, in your judgment, it is entitled to from all the facts 
 and circumstances in the case. 
 
 In this connection it is proper to state that positive testi- 
 mony is to be preferred to negative testimony, other things 
 being equal ; that is to say, when a credible witness testifies 
 to having observed a fact at a particular time and place and 
 another equally credible witness testifies to having failed to 
 observe the same fact with the same or equal opportunity to 
 so observe such fact, the positive declaration is to be pre- 
 ferred to the negative in the absence of other testimony or 
 evidence corroborating the one or the other. 
 
 You are instructed that if you believe, from a consideration 
 of all of the testimony in the case, that any witness has 
 willfully testified falsely as to any material fact, then you are 
 at liberty to disregard the whole of his testimony, except in 
 so far as the testimony of such witness may be corroborated 
 by other credible evidence in the case. 
 
 The court instructs you that by a preponderance of the 
 evidence is not meant the testimony of the greater number of 
 witnesses, but rather the greater weight of credible testimony 
 as determined by the character of the testimony of the vari- 
 ous witnesses and the respective means and opportunities such 
 witnesses may have had of acquiring information and knowl- 
 edge and of seeing or knowing and remembering that to 
 which they testify, the probability of its truth, their interest, 
 if any, whether as parties or witnesses in the result of the 
 action, and also their manner of testifying, and every other 
 fact whif'h wiU enable you to determine the weight and 
 credibility to be given to their testimony. 
 
 If you find the defendant guilty, you will say: "We, the
 
 APPENDIX G. 735 
 
 jury, find the defendant guilty on the first, second, third, 
 fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, 
 twelfth, thirteenth, fourteenth, and fifteenth counts of the 
 petition." 
 
 You may find the defendant guilty on some of the counts 
 and not guilty on the others. In that case the form of your 
 verdict will be: "We, the jury, find the defendant guilty" 
 on whatever number of counts you do find the defendant 
 guilty, and "not guilty" on whatever you find the defendant 
 not guilty. 
 
 If you find the defendant not guilty, you will say: "We, 
 the jury, find the defendant not guilty." 
 
 Verdict of guilty on all counts. 
 
 United States Circuit Ck)urt of Appeals, Seventh Circuit. 
 No. 1475.— October term, A. D. 1908. 
 
 BELT RAILWAY COMPANY OF CHICAGO, PLAIN- 
 TIFF IN ERROR, V. UNITED STATES OP 
 AMERICA, DEFENDANT IN ERROR. 
 
 [168 led. 542.] 
 
 In error to the District Court of the United States for the Northern 
 
 District of Illinois, Eastern Division. 
 
 Decided February 3, 1909. 
 
 A belt-line railway company, operating a line lying wholly within a city, 
 county, or State, while moving a commodity originating at a point 
 in one State and destined to a point in another State, is engaged in 
 interstate commerce by railroad, and as such is within the Federal 
 Safety Appliance Acts. 
 
 William J. Henley, William L. Reed, and Francis Adams, 
 Jr., for plaintiff in error. 
 
 Edwin W. Sims, United States attorney; Harry A. Parkin, 
 assistant United States attorney; and Philip J. Doherty and
 
 736 
 
 FEDERAL SAFETY APPLIANCE ACT. 
 
 Luther M. Walter, special assistant United States attorneys, 
 for defendant in error. 
 
 Before Grosscup, BxVker and Seaman, Circuit Judges: 
 
 OPINION OF THE COURT. 
 
 Baker, Circuit Judge, delivered the opinion of the court : 
 
 The writ is addressed to a judgment assessing a penalty 
 against plaintiff in error for an alleged violation of the pro- 
 visions of the Safety Appliance acts in relation to power 
 brakes. 27 Stat. L. 531, 29 Stat. L. 85, 32 Stat. L. 943. Cer- 
 tain questions relating to the purpose, scope, and validity of 
 this legislation are considered in Wabash R. Co. v. U. S. and 
 Elgin, etc., R. Co. v. Z7. aS'., herewith decided. 
 
 The only assignments presented and discussed by plaintiff 
 in error are that the court erred in refusing to direct a ver- 
 dict of not guilty, and in giving the following instruction: 
 ' ' The question therefore presents itself, and it' is a legal ques- 
 tion. Was the Belt Company, at the time it moved this string 
 of 42 freight cars, containing a car originating in Illinois and 
 destined to Wisconsin, engaged in interstate commerce? I 
 charge you that when a commodity originating at a point in 
 one State and destined to a point in another State is put 
 aboard a car, and that car begins to move, interstate commerce 
 has begun, and that interstate commerce it continues to be 
 until it reaches its destination. If, between the point of 
 origin of this commodity and the point of destination of this 
 commodity, the car in which it is being vehicled from origin 
 to destination passes over a line of track wholly within a city, 
 within n county, or within a State, the railway company oper- 
 ating flint line of track while moving this commodity, so 
 origii;ating and destined from one j)oint to another point, 
 intrastate, is engaged in interstate commerce." 
 
 Was there sufficient evidence to warrant the jury in finding
 
 Ai^FENDIX G. '^37 
 
 that in hauling the train in question plaintiff in error as a 
 common carrier was "engaged in interstate commerce by 
 railroad ? ' ' 
 
 The railroad tracks of plaintiff in error lie wholly within 
 Cook County, 111. There are 21 miles of main line and about 
 90 miles of switching and transfer tracks. The main line con- 
 stitutes a belt that intersects the trunk lines leading into 
 Chicago. B}^ leads and Ys direct physical connection with 
 the trunk lines is maintained. Plaintiff in error's business 
 consists in transporting cars between industries located along 
 its line, between industries and trunk lines, and between 
 trunk lines. The first two kinds need not be noticed as the 
 transportation here involved was between trunk lines. The 
 train in question contained among others a car laden with 
 lumber, and consigned from a point in Illinois on the Chicago 
 & Eastern Illinois to a point in Wisconsin on the Chicago & 
 Northwestern. This car was taken by the plaintiff in error 
 from the tracks of the Eastern Illinois over the belt line and 
 put on the tracks of the Northwestern. For services of this 
 kind plaintiff in error makes arbitrary charges of so much a 
 car, which are collected monthly from the railroad companies 
 for which the services are rendered. In such operations plain- 
 tiff in error has no dealings with the shippers and pays no 
 attention to the class of traffic. Its relation to the traffic was 
 stated by the general superintendent, as follows: "The Belt 
 Company acts practically as an agent for the trunk lines in 
 the handling of cars from one connection to another through 
 its yards." 
 
 In United States v. Geddes, 131 Fed. Rep., 452, defendant 
 as receiver was operating a narrow gauge railroad that lay 
 wholly in Ohio. ' ' At Bellaire it connected with the Baltimore 
 & Ohio road, in the sense that it received from the Baltimore 
 & Ohio freight from other States marked for points on its 
 line, and delivered to the Baltimore & Ohio freight from 
 points on its line marked for other States, in the following 
 manner: There was no interchange or common use of cars,
 
 738 FEDERAL SAPETY APPLIANCE ACT. 
 
 the gauges of the two roads being different. The cars of the 
 defendant road were used only on its own line. But a trans- 
 fer track ran from the main line of the Baltimore & Ohio to 
 the terminal station of the defendant road, so that the freight 
 cars of the two roads could be placed alongside adjoining 
 platforms and the transfer of freight made by the use of 
 trucks handled by the Baltimore & Ohio men. No through 
 bills of lading for such freight were issued by either road, 
 no through rate w^as fixed by mutual arrangement, and no 
 conventional division of a through freight charge was made." 
 The Circuit Court of Appeals for the Sixth Circuit decided 
 that the narrow gauge cars in question were not subject to the 
 Safety Appliance act, holding that a common carrier was not 
 "engaged in interstate commerce by railroad" within the 
 meaning of the Safety Appliance act unless, referring to the 
 definition in the original interstate commerce act, it was "en- 
 gaged in the transportation of passengers or property wholly 
 by railroad or partly by railroad and partly by water when 
 both are used, under a common control, management, or ar- 
 rangement for a continuous carriage or shipment," from one 
 State to another. The equipment of a narrow gauge railroad 
 Avhich lay wholly in Colorado and which was similarly en- 
 deavoring to conduct a separate and independent business, 
 was held by the Circuit Court of Appeals for the Eighth 
 Circuit to be within the Safety Appliance act. TJ. 8. v. Colo- 
 rado, etc., R. Co., 157 Fed. Rep., 321. 
 
 Plaintiff in error argues the present case as if the judgment 
 could not properly be affirmed Avithout our adopting the de- 
 cision in the eighth circuit as against that in the sixth. In 
 our judgment the question presented to those courts is ex- 
 eluded from our consideration by certain distinguishing and 
 controlling facts. The narrow gauge track had no direct 
 physical connection with the broad gauge tracks of the inter- 
 state trunk lines, and so no cars from other States, laden with 
 goods from other States, were hauled on the local highway. 
 The Belt Line physically connected its track with those of the
 
 APPENDIX G. 739 
 
 Eastern Illinois and of the Northwestern, so that a continuous 
 highway across State lines was formed, on which interstate 
 traffic, loaded on interstate ears, was moved from origin to 
 destination without change of cars. The narrow gauge road, 
 by limiting its bills of lading to points on its own line, en- 
 deavored to escape being held a common carrier engaged in 
 interstate transportation. The Belt Line, issuing no bills of 
 lading because of having no dealings with the shipper or with 
 anyone on his behalf, performing its gateway service on ac- 
 count of and as agent of the trunk lines, made its track the 
 track of its principals. Consequently the character of the 
 transportation should be determined by considering the trans- 
 portation as the act of such principals. Trunk-line yards are 
 in some instances so related to each other that through cars 
 can be transferred without the intervention of a go-between. 
 We are of opinion that the transportation in question was 
 the same in legal effect as if the Eastern Illinois by means of 
 its own locomotive and track had put the through car on the 
 Northwestern 's track. In this view there was evidence from 
 which the inference of fact might warrantably be drawn by 
 the jury that there was a common arrangement for a con- 
 tinuous carriage over the Eastern Illinois and the North- 
 western ; and so, with respect to the movement in question, 
 plaintiff in error was engaged in interstate transportation. 
 
 When the portion of the charge complained of is read in 
 the light of the undisputed facts, we see no basis for saying 
 that the substantial rights of plaintiff in error were injuri- 
 ously affected. 
 
 The judgment is affirmed. 
 
 Seaman, Circuit Judge, dissenting: 
 
 I can not concur in the affirmance of this judgment, as I 
 believe the operation of the Belt Company described in the 
 record is not within the meaning of the Safety Appliance 
 act. It clearly appears that this company was an independent 
 railroad within the city, engaged only in transferring cars
 
 740 FEDERAL SAFETY APPLIANCE ACT, 
 
 (loaded or unloaded) from the terminal of one trunk line in 
 Chicago to that of another trunk line; that it had no part in 
 the shipment of any commodities which were upon the cars, 
 nor interest in shipping bills or rates charged, nor concern in 
 their ultimate destination and delivery to consignee ; that 
 its only service involved herein was the transfer of cars over 
 its own lines, from one terminal to the other in Chicago, when 
 the cars were delivered to it by a trunk line to be so trans- 
 ferred, for which service the Belt Company was paid by the 
 trunk line an arbitrary rate per car, on monthly collections. 
 In such service the Belt Company is neither chargeable with 
 notice whether the service of the trunk lines in respect of the 
 cars is interstate commerce or otherwise, nor concerned in 
 such inquiry, as I believe. It was not "engaged in inter- 
 state commerce," as defined in the interstate commerce act, 
 and I am of opinion that the two acts are in pari materia, so 
 that the terms of the Safety Appliance act are inapplicable 
 to the service thus performed by the Belt Company, and the 
 judgment should be reversed. 
 
 THE UNITED STATES v. LEHIGH VALLEY RAIL- 
 ROAD COMPANY. 
 
 [160 Fed. 69G.] 
 (^Motion for new trial reported at 162 Fed. Rep. 410.) 
 
 In the District Court of the Ignited States for the Eastern District of 
 
 Pennsylvania. 
 
 DecernlK'r Term, 1906. 
 
 (Decided March 11, 1908.) 
 
 1. All action l)i(mi^rlit to recover the [K'nalty provided for in the Safety 
 
 Appliance Act is not a criminal case. 
 
 2. Tlie (liovernment need not prove its case beyond a reasonable doubt; 
 
 it is HufTicient if it furnishes clear and satisfactory evidence of all 
 tlie necessary facts.
 
 APPENDIX G. ^41 
 
 The statute requires as to couplers that the apparatus on each end 
 of every car sliall be in operative condition. 
 
 In order to constitute a violation of tlie Safety Appliance Act, the car 
 must be moved in a defective condition. 
 
 Where a car, whicli had been at rest at a station for a period of time, 
 is taken out upon the road in a defective condition, the carrier is 
 liable for the penalty, and it is wholly immaterial vphether the de- 
 fendant knew of the defect or could have ascertained its condition 
 by the exercise of reasonable care; in such a case the carrier must 
 find the defect at its peril. 
 
 STATEMENT OP FACTS. 
 
 This is an action brought by the United States to recover 
 the statutory penalty of $100 under the Safety Appliance act. 
 
 Two inspectors of the Interstate Commerce Commission 
 found Philadelphia & Eeading car No. 46247, November 12, 
 1906, at Allentown. Pa., in the yard known as the East Penn 
 Junction yard, with the lever disconnected from the lock pin 
 or lock block on each end of the car. The car was first in- 
 spected at 2 :50 p. m. ; it left East Penn Junction at 8 :30 p. m. 
 for Cementon, Pa., a few miles away, and was found there 
 the next day in the same defective condition. Defendant's 
 employes testified that a defect had existed at East Penn 
 Junction on the 12th, but defendant contended that, as the 
 repairs were generally made when found, the car did not leave 
 for Cementon in a defective condition. 
 
 J. Whitaker TJiompson, United States attorney; John C. 
 Swartley, assistant United States attorney ; Luther M. Walter, 
 special assistant United States attorney, for plaintiff. 
 
 J. Wilson Baijard, Esq., for the defendant. 
 
 Hon. John B. McPherson, Judge (charging jury) : 
 
 Gentlemen of the jury : The question that has been sub- 
 mitted to you, the question of fact that has been argued to 
 you, is one that has not appeared in the other cases that per- 
 haps may have been tried in the hearing of some of you. The 
 defendant contends here that the Government has not offered
 
 742 FEDERAL SAFETY APPLIANCE ACT. 
 
 sufricient evidence to satisfy you that this car was hauled in 
 a defective condition from East Penn Junction to Cementon, 
 to which the load which it carried was bound, and that is 
 the question of fact for you to determine in this case. This 
 Safety Appliance act, the particular section with which we 
 are concerned, makes it unlawful for a common carrier, such 
 as the Lehigh Valley Railroad Company, to haul or permit 
 to be hauled or used on its line any car used in moving inter- 
 state traffic not properly equipped with automatic couplers. 
 In this case the question is whether or not this car was moved 
 from East Penn Junction to Cementon by the Lehigh Valley 
 Railroad Company in a condition that was not such as is pro- 
 vided for by this statute, and the duty is upon the" Govern- 
 ment to satisfy you upon that subject. The burden of proof 
 rests upon the Government in this case to establish to you by 
 clear and satisfactory testimony that that fact existed. It is 
 not a criminal case. We are not trying an indictment. We 
 are trying a suit for a penalty, a suit for a penalty of $100, 
 for an alleged non-compliance with this Safety Appliance act, 
 and the burden of proof rests upon the Government to make 
 out its case by clear and satisfactory testimony. I repeat, 
 the burden of proof is upon it, and the burden continues to be 
 upon it throughout the case. It is not required to furnish 
 evidence beyond a reasonable doubt, but it is required to fur- 
 nish clear and satisfactory evidence of all the facts necessary 
 to make out its case. The act requires couplers at both ends 
 of the car that shall couple automatically by impact, and 
 couplers that may be uncoupled without the necessity of going 
 between the cars ; this requires that there shall be levers, either 
 a lever going entirely across the end of the car, or a lever up- 
 on one side, which operates the mechanism of the coupler so 
 that it may be separated froim the other car without the neces- 
 sity of anybody going between. And it is necessary, to com- 
 ply with the statute, that the coupler at each end of the car 
 shall be in operative condition. That duty is imposed upon 
 any carrier using a car that is engaged in interstate traffic. 
 That particular point of time to which your attention is 
 
 A
 
 APPENDIX G. 743 
 
 directed is the 12th day of November, 1906, and the particular 
 place is East Penn Junction in this State, and from there to 
 Cementon, a few miles away, and the charge is that a par- 
 ticular ear was defectively equipped. That it was defectively 
 equipped seems to be conceded, as I understand, by the de- 
 fendant in this case ; that is, that one or both couplers were 
 out of order. Testimony has been given by the defendant's 
 Mdtnesses to that effect, as I understand it, but the averment 
 of the defendant is that that defect was remedied and that 
 there is no evidence from which the jury may properly infer 
 that the car was actually moved in a defective condition. It 
 is necessary that the Government shall establish, as I have 
 said to you, by clear and satisfactory evidence that the car 
 was so moved, because it is quite clear that so* long as a car, 
 no matter how defectively equipped it may be, remains at 
 rest, it does no harm- and can not do any harm, and does not 
 offend against the statute. It is when it is actually in motion 
 and therefore capable of doing harm to the operatives upon 
 the train that the act applies, and therefore it is necessary, 
 and it is the vital question of fact in the case, to establish- as to 
 whether or not while this car was being moved it was in a 
 defective condition. Therefore I submit those questions of 
 fact to you for your determination. Did the Lehigh Valley 
 Railroad transport or haul this car from East Penn Junction 
 to Cementon, and if they did, during that period was it de- 
 fectively equipped? 
 
 I have not heard any argument made to j^ou with regard 
 to the question of reasonable care and diligence. The question 
 is, however, raised by one of the points that is presented to 
 me by the defendant, and therefore I say to you in a word 
 that the question of reasonable care aiid diligence that may 
 have been exercised by the defendant is not a matter for your 
 consideration. As I understand this statute, the railroad com- 
 pany is bound to discover defects if they exist, under the 
 circumstances as they have been offered to us upon this trial. 
 I am not dealing with anything except the facts that are now 
 before us. Here is a case in which this car has been shown to
 
 74:4 FEDERAL SAFETY APPLIANCE ACT. 
 
 have been at rest at East Penn Junction for a number of 
 hours, and therefore when there was an opportunity to inspect 
 upon the part of the railroad company. Now, under such 
 circumstances, my reading of the statute is that it imposes up- 
 on the company the duty to find the defects if defects exist, 
 and that it must find them at its peril. If its inspectors failed 
 to find them, then the liability for the penalty exists if the 
 car is afterwards moved without having the defects repaired. 
 That, as I understand, is the case for your determination. If 
 you are not satisfied from all the evidence in the case that 
 the Government has by clear and satisfactory evidence made 
 out that this car was hauled in a defective condition between 
 East Penn Junction and Cementon, then you ought to find 
 in favor of the defendant. If they have satisfied you that 
 this car was so defective at the time when it left East Penn 
 Junction that it could not be automatically coupled and could 
 not be uncoupled without the necessity of somebody going 
 between the cars to perform that operation, then your ver- 
 dict ought to be in favor of the United States for the sum 
 of $100. 
 
 Verdict for the Government. 
 
 THE UNITED STATES v. PHILADELPHIA AND 
 READING RAILWAY COMPANY. 
 
 [160 Fed. 696.] 
 (Motion for new trial reported at 102 Fed. Eep. -105.) 
 
 In the District Court of the United States for the Eastern District of 
 
 Pennsylvania. 
 
 December Term, 1906. 
 
 Bedded March 11, J90S. 
 
 1. An actir.n brouyht to recover the penalty provided for in the Safety 
 
 Appliance Act is not a criminal case. 
 
 2. 'J'lie fJovernment need not prove its case l)eyond a reasonable doubt; 
 
 it is sunieient if it furnishes clear and satisfactory evidence of all 
 the necessary facts.
 
 APPENDIX G. 745 
 
 3. The statute requires as to couplers that the apparatus on each end 
 
 of every car shall be in operative condition. 
 
 4. In order to constitute a violation of the Saftey Ajjpliance Act, the 
 
 car must be moved in a defective condition. 
 
 5. Where a car, which had been at rest at a station for a period of 
 
 time, is taken out upon the road in a defective condition, the car- 
 rier is liable for the penalty, and it is wholly immaterial whether 
 the defendant knew of the defect or could have ascertained its con- 
 dition by the exercise of reasonable care; in such a case the carrier 
 must find the defect at its peril. 
 
 STATEMENT OF FACTS. 
 
 This was an action brought by the United States to re- 
 cover three penalties of $100 each alleged to have been 
 incurred by the defendant in hauling on November 12. 1906, 
 Lehigh Valley car No. 83759, November 13, 1906, Lehigh 
 Valley car No. 69609, and on September 26, 1906, its own No. 
 49786, from AUentown, Pa., with the coupling and un- 
 coupling apparatus on one end of each car in a defective 
 condition, in that the lock pin or lock block was disconnected 
 from the uncoupling lever. Two Government inspectors of 
 safety appliances found these cars in the defendant's yard 
 at AUentown and after at least half an hour's iDterval the 
 defendant hauled the cars in the defective condition. The 
 defendant offered evidence that in the ordinary course of 
 its business it had inspectors whose duty it was to inspect 
 cars moved by it and if any defects were found such defects 
 were noted in an inspection book kept for that purpose ; that 
 it had examined these books and found no entry of any 
 defect having been found or repaired. 
 
 J. Whitaker Thompson, United States attorney; John 
 C. SwARTLEY, assistant United States attorney; Luther M. 
 Walter, special assistant United States attorney for plaintiff. 
 
 James F. Campbell, esq., for defendant. 
 
 Hon. John B. McPherson, Judge (charging jury) : 
 
 Gentlemen of the jury: This is an action brought by the 
 United States, as no doubt you understand, to recover the
 
 746 
 
 FEDERAL SAFETY APPLIANCE ACT. 
 
 sum of $300, being a penalty of $100 for the use by the 
 defendant company of each of three cars, which it is said 
 were defectively equipped in violation of the act of Congress 
 which is ordinarily known as the Safety Appliance Act. There 
 is only one portion of it to which your attention need be 
 directed, and that is the second section of the act, which 
 provides, in substance, that no common carrier may haul or 
 permit to be hauled or used on its line any car used in mov- 
 ing interstate traffic not equipped with couplers coupling 
 automatically by impact and which can be uncoupled with- 
 out the necessity of men going between the ends of the cars. 
 The meaning of that section is clear enough. The direction 
 of Congress is, that any common carrier, such as a railroad, 
 must equip its cars so that there shall be at both ends a 
 coupler which will couple automatically by impact when it 
 comes in contact with another car, and which may be un- 
 coupled also from the side without the necessity of a man 
 going between the ends of the two cars in order to perform 
 that operation. That requires that each car taken separately 
 shall be complete, completely equipped; that is to say, it re- 
 quires that the couplers at both ends shall be in good order. 
 It is not sufficient, under this act of Congress, that one 
 coupler should be in good order and the other should be de- 
 fective, although it appears from the testimony in the case 
 that under certain circumstances even if one of the couplers 
 is defective the process of coupling may nevertheless take 
 place, provided the coupler upon the car with which the de- 
 fective car comes in contact is in good order. If the two 
 ends that come together were both out of order, then the 
 coupling could not take place automatically, but if one of 
 them is in good order while the other is not, then, under cer- 
 tain circumstances, the coupling may take place automatically 
 just the same as though both cars were thoroughly equipped. 
 But, however that may be, the act of Congress does not 
 permit such a situation to exist. It requires that each car 
 taken by itself shall have the couplers at both ends in good
 
 APPENDIX G. 
 
 747 
 
 order, so that at each end the coupler may perform its ser- 
 vice in the manner directed by this statute — that is to say, 
 automatically by the impact of the two cars. And it also 
 requires that the couplers shall be in such order that the 
 cars may be uncoupled without the necessity of somebody 
 going between the cars; that is done by the use of levers. 
 In some instances the lever comes entirely across the ends of 
 the car, so that at whichever side the brakeman or employee 
 happens to be standing he may perform whatever operation 
 is necessary for the purpose of uncoupling. On some of the 
 cars, perhaps the most of them, as the testimony would seem 
 to indicate, I believe it is only upon one side, and then, of 
 course, they can only be used from that side, but neverthe- 
 less they can be so used. That is the provision of the statute. 
 Of course, you will see at once — perhaps you have seen 
 already, if you have been thinking at all about the case — 
 that some difficult questions might arise as to when common 
 carriers might be liable, and it is very easy to conceive of 
 situations in which it would be hard to hold them liable 
 under the strict letter of the law. For example, suppose a 
 oar started from the point of shipment in perfectly good 
 order, and then through no fault of the carrier something 
 happened to the coupler while the journey was in progress. 
 Of course, under the strict letter of the law every minute 
 the car was in use after that time there would be a violation 
 of the law; but, I say, that would present a hard case, and 
 if the carrier, under the proper construction of this statute, 
 is liable under such circumstances, of course, there is a certain 
 hardship about the situation. But we have nothing to do 
 with a case of that kind. That may safely be left to be 
 dealt with when the time comes. I give you that as an illus- 
 tration, and others might be easily thought of. We are 
 dealing with the particular situation disclosed by the evi- 
 dence, and the jury must confine itself to that, as I intend 
 to do in what I have to say to you. 
 
 Here is a case where a certain number of cars, constituting
 
 74S 
 
 FEDERAL SAFETY APPLIANCE ACT. 
 
 a train used in interstate traffic — and about that matter there 
 is no 'Controversy — are at rest for a certain len^h of time; 
 in all cases for more than an hour, in some cases for, I think, 
 several hours; but, at all events, in all of these three cases 
 at rest for more than an hour, and therefore affording an 
 opportunity for inspection for the discovery of defects in 
 these automatic couplers. In a case like that I instruct you 
 that it is the carrier's duty to find any defects that may 
 exist, and if the carrier fails to find them, then the carrier 
 is liable for the penalty imposed by the statute; because if 
 the train is used afterwards with the coupler out of order, 
 then, of course, under the precise letter of the statute, the 
 carrier is using a coupler that can not be coupled automatic- 
 ally by impact or can not be uncoupled without somebody 
 going between the cars, or perhaps neither operation can 
 be performed as the statute contemplates. In other words, 
 the question of diligence or carefulness on the part of the 
 carrier in inspecting the cars has nothing at all to do with 
 the matter now before you. The obligation is laid upon the 
 carrier by the statute to find, in effect, any defect that may 
 exist, when it has, as it had under these circumstances, the 
 opportunity to discover it ; and if its inspectors do not dis- 
 cover it, then the carrier is liable for those defects and for 
 the penalty that is imposed for the use of the car having 
 such defects. 
 
 That leaves, therefore, for your consideration, in each 
 of these three cases the question of fact whether these cars, 
 or either of them, were defective. You have heard the two 
 inspectors in the service of the Interstate Commerce Com- 
 mission upon that point, and there is other testimony of- 
 fered by the defendant carrier which would tend to show 
 that they were mistaken, and you will have to determine 
 what is the fact. They may, perhaps, have mistaken some 
 other car for the one that is spoken of here, or they may 
 not have discovered the things that they said they did dis- 
 cover; instead of Ihc couplers being out of order, they may
 
 Ai-ir-KMOiX ii. 
 
 7-19 
 
 have been in order ; and those are questions of fact which 
 I submit to the jury for their determination. 
 
 There are three sej^arate charges here, and it is in the 
 power of the jury, as they may find the evidence to indicate, 
 to find either that the carrier should pay a penalty of $300 
 or of $200 or of $100, or that it should pay nothing, accord- 
 ing as they may find that one or more of these cars were 
 defective or as they may find that they were all in the order 
 contemplated by the statute. 
 
 There is this further to be said : This is what is called 
 a penal statute; that is to say, it is a statute that imposes 
 a penalty. It is not a statute that makes a criminal prose- 
 cution or requires a criminal prosecution, or permits, in- 
 deed, a criminal prosecution for the violation of its pro- 
 visions, but it imposes a money penalty. The rules that 
 apply, therefore, in the criminal court do not appl>' here. 
 It is not necessary that the United States should prove its 
 case beyond reasonable doubt. As you very well understand, 
 that is the measure of proof that is required in a criminal 
 case. It does not apply here. The United States has the 
 burden of proof upon it in order to make out its ease. It 
 has the burden of proof from the beginning to the end of 
 it. It never shifts. It is bound to make out its case, and it 
 is bound to make it out by evidence that is clear and satis- 
 factory to the jury. That is the obligation that is laid upon 
 it. Not by evidence which is of that high degree which 
 we describe when we say evidence beyond reasonable doubt, 
 but it is bound to make it out by such evidence as is clear 
 and satisfactory, and by that degree of proof to make out 
 all the elements which go to constitute the charge. If the 
 United States has failed to come up to that standard, then 
 it has failed in this case as to one or more or all of these 
 particular charges, because that obligation rests upon it. 
 
 That. I believe, constitutes all the instructions that I 
 need give you with regard to this ease. They cover, so far 
 as I can see, all the points upon which I have been asked
 
 750 FEDERAL SAFETY APPLIANCE ACT. 
 
 to give 3^ou specific instructions, and I therefore need not 
 confuse you by reading them over and answering them 
 specially. 
 
 The jury rendered a verdict in favor of the United 
 
 States for $300. 
 
 UNITED STATES v. PENNSYLVANIA RAILROAD 
 
 COMPANY. 
 
 (Motion for new trial, reported at 1G2 Fed. Eep. 408.) 
 
 (In the District Court of the United States for the Eastern District of 
 
 Pennsylvania.) 
 
 December Term, 1906. 
 
 Decided March 18, 1908. 
 
 1. An action brought to recover the penalty provided for in the Safety 
 
 Appliance Act is not a criminal case. 
 
 2. The Government need not prove its case beyond a reasonable doubt; 
 
 it is sufficient if it furnishes clear and satisfactory evidence of all 
 the necessary facts. 
 
 3. The statute requires as to couplers that tlie apparatus on each end 
 
 of every car shall be in operative condition. 
 
 4. In order to constitute a violation of the Safety Appliance Act, the 
 
 car must be moved in a defective condition. 
 
 5. Where a car, which had been at rest at a station for a period of 
 
 time, is taken out upon the road in a defective condition, the car- 
 rier is liable for the penalty, and it is wholly immaterial whether 
 the defendant knew of the defect or could have ascertained its con- 
 dition by the exercise of reasonable care; in such a case the carrier 
 must find the defect at its peril. 
 
 STATEMENT OF FACTS. 
 
 This is an action brought by the United States to re- 
 cover a penalty of $100 on ace-ount of an alleged violation 
 of the safety-appliance act. 
 
 Inspectors of the Interstate Commerce Commission 
 testified that defendant hauled Boston & Albany car No. 
 12485 from West Philadelphia when the lock set was dis-
 
 APPENDIX G. 751 
 
 connected from the lock block on one end of the car and 
 hung loose on the lift chain. All the parts were present, 
 but were not coupled together, so that the lever was in- 
 operative and the car could not be uncoupled without a man 
 going between the cars for that purpose. The defendant of- 
 fered evidence that it had inspectors whose duty it was to 
 examine and repair defects; that when defects were found 
 an entry was made in the inspectors' book; that as to this 
 particular car no entry of repairs or defects had been made. 
 
 J. Whitaker Thompson, United States attorney; John 
 C. SwABTLEY, assistant United States attorney; Luther M. 
 Walter, special assistant United States attorney, for the 
 plaintiff. 
 
 John Hampton Barnes, esq., for the defendant. 
 
 McPherson, Judge, (charging jury). 
 
 Gentlemen of the jury: Some of you, perhaps all of 
 you, have already taken part in similar trials, but, at all 
 events, you have listened to them, and it is almost super- 
 fluous for me to go over what I have already said two or 
 three times. Nevertheless, I will say very briefly what ought 
 to be said with reference to the present case. 
 
 There is just one charge here against the Pennsylvania 
 Railroad. It is charged with having out of order one safety 
 appliance upon a ear in its possession. It was not one 
 of its own cars; it was a car belonging to the Boston 
 & Albany Railroad ; nevertheless, that makes no difference. 
 As you know, railroads are continually interchanging 
 ears; and the act of Congres-s makes no difference 
 between cars that are owned by a railroad and cars 
 that come upon its system and are hauled by it over 
 its rails. If a car is not in proper operative- condition, it 
 is the duty of the railroad to refuse to receive it, as it has 
 a perfect right to do. After receiving it, it is just as much
 
 752 FEDERAL SAFETY APPLIANCE ACT. 
 
 bound by its condition as if it were its own own car from 
 the beginning. The question of fact here for your deter- 
 mination, about which there is conflicting evidence, is the 
 condition of this car, whether or not it was out of order, 
 whether or not it was out of operative condition, and that 
 is a question of fact that you must resolve. If the car was 
 in order, if the car wais in such a condition that it complied 
 Avith the statute, cf course, there has been no offense com- 
 mitted. The second section of this act under consideration 
 requires that the cars shall be so fitted with safety appliances 
 that when the two cars come together there shall be an 
 automatic coupling, by the mere fact of their coming to- 
 gether, the impact of their coming together, the coupling 
 shall be done automaticalh^ and it also requires that there 
 shall be a device by Avhich uncoupling may be performed 
 without the necessity of sending a man between the cars to 
 perform that operation or to assist in it. That is done 
 necessarily through the use of a lever, sometimes of a lever 
 that runs across the entire end, and sometimes of a lever 
 that runs only halfway across, and is as has been testified 
 to you, always upon the left-hand side of the car as one 
 faces it. Either lever complies with the provision of the 
 statute. 
 
 Therefore, was this car in that condition? You have 
 heard the testimony of the witnesses upon the stand, the 
 two inspectors who are in the service of the Interstate Com- 
 merce Commission, and have testified to you what they say 
 they found. You have heard the testimony of the other 
 witnesses with regard to inspection, such inspection as was 
 made by the Pennsylvania Railroad Company, and from 
 the testimony from both sides, taken together, you must de- 
 termine whether this car was in operative condition as re- 
 quired by the statute. I have just explained to you what is 
 required. If it was in that condition, then, as a matter of 
 course, the defendniit lias not committed any offense for 
 which a i)enalty could be imposed. It is necessary that both
 
 APPENDIX G. r.).) 
 
 ends of every car should be completely equipped with de- 
 vices that are in operative condition. It is not enough 
 that one end shall be in good order and the other 
 end not in good order. Both ends, under the statute 
 as I construe it, must be in good worliing condition. 
 It is the duty of the United States in this suit also 
 to satisfy you by clear and satisfactory evidence that 
 these devices, or one of them, were out of order. The 
 burden of proof is upon the United States, and it 
 rests upon it throughout the course of the trial. It is 
 not bound to show to you beyond reasonable doubt, as would 
 be the case if we were trying an indictment in a criminal 
 case — if this defendant was here on a criminal charge. I 
 say it is not necessary that the measure of proof should 
 rise to that degree, beyond reasonable doubt, but it is neces- 
 sary, this being an action for a penalty that the United States 
 should take up the burden and carry it, showing by clear and 
 satisfactory evidence that all the elements in this offense 
 were present. If the testimony, therefore, is not of that 
 quality, the United States has failed, and your verdict would 
 have to be for the defendant. 
 
 Let. me say also that there is no question in the case 
 for your consideration concerning the measure of care or 
 diligence that the defendant may have exercised with re- 
 gard to inspection. In my construction of the statute, that 
 is not a matter which the act of Congress makes necessary 
 for consideration. As I understand the law. Congress has 
 required a common carrier engaged in interstate commerce 
 to see that these devices are in order under conditions such 
 as are here before us. I am not speaking now of accidents 
 that might happen to them while they were in the course 
 of transportation, when it would be impossible for anj^body 
 to know that they were out of order or to repair them, but 
 I am speaking of a condition that may exist while the cars 
 are at rest and when an opportunity is afforded for the 
 process inspection. That was the case here, according to 
 the undisputed evidence. This car and the train of which
 
 754 FEDERAL SAFETY APPLIANCE ACT. 
 
 it was part lay at the Mantua yards for some hours — I do 
 not know for how long exactly— the precise time is not im- 
 portant, but an opportunity was afforded, at all events, for 
 inspection. That being so, in my construction of the statute, 
 the duty rested upon the carrier to find any defect that 
 existed, and if the defect was there and the carrier failed 
 to find it, it would be liable to the penalty, even although 
 it made an inspection and made it by careful men, who per- 
 formed their duty according to the best of their ability. The 
 fact that they failed to find it would, while perhaps not a 
 fault in one sense, nevertheless expose the carrier to the 
 penalty. So that the whole case depends upon what you find 
 the question of fact to be. Was this car out of operative 
 condition at the time testified to by the witnesses? I repeat, 
 the burden of proof is on the Government to show you by 
 clear and satisfactory evidence that it was out of order at 
 one or both ends, and if the Government has not so satisfied 
 you. then your verdict must be for the defendant. If, 
 however, it has satisfied you that this was out of order, that 
 one or both ends, of this coupling device were out of order, 
 then your verdict should be in favor of the United States 
 for the sum of $100. 
 
 The jury rendered a verdict in favor of the United States 
 for $100. 
 
 UNITED STATES v. TERMINAL RAILROAD ASSOCIA- 
 TION OF ST. LOUIS. 
 
 (In the District Court of the United States for the Eastern District of 
 Missouri, Eastern Division.) 
 
 Decided June 3, 1908. 
 
 (Syllabus by the court.) 
 
 1. An action brought to recover a penalty under the Safety Appliance 
 Act is civil.
 
 APPENDIX G. 
 
 755 
 
 2. It makes no difference under the law whether the chains were broken 
 actually in the links or were disconnected; they were in point of 
 fact inoperative, and if the railroad company permitted the cars 
 to be hauled while the couplers were inoperative, then under the 
 statute it is guilty. 
 
 The Interstate Commerce Commission lodged with the Uni- 
 ted States attorney information showing four violations of 
 the safety-appliance law by the Terminal Railroad Associa- 
 tion of St. Louis. Defendant made general denial as to all 
 the counts and offered evidence to show that the cars were 
 equipped with automatic couplers, but the chains connecting 
 the lock pins to the uncoupling levers were disconnected and 
 needed only to be connected to make the appliance available. 
 
 Henry W. Blodgett, United States attorney; Truman 
 P. Young, assistant United Spates attorney, and Ulysses 
 Butler, special assistant United States attorney, for the 
 United States. 
 
 Edwin W. Lee for defendant. 
 
 David P. Dyer, District Judge (charging jury) : 
 
 Gentlemen of the jury, this is a proceeding brought by 
 the United States district attorney against the Terminal 
 Railroad Association of St. Louis to recover the sum of $400. 
 There are four counts in the complaint. It is a civil action, 
 provided by statute for such cases. It is based upon section 
 2 of an act to promote the safety of employees and travelers 
 upon railroads by compelling common carriers engaged in 
 interstate commerce to equip their cars with automatic 
 couplers and continuous brakes and their locomotives with 
 driving-wheel brakes, and for other purposes. That act was 
 approved ]\Iarch 2, 1893, and amended by an act of April 
 1, 1896. The first and second sections of the act are as 
 follows :
 
 756 FEDERAL SAFETY APPLIANCE ACT. 
 
 That from ana after the first day of January, 1898, it shall be un- 
 lawful for any common carrier engaged in interstate commerce by rail- 
 road to use on its line any locomotive engine in moving interstate traf- 
 fic not equipped with a power driving-wheel brake and appliances 
 for operating tlie train-brake system, or to nm any train in sucli traffic 
 after said date that has not a sufficient number of cars in it so equipped 
 with power or train brakes that the engineer on the locomotive drawing 
 such train can control its speed witliout requiring brakemen to use the 
 common hand brake for that purpose. 
 
 Section 2 of the act under which this complaint is made 
 is as follows: 
 
 That on and after the first day of January, 1808, it shall be unlawful 
 for any such common carrier to haul or permit to be hauled or used on 
 its line any car used in moving interstate traffic not equipped with 
 couplers coupling automatically by impact, and which can be uncoupled 
 without the necessity of men going between the ends of the cars. 
 
 Section 6 of the act provided: 
 
 That any such common carrier using any locomotive engine, running 
 any train, or hauling or permitting to be hauled or used on its line any 
 car in violation of any of the provisions of this act, shall be liable to 
 a penalty of one hundred dollars for each and every such violation, to 
 be recovered in a suit or suits to be brought by the United States Dis- 
 trict Attorney in the District Court of the United States having juris- 
 diction in the locality where such violation shall have been committed. 
 
 The fact is conceded that these cars were engaged in in- 
 terstate traffic. The cars were destined to New York and 
 Philadelphia, received here over some railroad from Kansas 
 City. So there is no question about the cars being engaged 
 in interstate traffic. 
 
 Congress has seen proper to enact this statute, made for 
 the purpose of protecting from injury the employees. As 
 to the wisdom of the act you, nor I, have nothing to do. 
 It is the law of the land. It is charged in the first count 
 of this petition (and each of the other counts is the same, 
 with the exception of the cars named in the respective 
 counts) that on or al)()iit the 8th day of May. 1007. defendant 
 hauled th(! said car with said interstate traffic over its line 
 of railroad from St. Louis, within the State of Missouri,
 
 APPENDIX G. 757 
 
 within the jurisdiction of this court, when the coupling and 
 uncoupling apparatus on the "A" end and the "B" end 
 of such car was out of repair and inoperative, the chains 
 connecting the lock pins or lock blocks with the uncoupling 
 levers being broken on said ends of said car. 
 
 The main charge here is that the cars were in a condition 
 which made them inoperative under the provisions of this 
 act, and I charge you that it makes no difference whether the 
 chains were broken in fact in the links of the chain or were 
 merely disconnected. It was the duty of the railroad com- 
 pany and its employees to see that those chains were in 
 condition so that they could be used as this act contemplates. 
 They should be in such condition that they could be used 
 without necessitating a man going in between the cars. I 
 fail to find any difference, under the provisions of this act, 
 between a chain that happens to be broken in a link and 
 a chain that is uncoupled and inoperative. 
 
 You heard the testimony that was given here yesterday. 
 One witness testified that some of these chains were broken 
 and some were disconnected. Another witness testified that 
 he did not discover the broken chains, but did discover that 
 they were disconnected. The witnesses for the defendant 
 testified that the chains were not broken but were all dis- 
 connected. There is no dispvite, therefore, that the chains 
 were uncoupled; and it makes no difference under the law 
 whether the chains were broken actually in the links or 
 were disconnected; they were, in point of fact, inoperative, 
 and if the railroad company permitted them to be used while 
 they were inoperative, then under this statute it is guilty. 
 
 I therefore charge you that under all the evidence in this 
 case the plaintiff is entitled to recover on each count of its 
 complaint in the sum of $100, and the court instructs you 
 ihat under the law and the evidence and the pleading you 
 must return a verdict in favor of the plaintiff in the sum of 
 $100 on each of the four counts of the complaint.
 
 758 
 
 FEDERAL SAFETY APPLIANCE ACT. 
 
 THE UNITED STATES v. ATCHISON, TOPEKA & 
 SANTA FE RAILWAY COMPANY. 
 
 (In the District Court of the United States for the Southern District 
 of California.) 
 
 (Syllabus by the court.) 
 
 1. The Federal Safety Appliance Act requires carriers subject to the 
 
 act to find at their peril and repair defects in the safety appliances 
 embraced within the act. If a carrier fails to find and repair such 
 defects it is liable for the statutory penalty. 
 
 2. It is incumbent upon the Government to make out its case by clear 
 
 and satisfactory evidence. 
 
 Oscar La\\t,er, United States attorney; Aloysius I. INIc- 
 CoRMiCK, assistant United States attorney, and Roscoe F. 
 Walter, special assistant Uyiited States attorney, for 
 plaintiff. 
 
 E. W. Camp, for defendant. 
 
 Bedded June 6, 1908. 
 
 Wellborn. District Judge (charging jury) : 
 
 Gentlemen of the jury: The circumstances of this case 
 do not call for nor admit of any protracted or elaborate 
 statement or explanation of legal principles, and I shall not 
 needlessly consume time, therefore, in preparing written 
 charges. Indeed, I think that the mere reading of the pro- 
 visions of the safety-appliance act of Congress, on which 
 the Government relies for recovery in this case, will enable 
 you intelligently to perform your duties as jurors and pass 
 upon the facts. I will suggest to you what those duties are, 
 and indicate the correct method of their performance. 
 
 The act of Congress in question seems to have been passed 
 in 1893 — the amendment. The fir.st section is as follows:
 
 APPENDIX G. 
 
 759 
 
 Be it enacted by the Senate and the House of Representatives — 
 
 I will only read the pertinent portions of the section to 
 you — 
 
 Be it enacted by the Senate and the House of Representatives of the 
 United States of America in Congress assembled That from and after 
 the first day of January, eighteen hundred and ninety-eight, it shall be 
 unlawful for any common carrier engaged in interstate commerce by 
 railroad to use on its line any locomotive or engine, in moving inter- 
 state traffic, not equipped with a power driving-wheel brake. 
 
 Sec. 2. That on and after the first day of January, eighteen hundred 
 and ninety-eight, it shall be unlawful for any such common carrier to 
 haul, or permit to be hauled, or used on its line, any car used in moving 
 interstate traffic, not equipped with couplers coupling automatically by 
 impact, and which can be uncoupled without the necessity of men going 
 between the ends of the cars. 
 
 Sec. 4. That from and after the first day of July, eighteen hundred 
 and ninety-five, or until otherwise ordered by the Interstate Commerce 
 Commission, it shall be unlawful for a railroad company to use any car 
 in interstate commerce that is not provided with grab irons or hand- 
 holds in the ends and sides of such car, for the security of the men in 
 coupling and uncoupling cars. 
 
 Sec. 6. That any such common carrier using any locomotive engine 
 running any train, or hauling or permitting to be hauled or used on its 
 line any car in violation of any of the provisions of this act, shall be 
 liable to a penalty of one hundred dollars for each and every sucli vio- 
 lation, to be recovered in a suit or suits to be brought by the United 
 States District Attorney of any District Court of the United States 
 having jurisdiction of the locality where such violation shall have been 
 committed. It shall be the duty of said District Attorney to bring suits 
 upon duly verified, etc. 
 
 Those provisions that I have read are the pertinent pro- 
 visions of the law. 
 
 There is no controversy that the defendant, at the times 
 mentioned in the complaint, was a common carrier engaged 
 in interstate commerce by railroad, and that the engines and 
 cars mentioned in said complaint were used in hauling and 
 moving interstate traffic, and the only questions for you to 
 determine are whether or not the appliances on the engines 
 and cars mentioned in the complaint were out of order, as 
 alleged in the complaint. Whether or not the defendant 
 inspected said engines and cars, and was diligent and care- 
 ful in inspecting them, is not a matter you need concern 
 yourselves about. The act requires defects in the appliances 
 to be found at the peril of the company, and if it fails to 
 find them the company is responsible for the penalty. If
 
 760 FEDERAL SAFETY APPLIANCE ACT. 
 
 the Government has not made out its ease by clear and satis- 
 factory evidence your verdict should be for the defendant. 
 If, however, you are satisfied from the evidence that either 
 of said engines or cars was not equipped with the appliances 
 required by the acts of Congress to which* I have called 
 your attention, or that such appliances were defective and 
 inoperative, then such engine or car was out of order in 
 that particular respect, and your verdict on the count re- 
 lating thereto should be for the Government. You can find 
 for the plaintiff or defendant on any one or more or all 
 of the counts, as the evidence seems to you to require. 
 Verdict for plaintiff. 
 
 UNITED STATES v. THE CINCINNATI, HAMILTON 
 & DAYTON RAILROAD COMPANY. 
 
 (In the District Court of the United States for the Northern District 
 
 of Ohio.) 
 
 Decided June 2J,, 1908. 
 
 (Syllabus by the court.) 
 
 The Federal Safety Appliance Law lays an unqualified duty upon a 
 railroad company subject to the act to keep its coupling devices in 
 a certain condition (Railroad Company v. Taylor, Administratrix, 
 210 U. S. 281), and when an employe of such company deliberately 
 puts such devices in another condition, which condition the law un- 
 dertakes to prevent, then the company is required to respond under 
 the penalty for tlie unlawful act of its employe. 
 
 WiLLLVM L. Day, United States attorney, John S. Pratt, 
 assistant United States attorney, and Roscoe F. Walter, 
 special assistant United States attorney, for the United 
 States. 
 
 Julian H. Tyler, for defendant.
 
 APPENDIX G. 
 
 STATEMENT OP FACTS. 
 
 761 
 
 The defendant company was charged with hauling upon 
 its railroad its own engine No. 90 when it was not equipped 
 in compliance with the Federal safety-appliance law, in that 
 the uncoupling lever was missing from the "A" end of the 
 engine. The defense was made that inasmuch as the un- 
 coupling lever had been removed by the employees of the 
 defendant company for some reason best known to them- 
 selves and without the order or consent of the company, 
 it should not be held to answer for such act of its employees, 
 because the very object of the act under which this suit is 
 brought is to secure the safety of such employees. 
 
 U. S. V. C, H. & D. R. R. 00. 
 
 OPINION. 
 (On motion by plaintiff for judgment on the pleadings.) 
 
 Tayler, District Judge (orally) : 
 
 I suppose that the administration of this law must of ne- 
 cessity be attended with a certain amount of strictness of 
 construction, and, in many cases, of hardship. It is practical 
 results which the act seeks to accomplish. It seeks to insure 
 the safety of employees, in so far as that may be accomplished 
 by regulating coupling devices and grab-irons. It is per- 
 fectly conceivable that in four cases out of five the condi- 
 tion in which the grabiron or the coupling device is found 
 may be due to the carelessness or willful act of one of the 
 very class of employees whose safety is sought by the legis- 
 lation. Where an act lays the unqualified duty upon a rail- 
 road company to keep its coupling devices in a certain con- 
 dition and one of its employees deliberately puts it in another 
 condition, which is a condition that the law undertakes to 
 prevent, then the corporation is required to respond, under 
 this penalty, for the unlawful act of its employees.
 
 762 FEDERAL SAFETY APPLIANCE ACT. 
 
 I do not see how we can escape the rule of law which 
 makes the corporation responsible for the acts of its em- 
 ployees, because it is only through employees as its repre- 
 sentatives that it can act at all. From the standpoint of 
 practical administration of the law, it would be practically 
 impossible to administer it if it should be held that it was 
 a defense to a charge that the coupling devices were not in 
 the condition which the law requires, or that a grabiron was 
 in a condition that was unlawful, that such condition was 
 due to the act of one of a class of employees for whose bene- 
 fit and protection this legislation was enacted, and the cor- 
 poration Avas therefore not liable. If that was true, the 
 statute would be in many cases practically inoperative. 
 
 If I catch the spirit of this law as that spirit has been 
 declared, especially in this latest ease decided by the Su- 
 preme Court on the 18th of May (Railroad Co. v. Taylor, 
 admx.), then certainly it must be said that the fact that the 
 condition in which the lever which ought to be attached to 
 a coupling device is found, is due to the willful act of an 
 employee, yet since th'6 result is the failure to perform an 
 unqualified duty laid upon the railroad company by Congress, 
 it must be said to be a violation of the law. 
 
 It will be necessary to sustain the motion for judgment 
 on the pleadings, and an exception will be noted. 
 
 UNITED STATES v. ATCHISON, TOPEKA & SANTA 
 FE RAILWAY COMPANY. 
 
 (In the United States District Court for tlie Northern District of 
 
 California.) 
 
 [167 Fed. 696.] 
 
 Decided December 1, J90S. 
 
 (Syllabus apiM'ovxid by the court.) 
 
 1. If a carrier liauls over its line any cars wliich can nol be coupled 
 aubomatically by impact, either by reason of being improperly
 
 APPENDIX G. 763 
 
 equipped, or the equipment being out of order, or disconnected, or 
 otherwise inoperative, the act is in violation of the Safety .Appli- 
 ance law. 
 
 2. The Safety Appliance statute applies to the coupler on each end of 
 
 every car subject to tlie law, and it is wholly immaterial in what 
 condition was the coupler on the adjacent car, or on any other car 
 or cars, to wliich eacli car sued upon was or was to be coupled. 
 
 3. Carriers are required immediately to repair defects in cars caused 
 
 during the time they are being hauled, if they can do so 
 with the means and appliances at hand at the time and place, or 
 when such condition should have been discovered by the exercise 
 of reasonable care. If requisite means are not at hand, carriers 
 have the right, without incurring the penalty of the law, to haul 
 the defective car to the nearest repair point on their line. But if 
 they haul such car from a repair point, they are liable for the stat- 
 utory penalty. 
 
 4. It is the duty of the carrier, subject to the Safety Appliance Acts, 
 
 to establish reasonable repair points along its line for the making 
 of repairs of the kind necessary to comply with the law. At such 
 repair points there should be the material and facilities to make 
 all such repairs. 
 
 Alfred P. Black, Assistant United States attorney, and 
 Monroe C. List, special assistant United States attorney, 
 for the United States. 
 
 C. L. Brown and Horace Pillsbury, for the defendant. 
 
 INSTRUCTIONS TO JURY. 
 
 De Haven, District Judge (charging jury) : 
 
 You are instructed that section 2 of the safety-appliance 
 act imposes upon the defendant an unqualified duty to 
 equip its cars with couplers coupling automatically by im- 
 pact, and which can be uncoupled without the necessity of 
 men going between the ends of the cars: and if the defend- 
 ant hauled over its lines of railroad any cars which could 
 not be so operated, either by reason of being improperly 
 equipped, or by reason of the original equipment being out 
 of order, or disconnected, or otherwise inoperative, your 
 verdict should be for the Government as to each and every 
 car so hauled.
 
 764 FEDERAL SAFETY APPLIANCE ACT. 
 
 You are instructed that section 2 of the safety-appliance 
 act applies to the coupler on each end of every car subject 
 to the law, and it is wholly immaterial in what condition was 
 the coupler on the adjacent car, or on any other car or cars, 
 to which each car sued upon was or was to be coupled. The 
 equipment on each end of every car must be in such condi- 
 tion that whenever called upon for use it can be operated 
 without the necessity of men going between the ends of 
 the cars. 
 
 You are instructed that in actions arising under the safety- 
 appliance act the Government is only required to prove by 
 a fair preponderance of the evidence the existence of the 
 defects as set out in the complaint. 
 
 If from the evidence you find that the cars, or either of 
 them, described in the petition, or in some count thereof, 
 were equipped with the requisite couplers and grab irons, 
 and that they Vv^ere in the condition required by the law 
 when they were received by the defendant to be hauled 
 over its line of railroad as stated, but during the time they 
 were being so hauled the couplers or grab irons from any 
 cause became injured or out of repair upon any of the ears 
 so that they were not in an operative condition, then the 
 defendant would be required to immediateh' repair said de- 
 fects and put the appliances in operative condition if it 
 could do so with the means and appliances at hand at the 
 time and place when and where it discovered their defective 
 and inoperative condition, or when such condition should 
 have been discovered by the exercise of reasonable care on 
 the part of its agents or servants charged with that duty. 
 But if it did not at such time and place have the requisite 
 means or appliances at hand to remedy such defect and put 
 the couplers and grab irons in operative condition, then it 
 would have the right, without incurring the penalty of the 
 law, to haul such cnr or cars to the nearest repair point on 
 its line where such defects could be repaired and the appli- 
 ances put in operative condition. But if such defective or 
 inoperative condition of the couplers and grab irons existed 
 at a repair point on defendant's line or at a place where
 
 APPENDIX G. 765 
 
 such defects could have been remedied, then if it hauled 
 said cars from such place in such condition it would do so 
 at its peril and be liable for the statutory penalty for so 
 hauling or using such car described in any count of the 
 petition. 
 
 You are instructed that it is the duty of a railroad com- 
 pany, subject to the provisions of the safety appliance act, 
 to establish reasonable repair points along its line of railway 
 for the making of repairs of the kind necessary to comply 
 with the law; that is to say, repair points at places where 
 they are reasonably required; that it is also the duty of 
 such railroad company to have on hand at such repair points 
 the material and facilities necessary to make all such repairs, 
 and that such railway company must use reasonable fore- 
 sight in providing material and facilities for such purpose; 
 and if the jury believes that the defendant hauled any car 
 defective as to safety appliances over its line of railroad 
 from any such repair point, where by the exercise of rea- 
 sonable diligence and foresight such repairs could have been 
 made, your verdict should be for the Government as to each 
 and every car so hauled. 
 
 You are instructed that if the defendant hauled any car 
 over its line of railroad from or through any point in a de- 
 fective condition, it is wholly immaterial that the defendant 
 had no shops, material, or facilities for repairing the defects 
 at that place, if it can be shown that said ear had started 
 from a repair point upon the line of defendant's railroad 
 in the same defective condition, and where such repairs could 
 have been made had the defendant exercised reasonable dili- 
 gence and foresight in providing such repair point with the 
 proper material and facilities for the making of all repairs 
 necessary to comply with the safety appliance act, your ver- 
 dict should be for the Government as to each and every car 
 so hauled. 
 
 Your verdict should be for the Government as to each 
 and every car so hauled upon that state of facts.
 
 766 FEDERAL SAPETY APPLIANCE ACT. 
 
 (The jury returned a verdict for the United States on 
 the second, fourth, fifth, and eighth causes of action, and 
 not being able to agree as to the balance of the counts, was 
 discharged.) 
 
 UNITED STATES v. NEVADA COUNTY NARROW 
 GAUGE RAILROAD COMPANY. 
 
 (In the District Court of the United States for the Northern District 
 of California. ) 
 
 [167 Fed. 695.] 
 
 Decided l^iovemher 28, 1908. 
 
 (Syllabus by the court.) 
 
 1. In an action brought to recover the statutory penalty under the 
 
 Safety Appliance Acts a preponderance of the evidence that 
 the defective car was hauled as alleged is sufficient to charge the 
 defendant. 
 
 2. If the coupling and uncoupling apparatus on a car is so constructed 
 
 that in order to open the knuckle when preparing the coupler for 
 use or in uncoupling the car it is reasonably necessary for a 
 man to place part of his body, his arm, or his leg in a hazardous 
 or dangerous position such car is not equipped as required by 
 section 2 of the Safety Appliance Act. 
 
 STATEMENTS OF FACTS. 
 
 The Interstate Commerce Commission lodged with the 
 United States attorney information showing violations of 
 Safety Appliance Law by the Nevada County Narrow 
 Gauge Railroad Company. The declaration was in two 
 counts, each count charging a violation of section 2 of the 
 statute, the allegation being that the couplers were nut of 
 repair and inoperative. 
 
 Alfred P. Black, assistant United States attorney, and 
 Monroe C. List, special assistant United States attorney for 
 the United States. 
 
 Fred Searls, for defendant.
 
 APPENDIX G. 767 
 
 INSTRUCTIONS TO JURY. 
 
 DeHaven, District Judge (charging jury) : 
 
 The statute under which this suit is being prosecuted 
 makes it unlawful for any common carrier engaged in inter- 
 state commerce "to haul or permit to be hauled or used 
 on its line any car used in moving interstate traffic not 
 equipped with couplers coupling automatically by impact 
 and which can be uncoupled without the necessity of men 
 going between the ends of the cars." 
 
 The complaint in this case charges the defendant with a 
 violation of this statute, and the question is for you to de- 
 termine ; it is a simple question of fact for you to determine. 
 
 The jury is instructed that if it' believes from a prepon- 
 derance of the evidence that the defendant hauled the car, 
 as alleged in the first count of plaintiff's petition, when the 
 coupling and uncoupling apparatus on either end of said 
 car was so constructed that in order to open the knuckle 
 when preparing the coupler for use it was reasonably ne- 
 cessary for a man to place part of his body, his arm, or his 
 leg in a hazardous or dangerous position, then its verdict 
 should be for the Government. 
 
 You are instructed that if you believe from a preponder- 
 ance of the evidence that the defendant hauled the car, as 
 alleged in the first count of plaintiff's petition, when said 
 car was not equipped with couplers coupling automatically 
 by impact and which could be both coupled and uncoupled 
 without the reasonable necessity of a man going between 
 the end sills of said cars, then your verdict should be for 
 the Government. 
 
 There are two counts in this petition. The first one is 
 the only one that is contested ; the second has been admitted 
 by the defendant — that is, there is no defense to it. 
 
 The form of the verdict is: "We, the jury, find for the"
 
 768 FEDERAL SAPETY APPLIANCE ACT, 
 
 plaintiff or defendant, as you believe, on tlie first count of 
 the petition, and for the plaintiff on the second count of the 
 petition. 
 
 Verdict for Government on both counts. 
 
 UNITED STATES v. CHESAPEAKE AND OHIO 
 
 RAILWAY. 
 
 (In the District Court of the United States, Southern District of West 
 
 Virginia.) , 
 
 Decided December 2, 190S. 
 
 1. A suit for the penalty prescribed in section 6 of the federal safety 
 
 appliance act of March 2, 1893, as amended April 1, 1S9G, as 
 amended March 2, 1903, is a civil action, and in such suit to 
 entitle the Governm.ent to recover it is necessary that the facts 
 which constitute a violation of the act be proved by a preponder- 
 ance of the evidence, and not beyond a reasonable doubt. 
 
 2. The statute requires that the coupler on each end of every car 
 
 hauled in a train containing interstate commerce shall be in 
 operative condition as required by the act, and this whether the 
 car be loaded or empty, 
 
 3. In counting the cars in a train to ascertain the percentage of cars 
 
 oouipped with air appliances, as required by the act, the engine 
 and tender are to be counted as separate and distinct cars. 
 
 4. If a railroad company subject to th.e act hauls a car or train in inter- 
 
 state traific not equipped as required by the statute it does so in 
 violation cf the law. 
 
 Elliot Nortiicott, United States attorney; H, Delbert 
 RuMMEL, assistant United States attorney; Roscoe F. Wal- 
 ter, special assistant United States attorney, for plaintiff. 
 
 SiMMS, Enslow, and Fitzpatrick for defendant. 
 
 Keller, District Ju<l<jc (ehari,'ing jury) : 
 
 Gentlemen of the jury, this is a civil action brought by 
 the Government of the United States against the Chesapeake 
 and Ohio Railway ("ompaiiy, under tlie provisions of what
 
 APPENDIX G. 
 
 769 
 
 are known as the "safety appliance acts," to recover pen- 
 alties for the alleged violation of those acts, the declaration 
 or petition containing 17 counts. The first two of which, 
 however, allege in different terms the same violation, and 
 the 5th and 6th of which allege in different terms the same 
 violation ; therefore before this case was submitted to you 
 the Government withdrew from your consideration counts 
 1 and 5 and left the declaration consisting of 15 counts, 
 which are numbered, respectively, from 2 to 4 and 6 to 17. 
 
 There are 15 separate violations of the law charged here. 
 Now, I have but very little to say to you, but I want to 
 give you the legal principles so far as I think should govern 
 your consideration of this case. 
 
 First, I will say that, the action not being criminal, the 
 Government is simply obliged to prove the facts which con- 
 stitute a violation of this act by a preponderance of the 
 evidence, and not, as in criminal actions, beyond all reason- 
 able doubt. 
 
 I also instruct you that upon the question of the safety 
 appliances to wit, couplers upon ears moved by a railway 
 engaged in interstate commerce, that the statute requires 
 the coupler on each end of every car be in operative con- 
 dition, so that a person need not go between the cars to 
 couple or uncouple any two cars, no matter on which side 
 of the train he is. 
 
 It was in evidence in this case that the coupling device 
 on the end of the car, joined to another, in certain instances 
 were out of order, so that that particular coupler could not 
 be operated, and although it may have been true that the 
 coupling device on the other car attached to that could have 
 been operated, it would be from the other side only of the 
 train; and such a condition existing, was a violation of the 
 terms of the act, for which if the ear was being moved in a 
 train carrying interstate commerce the railway company 
 would be liable. 
 
 I also instruct you that the loading of the car is immaterial.
 
 770 FEDERAL SAFETY APPLIANCE ACT. 
 
 It is immaterial whether it be empty or loaded, if it is in- 
 volved in the movement of a train containing interstate 
 traffic, and the Government in the preparation of its de- 
 claration in one or more counts in which that question was 
 involved was careful to allege in such counts that in the 
 train of which this car out of order was a part there was 
 at least one car loaded with traffic consigned to points with- 
 out the State of West Virginia. 
 
 I have been asked to give you certain instructions on be- 
 half of the defendant in the case, one of them being the 
 instruction that I have already embodied in my charge to 
 you, to the effect that it is necessary that the Government 
 prove its case by a preponderance of the evidence. 
 
 I was also asked to instruct you regarding the violations 
 charged in the 2nd count and in the 6th count, that in fixing 
 the number of ears in a train the engine and tender are to 
 be counted as two separate and distinct ears. I think that 
 is correct. The only effect of that would be in determining 
 w^hether a sufficient proportion of cars were equipped with 
 air. under the law as it was introduced in evidence to you. 
 You will recall that in the act it was provided that the In- 
 terstate Commerce Commission might from time to time 
 determine what proportion of a train must be equipped 
 with air brakes under the control of the engineer, the act 
 at the time of its passage fixing 50 per cent, as the minimum 
 proportion of cars to be so equipped; and later under this 
 power of determination the Interstate Commerce Commis- 
 sion, by resolution, raised that minimum to 75 per cent. 
 It is alleged in count 2 and in count 6 that in the 2 .trains 
 referred to in those counts this minimum of' cars operated 
 by the engineer by air power was not reached. In other 
 words, that in one train but 71 per cent, in place of 75 per 
 cent, were so equipped, and the other one, I believe, less. 
 
 Now, I think that is a correct interpretation of the law, 
 that in determining the proportion of cars controlled by 
 air you should count the engine and the tender as 2 of
 
 APPENDIX G. 771 
 
 the cars, they being, unless shown to be otherwise, equipped 
 with air, because the engineer controls the air from the 
 engine. 
 
 However, according to my understanding of the testimony 
 in this case, that would not affect the defendant upon these 
 charges, because according to my recollection of the testi- 
 mony, and you will no doubt recall it, the train referred 
 to in count 2 is alleged to have been composed of 45 cars, 
 exclusive of the engine and tender, of which 13 were not 
 equipped with air so as to be under the control of the en- 
 gineer. Now, adding to the 45 cars the 2 — respectively, 
 engine and tender — you have 47, and 75 per cent, of 47 
 would require that at least 35 cars, including the engine and 
 tender, be so equipped as to be under the control of the 
 engineer for air braking, which would leave 12 as the maxi- 
 mum number that could be without such control. The proof 
 in the case, as I recall it, was that there were 13 cars with- 
 out such control, and if you find that to be the fact the 
 statute was violated. As to the other train referred to in 
 count 6, my recollection is that the percentage of cars 
 equipped with air Avas smaller than in the one I have 
 referred to. 
 
 I have been asked to give you an instruction on behalf 
 of the Government, and I do so accordingly: 
 
 The court instructs the jury that if they believe from the evidence 
 that the defendant company liauled the trains and cars as alleged in the 
 declaration in the condition alleged in said declaration, then they shall 
 find for the plaintiff on the counts, except 1 and 5, which have been 
 withdravPTi. 
 
 In other words, the Government's evidence in this case, 
 if believed by the jury, makes a case under the statute, and 
 therefore, if you believe the evidence of the Government, it 
 would be your duty to find on each count except the first 
 and fifth. 
 
 Verdict for Government,
 
 72 FEDERAL SAFETY APPLIANCE ACT. 
 
 UNITED STATES v. SOUTHERN PACIFIC COMPANY. 
 
 (In the United States District Court for the Northern District of 
 California.) 
 
 [167 Fed. 699.] 
 Decided December f/, 1908. 
 (Syllabus approved by the court.) 
 
 1. If a carrier hauls over its line any cars which can not be coupled 
 
 automatically by impact, either by reason of being improperly 
 equipped or the equipment being out of order or disconnected, or 
 otherwise inoperative, the act is in violation of the safety-appli- 
 ance law. 
 
 2. The safety-appliance statute applies to the coupler on each end of 
 
 every car subject to the law, and it is wholly immaterial in what 
 condition was the coupler on the adjacent car, or on any other 
 car or cars, to which each car sued upon was or was to be coupled. 
 
 3. Carriers are required immediately to repair defects in cars caused 
 
 during the time they are being hauled, if they can do so with 
 the means and appliances at hand at the time and place, or when 
 such condition should have been discovered by the exercise of 
 reasonable care. If requisite means are not at hand, carriers have 
 the right, without incurring the penalty of the law, to haul the 
 defective car to the nearest repair point on their line. But if 
 they haul such car from a repair point, they are liable for the 
 statutory penalty. 
 
 4. It is the duty of the carrier subject to the safetj^-appliance acts to 
 
 establish reasonable repair points along its line for the making 
 of repairs of the kind necessary to comply with the law; at such 
 repair points there should be the material and facilities to make all 
 such repairs. 
 
 5. The railway company is under no obligation to receive from any 
 
 otlier companj' cars defective as to safety appliances and when 
 it does receive cars from another company at any point it must 
 know at its peril that each car so received is equipped with the 
 safety appliances required by law, and that such appliances are 
 in good order and condition. 
 
 6. It is the use of a car in a defective condition that the law seeks to 
 
 prevent, and not tlio length of the haul. 
 
 7. If an employee of a railway company deliberately puts coupling 
 
 devices on a car being iised in interstate traific in a condition which 
 the law undertakes to prevent, then the company is liabble to 
 respond under the penalty for the unlawful act of the employee.
 
 APPENDIX G. 773 
 
 Alfred P. Black, assistant United States attorney, and 
 Monroe C. List, special assistant United States attorney 
 for the United States. 
 
 Charles P. IIeggerty for the defendant. 
 
 INSTRUCTIONS TO JURY. 
 
 DeHaven, Distinct Judge (charging jury) : 
 
 You are required to return a verdict in each of these 
 cases. The first one is 13757, and contains ten causes of 
 action; the second one is numbered 13760, and contains two 
 causes of action. 
 
 The first two causes of action stated in No. 13757 charge 
 a violation of section 1 of what is known as the safety ap- 
 pliance act. In reference to those two counts, I now in- 
 struct you it will be your duty to return a verdict for the 
 Government. The remainder of the counts in No. 13757 
 charge a violation of section 2 of the safety appliance act. 
 And that you may understand precisely the questions of fact 
 upon which you are called to pass, I will read this section 
 of the law to you : 
 
 "That from and after the first day of January, eighteen 
 hun»dred and ninety-eight it shall be unlawful for any such 
 common carrier" — that is, a common carrier engaged in 
 interstate traffic — "to haul or permit to be hauled or used 
 on its line any car used in moving interstate traffic not 
 equipped Avith couplers coupling automatically by impact, 
 and which can be uncoupled without the necessity of men 
 going between the ends of the cars." 
 
 This section of the law applies to the coupler on each end 
 of every car subject to the law, and it is wholly immaterial 
 in what condition w^as the coupler on any adjacent car or 
 on any car to which each car sued upon was or was to be 
 coupled. The equipment on each end of every car must 
 be in such condition that whenever called upon for use it 
 can be operated without the necessity of men going between 
 the ends of the cars.
 
 774 
 
 FEDERAL SAFETY APPLIANCE ACT. 
 
 The law also means that each car must be equipped with 
 an uncoupling lever on each end thereof, by means of which 
 such car can be at all times uncoupled from another car by 
 a man standing at one end on the side of the car, and 
 without the reasonable necessity of going between such car 
 or any other car, or without going around the end of the 
 train in which said car might be hauled, or without crawl- 
 ing under or over said cars, in order to reach the uncoupling 
 lever of the adjacent car. 
 
 While the safety-appliance law does not ask a railway 
 company to do the impossible, it does, nevertheless, place 
 upon such company the responsibility of properly equip- 
 ping its cars in the first instance, and the maintaining of 
 such equipment in good operative condition at all times 
 thereafter. Of course, if, while a car is being hauled be- 
 tween repair stations, some defect occurs to its safety ap- 
 pliances, such railway company must use the utmost care 
 to discover and repair such defects, if the nature of the re- 
 pairs will permit of their being made at that time and place. 
 Should such defect be of a heavy nature only to be made at 
 repair stations, then the company would have the right, 
 without incurring the penalty of the law, to haul such car 
 to the nearest place where such repairs can be made. In 
 doing this, the company can not choose its place of making 
 repairs, l)ut must avail itself, for that purpose, of the 
 nearest point where, by the exercise of diligence and fore- 
 sight, it may prepare to make such repairs. And it is the 
 duty of every railway company subject to this law to es- 
 tablish reasonable repair points along its line of railroad 
 for the making of all repairs necessary to comply with the 
 law; that is, it is its duty to establish repair points at all 
 places along the line of road where it is reasonably necessary 
 that they should be establish(Ml in order faithfully to comply 
 with the law. Inasmuch as inability alone will not excuse 
 a company from a literal compliance with the law, it is the 
 duty of such company to have the material and facilities 
 on hand at ("Vcry repair jioint to make repairs of the kind
 
 APPENDIX G. 
 
 775 
 
 necessary to comply with the provisions of the safety-appli- 
 ance act. And if a defect exists at a repair point, or at 
 any place where such defect could have been repaired, and 
 the company moves the car while in the defective condition, 
 it does so at its peril, and it becomes then subject to the 
 penalty of the law. The law is not satisfied by the exercise 
 of reasonable care to this end; but the company must at its 
 peril discover and repair all defects before removing a ear 
 from a repair point. 
 
 A railway company is under no obligation to receive from 
 any other company cars defective as to safety appliances, 
 and when it does receive cars from another company at any 
 point it must know at its peril that each car so received is 
 equipped with the safety appliances required by law, and 
 that such appliances are in good order and condition. 
 
 The penalty under the safety-appliance act applies to every 
 defective car hauled contrary to its provisions, whether or 
 not each car was hauled separately or in a train together; 
 and it matters not how far each car was hauled ; it is the 
 use of the car in a defective condition that the law seeks 
 to prevent and not the length of the haul. 
 
 Now, as to the different counts : 
 
 In the first and second counts of 13757 you are instructed 
 to find for the plaintiff. 
 
 The third count charges the hauling of C, B. & Q. car No. 
 61488 when the coupling and uncoupling apparatus was 
 missing from the B end and when said car was chained to 
 another ear. If you believe that the defendant so hauled 
 this car from Truckee in this condition, and that Truckee 
 was a repair point along the line of the defendant company, 
 your verdict should be for the Government. 
 
 The fourth count charges the hauling of S. P. car No, 
 48602, when the knuckle was missing from the A end and 
 when the car was chained to another ear. You are instructed 
 that the law lays an unqualified duty upon a railroad com- 
 pany to keep its coupling devices in a certain prescribed con- 
 dition, and if an employee of such company deliberately puts
 
 776 FEDERAL SAFETY APPLIANCE ACT. 
 
 sueh devices in another condition, which condition the law 
 undertakes to prevent, then the company is liable to respond 
 under the penalty for the unlawful act of the employee, and 
 if you believe from the evidence that the knuckle M'as removed 
 from this car for the purpose of chaining it to another car, 
 and that the car was so hauled in interstate traffic in that 
 condition, and in that condition it would be necessary for a 
 man to pass between the end of that car and an adjacent car 
 in order to couple and uncouple them, your verdict should 
 be for the Government. 
 
 The fifth count charges the hauling of B. & 0. car Xo. 
 57286, when the keeper or inner casting was broken on one 
 end and the uncoupling lever hanging down on the coupler. 
 If you believe that this uncoupling lever Avas in such con- 
 dition that any reasonable effort would not operate the same, 
 and that in order to uncouple this car from another car it 
 would have been reasonably necessary for a man to go between 
 the cars, and that in that condition the car was hauled over 
 the line of defendant's road in interstate traffic, then your 
 verdict should be for the Government on that count. 
 
 The sixth count charges the hauling of C, M. & St. P. car 
 No. 58960, when the bottom clevis pin was missing on the 
 A end. If you believe that the car was in that condition, 
 and that the absence of this pin rendered the uncoupling 
 lever inoperative, and that in order to uncouple this car 
 from another car it was reasonably necessary for a man to 
 go between the ends of the cars, and that in that condition 
 the car was hauled over the line of defendant's road in inter- 
 state traffic, then your verdict should be for the Government. 
 
 The seventh count refers to a "kinked" chain. If this car 
 left Truekee while the chain was so "kinked," and while in 
 this condition the coupler was inoperative, requiring the rea- 
 sonable necessity of a man to go between the cars to couple 
 or uncouple them, your verdict should be for the Government. 
 
 The eighth and ninth counts are similar to the fifth and 
 seventh counts, respectively, and what I have said in regard 
 to those, you can apply to these counts. 
 
 The tenth and the last count in No. 13757 charges the use
 
 APPENDIX G. T7V 
 
 of a locomotive engine when the coupk^r was missing from 
 the A or front end. It is not necessary that this end of the 
 locomotive was used or was coupled to any car, that is, front 
 end or A end ; it is the use of the locomotive in a defective 
 condition that the law seeks to prevent, and if you believe 
 that this locomotive was used by the defendant upon its 
 line of railroad in connection with other cars engaged in 
 hauling interstate traffic, and not used for the purpose 
 of taking it to the nearest point where it could be 
 repaired, your verdict should be for the Government. Of 
 course, if you find that it was only taken to Sparks, and 
 find that that was the nearest place where it could be re- 
 paired, and that it was only taken there for that purpose, 
 then your verdict should be for the defendant on that count. 
 
 The first and second counts, and the only counts, in case 
 No. 13760, charge the hauling of two cars chained together. 
 If you believe that these cars were delivered to the Southern 
 Pacific Company in such a condition by another company, 
 that is, if you believe they were delivered to them in such 
 a condition as has been testified to by the witnesses for the 
 Government, and you should find that the defendant in 
 hauling interstate traffic used them on its train engaged in 
 interstate traffic, your verdict should be for the Government. 
 One carrier can not receive a defective car from another 
 carrier and exccuse itself; it must discover such defect at 
 its peril before it receives and hauls any such car in inter- 
 state traffic. 
 
 I need not say to you, but I will say to you, that you are 
 the exclusive judges of the credibility of the different wit- 
 nesses who have testified in your hearing; that is, you must 
 determine for yourselves which witness or witnesses you 
 will believe, and then after you have fixed that in your mind 
 you are also the exclusive judges of what ultimate facts are 
 showTi by such testimony. 
 
 In considering this testimony, positive testimony is to be 
 preferred to negative testimony, other things being equal;
 
 7/0 FEDERAL S^VFETY APPLIANCE ACT. 
 
 that is to say, when a credible witness testifies as to the 
 existence of a fact at a particular time and place and an- 
 other equally credible witness testifies to having failed to 
 observe such fact, the positive declaration is ordinarily to 
 be preferred to the negative in the absence of other testi- 
 mony or evidence corroborating the one or the other. Never- 
 theless, that is a question for you solely in passing on the 
 weight to be given to this positive and negative testimony. 
 If, in your judgment, the testimony of the witness who says 
 that he did not see a thing is entitled to weight; that the 
 circumstances surrounding him at that time, at the time 
 he made the examination, were such that if the fact had 
 existed he would have seen it. then as a matter of course 
 you would be at liberty to find that the fact did not exist ; 
 that is simply a rule of common sense in weighing testimony. 
 
 In regard to the burden of proof, the burden of proof is 
 on the Government to establish by preponderance of evi- 
 dence the facts charged in the different counts of the peti- 
 tion. And by a preponderance of evidence is not meant the 
 greater number of witnesses, but it means that evidence 
 which to your mind is the most satisfactory and is entitled 
 to the greatest weight. 
 
 A Jltior. I should like to ask a question : In taking that 
 engine from Truckee to Sparks, is it a breaking of the law 
 as interpreted by hitching it to a train, or does it have to 
 go down alone? 
 
 The Court. If Truckee was a repair point and a place 
 where the engine ought to have been repaired, and it was 
 attached to a train engaged in interstate traffic and taken 
 to Sparks, that would be a violation of the law. But if 
 Truckee was not a repair point, and the engine could not have 
 been repaired at Truckee, and was simply taken do\\Ti to 
 Sparks for the purpose of repair, I should say that that 
 would not be a violation of the statute. 
 
 Another Juror. I should like to ask a question in regard 
 to the two cars at Richmond: Would those two cars be con- 
 sidered as engaged in interstate traffic?
 
 APPENDIX G. 779 
 
 The Court. That is a question for the jurj^ to determine 
 from the evidence in this case. If they were attached to 
 other cars engaged in interstate traffic, then they wou'd be 
 engaged in interstate traffic. 
 
 Another Juror. If the engine referred to needed re- 
 pairs, and could only be repaired at Sparks, but was used 
 between Truckee and Sparks in the hauling of a train as 
 far as that point, should we find for the Government? 
 
 The Court. If the engine could not be repaired at 
 Truckee, and the company, under the law I have laid down 
 before you, was not required to be able to repair it there, 
 and it was moved to Sparks for the purpose of being re- 
 paired, I should say that the mere fact that it was attached 
 to an interstate traffic train would not render the company 
 liable if the main purpose in removing was to repair it. 
 
 (The jury returned the following verdict: In case 13760, 
 for the United States; in case 13757, for the United States 
 on the 1st. 2d, 3d, 4th, 5th, 6th, 7th, 8th, and 9th causes 
 of action set forth in the complaint; and for the defendant 
 on count 10.) 
 
 UNITED STATES v. BOSTON & MAINE RAILROAD 
 
 COMPANY. 
 
 (In the District Court of the United States for the District of 
 
 Massachusetts. ) 
 
 [168 Fed. 148.] 
 Decided January 5, 1909. 
 
 (Syllabus by the court.) 
 
 1. Section 4 of the safety appliance act requires secure grab-irons or 
 handliolds at those points in the end of each car where they are 
 reasonably necessary in order to afford to men coupling and un- 
 coupling cars greater security than would be afforded them in the 
 absence of any grab-iron or handhold at that ix)int or of any appli- 
 ance affording equal security with a grab-iron or handhold.
 
 780 FEDERAL SAFETY APPLIANCE ACT. 
 
 2. If at any place in the end of a car there is not a grab-iron or hand- 
 
 hold, properly speaking, but some other appliance, such as a ladder 
 or brake lever, which afforded equal security with a grab-iron or a 
 handhold at tliat point, the Federal safety appliance law so far as 
 grab-iron or handhold at that point is concerned has not been vio- 
 lated. Having something there which performs all. the functions of 
 a grab-iron or handhold is just the same thing as having what is 
 properly called a grab-iron or handhold at that point. 
 
 3. Unless the Government satisfies a jury by a preponderance- of the 
 
 evidence that there was no grab-iron or liandhold on the car where 
 there should have been one, the jury should find for the railroad 
 company. 
 
 4. A man engaged in connecting or disconnecting the air hose between 
 
 the cars is engaged in coupling or uncoupling cars within the mean- 
 ing of the safety appliance act, if it is necessary for him to connect 
 or disconnect that hose in order to connect or disconnect the cars. 
 
 5. Where a car is not properly provided with grab-iron on a given day, 
 
 and the train stops for a certain time and then goes on again, there 
 are not two violations of the law, but only one, because the car is 
 all the time being moved in the same train. It makes no difference 
 that it is being so moved on two different days. 
 
 6. A "train" is one aggregation of cars drawn by the same engine, but 
 
 if the engine is changed then there is a different train. 
 
 William H. Garland, assistant United States attorney, 
 and Phillip J. Doherty, special assistant United States 
 attorney j for the United States. 
 
 Charles S. Pierce, for defendant. 
 
 instructions to jury. 
 
 Dodge, District Judge (charging jury) : 
 
 The statute which we are considering in this case is a 
 statute passed by Congress under the power which is in- 
 trusted to Congress by the Constitution to regulate com- 
 merce between the several States. Congress makes this law 
 in regulation of interstate commerce; it has the power to 
 make such regulations. If we were dealing here with a rail- 
 road or a train which was not engaged in interstate com-
 
 APPEMDIX G. 781 
 
 merce at all, this statute would not apply. It does not 
 seem to be disputed in this case that the defendant railroad, 
 and the car with which you are concerned, were both en- 
 gaged in interstate commerce, and therefore were subject to 
 the provisions of the statute. The defendant railroad is 
 charged in the declaration which the Government has filed 
 against it with five different violations of the statute. It 
 is for the jury to say as to each of those violations charged 
 whether the defendant has committed it or not. 
 
 As to three of the violations charged, while the jury is still 
 to say whether this defendant has committed them or not, 
 they are saved the trouble of deciding any disputed questions 
 of fact, as this case goes to them. As to the violation of 
 the statute charged in the second count of the declaration, 
 the defendant admits that it has been committed, and that 
 the jur}^ may find for the plaintiff upon the count. The 
 same as to the third count of the declaration, the jury are 
 to find for the plaintiff also on that count by consent of the 
 defendant. 
 
 As to the fourth count of the declaration, the court has 
 ruled that the evidence is not sufficient to warrant a verdict 
 for the plaintiff, and the jury therefore will find for the 
 defendant as to that count by direction of the court. You 
 are aware, gentlemen, that in all cases tried before you, 
 questions of law are for the court and questions of fact are 
 for the jury. The question presented here on the fourth 
 count of the declaration is an example of a question of law. 
 The court takes upon itself the responsibility of directing 
 the jury to find for the defendant on that count. In this 
 instance, and in all other instances where either party 
 thinks that the court has decided the question wrongly, they 
 have a remedy by appeal. They may go to the Circuit 
 Court of Appeals within this circuit and have that court 
 determine whether this court has rightly decided the ques- 
 tion or not. But it is for you to follow the direction of this 
 court for the time being, in order that the question may be
 
 782 FEDERAL SAFETY APPLIANCE ACT. 
 
 properly presented on appeal. Therefore although your 
 verdict as to the fourth count is by direction of the court 
 a finding for the defendant, it is a verdict of which the 
 court takes the entire responsibility. 
 
 Now, gentlemen, I come to the two counts which are sub- 
 mitted to you for your consideration. They both relate to 
 the same car — a car No. 24089, a car marked "New York, 
 New Haven & Hartford Railroad." a box car — and the 
 Government charges as to that car. while being hauled in a 
 train from Springfield to the Brightwood yard, that on 
 September 19, 1907. it was not provided with a grab-iron 
 or handhold such as the law requires. And in the fifth count, 
 as to the same car. the Government charges that on September 
 20, 1907, while being moved from the Brightwood yard 
 northerly, it was not provided with a grab-iron or handhold 
 such as the law requires. It is not disputed, as I have 
 stated, that this car Avas being used in interstate commerce 
 at these times. Now, the question for you to decide is: Did 
 that car. or did it not, have on it grab-irons or handholds 
 such as the statute requires that it should have while it was 
 being moved by the railroad in interstate commerce? 
 
 I will read to you once more the language of the section 
 of the statute with which we are concerned: 
 
 "From and after the first day of July, eighteen hundred 
 and ninety-five, until otherwise ordered by the Interstate 
 Commerce Commission, it shall be unlawful for any railroad 
 company to use any car in interstate commerce that is not 
 provided with secure grab-irons or handholds in the ends 
 and sides of each car for greater security to men in coupling 
 and uncoupling cars." 
 
 There is no question made either on September 19 or 
 September 20 about the sides of this car. We are concerned 
 only with the ends. Now. taking that section as it stands, 
 and giving duo weight to the language in which the require- 
 ments are expressed, we have to consider just what they 
 mean as applied to the question arising in this case, and I
 
 APPENDIX G. 783 
 
 shall instruct you, gentlemen, that section 4 requires secure 
 grab-irons or handholds at those points in the end of each 
 car where they are reasonablj^ necessary in order to afford 
 to men coupling or uncoupling cars greater security than 
 would be afforded them in the absence of any grab-iron or 
 handhold at that point or of any appliance affording equal 
 security with a grab-iron or handhold. If at any place in 
 the end of this car there was not a grab-iron or handhold, 
 properly speaking, but some other appliance, such as a ladder 
 or brake lever, or whatever else you please, which afforded 
 equal security with a grab-iron or a handhold at that point, 
 then I shall instruct you that the law has not been violated 
 so far as a grab-iron or handhold at that point is concerned. 
 Having something there which performs all the functions 
 of a grab-iron or a handhold is just the same thing as having 
 what is properly called a grab-iron or a handhold at that 
 point. It may not be possible to say that a coupling lever 
 or a ladder is a grab-iron or a handhold, but if it affords 
 the same security to a man who may need to use one that 
 a grab-iron or a handhold, properly speaking, would afford, 
 then, in my judgment, the statute has not been violated. 
 
 The question of fact, therefore, for you is: Are you satis- 
 fied by a preponderance of the evidence that there was any- 
 where in the end of this car a grab-iron or a handhold w^ant- 
 ing where it should have been according to the test which 
 I have given you; that is, where a grab-iron or a handhold 
 would be reasonably necessary in order to afford to men 
 coupling or uncoupling cars greater security than would be 
 afforded them in the absence of any grab-iron or handhold 
 at that point? 
 
 Now, that question you are to determine by a prepon- 
 derance of the evidence here. You have listened to the evi- 
 dence of the two inspectors of the Interstate Commerce 
 Commission, who tell you that they examined this car on 
 the two days referred to, and they described to you pretty 
 fully what they found on the end of the car in question, and
 
 784 FEDERAL SAFETY APPLIANCE ACT. 
 
 they tell you that at a certain place there was no grab-iron 
 or handhold. 
 
 Now, on the other hand, you have the evidence introduced 
 by the defendant railroad, which may induce you to think 
 that the presence of a grab-iron or a handhold where the in- 
 spectors have said that one was absent would make no dif- 
 ference, so far as affording greater security to men is con- 
 cerned. 
 
 You are to be satisfied by the Government in this case 
 by a preponderance of the evidence that there was no grab- 
 iron or handhold where there should have been one. If 
 you are so satisfied, you should find for the plaintiff, for the 
 Government in this case. Unless the Government has so satis- 
 fied you by a preponderance of the evidence, you should find 
 for the defendant. 
 
 Now, 3'Ou are to remember in this case that you are to 
 decide it according to a preponderance of the evidence. In 
 all the other cases to which you have listened here and 
 which, as I recall it, have been criminal cases, I have in- 
 structed you that the Government, in order to convict, must 
 prove its ease beyond a reasonable doubt. This not being a 
 criminal case, according to my view, the same rule does 
 not prevail. A preponderance of the evidence in this case 
 is sufficient; and what does that mean? It means that after 
 balancing and considering the evidence on the one side and on 
 the other you are not left in doubt, but that you find 
 that the evidence for the Government outweighs the evi- 
 dence brought here to meet it. If your minds after weighing 
 and considering the evidence on both sides are left in doubt, 
 if they are left equally balanced on the question, there is 
 no preponderance of the evidence; and in that event, as 
 I have told you, your verdict should be for the defendant. 
 It is necessary, in order to find a verdict for the plaintiff, 
 that the evidence for the Government should outweigh that 
 for the defendant. 
 
 1 have stated to you that gral)-iroiis or handholds are re- 
 (juircd by the statute to be at such points in the end of
 
 APPENDIX G. 785 
 
 this car where they are reasonably necessary in order to 
 afford greater security to men in coupling or uncoupling 
 cars. Something has been said here about men connecting 
 or disconnecting the air hose with v:hich the air brakes are 
 operated, and the question has been raised, is a man between 
 the cars simply to connect or disconnect air hose a man 
 engaged in coupling and uncoupling cars within the mean- 
 ing of the statute? Now. on that point I instruct you that 
 a man engaged in connecting or disconnecting the air hose 
 between the cars is engaged in coupling or uncoupling cars 
 within the meaning of the statute if it is necessary for him 
 to connect or disconnect that hose in order to connect or 
 disconnect the cars. 
 
 The Government claims here that it has proved to you by a 
 preponderance of the evidence not only one violation of the 
 statute, but two. Novs^, on that point, gentlemen, you will 
 consider whether or not this car, in the first place, was un- 
 provided Avith grab-irons or handholds, as it should have 
 been, and. in the second place, whether it was moved by 
 this railroad in more than one train. Let us suppose that 
 you have found that that car was on a given day not properly 
 provided with grab-irons and handholds as the statute re- 
 quires. Let us suppose that that car was at the time being 
 moved in a train. Let us suppose that that train stopped 
 for some purpose, no matter what, for a while, and, after 
 having so stopped for a certain time, started up and went 
 on again. Now, in a supposed ease like that, my instruction 
 to you would be that there were not two violations of the 
 law, but only one, because the car was all the time being 
 moved in the same train. I should instruct you. gentlemen, 
 that so long as the car is being all the time moved in the 
 same train, it makes no difference that it is being so moved 
 on two different days; that so long as the ear continues be- 
 ing moved by the railroad on the same train it makes no 
 difference that September 19 has run out and September 
 20 has come in: that that does not make two distinct viola- 
 tions of the statute, but the movement of the car being,
 
 786 FEDERAL SAFETY APPLIANCE ACT, 
 
 though on those two different days, all the time in one 
 train, there has only been one violation of the statute. You 
 will consider upon the evidence to which you have listened 
 whether this car has been moved in more than one train. 
 If you so find, it will be proper, provided you have been 
 satisfied by a preponderance of the evidence that it was 
 being so moved without the grab-irons and handholds which 
 the law requires, to find for the plaintiff both on the first 
 count and on the fifth count. If. on the other hand, you 
 are not satisfied by a preponderance of the evidence that the 
 car was moved in two trains, but was only so moved in one, 
 that both on September 19 and on September 20 the car 
 was continued all the time in one train, you should then find 
 for the plaintiff only on one of those counts, either the first 
 or the fifth, but you should not find for the plaintiff on 
 both of them. 
 
 Is there anything else which counsel desire me to speak to 
 the jury about? 
 
 [Counsel confer with the court at the bench.] 
 
 The Court. In regard to what makes a train, Mr. Foreman 
 and gentlemen, bj'' "train" I understand one aggregation 
 of cars drawn by the same engine, and if the engine is 
 changed. I understand there is a different train. 
 
 Verdict for Government, four counts. 
 
 UNITED STATES v. BALTIMORE & OHIO RAILROAD 
 
 CO:\IPAXY. 
 
 ( In the District Court of the United States for the Northern District of 
 West Virginia. ) 
 
 Decided January J8, 1909. 
 
 (Syllabus by the court.) 
 
 1, The federal safety-appliance act makes no exception and places no 
 limitations upon tlie duty of a railroad company to equip its cars 
 with the prescribed safety appliances.
 
 APPENDIX G. 
 
 787 
 
 2. It is the duty of a common carrier subject to the law to use at all 
 
 times reasonable care to discover and repair all defects to its equip- 
 ment; but if a defect exists at a repair point, or at any place 
 where such defect could be repaired, and the company moves such 
 car from such a point, it does so at its peril and is liable for the 
 statutory penalty; the exercise of reasonable care to discover and 
 repair defects at such a place is no defense. 
 
 3. The law neither defines a handhold nor the exact location of same, 
 
 and it is for the jury to determine whether a car is equipped with 
 proper handholds or with such suitable substitutes as will give to 
 the employes greater security in the coupling and uncoupling of 
 cars. 
 
 4. Actions arising under the safety-appliance act are civil, and not 
 
 criminal actions, and the Government is only required to establish 
 by a preponderance of evidence the facts necessary to prove its 
 case; and by a preponderance of evidence is not meant the greater 
 number of witnesses, but it means that evidence which is the most 
 satisfactory and which is entitled to the greatest weight. 
 
 Reese Blizzard, United States attorney, and Monroe C. 
 List, special assistant United States attorney, for the United 
 States 
 
 Van Winkle & Ambler for the defendant. 
 
 INSTRUCTIONS TO JURY. 
 
 Dayton, District Judge (charging jury) : 
 
 Exercising its constitutional right to regulate commerce 
 between the states, Congress has passed a law which pro- 
 vides : 
 
 That from and after the 1st day of January, 1898, it shall be un- 
 lawful for any common carrier engaged in interstate commerce by rail- 
 road to use on its line any locomotive engine in moving interstate traffic 
 not equipped with a power driving wheel brake and appliances for 
 operating the train-brake system, or to run any train in such traffic 
 after said date that has not a sufficient number of cars in it so equipped 
 with power or train brakes that the engineer on the locomotive drawing 
 such train can control its speed without requiring brakemen to use the 
 common hand brake for that purpose.
 
 788 FEDERAL SAFETY APPLIANCE ACT. 
 
 That on and after the 1st day of January, 1898, it shall be unlawful 
 for any such common carrier to haul, or permit to be liauled, or used 
 on its line any car used in moving interstate traffic not equipped with 
 couplers coupling automatically by impact, and which can be uncoupled, 
 without the necessity of men going between the ends of the cars. 
 
 That from and after the 1st day of July, 1895, until otherwise 
 ordered by the Interstate Commerce Commissiouj it shall be unhiwful 
 for any railroad company to use any car in interstate commerce that 
 is not provided with secure grab-irons or handholds in the ends and 
 sides of each car for the greater security to men in coupling and un- 
 coupling cars. 
 
 That any such common carrier using any locomotive engine, running 
 any train, or hauling, or permitting to be hauled, or used on its line 
 any car in violation of any of the provisions of this act shall be liable 
 to a penalty of one hundred dollars for each and every such violation, 
 to be recovered in a suit or suits to be brought by the United States 
 district attorney in the district court of the United States having 
 jurisdiction in the locality where such violation shall have been com- 
 mitted. 
 
 This action which you have in charge and are to deter- 
 mine is based upon this statute. There are five counts in 
 the complaint charging five distinct violations of this law. 
 There are three different verdicts that can be rendered by 
 you, one finding the defendant guilty upon each and every 
 count embraced in this complaint ; another finding the de- 
 fendant not guilty of each and every charge embraced in 
 the complaint; and the third, finding the defendant guilty 
 of certain ones of the charges made and not guilty of cer- 
 tain other ones of them. You will therefore see that in 
 considering this matter it is your duty to take up each 
 one of these counts in this complaint, each charge of a viola- 
 tion, and consider it independently of the others, and ascer- 
 tain whether or not the defendant is guilty or not guilty 
 of that specific charge in that specific instance and count. 
 
 The court wants to say to you that the safety-appliance 
 statute makes no exception and places no limitation upon this 
 duty of the railroad company to supply these safety devices 
 to their cars, and when T say cars, it has been considered and 
 held, and rightly so, that an engine and tender are embraced
 
 APPENDIX G. 789 
 
 within that definition. It is therefore the duty of the rail- 
 road company to use all reasonable care at all times to dis- 
 cover and remedy these defects when they appear in any of 
 these safety appliances attached to an engine or a .car ; and 
 if a defect exists at a repair point, or at any place where 
 such defect could have been remedied, and the company 
 moves the car while in the defective condition, it does so at 
 its peril and it becomes then subject to the penalty of the 
 law. The law is not satisfied by the exercise of reasonable 
 care to this end, but the company must, at its peril, dis- 
 cover and repair all defects before moving a car from a 
 repair point. Now, that you may understand that more 
 fully, let me say to you that it is entirely reasonable that 
 a railroad company should be required to maintain repair 
 shops or repair material and make inspections and repairs 
 at places within reasonable distances of each other ; that 
 in establishing such repair points the company has the right, 
 in the ordinary operation of their trains between those re- 
 pair points, when a train is in operation and defects arise, 
 reasonably, to carry the car, the appliances on which are 
 broken or defective, to the first repair point, but they do 
 not have the right, having carried it to that point, to take 
 it beyond that point without discovering and without mak- 
 ing the necessary repairs to those safety appliances attached 
 to that car, and if they do carry it beyond that point they 
 are liable to the penalty provided for by this law. 
 
 This action is not a criminal action, but a civil one, and 
 as a civil action the burden of proof is upon the Govern- 
 ment to establish by a preponderance of evidence the facts 
 necessary to show the violation of the law on the part of 
 the defendant, and by a preponderance of evidence is not 
 meant the greater number of witnesses, but it means that 
 evidence which to your mind is the most satisfactory and 
 is entitled to the greatest weight. The very reason why we 
 have juries to determine the facts in eases like this is that 
 they may judge of the evidence after hearing the witnesses
 
 790 FEDERAL SAFETY APPLIANCE ACT. 
 
 and that they may take all of the facts and all of the cir- 
 cumstances and weigh them and determine where the very 
 truth lies. Under the ordinary rules of evidence, positive 
 testimony is stronger than negative testimony where that 
 negative testimony is not so strong as to make it apparent 
 that the witnesses stating the positive fact are mistaken 
 or untruthful. Evidence given by witnesses of the very 
 circumstances and surroundings of the matter may fre- 
 quently be of a determining character and kind. It is your 
 peculiar province to weigh all the facts and all the circum- 
 stances and all the testimony and from them as a whole 
 determine, as I have said, wherein the exact truth lies. 
 
 Now, I am asked by the defendant to give you this in- 
 struction, which I do. Before the jury can find the defend- 
 ant guilty in this case the Government must prove by a clear 
 preponderance of evidence that the safety appliances on 
 the cars mentioned in the complaint were out of repair 
 and inoperative in the particulars mentioned in the com- 
 plaint, axid unless the Government does establish this by 
 clear and satisfactory evidence, the jury should find the 
 defendant not giiilty as to each car which is not thus proved 
 to have been defective. 
 
 Gentlemen, it is for you to determine, touching the hand 
 hold on the engine in this case, whether or not the appli- 
 ance that was testified to by the witness Johnson, at the 
 end or corner of the tender and the release bar, was a fair and 
 proper substitute for the ordinary grab-irons referred to in this 
 statute. If they were suitable for the purpose of enabling 
 the operators of the train to couple and uncouple cars and 
 were a fair substitute and suitable for that purpose, then 
 it would be proper for you to find the defendant not guilty; 
 if they were not suitable and proper for the purpose I have 
 indicated, their presence could not be regarded as a compli- 
 ance with the provisions of this statute. You will take into 
 consideration the hand holds on the side of the car, in con- 
 nection with the brace at the end and the release rod along
 
 APPENDIX G. 791 
 
 the end, and if you believe the whole to be a fair equipment 
 and suitable and proper for the purpose of enabling the 
 operators of the train to couple and uncouple cars, then I 
 sky it is your duty to find the defendant not guilty on that 
 count; but if they are not suitable for that purpose and not 
 effective for that purpose, then their presence, as I have 
 said to you, upon this tender will not meet the requirements 
 of this law, and of that you will judge from the testimony. 
 Verdict for Government, 4 counts. 
 
 UNITED STATES v. CHICAGO, ROCK ISLAND & PA- 
 CIFIC RAILWAY CO. 
 
 (In the District Court of the United States for the Western District of 
 
 Missouri. ) 
 
 [173 Fed. G84.] 
 
 Decided February 21, 1908. 
 
 (Syllabus by the court.) 
 
 1. The Safety Appliance Act of March 2, 1893, as amended, is a reme- 
 
 dial statute and must have such construction as will accomplish 
 the evident intent of Congress. Johnson v. Southern Pacific Com- 
 pany, 196 U. S., 1. 
 
 2. The placing of a "bad order" card on a car as notice to the em- 
 
 ployees that the car is defective does not prevent the movement of 
 the car in a defective condition from being unlavs^ful. 
 
 3. While the statute is in some aspects penal, recovery oi the penalty 
 
 is had by means of a civil action wherein it is necessary only to 
 prove the facts showing a violation by a preponderance of the 
 evidence. 
 
 STATEMENT OF FACTS. 
 
 The defendant was charged with having violated the 
 safety-appliance act and an action in debt was brought to 
 recover the statutory penalty of $100. A jury was waived
 
 792 FEDERAL SAPETY APPLIANCE ACT. 
 
 and the trial was to the court. The evidence showed that 
 the defendant hauled an Erie coal ear with the uncoupling 
 chain "kinked" and wedged in the coupler head on one 
 end of the car. In that condition it was impossible to 
 operate the coupler without a man going between the ends 
 of the cars. One of defendant's engines coupled on to a 
 "cut" of cars in which was this defective car, and hauled 
 it to the yard of the Chicago, Burlington & Quincy Rail- 
 way Company where a number of other cars were coupled 
 on to the "cut." The entire lot was then hauled by the 
 defendant over to the Chicago & Alton yards where five 
 more cars were attached. One of the defendant's inspectors 
 undertook to operate the coupler in the Union Depot and 
 found the car defective. He then affixed a "bad order" card 
 to the car, indicating the nature of the defect. The car was 
 then taken by the defendant to Armourdale. Kans. The 
 defendant contended that by placing the "bad order" card 
 upon the car, it had complied with the statute and was not 
 liable for the penalty. 
 
 Area S. Van Valkenburg, United States attorney: Les- 
 lie J. Lyons, assistant United States attorney, for the Uni- 
 ted States. 
 
 Frank Sebree, for defendant. 
 
 OPINION OF THE COURT. 
 
 McPherson, District Judge: 
 
 I find in the Johnson case as reported in 196 U. S., 1, 
 that while the rule of construction as to penal statutes 
 requires such statutes to be strictly construed, yet in the 
 safety-appliance statute the design to give relief was more 
 dominant than to inflict punishment, the act therefore 
 falling within the rule applieable to statutes to prevent fraud 
 upon the revenue, and for the collection of customs. The
 
 APPENDIX G. 
 
 793 
 
 rule' there laid down, is that the statute is to be construed 
 sensibly and as a whole with a view to accomplish the obvious 
 intent of Congress. In that decision the Supreme Court 
 reversed the Circuit Court of Appeals for this circuit, 
 because, as it said, the view of the latter court has been 
 too narrow. The great purpose of the statute was to remedy 
 conditions. That is the point of it. 
 
 It is remedial and preventive, and if observed will reduce 
 to a minimum the crippling and killing of railroad 
 employees in this country. As I said yesterday, every one 
 of us can recollect fifteen or twenty years ago that about 
 four times out of five when you went to shake hands with 
 a railroad employee, either a switchman, brakeman, or 
 freight conductor that had been raised from a brakeman 
 you took hold of a crippled hand; fingers gone, sometimes 
 an entire hand or leg gone, because of the extraordinary 
 hazardous business of railroading. 
 
 The Supreme Court of the United States upheld the 
 Iowa statute with reference to liability because of the 
 negligence of a co-employ upon the ground that the 
 legislature had the authority to single out the railroad and 
 make them liable for the negligence of a co-employee, while 
 the same would not be liable if applied to a manufacturing 
 plant, solely because of the extremely hazardous business 
 of railroading, placing railroads in a distinct class. 
 
 You can scarcely pick up a paper but what you read of 
 some accident to an employee, but it used to be ten times 
 worse. Up in Iowa we do not have one accident now to 
 where we used to have ten. The dockets used to be crowded 
 with work by reason of the number of these accidents, and 
 the percentage has greatly decreased. I do not know how 
 it is in Kansas City, but if it has not decreased, it is on 
 account of the marvelous growth of Kansas City. But I 
 am sure the percentage has decreased. 
 
 That is the purpose of this statute, and everyone who has 
 humane views commends this statute. While I suppose, of 
 course, there are no statistics to prove it, I have no doubt
 
 794 
 
 FEDERAL SAPETY APPLIANCE ACT. 
 
 that the enforcement of this statute has been a money-saving 
 proposition to the railroad companies. I have no doubt 
 that the occasional infliction of a small penalty of $100 
 prevents many a $5,000 and $10,000 judgment. 
 
 But it can not be said that the statute was enacted for 
 that purpose. It was enacted for the protection of railroad 
 employees. It is within the Imowledge of every one of us 
 that everybody is negligent almost every day of his life. We 
 cross these street-car tracks without a thought in our minds 
 that we are within miles of a track. Sometimes we are reading 
 a paper, or visiting with some friend, and if we are run 
 down we could not recover because of our own gross 
 contributory negligence. In a great percentage of these 
 railroad cases the employees are denied a recovery because 
 of their own negligence. You seldom have a case but what 
 somebody is negligent. If there was no negligence, there 
 would be but few cripples or untimely deaths. 
 
 What is the use of putting up a red card on the end 
 of a car^ as was done after the United States inspectors 
 spotted the car, except to call the attention of some one to 
 the fact that it needed repairs ? That does not stop brakemen 
 from going in there. Men are negligent because they are 
 unthinking for the time being, and some of them have a 
 dare-devil spirit. Any day you can stand in the railroad 
 yards and see a switchman who stands in the middle of the 
 track. The switch engine comes to him. He takes his life 
 in his hands every time he does it, but he steps on the 
 switchboard and looks around for the applause of the crowd 
 about as much as to say, "See my agility." You can not 
 stop that. You can not stop a man from going in between 
 cars by putting a red sign on it, and they will not report 
 it, because they do not care to have the hostility of the 
 company that employs them, and they do not say anything 
 about it unless they get hurt. You and I would do the 
 same. 
 
 Naw, while this is a penal statute, it has the form of a 
 civil action. There was a time when the courts held in
 
 APPENDIX G. 
 
 795 
 
 slander and libel cases where the words used imputed a 
 crime that the proof must convince the court or jury- 
 beyond a reasonable doubt, but I understand that the rule 
 has been abrogated. That weight of proof is not required 
 anywhere, except in proving an indictment, and this is not 
 that kind of a case. 
 
 Now, this inspection of the 23d was very indefinite and 
 vague. One man has no recollection about it at all. He 
 placed thereon a mark ''0. K. " The other man has no 
 recollection whatever, except the memorandum in his book. 
 That kind of an inspection will not do. The next thing we 
 know this car is on the way, and my notion about it is that 
 the car would have been taken to St. Louis in that condition 
 if it had not been that these Government inspectors 
 happened along at that time. Now, if these Government 
 inspectors, who in all cases are ex-railroad employees, could 
 see this, why could not this train crew see it ? And they 
 would not have seen it when they did if they had not seen 
 these Government inspectors riding this ear, and they then 
 supposed something was wrong. The two Government 
 inspectors were on this particular car, so if the train was 
 cut they would still be with the car, I suppose. 
 
 Now, here is a case of $100. If the penalty were extreme, 
 a jury would hesitate more about inflicting the penalty. I 
 would like it better if the same penalty w^as fixed in these 
 twenty-eight hour cases. I have tried a good many of them, 
 and I have never yet tried one that called for more than the 
 minimum penalty, and I have never inflicted more than 
 that. In most cases there is some substantial reason for 
 delay, and too often a good deal of malice is behind the 
 prosecution, not on the part of the Government officials, 
 but on the part of the shipper. He believes he has been 
 charged a little too much for his hay or grain, or has some 
 other complaint. In nearly every case under that statute 
 that I have tried, I have found that kind of a spirit behind 
 the prosecution. Here is a class of cases where it is impossible 
 to have any malice back of the prosecution. The penalty is
 
 796 FEDERAL S^^ETY APPLIANCE ACT. 
 
 light, and in every ease where the proofs are reasonably 
 sufficient, I think it is wise and proper and benevolent to 
 enforce the penalty. And I think it is an act of benevolence 
 to the company itself to see to it that these things are 
 broken up. and thereby lessen the amount they have to pay 
 in personal injury cases. There are many thousand 
 employees in this hazardous business, and I do not think in 
 this case there is any sufficient excuse shown. There is no 
 telling how lousr that car had been in that condition, and 
 I have no doubt that if these Government inspectors had not 
 been there, that car would have been hauled across the state 
 of Missouri and then to Pennsylvania, and with what result 
 nobody l^nows. 
 
 The judgment will be for the payment of the penalty 
 of $100, and ninety days for a bill of exceptions will be 
 granted. 
 
 UNITED STATES v. SOUTHERN RAILWAY COMPANY. 
 
 In the District Court of the United States for the District of South 
 
 Carolina. 
 
 Decided February 2.',, 1909. 
 
 1. A suit under the safety appliance act to recover penalties for viola- 
 
 tions of said act is civil and plaintiff is required only to prove 
 its case by a preponderance of the evidence. 
 
 2. Although the defective car does not contain any interstate traflSc, 
 
 yet if it is hauled in a train which contains a car that is loaded 
 with interstate traffic, the act applies. 
 
 3. Inspectors in tlie employ of the Interstate Commerce Commission 
 
 are not ri'quircil {<> iiifonii tlic employees of the defendant of the 
 facts found. 
 
 4. The act imposes upon the railway company an ahsolute duty to main- 
 
 tain its couiiliiii: aj)pliaTH'<' and grab-irons or hand-holds in op- 
 erative condition.
 
 APPENDIX G. 
 
 797 
 
 5. A car coming without the state and being switched from one yard in 
 the state to another yard in the state in furtherance of a design 
 to transfer it to its final destination is engaged in interstate 
 traffic. 
 
 Ernest F. Cochran, United States Attorney, and Ulysses 
 Butler, special assistant United States Attorney, for plain- 
 tiff. 
 
 Jacob IMuller for defendant. 
 
 INSTRUCTIONS TO JURY. 
 
 Brawley, Distinct Judge (charging jury) : 
 
 The Court is requested by the learned counsel for the 
 plaintiff to give you these instructions: 
 
 1. This is a civil case and the Government is only required 
 to prove its case by a preponderance of the evidence and not 
 beyond a reasonable doubt. United States v. L. V. Ry. (not 
 yet reported), District Court; United States v. P. tfc R. Ry. 
 162 Fed. Rep., 403 ; United States v. Chicago Great Western 
 Ry., 162 Fed. Rep. 775; United States v. B. & 0. Swn. R. (C. 
 C. A.), 159 Fed. Rep., 133. Granted. 
 
 2. If the jury find that the defendant hauled a car which 
 was defective in not complying with the safety-appliance law 
 as to coupling appliances, or grabirons, or handholds, al- 
 though the defective car does not contain any interstate traf- 
 fic, yet if it is hauled in a train that contains a car that is 
 loaded with interstate traffic, then the act is violated, even 
 though the car which contains the interstate traffic may not 
 itself be defective. United States v. L. & N., 162 Fed. Rep., 
 185 ( District Court) ; United States v. Chicago Great Western 
 Ry., 162 Fed. Rep., 775 (District Court) ; United States v. 
 Wheeling & L. E. (not yet reported), District Court. Granted. 
 
 3. Whenever a car is loaded in one state of the Union 
 with a commodity which is destined for another state, and 
 begins to move, then interestate commerce has begun and does
 
 798 FEDERAL SAFETY APPLIANCE ACT, 
 
 not cease till the car has arrived at its point of final desti- 
 nation. The Daniel Ball, 10 Wall., 557; United States v.. Belt 
 By. (not yet reported), District Court. Granted. 
 
 4. Inspectors in the emploj^ of the Interstate Commerce 
 Commission are not required to inform the employes of the 
 defendant, when they make the inspection of the cars sued 
 upon, of the defects found in the appliances ; the jury should 
 not discredit their testimony because the inspectors did not 
 so inform the employes of the defendant. United States v. 
 Chicago Great Western By., 162 Fed. Rep., 775. Granted. 
 
 5. The safety-appliance law of Congress imposes upon 
 a railway company an absolute duty to maintain the pre- 
 scribed coupling appliances and grabirons or handholds in 
 operative condition, and it is not satisfied by the exercise 
 of reasonable care to that end. St. L., I. M. cf- S. v. Taylor, 
 210 U. S., 281; United States v. A. T. & S. F. By. (C. C. 
 A.), 163 Fed. Rep., 517; United States v. D. & B. G. B. (C. 
 C. A.), 163 Fed. Rep., 519; United States v. P. & B., 162 
 Fed. Rep., 403. Granted. 
 
 The court is requested by the defendant to give you 
 certain instructions: 
 
 1. This being a suit by the Government to recover a 
 penalty the rules of criminal procedure and evidence may ap- 
 ply, and the defendant is presumed to be innocent of the 
 violations of law charged against it until it is proved to 
 have been guilty beyond a reasonable doubt. 
 
 Court. The court refuses that instruction. The rule 
 is this: This is a civil action to recover a penalty, and as 
 in all civil cases the plaintiff must establish his case by clear 
 and satisfactory evidence, and the jury must determine, if 
 there is testimony on either side, by the preponderance of 
 the testimony, the careful weight of the testimony. 
 
 2. As regards any material issue of fact in this case, 
 if the jury have any doubt they should solve such doubt in 
 favor of the defendant. 
 
 Court. The court can not give you the instruction in 
 that form. That is disposed of by what the court says in.
 
 APPENDIX G. 799 
 
 refusing the first instruction. They must establish it by the 
 preponderance of the testimony. If you have any doubt as 
 to the preponderance of the testimony, then the plaintiff can 
 not recover. 
 
 3. In a suit by the Government under the safety-appli- 
 ance acts to recover a penalty for an alleged violation of the 
 law by a railway company, these acts can not be regarded as 
 imposing upon the railway company an absolute duty in the 
 sense that it becomes penally liable for a violation of the law 
 without regard to the question of intent or the question of 
 diligence on the part of the company to avoid such violation. 
 Refused. 
 
 4. If a violation of these safety-appliance acts by a rail- 
 way company is unintentional and unavoidable on the part 
 of the company, it is not liable to the penalty prescribed by 
 the acts. 
 
 Court. The court can not give that instruction. The ques- 
 tion of intention does not come into play at all. 
 
 5. The jury in this case can not find a verdict for the 
 plaintiff in this action for any other defects than those al- 
 leged in the complaint to have been defective. 
 
 Court. The court gives you that instruction, but in con- 
 struing the complaint you must give to it fair and reason- 
 able interpretation. 
 
 6. If the jury have a reasonable doubt as to whether 
 the cars alleged in the complaint to have been defective were 
 in fact defective as alleged in the complaint, they should 
 find a verdict for the defendant. Refused. 
 
 7. If the court refuses No. 6, then the burden of proof 
 is on the plaintiff in this case, if in the minds of the ju- 
 rors the evidence on any issue of facts is evenly balanced be- 
 tween the plaintiff and the defendant, they should resolve that 
 issue in favor of* the defendant. Granted. 
 
 8. Within the constitutional meaning and extent of the 
 safety-appliance acts, it can not be considered that a car 
 whose destination is a point without the state is being used 
 in interstate commerce when being shifted from point to
 
 800 
 
 FEDERAL SAFETY APPLIANCE ACT. 
 
 point in a railway yard by a shifting engine within the state, 
 and is not in the course of an extended movement beyond 
 the limits of the state. 
 
 Court. The court interprets that instruction as intended 
 to appl}^ to the movement of a car containing coal, which 
 had been brought from some point in Tennessee and was in- 
 tended for some point in the state of Georgia, and which was 
 moved from one of the yards of the company to another 
 yard of the company. If you find the fact to be that that 
 ear had been engaged in interstate commerce and had come 
 from a point in Tennessee, and was shifted to another yard 
 of the defendants in furtherance of the design to have it 
 transferred to a point in Georgia, then it was interstate 
 commerce within the meaning of the law. As to the defect 
 in the engine, the court instructs you that if when the shift- 
 ing engine began the movement of that car from one yard to 
 the other, that engine was in good condition, the coupler was 
 in a safe condition, and not defective, and if in the transit 
 between the yards it became defective, then the company 
 would not be liable, if they repaired the defect as soon as 
 possible. All mechanical appliances are liable to get out of 
 order in the use, and all that the company can fairly be re- 
 quired to do is to see that when the cars began to move, when 
 the engine began to move, that all of the appliances were 
 perfect, and if in the course of the movement, as the re- 
 sult of the movement it became defective, then the act would 
 not apply to it, provided the company repaired it before 
 moving again. 
 
 9. The interstate transportation by a railway company 
 of its own property is not "interstate commerce." 
 
 Court. The court must refuse that instruction in that 
 shape. It will instruct you that if the car referred to, con- 
 taining sand, was being moved from South Carolina into 
 North Carolina for the company's own purjioses, if it was 
 carried on a train which was engaged in interstate commerce, 
 and this car was defective, it falls within the denunciation 
 of the statute still.
 
 APPENDIX G. yOl 
 
 UNITED STATES v. ATLANTIC COAST LINE RAIL- 
 ROAD COMPANY. 
 
 In the District Court of the United States for the District of South 
 
 Carolina. 
 
 Decided February 2 J/, 1909. 
 
 1. A suit under the safety-appliance act to recover penalties for viola- 
 
 tions of said act is civil and plaintiff is required only to prove its 
 case by a preponderance of the evidence. 
 
 2. Although the defective car does not contain any interstate traffic, 
 
 yet if it is hauled in a train which contains a car that is loaded 
 with interstate traffic, the act applies. 
 
 3. The act imposes upon the the railway company an absolute duty to 
 
 maintain its coupling appliances and grab-irons or handholds 
 in operative condition. 
 
 4. Whenever a car is loaded in one state of the Union with a com- 
 
 modity which is destined for another state^ and begins to move, 
 then interstate commerce has begun and does not cease till the 
 the car has arrived at its point of final destination. 
 
 5. Inspectors in the employ of the Interstate Commerce Commission 
 
 are not required to inform the employees of the defendant of the 
 defects found. 
 
 Ernest F. Cochran, United States Attorney, and Ulys- 
 ses Butler, special assistant United States attorney, for 
 plaintiff. 
 
 B. A. Hagood and L. W. McLemore, for defendant. 
 
 Brawley, District Judge (charging jury) : 
 
 Counsel for the Government has requested the follow- 
 ing instructions : 
 
 1. This is a civil case and the Government is only re- 
 quired to prove its case by a preponderance of the evidence 
 and not beyond a reasonable doubt. United States v. L. V. 
 By. (not yet reported), District Court; United States v. P. <& 
 B. By., 162 Fed Rep., 403; United States v. Chicago Great
 
 802 FEDERAL SAFETY APPLIANCE ACT. 
 
 Western By., 162 Fed Rep., 775; United States v. B. (£• 0. 
 Swn. R. (C. C. A.), 159 Fed. Rep., 33. 
 
 Court : The court gives you that instruction. In other 
 words, you will decide this case as you would any other civil 
 case, and not as in criminal eases, where the Government 
 must make out its case beyond a reasonable doubt. You 
 must decide it by the preponderance of the evidence. 
 
 2. If the jury find that the defendant hauled a 
 car which was defective in not complying with the Safety- 
 Appliance Law as to coupling appliances or grab irons or 
 handholds, although the defective ear does not contain any 
 interstate traffic, yet if it is hauled in a train which con- 
 tains a car that is loaded with interstate traffic, then the 
 act is violated, even though the car which contains the inter- 
 state traffic may not itself be defective. United States v. 
 L. d iV., 162 Fed. Rep., 185 (District Court) ; United States 
 V. Chicago Great Western By., 162 Fed Rep., 775 (District 
 Court) ; United States v. Wheeling & L. E. (not yet re- 
 ported), District Court. Granted. 
 
 3. Whenever a car is loaded in one state of the Union 
 with a commodity which is destined for another state, and 
 begins to move, then interstate commerce has begun, and 
 does not cease till the car has arrived at its point of final 
 destination. The Daniel Ball, 10 Wall., 557; United^ States 
 v. Belt By. (not yet reported). District Court. Granted. 
 
 4. Inspectors in the employ of the Interstate Com- 
 merce Commission are not required to inform the employes of 
 the defendant, when they make the inspections of the cars 
 sued upon, of the defects found in the appliance -. the .jury 
 should not discredit their testimony because the inspectors 
 did not so inform the employes of the defendant. United 
 States V. Chicago Great Western, 162 Fed. Rep., 775. 
 Granted. 
 
 5. The safety-appliance law of Congress imposes upon 
 a railway company an absolute duty to maintain the pre- 
 scribed coupling appliances and grab-irons or handholds in 
 operative condition, and is not satisfied by the exercise of
 
 APPENDIX G. 803 
 
 reasonable care to that end. St. L., I. M. & 8. v. Taylor, 210 
 U. S., 281; United States v. A., T. & 8. F. By. (C. C. A.), 
 163 Fed. Rep., 517; Vnited States v. D. & R. G. R. (C. C. 
 A.), 163 Fed. Rep., 519; United States v. P. & R., 162 Fed. 
 Rep., 403. Granted. 
 
 6. You are instructed that if you believe from a pre- 
 ponderance of the evidence that the defendant hauled the 
 cars, as alleged in the first, second, third, fourth, fifth, sixth, 
 seventh and eighth counts of plaintiff's petition, when said 
 cars were not equipped with couplers coupling automatically 
 by impact and which could be uncoupled without the neces- 
 sity of a man going between the ends of the cars, or was 
 not equipped with secure handholds, or with a grab-iron, 
 then your verdict should be for the Government. United 
 States V. Nevada County N. G. R. (not yet reported), Dis- 
 trict Court. 
 
 Court : That seems to be already embraced in the pre- 
 vious instruction ; the court gives you that instruction. 
 
 Court: Mr. Foreman and gentlemen: The Government 
 has offered testimony tending to show that 9 cars went out 
 from Florence on February 19 of last year in a defective 
 condition, and the inspectors for the Government, whose 
 duty it was to look after these matters, testified as to the na- 
 ture of those defects and that they saw the cars moving 
 out, and that they were engaged in interstate commerce. The 
 defendant company has offered testimony tending to show 
 that the inspector employed by the company, whose duty 
 it was to make repairs within the car-repair yard, repaired 
 at least 7 cars, or had it done under his direction, and that 
 the cars alleged by the Government's witnesses to be defec- 
 tive were not in point of fact defective in the particulars re- 
 ferred to. Now, it appears from the testimony that the in- 
 spectors made their presence known to the yardmaster of 
 the defendant company when they arrived at the yards, some 
 time in the morning, and they have given you the days and 
 hours when they made their inspection of the cars. If you 
 believe their testimony, the ears were defective at the time ■
 
 804 FEDERAL SAFETY APPLIANCE ACT. 
 
 they examined them; whether the defects \iere repaired af- 
 terwards, after the government inspectors saw them and be- 
 fore they went out, is a question for you, and the credibility 
 of the witnesses is a question for you. The fact that the 
 government inspectors did not inform the employes of the 
 company of the fact that they found these defects is not 
 to DC taken by you as any reason for discrediting their tes- 
 timony. The law does not require them to make such report. 
 The fact that they were on the ground — were known to be 
 there by the yardmaster — is a circumstance to be considered 
 by you in determining whether or not that fact would or 
 would not make the railroad parties more than usually vig- 
 ilant on such an occasion, put them on their guard, the in- 
 spectors being there, going about and looking at the cars, 
 whether or not that fact was not likely to make lazy people 
 in charge of the yards take extra precaution to see that the 
 cars in the yard were in proper condition, is a circumstance. 
 Now, on behalf of the Government it is contended that 
 even if the repairs proved to have been made by the witness, 
 Summerford, car repairer, even if he made the repairs which 
 he testifies to, that they were not the defects that the Govern- 
 ment's witnesses have pointed out. That is a question of fact 
 for you. which you must determine by your recollection of 
 what the witnesses for the Government have testified to on 
 that subject. Of course, if they made other repairs than those 
 which the Government alleged were the defects, that would 
 not relieve the company, but if the specific defects which the 
 testimony of the government inspectors pointed out, if they 
 were not repaired before the cars left, of course the com- 
 pany is liable. The company has no record of any repairs 
 made upon cars named in the first and ninth causes of 
 action, and if you believe the testimony of the government 
 inspectors that those cars were defective in the particulars 
 pointed out, it would be your duty in that ease to find a 
 verdict for the Government upon those 2 cars. As to the 
 7 othf-r cars, it depends entirely upon your conclusion as 
 t(j the testimony on th(> f)()int whether or not those cars
 
 APPENDIX G. 805 
 
 were repaired before they went out. If they were, why your 
 duty would be to find a verdict for the defendant; if they 
 were not, it would be your duty to find a verdict for the 
 plaintiff in the full amount claimed by them. If you find 
 for the Government you will find so many dollars; if you 
 find for the Government as to the whole amount then you 
 will find for the Government $900. If you find for the de- 
 fendant you will say: "We find for the defendant." If you 
 find that 7 of the cars were repaired before they went out, 
 you will find in any event $200. 
 
 (United States Circuit Court of Appeals, Sixth Circuit.) 
 
 THE UNITED STATES OF AMERICA, Plaintiff in error, 
 V. THE ILLINOIS CENTRAL RAILROAD COM- 
 PANY, Defendant in error. 
 
 [170 Fed. 542.] 
 
 Error to the District Court of the United States for the 
 Western District of Kentucky. 
 
 (Submitted January 13, 1909. Decided March 2, 1909.) 
 
 1. An action by the Government to recover a penalty under tlie safety- 
 
 appliance act is a civil action with all the incidents of a civil 
 action. 
 
 2. From an adverse judgment in the District Court the United States 
 
 may have a writ of error to the Court of Appeals. 
 
 3. If a railroad company starts a car in transit with a coupling so de- 
 
 fective that the defect could have been discovered by inspection 
 it will be liable under the safety-appliance act ; but if a car when 
 started in transit had no discoverable defect, the company will 
 not be liable for the use of the car in that transit for a defect 
 occurring during such transit, if there has been no subsequent 
 lack of diligence either in discovering or repairing the defect. 
 
 4. When the Government has proven a car was laden with interstate 
 
 commerce, has defective couplings, and was hauled over the
 
 806 FEDERAL SAFETY APPLIANCE ACT. 
 
 defendant's road, the defendant has the burden to show that it 
 used all peasonable possible endeavor to perform its duty to 
 discover and correct the defect. 
 5. The statute does not require the railroad company to have its cars 
 properly equipped at all times and under all circumstances when 
 in use, in order to escape a liability to a penalty. 
 
 Before Severens, Circuit Judge, and Knappen and 
 Sanford, District Judges. 
 
 Se\T]rens, Circuit Judge, delivered the opinion of the 
 Court. 
 
 This is an action in the nature of a common law action 
 of debt brought in the District Court by the United States 
 against the Illinois Central Railroad Company to recover 
 penalties of $100 each for twenty-two alleged infractions of 
 Section 6 of the Safety Appliance Act of March 3, 1893, 
 each offense being set out in a separate count. Some of these 
 counts were for hauling cars in inter-state traffic with de- 
 fective automatic couplings, some with defective grab-irons 
 and some with draw bars not on the proper level above the 
 track. There was a plea of not guilty to each count, and 
 special matters of defense were alleged in the several answers. 
 The issues were tried by a .jury. A stipulation as to certain 
 facts was made by the attorneys for the parties and filed, of 
 which the following is a copy: 
 
 "Defendant, for the purpose of this ease, admits: 
 "1. That it is a corporation doing business in Illinois 
 and Kentucky, and is a common carrier, transporting over 
 its railroad in Kentucky, both cars carrvino- inter-state com- 
 merce and car.s carrying shipments wholly intra-state. 
 
 "2. That in each of the cars in paragraphs 1, 5, 6, 7, 
 10, 11. 12. 14, 15, 16, 17. 18, 19, 20, 21 and 22 contained 
 inter-state shipments; that each of the cars mentioned in 
 paragraphs 4. 9 and 13, transported shipments purely intra- 
 state, i. o.. from one point in Kentucky to another point in 
 Kentucky, and that each one of said cars was hauled by 
 defendant in a train in which there was at least one other
 
 APPENDIX G. 807 
 
 car that at the time contained an inter-state shipment; and 
 that the engines mentioned in paragraphs 2, 3 and 8 were 
 used by defendant wholly between points in Kentucky, to- 
 wit: Between Louisville and Central City, and that said 
 engines hauled trains at the times mentioned in said para- 
 graphs 2, 3 and 8 composed of cars, some of which contained 
 traffic purely intra-state, and each one of which trains con- 
 tained the car mentioned in said paragraphs respectively 
 containing inter-state freight." 
 
 Evidence bearing upon the issues was adduced by the 
 parties, and the jury having been instructed by the Court, 
 rendered a verdict for the plaintiff on seven of the counts 
 in the sum of $100 each, and for the defendant on the other 
 fifteen. 
 
 The plaintiff brings the case here on a writ of error. 
 The first question arises upon a motion to dismiss the writ 
 upon the ground that the proceedings in the Court below 
 were essentially of a criminal nature, and that the United 
 States cannot have a writ of error upon proceedings of that 
 description. It seems proper to advert to certain funda- 
 mental considerations upon which the procedure in such 
 cases as this rests, and upon which the determination of the 
 question here raised depends. 
 
 It is urged by counsel for the defendant that the pun- 
 ishment prescribed by the sixth section of this Act is a 
 penalty, that the proceeding for its enforcement is crim- 
 inal in its nature, and that therefore the trial of the cause 
 is to be governed by the rules of evidence, and the right 
 to have a review in an appellate court is to be determined 
 by the law applicable to a criminal prosecution. It may 
 be admitted that in a sense the punishment prescribed by 
 the Act is a penalty. But penalties are of different sorts. 
 They may consist of a sum of money which the offender 
 shall pay in atonement for his forbidden act, in other 
 words, of a fine, or shall suffer some other form of forfeit- 
 ure of property, or they may consist of the infliction of 
 the corporal punishment of the guilty party, or they may
 
 808 FEDERAL SAFETY APPLIANCE ACT. 
 
 consist of both of these punishments. The public through 
 its government may employ, within certain limitations, 
 such of these various forms of punishment as it may deem 
 just and necessary to the common welfare. Offenses range 
 in respect of their turpitude from the smallest to the 
 greatest ; and the theory of punishment is that it shall 
 be measured by the gravity of the offense. While it is true 
 that the constitution and laws of the country are pre- 
 scribed and enforced for the protection of property as well 
 as of the person, yet they regard with greater concern the 
 protection of the latter. And so, when for small offenses 
 a pecuniary punishment is prescribed as the atonement, it 
 has long been the practice to employ a civil action for its 
 recovery. Assuming that the punishment is just, the con- 
 sequences to the defendant are not far different from those 
 which happen in civil actions, only it is the government 
 which is the plaintiff. The consequences of the judgment 
 are substantially the same to him as if the penalty was 
 bestowed upon a private party, except with regard to the 
 scintilla of interest he has in the public revenue. If the 
 public may, for a sufficient reason, compel the defendant 
 to pay a fine, it is of little importance to him whether the 
 government keeps it for its own purposes or turns it over 
 to another who is already indemnified. Mere academic 
 discussion of the theory of the practice by which it is done 
 does not interest him. Probably in all the systems of law in 
 the State and Federal governments, there are instances 
 where to civil liabilities there are attached penalties, there 
 being something wanton or gross or otherwise peculiar to 
 the liability. Yet such penalties are enforced in civil actions. 
 A very cogent, not to say persuasive, argument was ad- 
 dressed to us. founded upon the prohibition of the Con- 
 stitution against subjecting a person to be twice put in 
 jeopardy for the same offense. It is urged that this prohi- 
 bition extends to a review of the trial in an appellate 
 court; and, further, that it applies not only to prosecu- 
 tions for crimes, but to prosecutions for misdemeanors also.
 
 APPENDIX G. 809 
 
 And we must suppose that it is thought that the protection 
 afforded thereby extends as well to artificial as to private 
 persons ; for the defendant here is a corporation. And if a 
 private person maj^ invoke it in a case when only the for- 
 feiture of property is involved, there is color for the claim 
 that a corporation may invoke it in a like case. This seems 
 to us to be pushing the doctrine a long way and beyond its 
 hitherto recognized scope. 
 
 We held in United States v. Baltimore & 0. S. W. R. 
 R. Co., 159 Fed. 33, 38, and again the case of United 
 States v. Louisville S Nashville R. Co., recently decided, 
 that the Government was entitled to prosecute a writ of 
 error from this court to the District Court to review the 
 proceedings in an action of debt to recover a pecuniary 
 penalty which alone was the punishment prescribed. To 
 this ruling we adhere. The result is that the motion to 
 dismiss must be overruled. 
 
 The principal questions upon the merits are two, and 
 they arise upon the instructions given by the Court to the 
 jury. 
 
 1st. Whether on the trial of an action such as this, 
 the rule of the criminal law that the evidence must satisfy 
 the jury of the guilt of the respondent beyond a reason- 
 able doubt, applies. 
 
 2nd. Whether the judge correctly stated the law to the 
 jury when he said (as he did in substance) that if the de- 
 fendant equipped the ears with the proper appliances as 
 required by the Act, and thereafter exercised the utmost 
 degree of care and diligence in the discovery and correc- 
 tion of defects therein, which could be expected of a highly 
 prudent man under similar circumstances, it would have 
 discharged its duty, and would not be liable to the penalty 
 prescribed by the statute. 
 
 Respecting the first of these questions, we have little to 
 add to what ^ve said in United States v. Baltimore d; 0. 
 S. W. R. Co.. supra, and the observations already made 
 in discussing the motion to dismiss the writ of error. It is
 
 810 FEDERAL SAFETY APPLIANCE ACT. 
 
 impossible for us to distinguish this case upon any sub- 
 stantial ground, so far as concerns the present question, 
 from that of Zucker v. United States, 161 U. S. 475, where 
 on the trial of an action by the United States to recover the 
 value of merchandise forfeited by a fraudulent impor- 
 tation, the case turned upon the admissibility of certain 
 evidence. If the action was of a criminal nature, it was 
 inadmissible. If it was not, it should have been received. 
 The question was much discussed by Mr. Justice Harlan, 
 and the result was that the Court held that the evidence 
 should have been received, and this upon the ground that 
 it was not a criminal proceeding. 
 
 We have referred to instances where, in the enforce- 
 ment of civil liabilities, penalties incurred by wrongful 
 neglect to discharge them are also enforced; and yet we 
 are not aware that it has ever been supposed that the rule 
 of the criminal law respecting the degree of proof was to 
 be imported into the trial of the civil action. The giving 
 of such a remedy as that specified by the sixth section, 
 without any restriction or condition, imports an action at 
 law with the customary incidents of such an action. Being 
 a remedy which does not touch the person, there is no such 
 urgency for protecting him as to require that the rules 
 for the conduct of a civil suit should be displaced, and 
 those of a criminal proceeding be taken in. We think the 
 law does not sanction such an anomalous compound in 
 legal proceedings. If, indeed, there be no substantial dis- 
 tinction between a case where the Government retains the fine 
 and one where it is given to a private party in excess of 
 his otherwise legal right, there are decisions in point which 
 hold that where the suit is a civil action for a penalty the 
 evidence is sufficient if it preponderates, and need not be 
 such as to remove all reasonable doubt. 
 
 Roherge v. Burnham, 124 Mass. 277. 
 O'Connell v. Leary, 145 Mass. 811. 
 Louiwille rf- N. R. Co. v. 7////,. 115 Ala. 334. 
 Feojde v. Briggs, 47 Ilun. (N. Y.) 266.
 
 APPENDIX G. 811 
 
 We are therefore of the opinion that the court erred in 
 its instruction to the jury in this regard. 
 
 As the judgment must be reversed for the error above 
 shown, we think it necessary to consider and dispose of the 
 other allegations of error above stated, to the end that the 
 court below may not be vexed with the same questions^ 
 which as seems quite certain, will arise upon the new 
 trial. The trial of so many causes of action upon one 
 petition creates as it did for the court below some embar- 
 rassment in dealing with the questions which arise upon 
 the several counts of the petition. Moreover, upon the new 
 trial the evidence may not be the same as that given on the 
 first. Evidence of new facts may be adduced, which as we 
 should think, would be desirable in order to make proper 
 conclusions upon the merits of the several cases included 
 in the petition. "We shall best subserve the present pur- 
 pose, by indicating the general principles by which in our 
 opinion the trial should be governed in respect to the sub- 
 ject we are now considering. 
 
 The instruction given to the jury in regard to the meas- 
 ure of the duty imposed upon the railroad company by the 
 provisions of the Safety Appliance Act was in the main, 
 but not altogether, substantially in accord with the con- 
 struction which we gave to them in the case of St. Louis & 
 S. F. R. Co. V. Delk, 158 Fed. 931. It is urged however, by 
 counsel for the Government that our opinion in that ease 
 has been overruled by the opinion of the Supreme Court 
 in the case of St. Louis & Iron Mountain By. v. Taylor, 
 210 U. S. 281. If this seemed to us with certainty to be so, 
 we should of course be bound to yield our own opinion to 
 the superior authority of that court. But if the judgment 
 of the Supreme Court has not concluded the questions now 
 presented, we think the duty incumbent upon this court 
 is to follow its own decision unless, indeed, it should become 
 convinced that it was wrong. Thereupon, it will remain for 
 the Supreme Court to determine whether the ruling it has
 
 812 FEDERAL SAFETY APPLIANCE ACT. 
 
 announced is to be extended to facts such as those of the 
 present case. 
 
 The question recurs to what extent is a judgment of a 
 superior court of controlling authority? We do not al- 
 lude to that respect and confidence which is alwaj^s due to 
 every expression of opinion of the superior court from the 
 subordinate court, but to those declarations of essential 
 import resting upon the facts and leading to the conclusion 
 manifested by the judgment. Declarations of law bearing 
 upon the issues and indicating the proper judgment there- 
 on are binding. The facts and law of the instant case 
 only are in the eye and thought of the court. But expres- 
 sions of opinion as to how the law would be upon facts es- 
 sentially different from those in issue are not controlling 
 in another case when such different facts and issues are 
 presented. These rules have been declared on many occa- 
 sions by the Supreme Court itself, and no appellate tribu- 
 nal has more strongly emphasized them. 
 
 Cohens v. Virginia, 6 Wheat. 264, 399. 
 Northern Bank v. Porter tp., 110 U. S. 608. 
 Plumley v. Massachusetts, 155 U. S. 461, 471, 474. 
 Hans V. Louisiana, 134 U. S. 1. 
 
 United States v. Wong Kim Ark., 169 U. S. 649. 679. 
 Harriman v. Northern Securities Co., 197 U. S. 244. 
 Downes v. Bidwell, 182 U. S. 258. 
 
 In the case of St. Louis dr. By. Co. v. Taylor, supra, 
 the suit was an action to recover damages for a personal 
 injury, and not a penal action such as provided by Sec- 
 tion 6. It was found upon the provisions of those sec- 
 tions of the act which relate to the subject of equipping 
 the cars and was not a prosecution for the use of such cars. 
 Besides it appeared in Taylor's case that only one of the 
 meeting ends of the cars whieh came into the eollision 
 whereby he was killed, was equipped with an automatic 
 coupler, and tbat tbe end of the draw-bar on the other car 
 was not so equipped but had the old style of link and pin
 
 APPENDIX G. 813 
 
 coupling. This latter fact was a plain violation of the law 
 which necessarily meant that both the meeting ends should 
 be equipped with the automatic coupling; otherwise there 
 would be no coupling which would be automatic. 
 
 We gather from the facts stated in the opinion in the 
 Taylor case that the defect in the couplings of cars existed 
 when the cars started on their journey, and that plates of 
 metal, called "shims," were provided for temporarily 
 remedying the inequality in the height of the draw-bars. 
 If that was so, the railroad company was chargeable with 
 notice of the defective condition of the draw-bars when the 
 cars were sent out and was at fault in not putting them in 
 order, and did not relieve itself by trusting to its em- 
 ployes the making of the temporary makeshifts. 
 
 Whether the Supreme Court would apply the rule laid 
 down in the Taylor case to an action brought by the Gov- 
 ernment for a penalty under section 6 of the act we do 
 not know. While we have held that in giving an action 
 of debt to recover a penalty, the implication is that the 
 procedure, the pleading, the evidence, and the review of 
 the proceedings are to be such as are incident to an action 
 of debt, a question of much importance remains which is 
 whether the offense being penal, the court is not to have 
 regard to the constituents of the offense itself, and deter- 
 mine its quality by the tests of the criminal law. In other 
 words, does the mere fact that the remedy is a civil action 
 relieve the Grovernment from proving that the offense 
 charged was criminal in its nature and, specifically, was 
 committed in willful neglect of the duty prescribed by law? 
 The distinction between a remedy and the cause of action 
 is clear enough, but the answer, notwithstanding anything 
 decided in Taylor's case, is doubtful. Though involved in 
 the case before us, the question has not been raised or dis- 
 cussed. We incline to think it should be answered in the 
 negative, but we do not decide it. 
 
 This case was tried before the decision of the Delk ease. 
 But the opinion of the court as expressed in its instruc-
 
 814 FEDERAL SAFETY APPLIANCE ACT. 
 
 tions to the jury, in most respects, proceeded along the 
 lines of our opinion in the case alluded to. In this latter 
 ca^e the facts were that the car, on which were the defec- 
 tive couplings, had been sent back by the Belt Line because 
 of the defect. It had been on the dead track in the yard 
 to await repairs, which had been sent for. and was in the 
 midst of other cars. It became necessary to move the defec- 
 tive car along the track in order to release and get out the 
 other cars. It was during this operation that the plaintiff 
 was hurt. There was evidence from which the .iury might 
 have found that the first knowledge which the defendant 
 had of the defect in the coupler was when the ear was 
 sent back to it and it put the car on the "dead track" for 
 repairs, and that it had done nothing toward actually pro- 
 moting the transit of the car toward its destination. It 
 was for the time being "tied up" for repairs. Still, as the 
 majority of the court held, it was nevertheless engaged in 
 interstate commerce, its freight not having yet been dis- 
 charged. What we said in our opinion had reference to a 
 ease so circumstanced. We were not engaged in laying down 
 universal rules upon the general subject, but only such 
 as we conceived to be applicable to the facts of the ease 
 then before us. In effect we concluded that if the de- 
 fect had occurred at some previous time and the defend- 
 ant had knowledge of it, or should, with reasonable dili- 
 gence, have had notice of it. and with such Imowledge, act- 
 ual or implied, continued without some justifying neces- 
 sity, to haul the ear upon its tracks while laden with goods 
 which were the subject of interstate traffic, it would there- 
 by violate the statute. We still concede that to be so. We 
 tbink, further that the railroad company would be liable 
 if it starts in transit a ear with a coupling containing a 
 defect which could have been discovered by inspection; 
 and vicr vrrfia, if a car when started in transit had no 
 discoverable defect, the railroad company would not be 
 liable to the penalty for n use of the ear in the same tran- 
 sit by reason of a defect occurring during transit, pro-
 
 APPENDIX G. 815 
 
 vided there has been no subsequent lack of diligence either 
 in discovering or in repairing the defect. 
 
 We are of the opinion that when the Government has 
 proved that a car laden for interstate traffic and with de- 
 fective couplings, has been hauled upon its tracks, the 
 railroad company is bound to prove exculpatory facts, 
 such as that it has used all reasonably possible endeavor 
 to perform its duty to discover and correct the fault. 
 We think, for example, that the court was in error in charg- 
 ing- the jury that in the case of the cars coming 
 from Mound City the jury might indulge the presumption 
 that the appliances of the cars were in proper condition 
 when they started, and that they remained so until such 
 time as they were shown to be otherwise. We think the 
 burden of proof was on the other party. 
 
 With regard to the sufficiency of the proof in view of 
 the fact that the action is a civil- action and is for a penalty, 
 we have already expressed our opinion. 
 
 Now, as an original proposition we are unable to under- 
 stand why it was, if Congress intended to enact such a law 
 as it is now contended this law is, it should, after having 
 proposed to itself the enacting a law "to promote the safety 
 of employes and travelers upon railroads by compelling 
 common carriers engaged in interstate commerce to equip 
 their cars with automatic couplers" and having used fitting 
 language to carry that purpose into effect and nothing 
 more, have failed to declare that having so equipped its 
 cars with the couplings, the carrier should be required at 
 all times and in all circumstances when in use to have 
 them in effective condition. To hold that CongresiS has 
 done this, is to insert an interpolation into the act, and to 
 make this interpolation such as shall require things con- 
 fessedly impossible and to be apologized for by saying as 
 counsel for the Government insist that we should, the law 
 is so written, that it is a matter for the legislature, and not 
 for the courts to determine. Is this a proceeding to be 
 justified in order to make the statute mean what the coun-
 
 816 FEDERAL SAFETY APPLIANCE ACT. 
 
 sel think the law ought to be? It seems clear to us that 
 Congress having accomplished its purpose by requiring 
 carriers to equip their cars in the manner prescribed and to 
 continue such equipment, was content to leave the inci- 
 dents of their use to be regulated by the rules and principles 
 of the common law. 
 
 Generally, the accepted rule is that if a given construc- 
 tion of a law leads to such results that it seems harsh, un- 
 reasonable or to be performed with a great excess of diffi- 
 culty, the court on seeing such a prospect will turn back 
 to see if a construction is possible whereby such conse- 
 quences can be avoided and another construction imposed 
 having a more reasonable result. Such an act, we think, 
 ought not to be so construed as to imply the intention to 
 impose these consequences, unless its provisions are such as 
 to render the construction inevitable. A time honored 
 rule for the interpretation of statutes forbids it. Said Mr. 
 Justice Field in delivering the opinion of the Supreme 
 Court in United States v. Eirhy, 7 Wal., 482; "All laws 
 should receive a sensible construction. General terms 
 should be so limited in their application as not to lead to 
 injustice, oppression, or an absurd consequence. It will 
 always, therefore, be presumed that the legislation in- 
 tended exceptions to its language, which would avoid re- 
 sults of this character. The reason of the law in such 
 cases should prevail over its letter." This statement has 
 been repeated by that court in numerous cases since that 
 time; the latest being perhaps that of Jacohson v. 
 Massachusetts, 197 U. S. 11. It is the opposite of this 
 to recognize a hardship, an injustice, and then to 
 fortify the way to it by adopting the fatalistic answer, 
 "thus saith the law." And it is, indeed, worse than this 
 if the law does not say it at all. It is to assume the con- 
 clusion, and then mould the premises so that they may 
 justify the conclusion. Accidents will happen, and at 
 places more or less remote from places of repair, or where 
 the car cannot be left upon the track without peril to the
 
 APPENDIX G. 817 
 
 public as well as to the employes. Undiscoverable defects 
 may at any time appear while the car is moving on the 
 track in a train, and it has been hauled in that condition 
 before it can be known. We are not prepared to believe 
 that Congress intended to impose a law upon a business of 
 public utility which cannot be carried on without more or 
 less frequent violations of such law, and to fasten thereon 
 a liability to prosecution as for a crime or misdemeanor? 
 
 Among the Fundamental Legal Principles, Broom in 
 his Legal Maxims, 238, classes the maxim. Lex non cogit 
 ad impossibilia, a rule of law which applies to statutes of 
 the most positive character, statutes which cannot by any 
 rule of construction be so interpreted as to prevent the cer- 
 tainty of the result. And in his commentary upon it he says ; 
 "The law in its most positive and peremptory injunctions, 
 is understood to disclaim, as it does in its general aphorisms, 
 all intention of compelling to impossibilities, and the admin- 
 istration of laws must adopt that general exception in the 
 consideration of all particular cases." 
 
 While this maxim is not uniformly applicable, as for 
 instance when the statute relates to a dangerous business 
 and gives a private remedy, we think it is a proper one 
 to apply in the construction of a law inflicting a penalty, 
 and the business to which it relates is not itself unlawful. 
 
 It was upon the application of this maxim that the 
 case of Chew Heong v. United States, 112 U. S. 536. was 
 decided. The Chinese Exclusion Acts of 1882 and 1884 
 forbid the re-entry of a Chinese laborer without the pro- 
 duction of the collector's certificate which by these Acts he 
 should obtain on leaving the United States. 
 
 But he had left prior to the date of the Acts, and so of 
 course could not have obtained the certificate. By the 
 treaty with China of 1880, being resident here he was 
 entitled to go abroad and return without hindrance or 
 condition. Congress, however, had the power to pass laws 
 in derogation of the treaty. But although the denial of the 
 right to return without the certificate was peremptory, the
 
 818 FEDERAL SAPETY APPLIANCE ACT. 
 
 court held that in this, the Act required an impossibility, 
 and for the purpose of saving the right given by the treaty, 
 it was to be presumed that Congress did not intend its pro- 
 hibition to be absolute, and that the Statutes should be so 
 construed as to avoid an unreasonable or unjust result. 
 
 On the argument, counsel for the Government when 
 asked what language of the ael created the absolute duty 
 contended for. referred to the last clause in Section 2 
 M^hieh is. "and which can be uncoupled without the neces- 
 sity of men going between the ends of cars," as if that 
 language constituted an independent requirement. But 
 this language is descriptive of the equipment required, and 
 imports nothing in regard to the duty of the carrier when 
 from accident or some other cause without his fault, the 
 equipment becomes deranged. And because the statute 
 does not make any command in that regard, the general 
 law supplements the duty of the carrier by declaring that 
 he shall use the utmost diligence in having the defect cor- 
 rected. By this harmonious cooperation of statute and com- 
 mon laAV. the intended result is worked out without any unjust 
 result. 
 
 The court is not at this time made up of the same mem- 
 bers as it was when the Delk case was decided, but all are 
 a (Treed that the decision was right as applied to a defect 
 occurring during transit and that so applied we should 
 abide by it unless it shall be overruled by the Supreme 
 Court. Still, if it should be held that our decision in the 
 Delk case was wrong, it does not necessarily follow that in 
 this suit for a penalty the court below was also wrong in 
 giving the instruction complained of. 
 
 The result of these considerations is that for the error 
 in the instruction regarding the sufficiency and cogency of 
 the proof required, the judgment must be reversed and a new 
 trial awarded.
 
 APPENDIX G. 819 
 
 UNITED STATES v. WABASH RAILROAD COMPANY. 
 
 (United States District Court, Southern District of Illinois.) 
 
 [Affirmed, 168 Fed. 1.] 
 
 June 6, 1907. 
 
 1. The Safety Appliance Act requires that each coupler on a car be 
 operative in itself, so that an employee will not have to go to 
 another car to uncouple the car in question. 
 
 William A. Northcott, United States Attorney, Henry A. 
 Converse, assistant United States attorney, and Luther M. 
 Walter, for the United States. 
 
 McAnulty & Allen, for the defendant. 
 
 Humphrey, District Judge (charging jury) : 
 
 The case you are considering is a suit brought by the Gov- 
 ernment of the United States against the Wabash Railroad 
 Company for the enforcement of a penalty. There is a law 
 of Congress, passed several years ago, and amended in some 
 instances since, requiring interstate railroad companies to 
 equip their cars "with certain appliances for the safety of train 
 crews. We call it the "Safety Appliance Act." And the 
 same Act fixes a penalty for every violation of that statute, 
 for every failure of the railroad company to comply vdth the 
 statute, for every instance of taking into its service and using 
 cars not so equipped, or having such equipment not in good 
 operating condition. 
 
 During the progress of this case, as the witnesses have 
 testified, you have learned what these various appliances are. 
 Air brakes upon at least 75 per cent, of the cars in a train, 
 so connected that such cars so equipped would be under the 
 control of the engineer; couplers equipped in such a way 
 that, by a device handled from the side of the car, cars can 
 be coupled or uncoupled with cars to which they may be 
 attached in the train without the necessity of a member of 
 the train crew going between the ends of the two cars.
 
 820 FEDERAL SAFETY APPLIANCE ACT. 
 
 This declaration has seventeen counts — a separate count 
 for each alleged violation. Some of these counts charge upon 
 insufficient air brakes ; others charge upon lack of grab-irons 
 or defective grab-irons ; others charge upon defective couplers 
 and coupling devices. 
 
 You will have the declaration with you, and the evidence 
 has made you familiar with what I mean when I refer in this 
 casual way to these various devices. 
 
 Now the Government will be entitled to a verdict of guilty 
 in this case as to those counts in which it has proven by a 
 preponderance of the evidence that the cars were in use at 
 the time in question in violation of the statute. There is no 
 dispute, I think, sho\\-n by this record as to the fact that all 
 these cars and trains counted upon were in interstate busi- 
 ness, so that the issue you are trying upon each count is an 
 ifsue of fact pure and simple, w^hether the cars so in use, or 
 the trains so in use, were being used in violation of these statu- 
 tory requirements. 
 
 And, if you find from the evidence, from a preponderance 
 of the evidence upon any one of these counts, that there was a 
 violation of the statute as charged in such count, then as to 
 such count you will find the defendant guilty. 
 
 On the other hand, if you find as to any one of these counts 
 that there was no violation of the requirement of the statute 
 as to such particular count, find this from a preponderance 
 of the evidence, then as to such count or counts you will find 
 the defendant not guilty. 
 
 You will have nothing to do with the punishment in the 
 ease. Congress has fixed that specifically in the Act itself, 
 and the court will enforce the punishment upon your verdict 
 of guilty or not guilty, as to each count. 
 
 In making up your minds upon the evidence, the court 
 further charges j^ou that by a preponderance of the evidence 
 I mean the greater weight of the evidence, the convincing 
 power of the evidence ; not the number of witnesses, not any- 
 thing else except that indescribable something which con- 
 vinces a man of the truth of a fact, that gives weight to
 
 APPENDIX G. 821 
 
 evidence. In considering these witnesses who have testified, 
 you have a right to consider all that you have seen and all 
 that you have heard as coming from the witnesses, their 
 manner and appearance upon the stand, their frankness and 
 honesty, or the lack of it, their interest in the case, if any has 
 been shown, or their prejudices, if any have been shown, the 
 reasonableness or unreasonableness of the story they have told, 
 and whether they have contradicted themselves or been con- 
 tradicted by other reliable testimony in the case. All these 
 considerations you have a right to weigh in making up your 
 judgment as to the weight to be given to the testimony of 
 any witness, but in doing this you will not give either more 
 or less weight to tlie testimony of any witness because of the 
 fact that such witness testifies on behalf of the Government, 
 or because of the fact that such witness is an employee of 
 the railroad company, but you Avill give to the testimony of 
 each witness that degree of weight which, in your judgment, 
 it is entitled to, from all facts and circumstances in the case. 
 The statute concerning the coupling devices requires that 
 the automatic coupler in use must be operative for each car 
 as to the device of that particular car, so that an employee 
 of a railroad company would not have to go to another car to 
 make the uncoupling of the car in question. The jury \\dll 
 take that into consideration in connection wdth the other evi- 
 dence in the case. * * * 
 
 UNITED STATES v. BELT RAILWAY COMPANY OF 
 
 CHICAGO. 
 
 (United States District Court, Northern District of Illinois, Eastern 
 
 Division.) 
 
 [Affirmed, 168 Fed. 542.] 
 
 January 23, 1908. 
 
 (Syllabus by the court.) 
 
 1. An intrastate belt railroad which accepts for transfer between dif- 
 ferent trunk lines cars loaded with interstate traffic is subject to 
 the Safety Appliance Act even though its rails lie wholly within 
 the confines of a single State.
 
 822 FEDERAL SAFETY APPLIANCE ACT. 
 
 2. Interstate commerce begins as soon as an article starts to move 
 from one State to another, and every carrier conveying it is 
 engaged in moving interstate commerce. 
 
 Edwin W. Sims, United States attorney, Harry A. Paekin, 
 assistant United States attorney, and Luther M. Walter, 
 special assistant United States attorney, for the United States. 
 
 "William J. Henley and William L. Reed, for the de- 
 fendant. 
 
 Landis, District Judge (charging jury) : 
 
 This is a suit by the United States against the Belt Railway 
 of Chicago for the recovery of a penalty of $100 for the 
 movement of a train made up of 43 freight cars, of which 
 less than 75 per cent, had their brakes used and operated by 
 the engineer of the locomotive drawing the train. The Act 
 of Congress controlling this situation provides that every 
 common carrier engaged in interstate commerce shall have 
 not less than 50 per cent, of the cars composing a train 
 equipped with brakes so as to be operated by the engineer 
 of the locomotive drawing the train. The Act also author- 
 izes the Interstate Commerce Commission to increase the 
 minimum percentage of cars in any train required to be so 
 operated, and provides that failure to comply v;ith such re- 
 quirement shall be subject to penalty. 
 
 Prior to the date on which the movement under inquiry 
 in this proceeding took place, the Commission, in the exercise 
 of this authority, had taken such action that on the day 
 this movement took place it was the duty of the defendant, 
 in the operation of its train, to use power or tram brakes on 
 not less than 75 per cent, of the ears composing the train. 
 
 It appears in evidence that the defendant 's train was made 
 up of 43 freight cars, including C, R. I. & P. ear 85176 and 
 an engine and caboose, and that the car mentioned contained 
 lumber under shipment from a point in Illinois to a point 
 in Wisconsin; it also appears that power or train brakes 
 were used on but 15 cars composing this train, and that on
 
 APPENDIX G. 823 
 
 the remainder of the ears being the difference between 15 and 
 43, the power or train brake was not used. 
 
 The question, therefore, presented is whether the Belt 
 Railway Company, at the time of the movement of the train, 
 was engaged in interstate commerce; and on this point I 
 charge you that when a commodity originating at a point in 
 one State, destined to a point in another State, is put aboard 
 a car, and that car begins to move, interstate commerce has 
 begun, and that interstate commerce it continues to be until 
 it reaches its destination. If, therefore, between the point of 
 origin of tliis shipment and the point of destination, the car 
 in which it is being vehicled passes over a line of track wholly 
 within a city, within a county, within a state, the railway 
 company operating that line of track while moving such car 
 is engaged in interstate commerce. 
 
 So, applying this rule of law, if it has been shown to you 
 that on the occasion named the Belt Railway Company was 
 engaged in interstate commerce, and while so engaged moved 
 a train of which less than 75 per cent, of the cars were 
 equipped and operated with power or train brakes from the 
 engine, you will find in favor of the United States. If, on 
 the contrary, it has not been so shown, your verdict wiU be 
 for the defendant. 
 
 UNITED STATES v. PHILADELPHIA & READING 
 RAILWAY COMPANY. 
 
 (United States District Court, Eastern District of Pennsylvania.) 
 
 Marcli 17, 1908. 
 
 [For opinion denying new trial, see 162 Fed. Rep., 403.] 
 
 1. An action brought to recover the penalty provided for in the Safety 
 
 Appliance Act is not a criminal case. 
 
 2. The Government need not prove its case beyond a reasonable doubt; 
 
 it is sufficient if it furnishes clear and satisfactory evidence of ail 
 the necessary facts. 
 
 3. The statute requires as to couplers that the apparatus on each end 
 
 of every car shall be in operative condition.
 
 824 FEDERAL SAFETY APPLIANCE ACT. 
 
 4. In order to constitute a violation of the Safety Appliance Act the 
 
 car must be moved in a defective condition. 
 
 5. ^Yhere a car which had been at rest at a station for a period of time 
 
 i3 taken out upon the road in a defective condition the carrier is 
 liable for tlie penalty, and it is wholly immaterial whether the 
 defendant knew of the defect or could have ascertained its condition 
 by the exercise of reasonable care; in such a case the carrier must 
 find tlie defect at its peril. 
 
 J. Whitaker Thompson, United States attorney, John C. 
 SwARTi,EY, assistant United States attorney, and Luther M. 
 "Walter, special assistant United States attorney, for the 
 United States, 
 
 James F. Campbell, for the defendant. 
 
 McPherson, District Judge (charging jury) : 
 
 Gentlemen of the jury: It is possible that you may have 
 heard the instructions that I gave to the jury that just went 
 out, but it is my duty to repeat them briefly to you with 
 regard to this case. Practically the same questions are in- 
 volved, and another question also with which you need not 
 be troubled. 
 
 Of course, the defendant, as is conceded, is an interstate 
 common carrier ; that is, it is engaged in the business of carry- 
 ing commerce between States, between one state and another, 
 and, therefore, that business is within the power of Congress 
 to regulate. This particular car, as has been agreed upon, 
 originated at a point in the state, and its journey terminated 
 at another point within the state. 
 
 Under certain circumstances there Avould be no question 
 whatever that it was beyond the power of Congress to regu- 
 late it in any way, because, as you know, and I may say 
 briefly, the power of the State over business thr.t is entirely 
 transacted within its borders is exclusive. Congress has no 
 power over it. It is only commerce that goes from one State 
 to another, interstate commerce so-called, that Congress has 
 a right to regulate. But there is a legal question here based 
 upon uncontroverted evidence that will be for the court to
 
 APPENDIX G. 825 
 
 determine later, and for the present, therefore, we shall treat 
 this ease as if it were within the power of Congress to regu- 
 late, and as if this car was engaged in interstate traffic. So 
 you will understand that you may assume that to be the 
 case. Therefore, if there were nothing else in the case and 
 you should find that this car was out of order and that the 
 Act had been violated, it would be your duty to find in favor 
 of the Government for the penalty which is denounced by the 
 Act of Congress. 
 
 The only question of fact, therefore, that will be for you 
 to determine is whether or not this car was out of order and 
 whether these appliances which have been made necessary by 
 the Act of Congress were in operative condition, because if 
 they were not, if this car would not couple automatically by 
 impact, or if it could not be uncoupled unless somebodj'' went 
 between the cars in order to uncouple it, then it would be 
 out of operative order and the Act of Congress would not 
 be violated. Whether or not the company inspected this car, 
 were diligent and careful in inspecting it, is not a matter that 
 you need concern yourselves about. As I regard the statute, 
 the Act requires these defects to be found at the peril of the 
 company, and if they fail to find them, then they are respon- 
 sible for the penalty, even thoagh they may have honestly 
 done all in their power to do. If there is carelessness and 
 negligence, of course they would be responsible, but even if 
 they put careful men on, and careful men had done their 
 work as well as they knew how ; nevertheless, if through some 
 oversight — which even the most careful men are liable to 
 commit — this defect was not discovered, then the company 
 would be responsible. 
 
 But the question of fact here is whether or not this defect 
 existed, and that contention is raised here by the defendant. 
 The allegation is, and they have produced evidence bearing 
 upon that question, that this defect did not exist upon this 
 particular car, and you must resolve that question according 
 to the evidence. That is, the inspectors may have been mis- 
 taken ; they may have found a defect, but not upon this par-
 
 826 FEDERAL SAFETY APPLIANCE ACT. 
 
 ticular car, and, as the Government put its case upon this 
 particular car being out of order, of course it is bound by 
 that allegation, and, although some other car may have been 
 out of order, unless it was this one, of course, the Government 
 cannot succeed. 
 
 There is only this else to be said: This is not a criminal 
 case. While it is a suit for a penalty, it is not a criminal 
 case. The suit here is not brought upon an indictment found 
 by the grand jury. It is brought as civil suits are ordinarily 
 brought, by the filing of a statement of claim on behalf of 
 the Government, and the suit here is to recover a verdict of 
 $100, and not to punish the defendant by a fine or imprison- 
 ment inflicted upon any person. That being so, the Govern- 
 ment is not bound to make out its ease beyond a reasonable 
 doubt — which is the rule, as you know, which is to be applied 
 in criminal cases — but the evidence must, since this is a penal 
 case, be clear and satisfactory, and the burden of proof is 
 upon the Government throughout the case to make out all 
 the elements which go to establish the charge before it is 
 entitled to recover. And you must apply those rules to the 
 evidence that has been laid before you. 
 
 If the Government has not made out its case by clear and 
 satisfactory evidence, then it has failed, and your verdict 
 ought to be in favor of the defendant. If you are satisfied 
 clearly and satisfactorily that this defect existed upon this 
 car, so that it could not couple automatically by impact, or 
 that it could not be uncoupled unless somebody went between 
 the cars, then, as a matter of course, the ear was out of 
 order, and the defendant would be liable for the penalty. I 
 should add this : That it is the duty of the companies to keep 
 both ends of these cars in proper order; that the Act is not 
 complied with unless both couplers are in working and opera- 
 tive condition. It is not enough that one should be in order — 
 both must be so that they can be worked. There has been 
 evidence here that under certain conditions, although one of 
 the couplers might not be working, still if the car that is 
 defectively equipped met another car that was in good order,
 
 APPENDIX G. 827 
 
 the process of coupling — of automatically coupling — might 
 take place, but even then the cars could not be uncoupled 
 under certain conditions unless a brakeman or somebody 
 went between the cars in order to uncouple. But the rule is, 
 and I instruct you that that is the meaning of the statute, 
 tliat both ends of each car must have the coupler in proper 
 operative condition, and if either is out of order the law has 
 been disobeyed. 
 
 There is only one charge here, and therefore your verdict 
 would either be in favor of the Government for $100 or in 
 favor of the defendant. 
 
 UNITED STATES v. BALTIMORE & OHIO RAILROAD 
 
 COMPANY. 
 
 (United States District Court, Southern District of Ohio, Eastern 
 
 Division.) 
 
 June 10, 1909. 
 (Syllabus by the court.) 
 
 1. An action to recover a penalty under the Federal Safety Appliance 
 
 Law is civil in its nature, not criminal, and the Government, in 
 order to obtain a verdict in its favor, must satisfy the jury by a 
 preponderance of the evidence that the facts set out in its cause 
 of action are true. 
 
 2. A carrier, having equipped its cars with couplers and grab-irons re- 
 
 quired by statute, is not absolutely bound to insure that such 
 appliances are constantly in good order and workable condition. 
 
 3. It is just and reasonable that a carrier should exercise a high degree 
 
 of care to keep couplers and grab-irons in proper condition, but 
 it would be unjust and unreasonable to say that, having fulfilled 
 its utmost duty in that regard, it should be held responsible for a 
 condition which might occur without its fault. 
 
 4. The carrier's duty of inspecting its cars is a continuing one, and 
 
 reasonable care requires that couplers and grab-irons should be 
 inspected at reasonable interA'als of time by skillful and competent 
 inspectors. The carrier is bound to prove that it uses all reasonably 
 possible endeavor to perform its duty in regard to discovering and 
 correcting defects in its safety appliances. 
 6. If a carrier engaged in interstate commerce moves a car having a 
 defective coupler which could have been discovered by reasonable 
 inspection, then it would be liable for violation of the Safety Appli-
 
 828' FEDERAL SAFETY APPLIANCE ACT, 
 
 ance Acts; but if the carrier uses all reasonably possible endeavor 
 in the performance of its duty of inspection and finds no defects, 
 then it has performed its duty and is not liable. 
 G. Positive testimony is to be preferred to negative testimony, other 
 things being equal; but what may be negative testimony under 
 one state of facts is not negative under another. If the jury finds 
 it was the duty of a carrier's inspectors to inspect the cars and 
 that they did inspect them, but did not see any defective appliances, 
 that is not such negative testimony as not to receive the same 
 consideration as the positive testimony of the government inspectors. 
 
 Sherman T. McPherson, United States attorney, and 
 Ulysses Butler, special assistant United States attorney, for 
 the United States. 
 
 F. A. Durban, R. J. King, and J. M. Lessick, for the de- 
 fendant. 
 
 Sater, District Judge (charging jury) : 
 
 Gentlemen of the jury, there is a section of the law which 
 provides that it shall be unlawful for any common carrier to 
 haul or permit to be hauled or used on its line any car used 
 in moving interstate traffic not equipped with couplers 
 coupling automatically by impact, and which can be un- 
 coupled without the necessity of men going between the ends 
 of the cars. It was the duty of the defendant as a common 
 carrier to have each end of each car equipped with a coupler 
 of the Mnd prescribed by statute. The first cause of action 
 charges that, in violation of law, on the 14th day of October, 
 1907, the defendant company hauled westerly from Holloway, 
 Ohio, over its line of railroad, in one of its trains, car num- 
 bered 57677, loaded with interstate traffic, when the coupling 
 and uncoupling apparatus on its "A" end was out of repair 
 and inoperative, in that the chain connecting the lock block 
 or lock pin to tlic uncoupling lever was missing on that end 
 of the car, in conseciuence of which it was necessary for train- 
 men to go between tlie ends of the cars to couple or uncouple 
 them. 
 
 There; is another section of the law under which the second 
 cause of action is brought. Tliat section provides that it shall
 
 APPENDIX G. 829 
 
 be unlawful for any railroad company to use any ear in inter- 
 state commerce that is not x^rovided with secure grab-irons 
 or handholds in the ends and sides of each car for the greater 
 security of the men in coupling and uncoupling cars. The 
 second cause of action charges that a car regularly used in 
 interstate traffic, numbered X-5110, was, on the same day, 
 hauled westerly from Holloway, Ohio, by the defendant com- 
 pany in a train containing interstate traffic, while there was 
 missing from the right-hand side of its "A" end a grab- 
 iron or handhold, and when such end was not provided with 
 secure grab-irons or handholds, and that such car was in that 
 respect defective. Both of the sections to which your atten- 
 tion has been directed were designed for the protection of 
 the life and limbs of railway employees while engaged in the 
 work of interstate transportation. 
 
 The defendant denies that the coupler on the one car was 
 defective or that the grab-iron on the other was missing, and 
 that it hauled either of such cars in violation of law. This 
 is a general denial of the offenses charged in the amended 
 petition. 
 
 As a further, and what I shall for convenience call a second, 
 defense, the defendant says the first-named car was duly 
 equipped with couplers of the character required, and the 
 other with a grab-iron; that at all times after such cars had 
 been so equipped it had exercised due and reasonable care to 
 keep itself informed by inspection and otherwise as to the 
 condition of each of such devices to detect any defects or im- 
 perfections in them, or either of them, and to keep them and 
 each of them in proper repair and working order; and that 
 mthin a reasonable time prior to the movement of such cars 
 it had duly inspected the device in question on each and 
 found it in good repair and working order and free from any 
 observable defects, and did not know at the date mentioned 
 or have cause to believe that such devices, or either of them, 
 were out of repair or inoperative. 
 
 The action is civil, not criminal. The Government must 
 stand on the case stated in its amended petition. To obtain
 
 830 FEDERAL SAFETY APPLIANCE ACT. 
 
 a verdict in its favor it must satisfy you by a preponderance 
 of the evidence, which means the greater weight of the evi- 
 dence, that the facts set out in its respective causes of action 
 are true. A failure to do so is fatal to its right to recover. 
 There being two causes of action, you may, if the evidence 
 justifies it, return a verdict in favor of the Government on 
 one of them, or on both of them, or on neither of them. 
 
 The defendant is engaged in interstate commerce, which 
 means commerce between different States of the Union. You 
 must determine from the evidence and the charge of the court 
 whether or not the cars in question, or either of them, were 
 used in interstate commerce. 
 
 It is necessary for the Government to prove, to recover on 
 the first cause of action, that the coupler in question was 
 defective at the time stated, as charged, and that the car to 
 which it was attached was loaded with interstate traffic, and 
 was hauled, as alleged, over the defendant 's road. To recover 
 on the second cause of action the Government must show that 
 at the time stated the grab-iron mentioned was missing and 
 that the car in question was hauled in and was a part of a 
 train that was used in and contained interstate traffic. It 
 must, to recover on either of the causes of action, prove all 
 the averments therein contained. If it does that, it is entitled 
 to your verdict, unless you find in favor of the defendant 
 on what I have termed its further or second defense to each 
 of its respective causes of action, and to which I shall direct 
 your attention later. The Government has not charged and 
 it is not necessary for it to prove, or for you to find, that the 
 car mentioned in the second cause of action was loaded mth 
 interstate traffic, but the Government, to recover, must prove 
 that the car was hauled in and was part of a train which was 
 engaged in transporting merchandise or freight from one 
 State to another. 
 
 It is conceded that the defendant company liad originally 
 equipped the first-mentioned car with a coupler of the kind 
 required by statute and the other car with a grab-iron or 
 handhold. Having done so, it was not absolutely bound to
 
 APPENDIX G. 831 
 
 insure that the coupler on the one car and the grab-iron on the 
 other were constantly in good order — that the coupler was 
 always in a workable condition or the grab-iron always in a 
 condition for use. The coupling apparatus on railroad cars 
 is subjected at all times while they are in operation to almost 
 constant strain and wrench and liability to breakage. The 
 handholds are also in use more or less and are subjected to 
 strain and liability to breakage caused by such use. Much 
 of the time cars are connected up in trains running on time 
 schedules and are under the orders of train dispatchers, which 
 must be observed or fatal and disastrous consequences may 
 ensue. Then, again, accidents to couplers or grab-irons, or 
 unknown defects in them, may appear at places more or less 
 remote from repair shops. It is just and reasonable that a 
 carrier should exercise a high degree of care to keep its 
 couplers and grab-irons in proper condition, but it would be 
 unjust and unreasonable to say that, having fulfilled its ut- 
 most duty in that regard, it should be held responsible for a 
 condition which might occur without its fault. What, then, 
 were the duties of the railroad company in the maintenance 
 of the coupler and grab-iron in workable condition and good 
 repair ? 
 
 Having properly equipped the cars in question as required 
 by statute, the railroad company was bound to exercise that 
 reasonable degree of diligence — all reasonable possible en- 
 deavor — to inspect and keep the coupler and grab-iron, re- 
 spectively, in workable condition and repair, which would 
 be proportionate to the danger in the use of each, and you 
 are to consider the nature of the defendant's business and 
 the use to which its cars and the couplers and grab-irons 
 thereon are subjected in measuring what would be that rea- 
 sonable degree of diligence in inspecting. The railroad com- 
 pany's duty of inspection was a continuing one. Reasonable 
 care required that the coupler and grab-iron in question 
 should have been inspected at reasonable intervals of time by 
 skillful and competent inspectors who were selected with 
 ordinary care. By ordinary care I mean that care which a
 
 832 FEDERAL SAFETY APPLIANCE ACT. 
 
 reasonably prudent man would ordinarily exercise under 
 circumstances and in a situation similar to that in which the 
 defendant company found itself. 
 
 If you find from the evidence that the Government has 
 proved that the first of these cars was loaded with interstate 
 traffic, that the other was hauled in a train which was en- 
 gaged in interstate traffic, that on the car first mentioned 
 there was a defective coupler, as charged, and on the car 
 in the second cause of action mentioned the grab-iron was 
 missing, and that the defendant was hauling these cars upon 
 its tracks at the time mentioned and as alleged in the amended 
 petition, then the railroad company was bound to prove that 
 it had used all reasonable possible endeavor to perform its 
 duty to discover and correct such defects. If it did this, it 
 is entitled to your verdict. If it failed to do so, your verdict 
 should then be for the Government, on one or both of the 
 causes of action, as the case may be. 
 
 If the coupler was defective, as alleged, and the grab-iron 
 was missing on October 14, 1907, they each must have 
 become so at some time previous to the date at which the 
 inspectors say they saw such defects in the respective cars, 
 and if the defects existed and the defendant had knowledge of 
 them, or should with reasonable diligence have had notice of 
 them, and with such knowledge, actual or implied, continued 
 without some justifying necessity to haul the car mentioned 
 in the first cause of action, as therein stated, when loaded 
 with goods which were the subject of interstate commerce, or 
 the other car, as charged in the second cause of action, in a 
 train which was hauling interstate traffic, then it violated the 
 statute and your verdict should be for the Government on 
 one or both of the counts, as the evidence may justify. 
 
 If you find from the evidence that the railroad company 
 started these cars, or either of them, in transit on their 
 journey, the one with a defective coupler, which could have 
 been discovered by the sort of inspection which I have men- 
 tioned, and the other with the missing grab-iron, which could 
 have been discovered by the same kind of inspection, then
 
 APPENDIX G. 
 
 833 
 
 the company would be liable and your verdict should be 
 against it on both or either of the counts, as you may find 
 t'rom the facts. 
 
 If the coupler on the one car was defective, as alleged, 
 when the car was started in transit on the day mentioned, 
 and the defect was not discoverable by the kind of inspection 
 I have named, or if it was not defective at all, your verdict 
 should, as to the first cause of action, be for the defendant; 
 it should be for the defendant on the second cause of action 
 also, even if the grab-iron was missing from the car therein 
 mentioned, if, by the same sort of inspection, the defect was 
 not discoverable, or if the grab-iron in fact was not missing. 
 
 If you should fijid from the evidence that the automatic 
 coupler was defective and out of repair, as charged, on the 
 one car; but that the grab-iron on the other was missing, as 
 alleged ; that on the date named the first car was transporting 
 interstate traffic and the second was hauled in a train used 
 for transporting such traffic, and that the railroad company 
 used all reasonably possible endeavor in the performance of 
 its duty of inspection to determine whether or not there was 
 any defect in the coupler or the grab-iron, and that, if from 
 such inspection it found no defect, then the railroad com- 
 pany performed its duty and is not liable, and your verdict 
 should be for it on one or both causes of action, as the facts 
 warrant. 
 
 Portions of the testimony conflict. Was the coupler defec- 
 tive and the grab-iron missing in the manner charged in the 
 amended petition on the 14th day of October, 1907? The 
 Government offered two inspectors as witnesses. They tes- 
 tified that they were at Holloway on that date and within a 
 few minutes prior to the departure of the train called first 
 83, pulled by engine No. 2270, and that they saw and 
 examined car No. 57677, which was in that train. At 
 that time they each, so they say, entered in a memorandum 
 Dook what they testify they respectively observed, and they 
 iiave described to you what they say they saw defective in 
 the coupler. They fixed the time of that train's departure
 
 834 FEDERAL SAFETY APPLIANCE ACT. 
 
 at 9 :50 in the morning, eastern time. These inspectors also 
 say that about 10 :40 in the morning they saw the other train, 
 being second 83, drawn by engine No 2203, in which train 
 was car No. X-5110, and that it moved out of the yards 
 about 11 :20 in the morning, eastern time. They told you 
 that they saw that the grab-iron in question was missing 
 from the car and that each made a memorandum as to that. 
 The conductor of the first train, offered as a witness by the 
 defendant, testified that his train moved out of HoUoway on 
 the date in question at 6 :35 a. m., and produced his record 
 or memorandum, which he said was made at the time, con- 
 taining an entry of the departure of his train at that hour. 
 The conductor of the second train testified in behalf of the 
 defendant that his train on that date left HoUoway at 10 :25 
 central time, and that he at that time made a record or 
 memorandum of his hour of departure, which memorandum 
 he produced as a wdtness. There may have been other evi- 
 dence by one or the other or both, of the parties as to the 
 departure of those trains. You will remember as to that, as 
 I am not pretending to direct your attention to all the evi- 
 dence or for any purpose other than that of illustration and 
 of bringing to your notice some of the matters which you 
 should consider. Wlio is in error as to the time of the de- 
 yjarture of those trains? If the first train departed at 6:35 
 in the morning, these inspectors could not have seen the 
 engine, or the car, or the train at all. There is no evidence 
 to show that they were in the location of the train or the 
 car until a few minutes prior to 9 :50 a. m. They gave, how- 
 ever, correctly the number of each of the cars mentioned in 
 the amended petition and of each of the engines which pulled 
 them. The evidence shows that both engines arrived at Lorain 
 on the same day, and tliat engine number 2270 had in its train 
 at Lorain the car in the first cause of action mentioned, and 
 on the same day, and that engine No. 2270 had in its train 
 that engine numbered 2203 handled the other car. One of the 
 questions to be answered by you is. How could the inspectors 
 have gotten the numbers of the engines and the numbers of
 
 APPENDIX G, 835 
 
 the cars unless they saw them at Holloway? Are they and 
 their memoranda, or are the railroad employees and their 
 memoranda, in error? You must take all of the evidence 
 touching the departure and movement of these trains and 
 determine where the truth lies. 
 
 In reaching a conclusion as to whether the coupler was 
 defective, or the grab-iron missing, you will consider the 
 degree of care with which the Government inspectors and 
 railway employees, respectively, made their respective inspec- 
 tions, and the probability or improbability of mistake therein. 
 Who made the more careful inspection? You have heard the 
 evidence of the two Government inspectors whose duty it is 
 to examine cars with reference to their safety appliances. 
 The defendant offered as witnesses : conductors, trainmen, 
 and also inspectors whose duty it is to inspect cars, and these 
 employees all detailed what they did in the way of inspection. 
 The Government inspectors say they observed a defective 
 coupler and a missing grab-iron. The other witnesses say 
 they did not observe such. One of the defendant's witnesses 
 said that he spent about a minute and a half on a car in his 
 inspection. It is for you to say how thoroughly, in that 
 time, he could inspect it, and whether or not he would learn 
 as much about a car as the other men whose business it is 
 to inspect. How much time other railroad employees spent 
 on each car does not appear in the record, as I recall it, 
 but, as to that, use your own memories. Another one said 
 he inspected the bolsters underneath, the couplers, the hand- 
 holds, the whole car. You must decide for yourselves whose 
 testimony you "wdll accept as regards the condition of the 
 two cars, giving to each witness such credibility and weight 
 as you think he should have. 
 
 Something has been said in your hearing about the in- 
 spectors not having directed the attention of the railroad 
 employees to what they say was the defective condition of 
 the coupler and grab-iron, respectively. They were not re- 
 quired to direct the railroad employees' attention to any 
 defects. It was no part of their duty to do so.
 
 836 FEDERAL S.VTETY APPLIANCE ACT. 
 
 Evidence was given that on or about October 12, 1907, car 
 No. X-5110 was repaired, a new truck bolster being applied, 
 and that both cars in question were inspected at Lorain, 
 one on the 20th, as I remember, and the other on the 26th 
 of the month, and that neither of the cars were shopped, as 
 it is called, between those respective dates and the 14th. The 
 value of that testimony is to be determined by you. The 
 real question is. What was the condition of ihe cars on the 
 14th? Was there on that date, as is charged, a defective 
 coupler on the one and a missing grab-iron on the other? You 
 must answer that from all the evidence that was given touch- 
 ing upon that issue. 
 
 Some, perhaps all, of those who testified in behalf of the 
 defendant, and some of those who testified for the Govern- 
 ment, are railroad employees. Two of the witnesses offered 
 by the Government, who were called detectives in the course 
 of the argument, are inspectors in the employ of the Inter- 
 state Commerce Commission. It is necessary that the railroad 
 company should employ men to do its business. It is also 
 necessary that the Government should employ men to look 
 after its business and to see that the law is observed. These 
 men who testified before you, whether they ire railroad em- 
 ployees or inspectors, are not to be disbelieved simply 
 because they work for the defendant or are in the Govern- 
 ment's service, as the case may be. You are the judges of 
 the weight of the evidence and the credibility of witnesses. 
 Taking each of these witnesses as you saw him, and his evi- 
 dence as you heard it, consider his intelligence, his means and 
 opportunities of knowledge concerning that about which he 
 testified, whether or not he is corroborated or uncorroborated, 
 the probability or improbability of his statements, his conduct 
 on the witness stand, and all other facts disclosed by the 
 evidence, and then determine the degree of credibility to be 
 given to him. 
 
 Wliat the government inspectors state they saw regarding 
 the coupler and the grab-iron was characterized in argument
 
 APPENDIX G. 837 
 
 as positive testimony. Other witnesses, in the employ of the 
 defendant, testified that they did not see any such defects, 
 and this has been characterized by the Government's counsel 
 as being negative testimony, while defendant's counsel insist 
 that it is positive. Positive testimony is to be preferred to 
 negative testimony, other things being equal. That is to say, 
 when a credible witness testifies to having observed a fact 
 at a particular time and place, and another equally credible 
 witness testifies to having failed to observe the same fact, 
 having the same or equal opportunity so to observe such fact, 
 the positive declaration is to be preferred to the negative 
 in the absence of other testimony corroborating the one or 
 the other. But what may be negative testimony under one 
 state of facts is not negative under another. For instance, a 
 man might testify that he did not hear a whistle blown or 
 bell rung. He is testifying to a negative circumstance and 
 his testimony perhaps is not entitled to as much weight as 
 the testimony of a man who says he did hear; but if it 
 was his duty to hear the whistle or the bell, then if the wit- 
 ness saj's he did not hear it, while his testimony is negative 
 in character, yet because it was his duty to hear, other things 
 between the witnesses being equal, his testimony should be 
 given the same weight as the testimony of tha man who said 
 he heard the bell or whistle. 
 
 Now, it is the same with the testimony in this case. If 
 you find it was the duty of the inspectors on xhe part of the 
 railroad company to inspect the cars and that they did inspect 
 them and did not see the defective coupler or the missing 
 grab-iron, that is not such negative testimony as not to receive 
 the same consideration, other things being equal between the 
 witnesses, as positive testimony. It would then, as would 
 that of the Government inspectors, be positive testimony. 
 
 When you retire to the jury room you may select one of 
 your o\^Ti number as foreman. You will understand that 
 you are to act impartially as betAveen the parties. The fact 
 that one party is the Government and the other a railroad 
 company should not cause you to discriminate in the slightest
 
 838 FEDERAL SAFETY APPLIANCE ACT. 
 
 against either. They stand on an absolute equality. The law 
 is no respector of persons. Deal conscientiously with the par- 
 ties. You may retire. 
 
 UNITED STATES v. WABASH-PITTSBURGH TER- 
 MINAL RAILWAY COMPANY. 
 
 (United States District Court, Western District of Pennsylvania.) 
 November 3, 1909. 
 
 1. The maintenance of one grab-iron or handhold on each side of the 
 car near the "B" end is not a compliance with the Federal Safety 
 Appliance Act, as the necessity of having such grab-iron or hand- 
 hold upon each side of the car near each end of the car is fairly 
 contemplated by the very language of the Act. 
 
 John II. Jordan, United States Attorney, and jNIonroe C. 
 List, special assistant United States Attorney, for the United 
 States. 
 
 James R. JMiller and H. F. Baker, for the defendant. 
 Orr, District Judge (charging jury) : 
 
 This is an action of assumpsit brought by the United States 
 against the Wabash-Pittsburgh Terminal Railway Company 
 to recover from the railway company for the violations of an 
 Act of Congress which is entitled, "An Act to promote the 
 safety of employees and travelers upon railroads by com- 
 pelling common carriers engaged in interstate commerce to 
 equip their cars with automatic couplers and continuous 
 brakes, and their locomotives with driving-wheel brakes, and 
 for other purposes." The fourth section of the Act says, 
 "that from and after the 1st day of July, 1895, unless other- 
 wise ordered by the Interstate Commerce Commission, it shall 
 be unlawful for any railroad company to use any car in 
 interstate commerce that is not equipped with secure grab- 
 irons or handholds in the ends and sides of each car for 
 greater security to men in coupling and uncoupling the cars. ' ' 
 
 Most of the causes of action in this complaint relate to the 
 section that I have just read. Some relate, however, to an-
 
 APPENDIX G. 839 
 
 other section of the Act, being Section 2, wherein it is pro- 
 vided that "on and after the 1st of January, 1898, it shall 
 be unlawful for any such common carrier to haul or permit 
 to be hauled or used on its line any car used in moving inter- 
 state traffic not equipped with couplers coupling automatically 
 by impact, and which can be uncoupled without the necessity 
 of men going between the ends of the cars." And the Act 
 provides that "any common carrier using or carrying or per- 
 mitting to be hauled or carried on its line any car in violation 
 of the provisions of this Act shall be liable to a penalty of 
 $100 for each and every such violation," to be recovered in a 
 suit such as is now before the court. 
 
 It is admitted that the defendant is a common carrier en- 
 gaged in interstate traffic ; that the cars upon which the 
 alleged defects appeared were engaged in the transportation 
 of interstate commerce, and it is not denied that the cars, to 
 which your attention has been called by initials and numbers, 
 were defective in the matter of couplers ; and it is not denied 
 by evidence other than a plan that has been introduced by 
 consent, that the cars did not have grab-irons and handholds 
 as required by the Act of Congress ; but the defendant insists 
 that the cars without the grab-irons and handholds on the 
 sides, as testified by the \\dtnesses, were not constructed and 
 maintained in violation of the terms of this Act of Congress. 
 Defendant insists that, because it has one grab-iron or hand- 
 hold on each side of each car near the "B" end, where the 
 coupling is to take place, the law has been complied with and 
 that it is not necessary to have a grab-iron or handhold upon 
 the side of each car near the other end of the car, the "A" 
 end, as it has been explained to you. 
 
 Now, I hold, and so instruct you, that the maintenance of 
 one grab-iron or handhold on each side of the car near the 
 "B" end thereon is not a compliance with the Act of Con- 
 gress. I think the necessity of having such grab-irons or 
 handholds upon the sides of the car near either end of the 
 car is fairly contemplated by the very language of the Act, 
 because it contemplates in this language, "secure grab-irons
 
 840 FEDERAL SAFETY APrLIANCE ACT. 
 
 or handholds in the sides of each car." It contemplates, it 
 seems to me, although it is not exactly plain, that the side of 
 each car ought to have more than one grab-iron or handhold, 
 contemplated by the very language of the Act, because it con- 
 templates in this language, ''secure grabirons or handholds 
 in the sides of each car." It contemplates, it seems to me, 
 although it is not exaxctly x^lai^^ that the side of each car 
 ought to have more than one grab-iron or handhold. 
 
 I instruct you, under the evidence, to find a verdict for the 
 plaintiff, the United States, for $1,200 for the causes of action. 
 
 UNITED STATES v. PENNSYLVANIA RAILROAD 
 COMPANY. 
 
 (United States District Court. Western District of Pennsyilvania. ) 
 jSTowmber 3, 1909. 
 
 1. It is imperative that the couplings on both ends of every car used 
 
 in interstate commerce should be capable of being operated in the 
 manner intended by the Federal Safety Appliance Act, so as to 
 make it unnecessary for an employee to go between the ends of the 
 cars. 
 
 2. It appears that the car involved in this case was in control of a 
 
 crew of the Panhandle Hallway Company^ but it was hauled, and 
 permitted to be hauled, over the tracks of the line of the defendant 
 in a defective condition toward its destination: Held, That the 
 defendant is liable for the statutory penalty. 
 
 3. Reasonable care, or the utmost care, on the part of the railroad 
 
 company, will not excuse it from liability under the Safety Appli- 
 ance Act. It is not necessary to prove willful negligence, or any 
 negligence at all, on the part of such carrier in order to make it 
 liable for the penalty. 
 
 John II. Jordan, United States attorney, and ^Monroe C. 
 List, special assistant United States attorney, for the United 
 States. 
 
 Patterson, Sterrett & Aciieson, for the defendant. 
 
 Orr, District Judge (charging jury) : 
 
 The case that has been tried before you is a case by the 
 United States against the Pennsylvania Railroad Company 
 to recover a penalty provided by the Safety Appliance Act, as
 
 APPP]NDIX G. 841 
 
 amended and passed by Congress. Whether or not that Act 
 meets with your approval or mine is not the question. It is 
 a question of whether or not there has been a violation of 
 that Act, and whether or not under the evidence in this case 
 the defendant has been guilty of that violation. 
 
 The Act was passed with a view, I presume, of doing some- 
 thing to prevent injuries to trainmen. It has been the ex- 
 perience of us all — more in times past, perhaps, than in the 
 present — that when we would shake hands with a railroad 
 employee, oftentimes, especially in and about the yards, we 
 would find that the hand was not all there, and we cannot 
 help but appreciate that with the loss of a portion of such a 
 valuable member as the hand, a source of wealth to the 
 United States was diminished; and therefore Congress under- 
 took, as I say, to pass an Act requiring railroads to conform 
 to certain provisions, and imposing penalties if they did not 
 so conform, and authorizing a suit to be brought, such as this, 
 to recover those penalties where the Act had been violated. 
 
 That Act provides that "it shall be unlawful for any 
 common carrier to haul or permit to be hauled or used on its 
 line, any car used in moving interstate traffic not equipped 
 Avitli couplers coupling automatically l)y impact, and which 
 can be uncoupled without the necessity of men going between 
 the ends of the cars," and it provides that for each offense 
 such railroad may be liable to p>ay the sum of $100. 
 
 I say to you that Congress had power to pass this Act, so 
 far as it related to interstate commerce, and that is all it 
 pretends to relate to. By that Act there is imposed an im- 
 perative duty upon eacli railroad company engaged in inter- 
 state commerce ; that is, commerce between the states and not 
 intrastate commerce, within the state, to comply with the 
 provisions, and if a car is not equipped with couplers — ^the 
 plural is used — coupling automatically by impact, and which 
 can be uncoupled without the necessity of men going between 
 the ends of the cars, then the railroad company is liable. And 
 I say to you that it is not material to this case that the car 
 to which the defective couplings may be attached is not de-
 
 842 
 
 FEDERAL SAFETY APPLIANCE ACT. 
 
 fective, and that the two cars may be separated by the use 
 of the coupling on the one car that is not defective ; but it is 
 imperative that the couplings on both ends of each car should 
 be capable of being used in the manner intended by the Act, 
 so as to prevent a person from going between the cars. 
 
 It is charged in this case that the Pennsylvania Railroad 
 Company, on or about the 17th of November, 1906, permitted 
 a train to leave its yards at Piteairn, in which there was a 
 car used in interstate commerce, that car, I believe, being 
 bound to St. Louis, or in that neighborhood. It is true it 
 appears that the car was in control of a crew of what is known 
 as the Panhandle Railroad Company ; that is, the Pittsburgh, 
 Cincinnati, Chicago & St. Louis; that that was the point of 
 delivery by the Pennsylvania Railroad — to the Panhandle 
 Railroad — of this freight and of this car. But it also appears 
 that car left the Piteairn yards and was hauled and permitted 
 to be hauled over the tracks of the line of the Pennsylvania 
 Railroad Company on toward its destination. 
 
 Now, it is not disputed that this car was defective in that 
 the coupler on the ''B" end had a broken clevis and clevis 
 pin. That being the case, the Pennsylvania Railroad Com- 
 pany is liable to a penalty. 
 
 I say to you, as a matter of law, that reasonable care or the 
 utmost care on the part of the railroad company will not 
 excuse the company from liability under this Act. It seems 
 a hard rule, but it is a rule that is laid down in this Act, and 
 that rule must be enforced in order to accomplish the purposes 
 intended by Congress when the Act was passed, and I say to 
 you that willful negligence is not necessary to be shown on 
 the part ot the railroad company, or any negligence at all on 
 the part of the railroad company, except to show that a car 
 used in interstate commerce was not equipped in accordance 
 •with the provisions of this Act of Congress. 
 
 There is no dispute of fact in this case that I can see, and I 
 therefore direct you to find a verdict for the plaintiff in the 
 sum of $100, being the amount of the penalty prescribed by 
 the Act.
 
 APPENDIX G. °^^ 
 
 UNITED STATES v. ATCHISON, TOPEKA & SANTA 
 FE RAILWAY COMPANY. 
 
 (United States District Court, Northern District of Illinois.) 
 December 27, 1900. 
 
 1. The statute provides that interstate cars shall have secure grab- 
 
 irons or handholds on the ends and sides of each car. The only 
 question arising in this case was whether the coupling lever con- 
 stituted a secure grab-iron or handhold on the end of the car, as 
 the statute has not definitely and distinctly defined what is a 
 secure grab-iix)n or handhold. It is for the jury to answer that 
 question and determine whether or not the coupling lever that wa5 
 provided was a secure grab-iron or secure handhold within the 
 meaning of the statute. 
 
 2. The mere fact that the coupling lever was used for the coupling and 
 
 uncoupling of cars was no reason why it could not be used as a 
 grab-iron, always assuming that it was so placed and was of such 
 material and such size that it did constitute a secure grab-iron or 
 handhold. 
 
 3. A suit for penalty under the Federal Safety Appliance Acts is civil 
 
 in its nature, and the verdict should be brought in upon the 
 
 preponderance of the evidenc-e. The phrase "preponderance of the 
 evidence" discussed and defined. 
 
 4. The jury should not cast out the testimony of witnesses for the 
 
 United States because they are inspectors in the employ of the 
 Interstate Commerce Commission; nor should they cast out the 
 testimony of the defendant's witnesses because they are in th'i 
 employ of a railway company, but all those things are to be taken 
 into consideration by the jury in determining the probable weight 
 which should be given to the testimony. 
 
 Edwin W. Sims, United States attorney, and Harry A. 
 Parkin, assistant United States attorney, for the United 
 States. 
 
 Robert Dunlap, Lee F. English, and James L. Coleman, 
 for the defendant. 
 
 Landis, District Judge (charging jury) : 
 
 In this suit the United States seeks the recovery of $100 as 
 a penalty claimed by the Government to have been incurred 
 by the Atchison, Topeka & Santa Fe Railway Company, de- 
 fendant, by reason of the failure of the defendant company 
 to comply with a certain statute of the United States. That 
 statute provides that it shall be unlawful for any railroad
 
 844 FEDERAL SAFETY APPLIANCE ACT, 
 
 company to use any car in interstate commerce that is not 
 provided with secure grab-irons or handholds on the ends and 
 sides of each car for greater security to men in coupling and 
 uncoupling cars. In this case you have nothing to do with 
 any controversy as to whether or not the car in question was 
 being used in interstate commerce. It was. The only ques- 
 tion here is whether the coupling lever v/hich the witnesses 
 have testified about was so placed, was of such size and 
 strength, as that in its condition and the position in which it 
 was at the time in question it constituted a secure grab-iron 
 or handhold on the end of that car. What is a secure grab- 
 iron or handhold the statute has not definitely and distinctly 
 defined. It is for you to answer that question and determine 
 whether or not this coupling lever that was provided was a 
 secure grab-iron or secure handhold within the meaning of 
 this statute. If it was, then your finding should be in favor of 
 the defendant, for the mere fact that the coupling lever was 
 used for the coupling and uncoupling of cars was no reason 
 why it could not be used as a grab-iron, always assuming that 
 it was so placed and was of such material and such size that 
 it did constitute a secure grabiron or handhold. If you find 
 that it was not, then you will find against the defendant. 
 
 Now, in this case, which is a civil case, the rule is that if the 
 evidence shows by a preponderance that this coupling lever 
 was not a secure grab-iron or handhold, as those terms are 
 used in this statute, then the defendant is guilty. If there 
 is no preponderance of the evidence, that is to say, if the 
 evidence is evenly balanced and you cannot say on which 
 side is the preponderance, then your verdict must be in favor 
 of the defendant, and "not guilty." If the preponderance 
 of the evidence is for the defendant, then your verdict must 
 be "not guilty." In t])is respect this case differs from a case 
 which all of you, or some of you, on a recent occasion, heard 
 in the criminal branch of this court. You will recall that in 
 that case the rule which the court defined to you as applicable 
 was the rule that required the evidence to convince the jury 
 beyond all reasonable doubt of the defandant's guilt before
 
 APPENDIX G. 845 
 
 a verdict could be returned against the defendant. Not so 
 here. 
 
 Now, what is meant by a preponderance of the evidence ? 
 The best I can say to you as to what the phrase "preponder- 
 ance of the evidence" means is looking over the whole case, all 
 the evidence in the case, considering the testimony of each 
 and all the witnesses, including the stipulation which has 
 been read in evidence as being the statement of what a witness 
 who was not present here would have testiiied to had he been 
 called ; looking over all the evidence in the case, sifting out 
 that which is untrue or inaccurate or false, laying hold of 
 that and identifying that which is true and accurate and 
 commends itself to you as being the truth of the situation — 
 on which side is the greater weight of such evidence — in sup- 
 port of the proposition that this thing was not a secure grab- 
 iron or handhold, or in support of the proposition that it 
 was ; or, as I have said before, if there is no weight, then your 
 verdict must be "not guilty." 
 
 Now, in determining where this greater weight of the evi- 
 dence is, it will become necessary for you to ascertain who has 
 told the truth. With a view to ascertaining that fact, that is to 
 say, with a view to ascertaining what credit you will give to 
 the testimony of the several witnesses, you will take into con- 
 sideration their interest in the outcome of this lawsuit, or their 
 interest in the subject matter of this lawsuit, in so far as the 
 evidence dicloses any interest on their part, the opportunity 
 which the witness or witnesses have to know about the things 
 respecting which they have testified, the disposition of the 
 witness or witnesses to speak candidly and freely and frankly 
 and openly in reply to the interrogatories respecting the 
 subject matter under inquiry, the probability, the inherent 
 probability or improbability, of the truthfulness of the wit- 
 nesses' statements — all these things, and such other considera- 
 tions as your experience and judgment as men experienced in 
 the affairs of life suggest to your minds, with a view to de- 
 termining who told the truth and who did not tell the truth. 
 And when you have done this and have determined where the
 
 846 FEDERAL SAFETY APPLIANCE ACT. 
 
 truth is, then it is quite likely that you will have determined 
 where ' ' preponderance ' ' is. Preponderance is not a thing that 
 is controlled necessarily by the number of witnesses. The pre- 
 ponderance or greater weight of the evidence is on that side 
 of the controversy where the truth is, and it may be with the 
 fewer mtnesses as against the greater number of the witnesses. 
 If anybody has been impeached on the trial of this case, that 
 is to say, if it has appeared that somebody has made a state- 
 ment on the trial of this case contrary to the statements made 
 on another trial or elsewhere on a prior occasion respecting 
 a material matter in this inquiry, the law is, you may dis- 
 regard his entire testimony except in so far as it may be 
 corroborated by other facts, or by facts and circumstances 
 proved on this trial. You have no right to disregard the 
 testimony of any witness merely because he is employed by 
 somebody. You can not cast out the testimony of these two 
 ^^'itnesses for the United States because they are inspectors 
 in the employ of the Interstate Commerce Commission; you' 
 cannot cast out the testimony of the defendant's witnesses 
 because they are in the employ of the defendant, or in the 
 employ of other railway companies, though all of those things 
 are to be taken into consideration by the jury in determining 
 the probable weight which you will give to their testimony. 
 Now, in this case the plaintiff is the United States, and 
 the defendant is a railway company. On the question of 
 financial condition, I suppose it may truthfully be said they 
 are both in easy circumstances. So the question of the matter 
 referred to here as to one side being rich makes no difference. 
 It may be that it is proper for me to utter a word of ad- 
 monition against the proposition of your being possibly 
 inclined against the defendant because it is a railway cor- 
 poration. Your services here, the manner in which you have 
 discharged your duties, is evidence to me to the fullest extent 
 that the fact that somebody is being sued that is a corporation 
 is not a fact that imperils that corporation's rights with 
 you. So, if you consider this case as you have other cases, and 
 decide the question on its merits, regardless of who is plain-
 
 APPENDIX G. 847 
 
 tiff or defendant, and regardless of whether one or both or 
 any are in good financial condition, having in mind no other 
 purpose in the world than to arrive at the truth of the con- 
 troversy, you will have discharged your duty well. 
 
 D. S. SNYDER v. SOUTHERN RAILWAY COMPANY. 
 
 (In the Circuit Court of the United States for the Eastern District 
 
 of Tennessee.) 
 
 [Affirmed, 187 Fed. 492.] 
 
 Decided Januwry 21, 1910. 
 
 1. The provisions of the Federal Safety Appliance Act as to couplers 
 
 was intended to apply not merely to those cars which are being 
 used in the movement of interstate traffic at a given moment, but 
 to all cars hauled or used on its line that are customarily and 
 generally employed in moving interstate traffic, or in connection 
 with vehicles used in moving interstate traffic. 
 
 2. A car regularly used in moving interstate traffic, or in connection 
 
 therewith, ig subject to the provisions of the Safety Appliance 
 Act in reference to automatic couplers when used, although at the 
 particular time it is being hauled empty or not in connection witu 
 the movement of interstate traffic. 
 
 3. The Safety Appliance Act is a remedial statute, and must be so 
 
 construed as to accomplish the intent of Congress. Its provisions 
 should not be taken in a narrow sense, nor should its undoubted 
 humanitarian purpose be frittered away by judicial construction. 
 
 4. A construction exempting from the operation of the act cars which^ 
 
 although regularly used in interstate commerce, were not being 
 so used at the particular time, would put upon the employee work- 
 ing with such ear the practically imjwssible burden of ascertaining 
 whether or not a given car was in fact being used in connection 
 with the hauling of interstate traffic at the particular time — that 
 is, of ascertaining the character of its load and that of the other 
 cars in the train — in determining whether or not, in working with 
 it, he would or would not assume the risk arising from its being 
 in a condition which did not comply with the Safety Appliance Act. 
 
 5. A car regularly used by an interstate carrier on its interstate line, 
 
 which is not segregated and set apart solely for local traffic, but 
 is regularly and habitually used in the movement of interstate 
 traffic or in connection therewith, is, when used on the carrier's 
 line, subject to the provisions of the Safety Appliance Act in 
 reference to the couplers upon it. 
 
 6. The Safety Appliance Act is constitutional.
 
 848 FEDERAL SAFETY APPLIANCE ACT. 
 
 7. A car arrived at the Coster yards of the defendant in a defective 
 
 condition several days before the accident; it had not been re- 
 paired at the Coster shop, wliere it could have been repaired, but 
 had been hauled away from this repair point en route to the 
 repair shops at Lenoir City, several miles away, for the purpose 
 of being there repaired. Held: (a) When the car was put in use, 
 even to be hauled to another repair shop, after it had been for some 
 time at a repair shop where it could have been repaired, it was 
 being hauled in this defective condition in violation of the Safety 
 Appliance Act. (h) Having undertaken to haul the car away from 
 a repair point, it remained within the provisions of the act, even 
 although the effort was afterwards made to detach the car and 
 return it to the Coster yard, (c) Having once moved it away from 
 the Coster yard, where it should have been repaired, it was there- 
 after moved at the risk of the carrier, so far as the provisions ol 
 the Safety Appliance Act were concerned. 
 
 8. Under proof as to the temporary purpose for which the plaintiff 
 
 went between the cars, the customary method of doing such work, 
 the character of lookout established vnih. the crew available, tho 
 time of day, the necessity of m.oving out the cars as directed, and 
 all the circumstances of the case, the verdict of the jury, involving 
 in effect a finding both that the defective coupling was a proximate 
 cause of the injury and that the plaintiff was not guilty of con- 
 tributory negligence was not against the clear and decided weight 
 of the evidence. 
 
 9. A court is always more reluctant to set aside a verdict when it is 
 
 against the party having the burden of proof, as the defendant 
 had in this case, upon the material question of the contributory 
 negligence of the plaintiff. 
 
 10. In view of the serious character of the injuries, involving great 
 
 suffering and loss of time and the permanent disability of the 
 plaintiff, disabling him from earning a livelihood in the occupa- 
 tion in which he had been engaged, or in other similar labor, 
 the amount of the verdict, $7,500, does not show that the jury 
 was influenced by prejudice or passion, and that it should not on 
 that ground be set aside as excessive. 
 
 11. Plaintiff not being guilty of contributory negligence that barred 
 
 recovery, he was entitled to full compensatory damages, as this suit 
 was not prosecuted under any statute requiring damages to be 
 assessed on the basis of comparative negligence. 
 
 12. Recitals in defendant's records, made by its agents at the time, 
 
 in the line of their duty, were competent evidence against the 
 company. 
 
 13. Evidence as to the customary dis^wsition of defendant's cars was 
 
 clearly adn>issil>le. 
 
 Pickle, Turner & Kennerly, for plaintiff. 
 JouROLMON, Welcker & Smitii, for defendant.
 
 appendix g. 849 
 
 Memorandum Opinion of the Court. 
 
 Sanford, Judge, on motion for new trial : 
 
 I am of opinion that the motion for a new trial should be 
 overruled, for the following reasons : 
 
 1. The rules of law applicable to the facts of this case under 
 the Safety Appliance Law were, I think, correctly stated in 
 the charge to the jury. 
 
 By Section 2 of the Safety Appliance Act of ]March 2, 
 1893, it was made unlawful for any common carrier engaged 
 in interstate commerce by railroad to haul or permit to be 
 hauled or used on its line any car used in moving interstate 
 traffic not equipped with couplers coupling automatically by 
 impact. By Section 1 of the amendatory Act of ]\Iarch 2, 
 1903, it was provided that the provisions and requirements 
 of the Act of 1893, relating to automatic couplers, "shall be 
 held to apply to all trains, locomotives, tenders, cars, and 
 similar vehicles used on any railroad engaged in interstate 
 commerce * '* * and to all other locomotives, tenders, 
 cars, and similar vehicles used in connection therewith." 
 
 In Johnson v. Southern Pac. Co., 196 U. S., 1, 21, it was 
 said that this amendatory Act "is affirmative and declaratory, 
 and, in effect, only construed and applied the foniier act;" 
 and in Schlemmer v. Buffalo Ry., 205 U. S., 1, 10, it w^as again 
 said that the amendatory Act in the opinion of the Supreme 
 Court "indicates the intent of the original act." 
 
 It w^as further held in the Johnson case that a dining car 
 regularly engaged in making interstate journeys was equally 
 under the control of Congress under the safety-appliance 
 law when waiting for the train to be made up for another 
 trip. The Chief Justice, in delivering the opinion of the 
 court, said : "It was being regularly used in the movement of 
 interstate commerce and so within the law" (p. 22). In the 
 light of this decision, and in view of the broad language used 
 in the amendatory Act, I think it clear that the provision as 
 to couplers on cars used on the line of an interstate carrier 
 was intended to apply not merely to those cars which are
 
 850 FEDERAL SAFETY APPLIANCE ACT. 
 
 being used in the movement of interstate traffic at a given 
 moment, but to all cars hauled or used on its line that are 
 customarily and generally employed in moving interstate 
 traffic, or in connection with vehicles used in moving inter- 
 state traffic, and that a car regularly used in moving interstate 
 traffic or in connection therewith, is subject to the provisions 
 of the Safety Appliance Act in reference to automatic 
 couplers when used, although at the particular time it is 
 being hauled empty or not in connection with the movement 
 of interstate traffic. This view is, I think, supported by the 
 case of Voelker v. Chicago Ey. Co. (D. C), 116 Fed., 867, 873, 
 the language used in this opinion being approved obiter in 
 United States v. Southern Pac. Co. (D. C), 145 Fed., 438; 
 United States v. St. Louis R. Co. (D. C), 154 Fed., 516; 
 United States v. Chicago Ry. Co. (D. C), 157 Fed., 616; and 
 Chicago Ry. Co. v. United States (C. C. A., 8th Cir.), 168 
 Fed., 236; and Thornton's Employers' Liability and Safety 
 Appliance Acts, Section 127, page 162, and cases cited. 
 
 The Safety Appliance Act is a remedial statute, and must 
 be so construed as to accomplish the intent of Congress. 
 Johnson v. Southern Pac. Co., 196 U. S., 1 ; United States v. 
 Central Ry. Co. (D. C), 167 Fed., 893. Its provisions 
 "should not be taken in a narrow sense." Schlemmer v. 
 Buffalo Ry. Co., 205 U. S., 1, 10. Nor should its undoubted 
 humanitarian purpose be frittered away by judicial con- 
 struction. United States v. Chicago Ry. Co. (D. C), 149 
 Fed., 486. 
 
 The construction of the Safety Appliance Act which makes 
 it apply, so far as the provisions for automatic couplers are 
 concerned, to all cars used by an interstate carrier on its line 
 in the movement of interstate commerce or in connection 
 therewith, either specially or regularly, is in accordance with 
 the plain intent of Congress, as indicated by the act, to pro- 
 tect the lives and limbs of the employees of interstate carriers. 
 A different construction, exempting from the operation of the 
 act cars which, although regularly used in interstate 
 commerce, were not being so used at the particular time,
 
 APPENDIX G. 
 
 851 
 
 would put upon the employee working with such car the 
 practically impossible burden of ascertaining whether or not 
 a given car was in fact being used in connection with the haul- 
 ing of interstate traffic at the particular time — that is, of 
 ascertaining the character of its load and that of the other 
 cars in the train — in order to determine whether or not in 
 working with it he would or would not assume the risk arising 
 from its being in a condition which did not comply with the 
 Safety Appliance Act. 
 
 I therefore conclude that under the terms of the Safety 
 Appliance Act and its amendment, and in the light of the 
 decision above cited, a car regularly used by an interstate 
 carrier on its interstate line, which is not segregated and set 
 apart solely for local traffic, but is regularly and habitually 
 used in the movement of interstate traffic or in connection 
 theremth, is, when used on the carrier's line, subject to the 
 provisions of the Safety Appliance Act in reference to the 
 couplers upon it. 
 
 So construed, and as applying to cars which are the regular 
 and habitual instruments used in interstate commerce, there 
 can, I think, be no serious question as to the constitutionality 
 of the Act, especially in the light of the opinion in the Johnson 
 case, in which the Safety Appliance Act was applied to a 
 dining car not actually being used at the time in interstate 
 traffic, but regularly used for that purpose. In this connec- 
 tion, however, it may be noted that in certain cases it has 
 ■been held broadly, that the Safety Appliance Act, as amended 
 by the Act of 1903, applies to all cars used by an interstate 
 carrier on its interstate highway — a construction broad 
 enough to include even a train of cars segregated and set 
 apart for local traffic only — and that so construed the act 
 is constitutional. United States v. Chicago Ry. Co. (D. C), 
 149 Fed., 486; United States v. Southern Ry. (D. C), 164 
 Fed., 347 ; and opinion of Grosscup, circuit judge, in Wabash 
 R. Co., V. United States (C. C. A.), 168 Fed., 1, 8. This, how- 
 ever, involves a more difficult question, both as to the con- 
 struction of the act and its constitutionality, which is not
 
 852 FEDERAL SAFETY APPLIANCE ACT. 
 
 necessarily involved in the present case, and as to which no 
 opinion is expressed. 
 
 2. Under the facts of this ease there was no doubt, as I 
 view it, but that the car whose coupler was defective was in 
 regular use by the defendant in its trains for hauling inter- 
 state traffic, and not set apart for purposes of local traffic. 
 Therefore, in my opinion, it was clearly subject to the pro- 
 visions of the Safety Appliance Act, and as the coupler was 
 admittedly defective it was being used in violation of the law, 
 unless its use at the time came, as is claimed by the defendant, 
 within an exception to the Safety Appliance Act in reference 
 to the movement of a car for repairs. However, under the 
 proof in this case it appeared that the car in question had 
 arrived at the Coster yards of the defendant in a defective 
 condition several days before the accident ; that it had not 
 been repaired at the Coster shops where it could have been 
 repaired, but had been hauled away from this repair point 
 en route to the repair shops at Lenoir City, several miles 
 away, for the purpose of being there repaired. 
 
 I think it clear, under the authorities, that w^hen the car 
 was put in use even to be hauled to another repair shop after 
 it had been for some time at a repair shop where it could have 
 been repaired it M'as being hauled in this defective condition 
 in violation of the Safety Appliance Act. United States v. 
 Chicago Ry. Co. (D. C), 149 Fed., 468; United States v 
 St. Louis R. Co. (D. C), 154 Fed., 516; United States v. Le- 
 high Valley R. Co. (D. C), 162 Fed., 410, 412; United States 
 V. Philadelphia R. R. (D. C), 162 Fed., 405, 409; Chicago 
 Ry. V. United States (C. C. A., 8th Cir.), 165 Fed., 423: 
 United States v. Atchison Ry. (D. C), 167 Fed., 696; United 
 States V. Southern Pac. Co. (D. C), 167 Fed., 699; United 
 States V. Southern Pac. Co. (D. C, No. 24, 1909). 
 
 Having undertaken to haul the car away from a repair 
 point, it obviously remained, I think, within the provisions of 
 the act, even although tlu; effort was afterwards made to 
 detach the car and return it to tlie Knoxville yard for repairs. 
 Having once moved it away Irom the Coster yard, when it
 
 APPENDIX G. 
 
 853 
 
 should have been repaired, it was thereafter moved, within 
 the principle of the foregoing cases, at the risk of the carriers 
 so far as the provisions of the Safety Appliance Act were 
 concerned. Nor does the case come ^\dthin the exception 
 recognized in the opinion of the circuit court of appeals for 
 this circuit in United States v. Ill Cent. Ry., 170 Fed., 542, 
 as the proof entirely fails to show, either that the defect was 
 one which occurred during transit, or that the utmost dili- 
 gence was used on discovering and correcting the defect ; the 
 proof on the contrary showing great and negligent delay 
 in repairing the coupler after the defect has been discovered. 
 
 3. It results that in my opinion there Avas no error in the 
 charge in respect to the construction and effect of the safety 
 appliance laws or in the refusal to charge the jury as re- 
 quested in the special requests submitted by the defendant. 
 
 4. I am further of the opinion that under the doctrine of 
 Voelker v. Chicago Ry. Co. (C. C), 116 Fed., 867, 875; 
 Chicago Ry. Co. v. Voelker (C. C. A., 8th Cir.), 129 Fed., 
 523, 550; Chicago Ry. Co. v. King (C. C. A., 7th Cir.), 169 
 Fed., 372; and the definition of proximate cause given in 
 Milwaukee Ry. Co. v. Kellog, 94 U. S., 469, 475 ; Washington 
 R. R. V. Huckey, 166 U. S., 521, 527; Atchison Ry. Co. v. 
 Calhoun, 213 U. S., 1, 7; and Stone v. Railroad, 171 Mass., 
 536, there was evidence to go to the jury as to whether the 
 defective condition of the coupler was a proximate cause of 
 the injury to Snyder ; and that under the doctrine of Narra- 
 more v. Ry. Co. (C. C. A., 6th Cir.), 96 Fed., 298, 304, and of 
 Chicago Ry. Co. v. King, svpra, the question was properly left 
 to the jury to determine whether, under all the circumstances 
 of the case, the plaintiff w^as guilty of contributory negligence 
 which barred his recovery; and that therefore the defendant's 
 motion for peremptory instructions was properly overruled. 
 See also Toledo R. Co. v. Bartley (C. C. A., 6th Cir.), 172 
 Fed., 82. 
 
 5. Furthermore, under the proof as to the temporary pur- 
 pose for which the plaintiff went between the cars, the cus- 
 tomary method of doing such work, the character of lookout
 
 854 
 
 FEDERAL SAFETY APPLIANCE ACT. 
 
 established with the crew available, the time of day, the 
 necessity of moving out the cars as directed, and all the cir- 
 cumstances of the case, I do not think that the verdict of the 
 jury, involving in effect a finding both that the defective 
 coupling was a proximate cause of the injury and that the 
 plaintiff was not guilty of contributory negligence was against 
 the clear and decided weight of the evidence, and hence I am 
 of opinion that it should not be set aside. ]\It. Adams Ry. Co. 
 V. Lowery (C. C. A., 6th Cir.), 74 Fed., 463, 472; Felton v. 
 Spire, 75 Fed., 576 (C. C. A., 6th Cir.). Especially is this 
 true as the court is always more reluctant to set aside a verdict 
 when it is against the party having the burden of proof 
 (Cunningham v. J\tagoon, 18 Pick. Mass., 13) as the de- 
 fendant had in this case upon the material question of the 
 contributory negligence of the plaintiff. 
 
 6. I am likewise of the opinion that in view of the serious 
 character of the injuries, involving great suffering and loss 
 of time and the permanent disability of the plaintiff, disabling 
 him from earning a livelihood in the occupation in which he 
 had been engaged, or in other similar labor, the amount of 
 the verdict does not show that the jury was influenced by 
 prejudice or passion, and that it should not on that ground 
 be set aside as excessive. Clearly if the plaintiff was not 
 guilty of contributory negligence that barred recovery, he 
 was entitled to full compensatory damages, as this suit was 
 not prosecuted under any statute requiring damages to be 
 assessed on the basis of comparative negligence. 
 
 7. The recitals in the company's records, made by its 
 agents at the time, in the line of their duty, were, I think, 
 competent evidence against the company under the authority 
 of Vicksburg R. R. Co. v. Putnam, 118 U. S., 545, 554; 
 Chateaugay v. Blake, 144 U. S., 476, 483 ; Missouri Ry. Co. v. 
 Elliott (C. C. A., 8th Cir.), 102 Fed., 96; Bank v. Bank, 108 
 Tenn., 374, 380; 6 Thompson on Corporations, section 7728; 
 1 Am. & Eng. Enc. Law, 2d ed., 718, note as to "Entries in the 
 Jiooks of a Party," and 16 Cyc, 946 as to "memoranda."
 
 APPENDIX G. 855 
 
 The evidence as to the customary disposition of defendant 's 
 cars was also, I think, clearly admissible. 
 
 An order will accordingly be entered overruling the motion 
 for a new trial. 
 
 ERIE RAILROAD COMPANY, PLAINTIFF IN ERROR, 
 
 V. 
 
 BLANCHE RUSSELL, ADMINISTRATRIX, DEFEND- 
 ANT IN ERROR. 
 
 (United States Circuit Court of Appeals, Second Circuit.) 
 
 Writ of error to review a judgment of the Circuit Court, Southern Dis- 
 trict of New York, in favor of the plaintiff in an action to recover 
 damages for injuries resulting in the death of the plaintiff's 
 intestate, Harry Russell, while employed by the defendant railroad 
 company. 
 
 Decided December 2, 1910. 
 
 1. It appears that the defective car in this case was not being liauled at 
 
 the time of the accident, but was standing upon the switch track 
 for the insertion of the knuckle in the coupling apjmratus; Held, 
 That the contention of the carrier that such car was not being used 
 within the contemplation of the Federal Safety Appliance Acts is 
 not sustained. 
 
 2. Though the car itself does not appear to have been used in any 
 
 interstate business at the time of the accident, which occurred 
 ■during switching operations and not during either the regular west- 
 ern or eastern movement of the freight trains, yet the test of the 
 application of the Federal Safety Appliance Acts is the train 
 rather than the car, and the evidence warrants the finding in this 
 case that the trains in which this car moved into and out of Port 
 Jervis, N. Y., included other cars loaded with interstate shipments. 
 Upon these facts; Held, That the Federal Safety Appliance Acts 
 apply. 
 
 3. The switchman injured in this case went upon the track to adjust 
 
 a defective coupler in a car when, without any apparent cause, three 
 other cars which were standing on the same switch, which switch 
 had a slight grade, moved silently down upon him, inflicting the 
 injuries complained of; Held, That the defective coupler was a 
 proximate cause of the accident.
 
 856 FEDERAL SAPETY APPLIANCE ACT. 
 
 4. To hold that the injured switchman was, as a matter of law, guilty 
 
 of contributory negligence, requires the assumption that the cars 
 wMch moved doAA-n and against the switchman moved because h.-*, 
 had failed in his duty to break or block them. But this assumption 
 cannot be made. The cars may have been properly blocked and the 
 blocks loosened by the impact with the car in question shortly 
 before the accident. The question of contributory negligence was 
 one for the jury. 
 
 5. The remaining questions raised by the carrier disclose no prejudicial 
 
 error, and the judgment of the circuit court in favor of the plaintiff 
 is affirmed: 
 
 Stetson, Jennings & Russell, for plaintiff in error. 
 
 John "W. Lyon and George A. Clement, for defendant in 
 error. 
 
 Before Lacombe, Ward and Noyes, Circuit Judges. 
 
 STATEMENT OF FACTS. 
 
 There was evidence in the case sufficient to warrant the 
 jury in finding the following facts which are especially 
 relevant to the questions considered in the opinion. 
 
 The defendant railroad company is engaged in interstate 
 commerce and owns a railroad extending from Port Jervis, 
 N. Y., to Newburgh, N. Y., and also running into other states. 
 Port Jervis is two or three miles east of the state line be- 
 tween New York and Pennsylvania. 
 
 The defendant operates a local freight train between New- 
 burgh and Port Jervis which, when running westerly, carries 
 freight to stations on the road and picks up freight going to 
 all points west, including points in other states. On the 
 easterly trip western freight is carried to local points and local 
 freight is picked up for eastern points. On the afternoon of 
 June 21, 1907, the car in question in this ease was brought 
 into Port Jervis in this train billed to the repair shop there. 
 It had a defective coupler; the knuckle being gone. It was 
 empty and had been picked up at Greycourt, a station between 
 Port Jervis and Newburgh. This train on said day carried 
 freight going west of Port Jervis and to different states and 
 one of the cars bore the initials of the Boston and ]\Iaine
 
 APPENDIX G. 857 
 
 Railroad. There was another car in the train which was also 
 in a crippled condition. The train, including the crippled 
 cars, was left standing on a s^dtch in the Port Jervis freight 
 yard. 
 
 Russell, the plaintiff's intestate, was one of the night-switch- 
 ing crew in the yard. On this afternoon this crew had begun 
 work drilling out and smtching the cars from the different 
 trains which had come into the yard from the east and west. 
 Before supper three cars had been placed on the No. 6 switch 
 in the yard and left standing there. This switch had a slight 
 grade. After supper the s\\atching crew continued work and 
 after some time ran the car in question attached to other cars 
 upon said No. 6 switch. The intention of the svatching crew 
 was to repair the defective coupler and after repairing it to 
 couple the train containing this car to the three cars aforesaid 
 which had previously been left upon the switch. In backing 
 up the train this car came in contact with the other three 
 cars, but was subsequently pulled away from them some five 
 or six feet. The switching crew then started to look for a 
 knuckle with which to repair the defective coupler. Knuckles 
 were kept in various places in the yard and the switchmen 
 were accustomed to replace those found missing. Russell, the 
 plaintiff's intestate, was the first to find one and he went in 
 between the cars and attempted to adjust it in the coupling 
 apparatus, but the pin would not fit and one of the other men 
 went to look for another pin. Russell was holding the knuckle 
 in place with his back to said three standing cars, when, 
 without any apparent cause, they moved silently dowa. and 
 caught and crushed him, inflicting the injuries from which 
 he died. The car in question was taken the next day on the 
 easterly trip of said local freight train and hauled to 
 Goshen, N. Y. 
 
 OPINION OP THE COURT. 
 
 Notes, Circuit Judge (after making the foregoing statement) : 
 The first question in the case is whether the acts of the de- 
 fendant constituted a violation of the Federal Safety Ap-
 
 858 FEDERAL SAFETY APPLIANCE ACT. 
 
 pliance Act (Act of March 2, 1893, as amended March 2, 
 1903), the relevant sections of which are printed in the 
 footnote.® 
 
 The first phase of this question is whether the car with the 
 defective coupler was, at the time of the accident, in use 
 within the meaning of the amended act. 
 
 It is pointed out that the car was not being hauled at the 
 time of the accident, but was standing upon a switch track 
 for the insertion of the knuckle in the coupling apparatus, 
 and it is contended that it was not then being used within 
 the contemplation of the statute. 
 
 "We think upon the authority of Johnson v. Southern Pacific 
 Co. (196 U. S. ]), that this contention is not well founded. 
 The car with the defective coupler was not withdra^^Ti from 
 use. Although billed to the repair shop, it was not sent 
 there, nor was it sent to any place used especially for making 
 repairs. The insertion of the knuckle was a simple matter. 
 The car was stopped only temporarily, and it was intended 
 to couple it to the other cars as soon as repaired. These facts 
 seem clearly to distinguish this case from those cases cited 
 in the defendant's brief, where accidents occurred when cars 
 had been sent to repair shops or placed upon dead tracks 
 used for repair purposes. 
 
 The second phase of the question of the application of the 
 act is whether the car at the time of the accident was em- 
 ployed in interstate commerce. 
 
 a Act of 1893, sec. 2. That * * * it shall ho unla'W'ful for any 
 such common caiTior to haul or permit to he hauled or used on its lines 
 any car used in moving interstate trallic not equipped with couplers 
 coupling automatically by impact, and which can be uncoupled without 
 the necessity of men going between the ends of the cars. 
 
 Amendment of 1!>03, sec. 1 '' * *. The provisions of * * * 
 (the Safety Appliance Act) * * * shall apply in all cases, whether 
 or not the couplers brought togetlier are of the same kind, make, or 
 type, and the provisions and requirements hereof and of said acts relat- 
 ing to train brakc'S, automatic couplers, grab-irons, and the height of 
 drawbars shall be held to apply to all trains, locomotives, tenders, cars, 
 and similar vehicles used on any railroad engaged in interstate com- 
 merce. ♦ • *
 
 APPENDIX G. 859 
 
 The ear itself does not appear to have been used in any 
 interstate business at the time in question. It was hauled 
 empty from a New York point to Port Jervis in the same 
 state, and the following day in like condition was hauled to 
 another New York point. But the test of the application of 
 the statute is the train rather than the car, and we are of the 
 opinion that there was evidence warranting a finding that the 
 train in which his car moved into Port Jervis included other 
 cars loaded with interstate shipments, and that the train in 
 which it moved out of Port Jervis was of a similar character. 
 Upon these facts it is held that the Safety Appliance Act 
 applies. United States v. International, etc., R. Co. (174 
 Fed., 638) ; Chicago, etc., R. Co. v. United States (165 Fed., 
 423) ; United States v. Wheeling, etc., R. Co. (167 Fed., 198) ; 
 United States v. Erie R. Co. (166 Fed., 352). 
 
 The fact that the accident occurred during switching 
 operations and not during either the regular western or 
 eastern movement of the freight trains does not affect the 
 application of the statute. Johnson v. Southern Pacific Co., 
 supra; Wabash R. Co. v. United States (168 Fed., 1). Cer- 
 tainly if the car came into Port Jervis in the afternoon in an 
 interstate train and moved out of Port Jervis the next morning 
 in another interstate train the character of its use was not 
 changed during the switching operations at night. Rosney v. 
 Erie R. Co. (135 Fed., 311) is distinguished, from the fact 
 that in that case there was no proof of use in interstate 
 commerce. 
 
 The second question of importance in the ease is whether 
 the trial court properly submitted to the jury the question 
 whether the presence of the defective coupler was a proximate 
 cause of the accident. 
 
 It is urged with much force that that which caused the 
 injury to the plaintiff's intestate was the unexpected move- 
 ment of the three cars — an act unrelated to and independent 
 of the act of repairing the coupler. Indeed, were the question 
 to be decided free of authority, a majority of the court would 
 have difficulty in holding that the repair of the coupler was
 
 860 FEDERAL SAFETY APPLIANCE ACT. 
 
 a part of a coupling operation, and bore such a relation to 
 the impact of the ears that the necessity for such repairs was 
 an efficient cause of the accident. 
 
 But still the reason why Russell went to the place where he 
 was injured was the defective coupler, and if he had not 
 gone there the accident would not have occurred. Moreover, 
 it appears that it was intended to couple the car with the 
 defective coupler to the standing cars as soon as the coupler 
 should be repaired. This being true, and in view of the de- 
 sirability of uniformity in the decisions of the courts of the 
 different circuits in interpreting this act, we feel it our duty 
 to follow the decision of the Circuit Court of Appeals for 
 the Eighth Circuit in Chicago, etc., R. Co. v. Voelker (129 
 Fed., 522). The facts in that ease are very similar to those 
 appearing here. The person injured Avent upon the track 
 to adjust a defective coupler in a car when without warning, 
 another car was shoved dowTi upon him, inflicting the injuries 
 complained of. It was held that the defective coupler was 
 a proximate cause of the accident. 
 
 In Chicago Junction R. Co. t-. King (169 Fed., 372), the 
 facts even more closely resembled those appearing here, and a 
 judgment for a person injured by reason of a defective 
 coupler was affirmed, although the question of proximate 
 cause does not appear to have been particularly considered. 
 See also the decision of this court in Donegan v. Baltimore, 
 etc., R. Co. (165 Fed., 869). 
 
 The third question in the case is whether the plaintiff's 
 intestate was, as a matter of law, guilty of contributory 
 negligence. 
 
 An affirmative answer to this question requires the as- 
 sumption that tlie cars which moved down and against Russell 
 moved because lie had failed in his duty to brake or block 
 them. But this assumption cannot be made. The cars may 
 have been properly blocked and the blocks loosened by the 
 impact with the car in question shortly before the accident. 
 The question of contributory negligence was one for the jury.
 
 APPENDIX G, 861 
 
 The remaining questions raised by the defendant disclose 
 no prejudicial error. 
 
 The judgment of the circuit court is affirmed. 
 
 UNITED STATES v. BALTIMORE & OHIO RAILROAD 
 
 CO.AIPANY. 
 
 (In the Uictrict Court of the United States for the District of Indiana.) 
 
 Decided Decemier 13, 1910. 
 
 (Syllabus.) 
 
 1. If the uncoupling chain on a car coupler is so long that in the 
 
 ordinary usage of the same cliain will become kinked in the head 
 of the coupler in such a manner as to necessitate a man or men 
 going between the ends of the cars to couple or uncouple, then 
 such coupler is not equipped in compliance with the Federal Safety 
 Appliance Act. 
 
 2. Two witnesses for the plaintilf having testified to the fact that a grab 
 
 iron was missing from a car at a certain time, and one witness 
 for the defendant having testified that at a subsequent time the 
 same car had such a grab iixjn, the jury were instructed that the 
 statements of said witnesses could be reconciled and that it was 
 their duty to reconcile them and to find that no witness had testi- 
 fied falsely as to the matter. 
 
 Charles W. Miller, United States attorney; Clarence W. 
 Nichols, assistant United States attorneif ; and Roscoe F. 
 Walter, special assistant United States attorney, for plaintiff, 
 
 Samuel Miller, for defendant. 
 
 INSTRUCTIONS TO THE JURY. 
 
 Anderson, District Judge (orally) : 
 
 Gentlemen of the jury, this is a civil action, and in this 
 court you are the judges of the weight of the evidence and 
 of the credibility of the mtnesses; you are to determine the 
 facts proved, but you are bound by the law as it is given to 
 you by the court.
 
 S62 FEDERAL SAFETY APPLIANCE ACT. 
 
 The question you have to try is within a very narrow com- 
 pass. In the first place, you have only to consider, as far as 
 your deliberations are concerned, but three of the counts or 
 paragraphs of this complaint, i. e., counts 2, 5, and 7. The 
 defendant concedes that the Government has made its case 
 as to counts 1, 3, 4, 6, and 8, and only raises a question as to 
 counts 2, 5, and 7. 
 
 I will call your attention to these counts 2, 5, and 7, the 
 ones that you will have to consider. In substance count 2 
 alleges that in violation of the Act of Congress known as the 
 Safety Appliance Act, passed at a particular time and 
 amended, said defendant on or about November 19, 1908, 
 hauled on its line of railroad, Chicago, Lake Shore & Eastern, 
 car No. 10364 consigned to a point within the state of 
 Pennsylvania. The complaint further alleges that on or 
 about said date the defendant hauled said car from Garrett, 
 in the state of Indiana, in an easterly direction, within the 
 jurisdiction of this court. As to these facts there is no dis- 
 pute. The complaint then alleges that when the car was thus 
 being hauled "the coupling and uncoupling apparatus on 
 the 'A' end of said car was out of repair and inoperative, the 
 uncoupling chain being kinked on said end of said car, thus 
 necessitating a man or men going between the ends of the cars 
 to couple or uncouple them, and when said car was not 
 equipped with couplers coupling automatically by impact," 
 etc., alleging that this was done in violation of the statute. 
 
 Count 5, after alleging the statute, proceeds to aver that 
 the defendant on or about November 19, 1908, ''hauled on 
 its line of railroad one car, to-wit, its own, No. 41861, said 
 car being one regularly used in the movement of interstate 
 traffic and at the time of said violation hauled in train con- 
 taining interstate traffic ; one car in said train, to-wit, Chicago, 
 Milwaukee & St. Paul, No. 32514, containing interstate traffic, 
 to-wit, flour consigned to a point within the state of Virginia." 
 You will have no trouble about any of these questions. There 
 is no dispute about them.
 
 APPENDIX G. 863 
 
 Count 5 further alleges "that on or about said date de- 
 fendant hauled said ear, its own, No. 41861, as aforesaid, over 
 its line of railroad from Garrett, in the state of Indiana, in 
 an easterly direction, within the jurisdiction of this court." 
 There is no dispute about that fact. 
 
 Count 5 then alleges that while the car was thus being 
 hauled "the coupling and uncoupling apparatus on the 'B' 
 end of said car was out of repair and inoperative, the top 
 clevis to the uncoupling chain being missing on said end of 
 said car. ' ' Now, the only question for you to determine under 
 count 5 is whether that top clevis was missing. 
 
 Count 7, after averring that the defendant hauled over its 
 line Mobile & Ohio car No. 8721, used in the movement of 
 interstate traffic, to-wit, coal, consigned to a point in Illinois, 
 and that the defendant hauled the said car from Garrett in 
 a westerly direction, avers that the grab-iron or handhold on 
 the left-hand side of the "A" end of the car was missing; 
 and that is the only question that you have to determine on 
 that count. 
 
 So that the only question under count 2 is: Was the 
 coupling defective by reason of the kinked chain, as averred ? 
 Under count 5 : "Was the top clevis of the uncoupling chain 
 missing on that car? And under count 7 the only question 
 for you to determine is : Was the grab-iron, as averred, 
 missing ? 
 
 The statute, section 2, provides that after a certain date : 
 "It shall be unlawful for any such common carrier to haul, or 
 permit to be hauled or used on its line, any car used in 
 moving interstate traffic, not equipped with couplers coupling 
 automatically by impact, and which can be uncoupled without 
 the necessity of men going between the ends of the cai's ; ' ' 
 and as to the grab-irons, from and after the same date: "It 
 shall be unlawful for any railroad company to use any car 
 in interstate commerce that is not provided with secure grab- 
 irons or handholds in the ends and sides of each car for 
 greater security to men in coupling and uncoupling cars. ' '
 
 864: FEDERAL SAFETY APPLIANCE ACT, 
 
 These two sections cover the three counts that you will 
 have to consider. The first section that I read to you covers 
 the first two, and the second section covers the last count; 
 that is, count 7. 
 
 Now, as I have said, there is not any question about these 
 cars being used in interstate commerce. There is not any 
 question about the railroad company being engaged in inter- 
 state commerce. The only questions for you to determine are, 
 as I have indicated, as to the defective couplers under counts 
 2 and 5 and the missing grab-iron under count 7. 
 
 Now, gentlemen of the jury, as I have said, you are the 
 judges of the weight of the evidence and the credibility of 
 the witnesses. You are to determine what the facts proved 
 are. You are bound by the law as it is given to you by the 
 court. This is a civil action. Before the Government can re- 
 cover it must establish all the material allegations of the 
 counts by a fair preponderance of the evidence. By a fair 
 preponderance of the evidence is meant the greatest weight 
 of the evidence ; not necessarily a greater number of witnesses. 
 In determining the weight which you will give to the testi- 
 mony of any witness who has appeared before you, you will 
 take into consideration his intelligence or want of intelli- 
 gence, his opportunity to know the facts about which he 
 testifies, and his interest, if any, in the result of the suit ; and, 
 having taken these things into consideration, it is for you 
 to determine which witness you will believe and which wit- 
 ness you will not believe. 
 
 If you find for the plaintiff on the three counts that are in 
 issue, then your verdict should be: We, the jury, find for 
 the plaintiff, which will cover the whole eight counts. If 
 you find that the Government has not by a fair preponderance 
 of the evidence sustained either counts 2, 5, or 7, then your 
 verdict should be : We, the jury, find for the plaintiff on the 
 five counts I have spoken about, as to which there is no dis- 
 pute, namely, counts 1, 3, 4, 6, and 8, and such others as you 
 find the Government has established, or find in favor of the
 
 APPENDIX G. 865 
 
 defendant, on such of counts 2, 5, or 7, as you believe the 
 Government has failed to establish. 
 
 Now, gentlemen, I have said to you that you are the exclu- 
 sive judges of the facts proved and of the credibility of the 
 witnesses, but on account of the number of counts here, and 
 on account of the questions presented here, about which there 
 is no dispute, I think it is proper that I should explain to 
 you what I think about the evidence as to these counts 2, 5, 
 and 7, explaining to you that you are not bound by anything 
 I may say as to questions of fact. 
 
 You will notice that the first count about which there is any 
 dispute, count 2, is the one which alleges that there was a 
 kinked chain. You will recall the testimony in regard to that. 
 The Government's witness says that he saw that chain kinked; 
 that he undertook to manipulate that brake and found it was 
 impossible because of the kink. On the other hand, one wit- 
 ness for the defendant, as I recall, testified that the chain 
 was too long, and it did kink, but that he succeeded in pulling 
 it out. Now, it is not difficult for a person who is used to 
 weighing evidence to determine where the truth lies there, 
 and you do not have to impute perjury to anybody. The 
 witnesses for the railroad, themselves, testified that the chain 
 kinked because it was too long, which, to my mind, is evidence 
 sufficient to sustain the verdict on that count — to sustain a 
 finding that the coupling was defective, and was not such a 
 coupling as would uncouple by this appliance without the 
 necessity of a man going in between the cars. But that 
 question is for you to decide. You may conclude to believe 
 the witnesses for the defendant and disbelieve the witnesses 
 for the Government, if you see fit to do so, or if in your 
 judgment it is your duty to do so, then your verdict should 
 be for the defendant on that count. That, of course, depends 
 simply on the question which witnesses you believe and which 
 you will not believe. 
 
 When it comes to the clevis matter alleged in count 5, I 
 will call your attention to the fact that the averment in
 
 866 FEDERAL SAFETY APPLIANCE ACT. 
 
 count 5 is that the clevis was gone, was missing, and two 
 Avitnesses for the Government testified to that fact. Now, 
 the testimony of the witness on the part of the defendant 
 was that he supplied a bolt in the clevis. That does not meet 
 the case of the Government at all, in my judgment. It is 
 for you to decide. 
 
 Next, as to the missing grab-iron. If I understand the 
 testimony, the two witnesses for the Government testified 
 positively that this grab-iron was gone, was missing ; that there 
 was no grab-iron when it was moved over the line from the 
 yards in interstate commerce. The only testimony, as I 
 understand it — I may be mistaken about that — on the part 
 of the defendant is that at a subsequent time, when some 
 witness for the railroad company examined this ear, it had 
 a grab-iron. Of course, these two statements can be entirely 
 reconciled, and it is your duty to reconcile them and, in that 
 event, to find that no mtness has testified falsely about it. 
 It may be that there was no grab-iron on the car when it left 
 Garrett and that there was a grabiron on it at the time this 
 witness testified he saw it. 
 
 On account of the number of counts and the possibility of 
 some confusion about them, I thought it was my duty to 
 explain to you just what the situation is as to these three 
 counts, reminding you again that it is for you to decide the 
 facts. You do not have to take my view of what the facts 
 are. You are bound by what the court says as to the law; 
 but you must determine the facts without reference to what 
 the court thinks about the evidence. 
 
 So, if you, in view of these instructions, find that the Gov- 
 ernment has, by the fair preponderance of the evidence — that 
 is, by the greater weight of the evidence — proved the ma- 
 terial allegations of counts 2, 5, and 7, which relate, respec- 
 tively, to the kink in the chain, the missing clevis, and the 
 missing grab-iron, then your verdict . should be : "We, the 
 jury, find the defendant guilty. If you find that the Govern- 
 ment has failed to establish the facts as to either counts 2, 5, 
 or 7, then your verdict should be: We, the jury, find the
 
 APPENDIX G. 867 
 
 defendant guilty on those five counts I have mentioned, and 
 such of those three counts as you find the defendant guilty, 
 and not guilty on such counts as you find the Government 
 has failed to prove to your satisfaction by a fair preponder- 
 ance of the evidence. 
 
 Forms of verdict will be sent out with you. 
 
 P. E. DAILEY V. SOUTHERN RAILWAY COMPANY. 
 
 (In the Circuit Court of the United States for the Eastern District of 
 
 Tennessee. ) 
 
 Decided January 10, 1911. 
 
 1. Liability of defendant because it used cars liaving bumpers when 
 
 plaintiff was injured can not be considered by the jury, because the 
 record herein disclosed that plaintiff had full knowledge of this 
 fact, and under the doctrine of assumption of risk could not recover; 
 and the rule of defendant that employees must not go between cars 
 while they are in motion should be disregarded here, because the 
 evidence shows that plaintifT was not injured by reason of moving 
 cars. 
 
 2. The burden of proof herein is upon plaintifT to show: (a) That the 
 
 interstate car on which he was hurt would not vmcouple without a 
 man going between the cars; (6) that such coupler would not work 
 when operated in a proper way; and (c) that the failure of the 
 coupler to work was the proximate cause of tlie injury. Under 
 such state of facts defendant's failure to have a coupler equipped 
 according to the Federal Safety Appliance Acts would be an act 
 of negligence. 
 
 3. If plaintiff in the discharge of his duty went between the cars on 
 
 account of the defective coupling in order to make tlie coupling and 
 was injured, defendant Avould be liable; but not so if plaintiff went 
 between the cars in order to turn a safety cock. 
 
 4. If the fact that a coupler does not work, as required by the Safety 
 
 Appliance Acts, is due to some temporary condition in which the 
 oar is placed with reference to other cars, or to the movement of 
 the car or of the train, which could not be avoided in the highest 
 state of the art, the mere fact that the coupler would not vmvk 
 under those conditions would not render defendant liable; but the 
 burden of proving such conditions would be on defendant. 
 
 5. While the Safety Appliance Acts prohibit assumption of risk as a 
 
 defense, the defense of contributory negligence has not been taken
 
 868 FEDERAL SAFETY APPLIANCE ACT. 
 
 away. Those acts do not excuse an employee from a failure to use 
 ordinary pnidence in bis own behalf, where he knows of the ab- 
 sence of the proper appliances. After having knowledge that the 
 appliances are not in the condition required by the Safety Appliance 
 Acts, if the employee is giiilty of contributory negligence, wluch 
 operates as one of the direct causes of the injury which he receives, 
 then he cannot recover. 
 
 G. Contributory negligence defeats any recovery at all; it does not cut 
 down or decrease the amount of the verdict, except in certain cases 
 not involved here; but the burden of proof in contributory negli- 
 gence is on defendant. 
 
 7. When plaintifl" shows that the appliances were defective and in viola- 
 tion of the Safety Appliance Acts, it is not incumbent upon him to 
 go further and point out in what respect the appliances were de- 
 fective or out of repair. 
 
 "Webb & Baker, for plaintiff. 
 
 JouROLMON, "Welcker & Smith, for defendant. 
 
 INSTRUCTIONS TO JURY. 
 
 Sanford, District Judge (charging jury) : 
 
 The plaintiff, Perry E. Dailey, sues the defendant for per- 
 sonal injuries, which he received in the year 1908 while in 
 the employ of the defendant company. The defendant has 
 moved the court for peremptory instructions. That motion, 
 I neglected to say, is overruled, and I submit the case to the 
 jury in certain aspects of the case. In doing so I wish to 
 say, however, that my action in overruling this motion is 
 not intended to be taken by you as meaning that the plaintiff 
 is entitled to a recovery. It merely means that there is such 
 a conflict in the evidence that I think it is a question to be 
 passed upon by the jury instead of the court. 
 
 In so far as the plaintiff seeks a recovery on account of the 
 fact that there were bumpers on the car, I withdraw that 
 question from your consideration; that is to say, I charge 
 you that under the undisputed evidence, if there be any evi- 
 dence of negligence on the part of the defendant in regard 
 to the bumpers, the same evidence would also show that the
 
 APPENDIX G. 
 
 869 
 
 plaintif! had full knowledge of its having cars on its line with 
 bumpers, and, under the doctrine of assumption of risk, he 
 would be held to have assumed that risk, and consequently 
 could not recover on that ground. So you will eliminate from 
 consideration any question of liability in so far as relates to 
 the bumpers on this car. Also as to the question presented 
 by counsel with reference to the rule of the company, being 
 general rule No. 10. This rule has no application to the 
 facts in this case, as it is in proof that this plaintiff did not 
 go in between the cars while in motion and that he was not 
 injured by reason of the motion of the engine, and you may 
 hence disregard that rule in your consideration of the case. 
 
 I do, however, submit the case to you on the question of 
 the Safety Appliance Act. 
 
 There are three questions that arise under this proof that 
 are to be passed upon by you — that is, if you find some of 
 them in favor of the plaintiff you may have to pass upon 
 all of them, but if you find some of them in favor of the 
 defendant you will not have to do so. 
 
 I will give you these questions in the order in which they 
 should be considered. 
 
 In the first place, however, I will say that this suit being a 
 civil case the duty is on the plaintiff to make out his case by a 
 preponderance of the evidence. The rule is not the same in 
 civil as in criminal cases, wherein the case must be made out 
 beyond a reasonable doubt, but the plaintiff must establish 
 his case by a preponderance of the evidence. And by a pre- 
 ponderance is meant that he must make out his case by the 
 greater weight of the evidence, to be determined not merely 
 by the relative number of witnesses testifying as to any 
 particular fact, but by the weight or value of the evidence 
 as it satisfies your minds. Unless, therefore, upon a con- 
 sideration of the whole evidence, you believe that the plaintiff 
 has established the material facts necessary to make out his 
 case by a preponderance of the e^'idenee, your verdict should 
 be for the defendant ; and if you believe either that the weight
 
 870 FEDERAL SAFETY APPLIANCE ACT. 
 
 of the evidence is equally balanced, or that it preponderates 
 in favor of the defendant, then your verdict should be for 
 the defendant. 
 
 In the first place, the plaintiff must prove by the greater 
 -iveight of the evidence that there was a violation of the Safety 
 Appliance Act. The Safety Appliance Act enacted by Con- 
 gress, that is, the original act of 1893, provides that it shall 
 be unlawful for any common carrier engaged in interstate 
 commerce by railroad ''to haul or permit to be hauled or 
 used on its line any car used in interstate traffic not equipped 
 with couplers coupling automatically by impact, and which 
 can be uncoupled without the necessity of men going between 
 the ends of the cars ; ' ' and by the amendment of 1903 it is 
 provided that this provision and requirement shall apply to 
 "all trains, locomotives, tenders, cars, and similar vehicles 
 used on any railroad engaged in interstate commerce, * * * 
 and to all other locomotives, tenders, cars, and similar vehicles 
 used in connection therewith." 
 
 Now, it is undisputed in this case that those cars, especially 
 this Erie car, a ear on which the plaintiff was hurt, that is, 
 one of them, was a ear that had interstate freight in it ; it 
 was going from either some point up in Virginia or Tennessee 
 to Georgia. The Southern Railway Company is an interstate 
 carrier, and it was hauling interstate traffic in this train, and 
 it was its duty to have the cars in that train, especially this 
 Erie car, equipped with automatic couplers in compliance 
 with the Safety Appliance Act, and it ought to have had 
 couplers on that car sueli as could be coupled and uncoupled 
 without the necessity of the men going between the ends of 
 the cars to perform the work. 
 
 Now, the first thing that the plaintiff has to prove by the 
 greater weight of the evidence is that there was a coupler 
 on that car which would not uncouple without the men going 
 between the cars. If the plaintiff fails to prove that by the 
 greater weight of the evidence, he fails in his case. Now, he 
 Kays that it would not uncouple by working the lever; that 
 he tried it several times and that the lever would not work
 
 APPENDIX G. 871 
 
 and the car would not uncouple. Now, the first thing for 
 your consideration is whether, from the weight of the evi- 
 dence, you believe that statement. The defendant relies on 
 the evidence of the conductor, who, after the accident, tried 
 this lever and it worked all right, as he states, and that he, 
 as a matter of fact, from his testimony uncoupled the car; 
 and of the inspector, who says that a little bit later on he 
 worked the lever and it worked all right, although at the 
 time he worked it the ear was not coupled to the other car. 
 Now, the first question you have to determine is whether or 
 not it is a fact that the coupler would not work, and if you 
 find as a matter of fact that it would not work, that the 
 plaintiff tried to make it work, but that it would not work, 
 of course the next question for you to consider is whether he 
 tried to work it in the proper way. If it would not work 
 because he did not operate it in the proper way, of course 
 there would be no liability on the part of the railway com- 
 pany in that regard. But if he tried to work it in the proper 
 way and it would not work, if you find that to be the case, 
 then I charge you that the burden of proof would shift, and 
 that would raise the presumption that there was something 
 wrong with that coupler, and then the burden of proof would 
 be on the defendant to show why that state of facts existed 
 and to explain it. 
 
 Now I charge you that if a coupler does not work in every 
 instance, and if the fact that it does not work is due to some 
 temporary condition in which the car is placed with reference 
 to other cars, or the movement of the car or of the train in 
 which it is placed, which is a condition that will happen in 
 any coupler, and which can not be avoided in the highest 
 state of the art, the mere fact that it w^ould not work under 
 those conditions "would not render the company liable. But 
 upon that ground the burden of proof rests on the company, 
 if you think that it would not work when operated in the 
 proper way, to show that the coupler was of the highest 
 state of the art and that the reason that it would not work 
 was that it was impossil)le to have a coupler that would work
 
 872 FEDER^Uj S.iPETY APi'LIANCE ACT. 
 
 in that condition. On that question the burden of proof 
 would be on the railway company, if you believe from the 
 e^ddence that the coupler would not work when properly 
 operated. 
 
 If you find in favor of the plaintiff that the coupler would 
 not work, and find that the defendant failed to show that 
 it had a coupler up to the highest standard, and to explain 
 its failure to work in the manner I have indicated, the next 
 duty devolving upon the plaintiff to entitle him to a recovery 
 is to show that the failure of the coupler to work was the 
 proximate cause of the injury. It is not disputed that he 
 w^as working in between those two cars, and the failure to 
 have a coupler equipped according to the Safety Appliance 
 Act would be an act of negligence. But an act of negligence 
 does not make the company responsible for an injury which 
 does not result from the act of negligence in such sense that 
 the company's negligence is the proximate cause of the injury. 
 Ordinarily when an injury is the natural and probable con- 
 sequence of negligence, or a wrongful act such as the viola- 
 tion of a statute, and ought to have been foreseen in the light 
 of the attending circumstances, and there is no intervening 
 or independent cause, such negligence or wrongful act is said 
 to be the proximate cause of the injury. And where care- 
 lessness or negligence in the bringing about, for example, of a 
 dangerous condition, or unlawful condition, is of a character 
 which, according to the usual experience of mankind, is cal- 
 culated to invite or induce the intervention of some subse- 
 quent cause, such intervention will not excuse the original 
 wrongdoer, and the subsequent mischief will be held to be the 
 result of the original misconduct. 
 
 In other words, it will be your duty to determine whether 
 it was a natural and probable consequence of having a car 
 in such condition, in violation of the Safety Appliance Act, 
 if you find it was in such condition, that an employee in the 
 discharge of his duty would be injured in going between two 
 cars in making a coupling which he was required to do because 
 of the defective condition of the coupler.
 
 APPENDIX G. 873 
 
 In such case, if you find it to be the natural and probable 
 consequence of having a coupling apparatus in a condition 
 that it would not work and that an employee in the discharge 
 of his duty on account of the defective coupling would have 
 to go in between the cars to make the coupling, then you 
 would be justified in regarding the defective condition of the 
 coupling as a proximate cause of the resulting injury to the 
 employee, provided he went between the cars for the purpose 
 of making a coupling or uncoupling. And in that aspect of 
 the case, in determining whether the condition of the coupling 
 was the proximate cause of the injury, you would have to 
 determine, as a material matter, whether he was making the 
 uncoupling or whether he went there betw'een the cars to turn 
 the safety cock. It might w^ell be a consequence to be fore- 
 seen and guarded against of having a coupling in a defective 
 condition that a man Avould have to go between the cars to 
 make a coupling or uncoupling, but it would not follow^ at 
 all that from having a coupling in a defective condition a man 
 would go between the cars for the purpose of turning the 
 safety cock if he would have to go in between the cars to 
 turn the safety cock regardless of the question of whether the 
 coupler worked or not. In other words, if he would have to 
 go between the cars to turn the safety cock whether the 
 coupling was working or not, then it is clear that whatever 
 the condition of the coupling was it would not involve lia- 
 bility as a result of going between the cars, not to handle the 
 coupling, but to turn the safety cock. So that you will have 
 to find the object for which he went betW'Cen those ears. 
 
 Now, if you find that the coupler was defective, that he 
 condition of the coupler was the proximate cause of the acci- 
 dent, the defendant still says that it would not be liable, 
 because the plaintiflP was guilty of contributory negligence. 
 
 Now, while the Safety Appliance Act provides that the 
 employee does assume the risk of using the defective appliance 
 itself, it has been held that it does not take aAvay from the 
 company the defense of contributory negligence. That is, the 
 statute does not excuse the employee from a failure to use
 
 874 FEDERAL SAFETY APPLIANCE ACT. 
 
 ordinary prudence in his own behalf, where he knows of the 
 absence of the proper appliances, and if the employee, after 
 ha\ing knowledge that the appliances were not in the con- 
 dition required by the statute, he himself is guilty of contribu- 
 tory negligence, which operates as one of the direct causes 
 of the injury which he receives, then he cannot recover. 
 
 Now, to take an extreme case, simply to illustrate the dis- 
 tinction : If an employee knows that there are no automatic 
 couplers on the cars, but should attempt, with knowledge of 
 that fact, to go in between two cars on a rapidly moving 
 train to make a coupling, say a train running at the rate 
 of 20 miles an hour, or when the cars are moving so fast that 
 an ordinarily prudent man with due regard for his own 
 safety would not go between the cars to make a coupling at 
 that time, he would obviously be guilty of contributory negli- 
 gence, which would bar a recovery, although he did not as- 
 sume the general risk of continuing in the service of the 
 company with the knowledge of the fact that there were no 
 automatic couplers on the car. So, then, the question would 
 be, if you find in favor of the plaintiff on the first two propo- 
 sitions, was the plaintiff, mth the laiowledge he had of the 
 conditions, guilty of contributory negligence in going between 
 the cars at that time? 
 
 Now, contributory negligence is a failure on the part of a 
 man to exercise that amount of care which, under the circum- 
 stances, might be reasonably expected of an ordinarily prudent 
 person, and whenever a plaintiff himself so far contributed 
 to his injury by his owti negligence or want of ordinary care 
 or caution that but for such neglect or want of ordinary care 
 and caution on his part the accident would not have hap- 
 pened, then he is guilty of contributory negligence and cannot 
 recover. 
 
 The test of his contributory negligence is the care that an 
 ordinarily prudent man, similarly situated, under the same 
 circumstances, with like knowledge of the conditions, would 
 have exercised in his own behalf, and a failure to use such 
 care, operating as a direct cause of the injury, is contribu-
 
 APPENDIX G. 875 
 
 tory negligence. If, however, gentlemen, the danger, although 
 present or appreciated, is one which many men are in the 
 habit of assuming, and which prudent men who earn a living 
 are willing to assume for extra compensation, and if the 
 person assuming such risk, having in view the risk of the 
 dangers thus assumed, while assuming it, still uses care rea- 
 sonable and commensurate with the risks to avoid injurious 
 consequences, he is not guilty of contributory negligence. But 
 if an employee, who knows the danger vdiile assuming the 
 risk, does not use such care in his own behalf, and by reason 
 of the failure to use such care suffers injury, he is guilty of 
 contributory negligence, and cannot recover, even though the 
 negligence of the employer in violating the statute was also a 
 cause of the injury. 
 
 So, then, you should determine this question. If there 
 would otherwise be a case against the defendant on account 
 of the violation of the statute, still would an ordinarily pru- 
 dent man situated as this plaintiff was, and with a knowledge 
 of those conditions of the liability of the car to come back 
 after the cars had been backed up a slight grade — would an 
 ordinarily prudent man have gone in between those cars to 
 make that coupling? Or, if an ordinarily prudent man, earn- 
 ing his living as this plaintiff was, and in view of the risks 
 which were assumed by him, if an ordinarily prudent man 
 would have gone in between the cars at all, would he have 
 gone in in the way that this plaintiff did, and would he have 
 placed himself in the position with reference to the bumpers 
 and the cars that this plaintiff did? That is, did the plaintiff 
 take care of himself under these circumstances, in going be- 
 tween these cars, first, with reference to going in at all, and 
 second, with reference to the position of his body and arms 
 after he went in there that an ordinarily prudent man would 
 have done, with due regard to his own safety? 
 
 A man must exercise ordinary care for himself and for 
 the preservation of his owti life, and if he fails to exercise 
 that ordinary care that a reasonably prudent man would, and 
 that is one of the causes of the injury received, he cannot
 
 876 FEDERAL SAFETY APPLIANCE ACT. 
 
 recover, no matter what the negligence of the defendant may 
 have been. 
 
 Or, that question the burden of proof is on the defendant, 
 and it must establish the want of care either in going in at 
 all, or in the way he conducted himself after going in ; it must 
 establish that want of care by a preponderance, or a greater 
 weight of the evidence. On the first two propositions, that 
 the company was not operating in compliance with the Safety 
 Appliance Act, if that be the case, and if that be, that this 
 was a proximate cause of plaintiff's injury, the burden of 
 proof is on the plaintiff. His proof on that subject must 
 overweigh the defendant's proof. But if you get to the 
 other proposition then the burden of proof shifts, and the 
 defendant is required to establish by the greater weight of 
 the evidence the fact of plaintiff's contributory negligence. 
 But if it does establish it, there can be no recovery. It would 
 not be a question of cutting down the amount of damages. 
 Contributory negligence defeats any recovery at all ; it does 
 not cut down or decrease the amount of the verdict, except 
 in certain cases not involved here. 
 
 If you find in favor of the plaintiff, it would be your duty 
 to assess his damages. The damages which you would assess 
 should be compensatory. In doing this, you should consider 
 all the circumstances connected mth the plaintiff, his age, his 
 earning capacity, his habits, his prospects of life, and of 
 earning wages in life, the extent to which he has been de- 
 prived of earning a livelihood as a result of this injury, and 
 of the means of earning a livelihood; if you find that he is 
 entitled to a recovery at all, you should fix such sum as in 
 your judgment would be a fair and just compensation for the 
 injury received, as well as would be a fair and just com- 
 pensation for the suffering, and the expenses to Avhich he was 
 put — the medical expenses — although I believe none were 
 proven in this case. But if you find he is entitled to a re- 
 covery, you give such sum as will compensate for the suffer- 
 ing, the loss of time, and the decrease of his earning capacity.
 
 APPENDIX G. 877 
 
 You are the judges of the weight to be given to the testi- 
 mony of the witnesses. You should consider tlieir demeanor 
 on the witness stand, their intelligence, their manner of tes- 
 tifying, the extent to which they are contradicted or cor- 
 roborated by other witnesses, their candor, or lack of candor, 
 interest, or lack of interest, in the result of this lawsuit, and 
 the reasonableness of the story they tell, and then determine 
 where, in your opinion, under the law, as given you, the truth 
 of this case is to be found. 
 
 Verdict for plaintiff, $5,000. 
 
 No. 1007. 
 
 THE NORFOLK & WESTERN RAILWAY CO., PLAIN- 
 TIFF IN ERROR, V. THE UNITED STATES OF 
 AMERICA, DEFENDANT IN ERROR. 
 
 United States Circuit Court of Appeals, Fourth Circuit.) 
 
 In error to the District Court of the United States for the Eastern 
 District of North Carolina, at Raleigh. 
 
 Argued Fehruary 15, 1911. Decided October l-i, 1911. 
 
 1. Admissibility isr Evidb:nce of ]\Iodel Couplers. 
 
 Where there is a question as to complicated machinery it is com- 
 petent to use any model or drawing that may illustrate the condition 
 of such miachinery, so as to give the jur\' a clear and distinct idea 
 as to the nature and character of the defect, in order that they may 
 intelligently deal with the question submitted for their considera- 
 tion. Citing cases. 
 
 2. Admissibility of Irrelevant Quesitox. 
 
 Question of defendant's counsel relative to an inspection other 
 than that on which complaint was based: Held, Properly excluded. 
 
 3. Admissibility of Rules Governing In'spections. 
 
 Where the purpose of the inspection was to secure evidence for 
 prosecution: Held, Tliat the rule of the Commission requiring 
 inspectors in all other cases to make themselves known to com- 
 pany's employees was properly excluded.
 
 878 FEDERAL SAFETY APPLIANCE ACT. 
 
 4. Notification of Railroad at Time of Discovering Defbxjt. 
 
 The court below properly held that inspectors need not notify 
 defendants of the existence of defects at the time of their discovery. 
 Citing cases. 
 6. Refusal of Court to Grant Prayer Covered by Other Instruc- 
 tions. 
 Where the court refuses a prayer and then in its general charge 
 or in another prayer covers the point in question, even though it 
 erred in refusing the prayer, such error is not prejudicial, and is 
 therefore harmless. 
 6. Degree of Diligence Required by the Act. 
 
 The trial court proj^erly refused to instruct the jury that "the 
 law does not impose upon a railroad company the duty of an 
 absolute insurer as to the perfect condition of such safety appliances 
 at all times and under all conditions and circumstances." Citing 
 cases. 
 
 William A. Guthrie (Theodore W. Reach on the brief), 
 for the plaintiff in error. 
 
 H. F. Seawell, United States attorney, and Philip J. Do- 
 herty, special assistant United States attorney (Roscoe F. 
 Walter, special assistant United States attorney, on the 
 brief), for the defendant in error. 
 
 Before Goff and Pritchard, Circuit Judges, and Rose, Dis- 
 trict Judge. 
 
 statement of facts. 
 
 This is an action in debt begun by the United States to 
 recover a penalty of $100 incurred by the defendant in 
 hauling a car not equipped as provided in the Safety Appli- 
 ance Act of March 2, 1893, as amended by an act approved 
 March 2, 1903. 
 
 The petition charged in substance that the defendant was 
 a common carrier engaged in interstate commerce by rail- 
 road, and as such, on August 28, 1908, hauled on its line of 
 railroad one car, to-wit, its own No. 20370, containing inter- 
 state traffic, to-wit, tobacco consigned to a point without the 
 State of North Carolina. It further alleged that on said date 
 the defendant hauled said traffic in said car from Durham, 
 in the State of North Carolina, in a northerly direction, when
 
 APPENDIX G. 879 
 
 the coupling and uncoupling apparatus on the "B" end of 
 the car was out of repair and inoperative, the uncoupling 
 chain being kinked inside the coupler head on said end of 
 said car, thus necessitating a man or men going between the 
 ends of the cars. 
 
 The defendant answered and admitted that it was a com- 
 mon carrier engaged in interstate commerce, and that it 
 hauled car N. & W. 20370 on the date alleged from Durham, 
 in the State of North Carolina, and that this car was used in 
 the movement of interstate traffic, but denied that the coupling 
 and uncoupling apparatus on the ''B" end of the said car 
 was out of repair and inoperative as alleged in the petition. 
 On May 31, 1910, there was a trial of this case before a jury 
 on the following issue: 
 
 Was the coupling chain on the "B" end of N. & W. car No. 20370 
 kinked in the head of the coupler when said car left Durham, N. C; 
 on August 28, 1908, and inoperative so that it required a man or men 
 to go between the ears to couple and imcouple it, as is alleged in the 
 petition ? 
 
 The finding of the jury was in the affirmative, upon which 
 finding judgment was entered against the defendant in the 
 sum of $100. 
 
 OPINION OF THE COURT. 
 
 Pritchard, Circuit Judge: 
 
 The first assignment of error is to the effect that the court 
 below erred in allowing the plaintiff the use of models of the 
 Climax and Tower couplers as a means of demonstrating his 
 evidence while the Government witness. Cash, was being exam- 
 concerning the condition of the ]\Iajor coupling, the kind with 
 ■which the car in question was equipped. The model in ques- 
 tion was used merely for the purpose of aiding the court and 
 the jury in ascertaining as to whether there was any defect 
 in the coupler, and it was admitted by the Government that 
 this model was not exactly like the coupler attached to the 
 ear in question. It was not introduced in evidence, but the
 
 880 FEDERAL SAFETY APPLI.iNCE ACT. 
 
 court permitted the use of the same to illustrate the condition 
 of the coupler just as maps and drawings are used in the 
 trial of ejectment suits. It was contended by the Govern- 
 ment that the chain was kinked in the coupler head, but there 
 was no complaint as to the lock block, Mr. Cash, while on the 
 witness stand, among other things, testified as follows : 
 
 Q. By means of this model you may explain to the court and the 
 jury just what condition you found the coupling apparatus on the "B" 
 end of this car? — ^A. We haven't here a Major coupler, but one of these 
 is known as the Climax and the other the Tower. The Major coupler 
 is made more on this order, on the order of the coupler [indicating"! 
 and the chain had gotten kinked in this position [indicating] in sucn 
 a way that you couldn't get it far enough either way to get it out, 
 and it was perfectly rigid. 
 
 Thus it will be seen that this model was used solely for the 
 purpose of illustrating the exact condition of the chain at 
 the time the inspection was made. Where, in a trial like the 
 one at bar, there is a question as to complicated machinery, it 
 is competent to use any model o-r drawing that may illustrate 
 the condition of such machinery so as to give the jury a clear 
 and distinct idea as to the nature and character of the defect 
 in order that they may intelligently deal with the question 
 that is submitted for their consideration. 
 
 Wigmore on Evidence, volume 1, section 791, contains the 
 following statement as to the rule: 
 
 The use of models, maps, and diagrams as modes of conveying a wit- 
 ness's knowledge is illustrated in manifold rulings, as well as in the 
 •daily practice of trials. 
 
 Citing an instance in a trial in an English court. (Watson's 
 trial, 32 How. St. Tr., 125.) 
 
 Also in the follo^^^ng cases this rule is announced : Western 
 Gas Company v. Danner (97 Fed. Rep., 892) ; Southern Pa- 
 cific Co. V. Hall (100 Fed. Rep., 760) ; Dobson v. Whisenhant, 
 (101 N. C, 645). 
 
 We think the action of the court below in permitting the 
 use of models merely for the purpose of illustration was not 
 prejudicial to the rights of the defendants.
 
 APPENDIX G. 881 
 
 The second objection is to the effect that the court below 
 erred in sustaining the objection of counsel for the Govern- 
 ment to the following question put to the Government inspec- 
 tor, Cash, on cross-examination. 
 
 I ask you if in, one of your visits (to Lynchburg yards) on an inspec- 
 tion tour you did not find a car where the chain appeared to be kinked 
 in the coupler head, and if you were not about to take a note of it when 
 Mr. dark and his assistant, Mr. Wingfield (the company's inspector), 
 who were present in tlie yard, and if Mr. Clark did not take hold of the 
 lever and by the lerver alone shake the pin or chain that held the pin in 
 proper position and you did not thereupon say, "This seems to be all 
 right" — ^not this particular car in question but on another car? 
 
 This evidence, it appears, relates to a time and place differ- 
 ent from that alleged in the declaration, and we cannot 
 understand upon what theory it could have been offered as 
 having any bearing whatever upon the issues involved in this 
 controversy. In the first place, there is nothing to indicate 
 what would have been the witness's answer, but in any event 
 this testimony would not be competent. The witness was 
 being cross-examined and it was purely within the discretion 
 of the court as to whether he should be required to answer 
 the question, inasmuch as it did not tend to throw light upon 
 the issues raised by the pleadings, and we think the court very 
 properly excluded the same. 
 
 The next point relates to the refusal of the court to permit 
 the defendant to introduce a pamphlet marked "A. H. G. C." 
 containing the rules of the department, upon the examination 
 of witness Cash. That portion of the rules offered as evidence 
 is in the following language : 
 
 I. Tn all inspections except in those intended to secure evidence of 
 violation of the law, the inspector should make himself known to the 
 foreman or other official of the mechanical department or in the absence 
 of that officer, to the agent or other employee next in authority. In aJl 
 cases have name and title of such officer or employee included in report 
 of inspection. Whenever practicable the official found in charge should 
 be invited to accompany or send a representative with the inspector, 
 and the person so accompanying the inspector should have his attention 
 dra^\^l to all defects noted. The time of making inspections is to be 
 sho\vn on each report. * * * 
 
 Tlie object of these instructions is to en 11 the attention of inspectors 
 to certain rules to be observed in obtaining evidence upon which the
 
 882 FEDERAL SAFETY APPLIANCE ACT. 
 
 Government can successfully prosecute. Inspectors should enter upon 
 the investigation of every case in a spirit of fairness and with a desira 
 to perform their whole duty as officials of the Government, directed. 
 to aid in the execution and enforcement of the law. 
 
 It is provided by the foregoing that in any inspection, 
 except those intended to secure evidence of violation of the 
 law, that the inspector should make himself known to the 
 officer in charge, or, in the absence of the agent, the next 
 official in authority, and whenever practicable the official 
 found in charge should be invited to accompany or send a 
 representative with the inspector so as to have his attention 
 called to any defects and the same noted. The next paragraph 
 is explanatory of this rule, and, among other things, it is 
 stated therein that the inspectors must observe the rules under 
 which they operate and enter upon every investigation with a 
 spirit of fairness and a desire to perform their whole duty as 
 official directed to aid in the execution and enforcement of the 
 law. 
 
 The real issue, as we have stated, in this case is as to whether 
 the defendant violated the law by hauling over its road one 
 of its cars the coupler of which was in a defective condition. 
 It should be borne in mind that at this time the witness was 
 engaged in the performance of his duties at Durham and was 
 endeavoring to secure evidence of violation of the law and the 
 exception to the rule is to the effect that in such cases he is 
 not required to make himself known. The witness testified 
 that on that occasion he was seeking evidence of violation 
 of the law, and inasmuch as the evidence shows that the work 
 in which he was engaged at that time brought him clearly 
 Avithin the exception of this rule, we fail to see how the rule 
 and the instructions proposed to be introduced could have 
 had any bearing upon the issue raised by the pleadings. 
 "Witness Cash, among other things, testified as follows : 
 
 Q. What was the purpose of your going to the yard of the Norfolk & 
 Western that morning?— A. To see whether or not the Norfolk & West- 
 em was complying with the safety appliance law with reference to their 
 equipment.
 
 APPENDIX G. 
 
 883 
 
 Inspector Cullinane also testified as follows : 
 
 Q. When you and Mr. Cash went there (to Durham, N. C, on August 
 2S, 190S), you were making a general visitation to see whether or not 
 you could find any violation of the safety appliance law? — A. Yea, sir. 
 
 Thus it clearly appears that the inspectors were acting 
 strictly within the scope of their authority. Therefore the 
 admission of this evidence would not have been competent 
 in any view of the case — not even for the purpose of impeach- 
 ing the witness. He testified that they were looking for vio- 
 lations of the law, and, as we have stated, the rule clearly 
 provides that in such cases the inspector is not required to 
 disclose his identity. Therefore we think the ruling of the 
 court below as to this point was eminently proper. 
 
 It is also insisted that the court below erred in granting 
 an instruction, at the request of counsel for the Government, 
 to the effect that the Government inspector was under no legal 
 obligation to inform the railroad company of defective cars. 
 Congress by the enactment of the statute by virtue of which 
 this suit was instituted evidently intended to hold the railroad 
 companies to a high degree of diligence in equipping and 
 maintaining their cars with the proDcr safety appliances. If 
 it is the intention of the law that when an inspector goes from 
 place to place and when he finds a car in a defective condition 
 that it is his duty to notify the company of the same before 
 the car is transported, then it would be impossible to secure 
 anything like a fair enforcement of the law which penalizes 
 the railroads for not properly equipping and maintaining 
 their cars with safety appliances. 
 
 In the case of United States v. So. Ry. Co., Kent's Index- 
 Digest, 125, the court said : 
 
 Inspectors in the employ of the Interstate Commerce Commission are 
 not required to inform the employees of the defendant, when they make 
 tJie inspection of the cars sued upon, of the defects found in the 
 appliances. 
 
 Also in the case of the United States v. A., T. & S. F. 
 Ry. Co., Kent's Index-Digest, 125, the court said:
 
 884 FEDERAL SAFETY APPLIANCE ACT. 
 
 The inspectors for the Government are not required to notify the 
 employees of the railroad company of existing defects previous to or 
 at the time of movement of defective cars. 
 
 Under the circumstances of this case, and in view of the 
 requirements of the statute, we think the court did not err in 
 granting this instruction. 
 
 It is also urged that the court erred in refusing to grant 
 instruction No. 2, requested by the defendant. The instruc- 
 tion in question is in the following language : 
 
 If there is a mistake of fact as to the basis of the charge, the defend- 
 ant is entitled to recover. 
 
 In this instruction no particular fact is referred to as having 
 any bearing upon the controversy that was then being con- 
 sidered by the jury. It is simply an abstract proposition of 
 law unaccompanied by any explanation as to its relevancy 
 to the facts then being considered by the jury. However, 
 the court submitted to the jury an instruction, -which, though 
 not in the same words, substantially covered the point sought 
 to be raised by the instruction offered by the defendant. This 
 instruction reads as follows : 
 
 You are instructed that if the imcoupling chain on the "B" end of 
 the car N. & W. 20370 was so kinked in the coupler head that with rea- 
 sonable effort a man could not operate the uncoupling apparatus on said 
 end of said car witliout going between the ends of the cars, then sucii 
 car was not in tlie condition required by law. If you believe from a 
 preponderance of the midenee that said car was hauled out of Durham, 
 in the State of North Carolina, on August 28, 1908, in such above- 
 described condition, then it is your duty to answer the issue "Yes." 
 
 Here the court instructed the jury as to what constituted 
 a violation of the law and further informed them that if they 
 failed to find as a fact, by a preponderance of the evidence, 
 that the car in question was hauled out of Durham, at the 
 time mentioned in the petition, in a defective condition, that 
 it was their duty to answer the issue in favor of the defendant. 
 The point sought to be presented in the prayer as requested 
 by the defendant was substantially covered in the general 
 charge of the court to the jury. It has been repeatedly held 
 that where the court refuses a prayer and then in its general
 
 APPENDIX G. 885 
 
 charge or in another prayer covers the point in question, that 
 even though the court erred in refusing the prayer that such 
 error was not prejudicial and therefore harmless. 
 
 It is contended by the defendant that the court erred in 
 refusing to give instruction No. 8, which is in the following 
 language : 
 
 The court further charges the jury that even thougli you find from the 
 evidence that the chain was kinked in the coupler at tlie "B" end of 
 N. & W. car No. 20370, on the yard of tlie defendant at Durham at th? 
 time the train was being made up and before it left the yard, and while 
 the Government inspectors found it and inspected it, yet if the kink 
 in the chain had become loosened and unkinked and righted before the 
 train pulled out of the yard and left for L\Tichburg, then your verdict 
 should be in favor of the defendant railway company, and you should 
 answer the issue accordingly. 
 
 The question raised by this instruction was sufficiently 
 covered by instructions Nos. 4 and 5 of the defendants, which 
 the court had already granted. These instructions are as 
 follows : 
 
 That if the jury find from the evidence that N. & W. ear N'o. 20370, 
 described in the petition and admitted in the answer, was used in inter- 
 state commerce, but before starting on its interstate journey, after being 
 loaded at Durham, X. C, with tobacco consigned to Norfolk, Va., it was 
 carefully inspected at Durham, N. C, by a competent railroad coupler 
 inspector employed by the defendant railroad company for that purpose; 
 and the coupling and uncoupling apparatus on the "B" end of the car 
 was not out of repair and was not inoperative, and the coupling chain 
 was not kinked inside the coupler head on said end of the said car, 
 then the jury should answer the issue joined in favor of the defendant 
 and acquit the defendant of the charge. 
 
 That while the testimony of the defendant's witnesses who were car 
 inspectors at Lynchburg, Va., and who testify that said N. & W. car 
 Xo. 20370 was inspected on its aforesaid journey from Durham, N. C, 
 via Lynchburg, Va., to Norfolk, Va., it is not by itself substantive evi- 
 dence as to the condition of the car when it left Durliam, N. C, yet it 
 is admitted as competent evidence to be duly considered by the jury 
 tending to corroborate the testimony of the defendant's witness, 3ar 
 Inspectni S. D. Johnson, who testified that he inspected this sar at 
 Durham,, N. C, on the occasion complained of, and that the coupler 
 chain was not kinked in the head of the coupler, nor out of repair, ^r 
 inoperative. 
 
 It is also contended that the court erred in refusing to 
 grant the instruction which raised the question as to the
 
 886 FEDERAL SAFETY APPLIANCE ACT. 
 
 degree of diligence required to be exercised by railroad com- 
 panies to constitute a compliance with the Safety Appliance 
 Acts. The instruction in question is in the following language : 
 
 But after a railroad company has performed such duty and equipped 
 its cars with such automatic couplers, while the law requires the 
 railroad company to exercise a high degree of care and diligence in 
 keeping and maintaining such safety appliance in proper condition and 
 repair, so far tis by reasonable inspection from time to time it can be 
 reasonably done, the law does not impose upon a railroad company the 
 duty of an absolute insurer as to the perfect condition of such safety 
 appliances at all times and under all conditions and circumstances. 
 
 This point was decided by the Supreme Court in the case 
 of St. L., I. M. & S. Ry. Co. v. Taylor (210 U. S., 281) ; also by 
 this court in the cases of the Atlantic Coast Line R. Co. v. 
 United States (168 Fed. Rep., 175) and the Norfolk & 
 Western Ry. Co. v. United States (177 Fed. Rep., 623). In 
 the case of the Atlantic Coast Line R. Co. v. United States 
 this court in referring to this phase of the question said : 
 
 To sustain the contention of the defendant company as to the proper 
 construction to be placed upon the provisions of this act would be to 
 render the act nugatory, while, on the other hand, if we construe it m 
 accordance vni\\ the well-established rules in such cases, we afford life 
 and vitality to the law, and thus give expressiion to the legislative will. 
 In other words, if Congress had the power in the first instance to 
 legislate so as to regulate the conduct of railroads for the protection 
 of employees and in the interest of the traveling public, then it must 
 be admitted that it has not, in the passage of this law, transcended its 
 limitation, and any construction short of holding the act to be absolute 
 would leave undisturbed the situation as it existed piuor to its enact- 
 ment, and it would be difficult to imagine a state of facts upon which 
 railroads would be liable for a p{'nalty or where an employee would be 
 able to recover in an action instituted to recover damages for injuries 
 incurred on account of failure to perform the duties imposed by the 
 statute. It was the manifest intention of 'Congress, in the enactment of 
 this statute, to require all common carriers engaged in interstate com- 
 merce to keep their cars and engines at all times equipped with proper 
 safety appliances. The degree of diligence required by the statute is of the 
 highest order, and the duty thus imposed is absolute and unconditional. 
 Therefore any failure on the part of a railroad company to comply 
 with its requirements must necessarily subject the railroad company 
 to the penalty imposed. 
 
 The foregoing is in liarmony witli tlio recent decision of the 
 Supreme Court in the cases of E. M. Delk v. St. Louis & S. F.
 
 APPENDIX G. 887 
 
 R. Co. (220 IT. S., 580) and the Chicago, Burlington & 
 Quincy R. Co. v. United States (220 U. S., 559), decided 
 May 15, 1911, expressly affirming the rule announced in the 
 case of St. Louis, I. M. & S. Ry. Co. v. Taylor, supra. 
 
 For the reasons stated the judgment of the lower court is 
 affirmed. 
 
 UNITED STATES v. CHICAGO, ^IILWAUKEE & PUGET 
 
 SOUND RAILWAY CO. 
 
 (In the United States District Court for the District of Montana.) 
 
 Decided May 2, 1911. 
 
 Where the eoupler on the front end of a locomotive engine is defective 
 in that the height of the drawbar is below the mininrnm provided 
 for in the Safety Appliance Act, it is a violation of the statute to 
 use snch engine in interstate commerce even though the coupler is 
 so defective that a reasonably prudent man would not undertake 
 to make a coupling, and even though no u«e is sho^vn of the defective 
 coupler, but the end of the locomotive engine which is not defective 
 is employed in making the movement. The purpose of the statute 
 is to protect the lives and safety of all employees, whether they aore 
 reasonably prudent or not. 
 
 STATEMENT OF PACTS. 
 
 The petition filed by the Government in this case charged 
 that on January 10, 1910, the defendant used its locomotive 
 engine No. 1163 in interstate traffic when the height of the 
 drawbar on the front end was only 30 inches, being below the 
 minimum provided for by the Safety Appliance Act. 
 
 The evidence showed that when first seen by the Govern- 
 ment inspectors the front end of the locomotive engine -was 
 coupled to a string of cars and that, owing to the low drawbar, 
 the engine broke away from the cars when an attempt was 
 made to haul them. The engine was taken to the roundhouse, 
 put on the turntable, and brought out in the yards and put in 
 service again, but there was no evidence of any actual use of 
 the defective coupler after that time.
 
 888 FEDERAL SAFETY APPLIANCE ACT. 
 
 It was contended by the defendant that the coupler was in 
 such a condition that no reasonably prudent man would 
 attempt to use it. On the other hand, it was contended by 
 the Government that the purpose of the Act was to protect 
 the less prudent man who might, in case of emergency, be 
 tempted to take chances. 
 
 INSTRUCTIONS TO JURY. 
 
 Dietrich, District Judge (charging jury) : 
 
 Gentlemen of the jury, by the undisputed evidence in this 
 case, no issue of fact is left for your consideration. As I 
 view the law, it is illegal for a railroad company to use an 
 engine in the condition in which this engine undoubtedly was, 
 even though the defective end was not actually employed. 
 By the law it was intended to prohibit a railroad company 
 from using a car or engine having a defective coupler only 
 upon one end, even though that coupler was so defective that a 
 reasonablj^ prudent man would not undertake to make a 
 coupling therewith. The law was intended to protect the 
 lives and safety of all employees, whether they are reasonably 
 prudent or not. As I view it, an engine in the condition in 
 which this was was a possible source of great danger, in that 
 if an employee were standing upon the footboard and the head 
 of the defective coupler was so low as not to engage with the 
 coupler upon a car in proper condition, thus permitting the 
 two cars to come close together, the employee might be 
 crushed. Or, upon the other hand, an employee of little ex- 
 perience or caution might undertake, in case of emergency, 
 to couple the defective coupling with that of another car, and 
 thus imperil his safety or his life. In that view I have ex- 
 eluded the testimony offered on behalf of the defendant and 
 declined to give certain requested instructions, and it becomes 
 your duty to find a verdict in favor of the plaintiff in ac- 
 cordance %\ith the prayer of the complaint.
 
 APPENDIX G, 
 
 889 
 
 DECISIONS UNDER THE SAFETY APPLIANCE ACTS. 
 
 UNITED STATES OP AMERICA 
 
 V. 
 
 ATLANTIC COAST LINE RAILROAD COMPANY. 
 
 (In the District Court of the United States, Southern District of Florida. 
 
 Decided May 28, 1913. 
 
 Safety Appliance Acts — Construction — Air Brake and Coupler Pro- 
 visions — Trains. 
 
 1. In a case in which the declaration charged a common carrier engaged in 
 
 interstate commerce by railroad with operating on its line a train of cars 
 when less than 85 percent of the cars of said train had their brakes operated 
 by the engineer on the locomotive drawing said train, the defendant filed 
 a special plea setting up that the cars were "merely being moved about in 
 switching operation at the times and places alleged." To this plea a 
 demurrer was interposed by the Government: Held, That a train of cars 
 used in interstate traffic falls within the meaning of the Safety Appliance 
 Act, as amended, whether used in regular transit or switching operations, 
 and therefore the demurrer to the defendant's plea is sustained. 
 
 2. In a case arising under the Safety Appliance Act against a railroad engaged 
 
 in interstate commerce, charging the hauling of a car when the coupling 
 and uncoupling apparatus on one end of said car was out of repair and 
 inoperative, a demurrer to defendant's plea that said car was merely 
 being moved in the switching operation is sustained. 
 8. It is no defense to the above charge to say: "It is true the car was not prop- 
 erly equipped, but we are switching it and other cars on our line or in 
 our yard." 
 
 OPINION OF THE COURT. 
 
 Call, District Judge: 
 
 The declaration contains three causes of action — 
 
 (1) For hauling a St. L. & S. F. 120729 car from Lakeland northward when 
 coupling and uncoupling apparatus on B end of said car was out of repair and 
 inoperative.
 
 890 FEDERAL SAFETY APPLIANCE ACT. 
 
 (2) For hauling a S. A. L. car 35741 in and about Tampa when the coupling 
 and uncoupling apparatus on B end of said car was out of repair and inop- 
 erative. 
 
 (3) For operating on its line one train of eight of its own cars, in and about 
 Tampa, when only two cars had their brakes operated by the engineer on the 
 locomotive drawing said train, less than 85 percent of the cars of said train. 
 
 To this declaration defendant interposed — 
 
 (1) The plea of not guilty. 
 
 (2) The special plea to the second and third causes setting up that the cars 
 were "merely being moved about in switching operation at the times and places 
 in said counts alleged." 
 
 To the second plea a demurrer and motion to strike was 
 interposed by the Government. 
 
 On the argument the court was requested by counsel for 
 the Government and defendant to rule particularly on the 
 demurrer before considering the motion to strike, and rec- 
 ognizing the importance of the ruling the court will accede 
 to this joint request and consider the demurrer first. 
 
 The demurrer and plea raises the question, "Is the de- 
 fendant exempt from the requirements of tlie Safety Appli- 
 ance Act while performing switching operations?" 
 
 Defendant relies upon Erie R. Co. v. U. S. (187 Fed. 287). 
 This case seems to exempt railroads from the necessity of 
 complying with section 1 of the Act of 1893 and the second 
 section of the Act of 1903 while performing switching opera- 
 tions. The opinion of Circuit Judge Buffington says: "It 
 is conceded by the Government that this act does not apply 
 to, or at least has never been enforced, as to switching 
 operations." "Manifestly such is the reasonable construc- 
 tion of the act." The Government in this case does not 
 concede this fact, but, on the contrary, contends otherwise, 
 and cites the case of Chicago M. & St. P. Ey. Co. v. U. S. (165 
 Fed. Rep. 123), holding that "there had been no delivery of 
 the car in question at the ultimate destination, and the 
 switching of it from the time it was taken by defendant's 
 employees * * * to the time of the discovery of the 
 defect was in the course of such delivery and constituted a 
 ease in interstate commerce." This last case had reference 
 to defective coupler. 
 
 The section of the act which the defendant is charged
 
 APPENDIX G. g(j]^ 
 
 with having viohiled in the third count of the declaration 
 is as follows : 
 
 It shall be unlawful for any common carrier engaged in interstate commerce 
 by railroad to use on its line any locomotive or to run any train in such traffic 
 after said date that has not a sufficient number of cars in it so equipi)ed with 
 power or train brakes that the engineer on the locomotive drawing such train 
 can control its sjjeed without requiring brakemen to use the common hand 
 brake for that purpose. 
 
 Section 2 of the Act of 1903 provides for the percentage 
 of cars in such train which shall have their brakes used and 
 operated by the engineer and that the Interstate Commerce 
 Commission may increase this minimum by proper order. 
 
 The object of the Congress in passing the Safety Appli- 
 ance Acts was undoubtedly to safeguard interstate com- 
 merce, the life of the passengers, and the life and limb of 
 the employees engaged therein. In doing this it has seen 
 fit to prescribe the use of certain appliances for handling 
 trains. Under these acts it is unlawftd "to use any train 
 in such traffic" without the safety appliances named there- 
 in. Do these w^ords or the context mean only while the 
 train is moving from point to point in the journey, or do 
 they mean any running of a train of cars so engaged? 
 
 It would seem that the movement of such a train for the 
 purpose of placing cars in position for delivery or for the 
 purpose of making up a train would still be a violation of 
 the act unless the provisions were complied with. The ab- 
 sence of power brakes from a sufficient number of cars to 
 handle the train from the engine would endanger the lives 
 of the brakemen on such a train as much as would their 
 absence in the train after it had been made up. And we 
 must not lose sight of the fact that Congress intended to 
 protect this very class in providing for the use of power 
 brakes instead of the hand brake in all interstate traffic. 
 I am constrained to think that a train of cars used in inter- 
 state traffic falls within the meaning of the act as amended, 
 whether used in regular transit or switching operations, 
 and that therefore the demurrer to the second plea to the 
 third count is well taken.
 
 392 FEDERAL, SAFETY APPLIANCE ACT. 
 
 I now consider the demurrer to the second plea to the 
 second count of the declaration. 
 
 The Supreme Court, in Southern Ry. Co. v. U. S. (122 U. 
 S. Sup. Ct. Rep. 20), have this to say on page 26, "For 
 these reasons it must be held that the original act as en- 
 larged by the amendatory one is intended to embrace all 
 locomotives, cars, and similar vehicles used on any railroad 
 which is a highway of interstate commerce," and then 
 holds said act so constructed within the powers of Con- 
 gress, The decision in the case of Erie R. v. U. S. and line 
 of reasoning can have no bearing on the decision of this 
 question. The charge in the second count is for a failure to 
 have the car properlj^ equipped with a coupling as required 
 by the act. It is no defense to this charge to say, "It is 
 true the car was not properly equipped, but we are switch- 
 ing it and other ears on our line or in our yards." There 
 is no denial that the defendant was a railroad engaged in 
 interstate commerce and the cars mentioned engaged in 
 interstate commerce, except it be by reason of the switching 
 operations, and the Supreme Court in the case above re- 
 ferred to has construed the requirements of these acts in no 
 uncertain terms. 
 
 The demurrer to the second plea to the second and third 
 counts will therefore be sustained. 
 
 The demurrer having been considered, the motion to 
 strike is not considered.
 
 APPENDIX G. g93 
 
 No. 1327. 
 UNITED STATES OF AMERICA 
 
 V. 
 
 NORTHERN PACIFIC RAILWAY COMPANY. 
 
 In the District Court of the United States for the Western District of Wash- 
 ington, Southern Division. 
 
 December 6, 1913. 
 
 1. If a car is properly equipped and it becomes defective on the line of road 
 
 when in use, after the discovery of the defect it may be hauled to the 
 nearest available repair point, provided such movement is necessary to 
 . make such repairs, and such repairs could not be made except at such 
 repair point. 
 
 2. The nearest available repair point means the nearest available repair point 
 
 for making repairs of the kind that the car needs; that is, that they cannot 
 be made before such repair point is reached. 
 
 3. The movement of a car by means of chains instead of drawbars, unless it 
 
 contains live stock or perishable freight, cannot lawfully be made farther 
 than to be gotten off the main line, but if before a repair point is reached 
 there is a track where a car, that it is necessary to handle in that manner 
 or to haul it at all, can be placed, that is the place to put it and go out with 
 tools and repair it or else haul it into the repair point in trains otherwise than 
 in revenue trains or in association with other cars that are commercially 
 used. 
 
 Claij Allen, United States attorney, and Monroe C. List, spe- 
 cial assistant to United States attorney, for plaintiff. 
 Reid, Quich & De Ponte, for defendant. 
 
 INSTRUCTIONS TO THE JURY. 
 
 CusHMAX, District Judge: 
 
 At the conclusion of the court's instructions you will 
 retire to make up your verdict in this case and take the 
 pleadings with you. It is your duty to resort to these plead- 
 ings in order to ascertain exactly what the diflPerence is 
 between the plaintiff and the defendant, but the court may
 
 894 FEDERAL, SAFETY APPLIANCE ACT. 
 
 at this time outline to you the issues as formed by the 
 pleadings, so 3"ou may have them in your mind fresh as the 
 court instructs you, in order to help you, if possible, to under- 
 stand the law applicable to the issues. 
 
 The complaint of the Government is set out here in seven 
 causes of action. It charges that on the date mentioned in 
 the complaint, at Auburn, the defendant hauled two cars 
 described in the first two causes of action with defective 
 couplers chained togetlier; that they were so defective that 
 they would not couple together automatically, so defective 
 that it would be necessary for a man to go between the ends 
 of the cars in order to uncouple them. 
 
 In the next two causes of action the Government com- 
 plains of two certain cars being used and hauled by the 
 defendant company at Auburn that had the uncoupling 
 levers missing, which rendered it necessary for men to go 
 in between the ends of the cars in order to uncouple them. 
 
 In the last two causes of action the Government com- 
 plains that there were defects or missing or broken parts 
 of certain chains that connected the lever with the un- 
 coupling device in three certain cars that were being used 
 by the company and hauled out of Centralia at a certain 
 time named in the complaint, and that those defects were 
 such as to render it necessary for men to go in between the 
 ends of the cars in order to uncouple them. 
 
 The defendant denies that these cars were defective as 
 alleged, and alleges affirmatively that they were properly 
 equipped when they left the certain terminal points men- 
 tioned in the ansAver, and that it was necessary to haul them 
 where they did haul tliem to, in order to get them repaired, 
 either after these defects were discovered or that it was not 
 discovered until they passed a repair point, and after they 
 were discovered they were not hauled by any repair point where 
 they could have been repaired. It has been admitted that 
 these affirmative allegations have been denied by the Gov- 
 ernment. 
 
 So far as the law is concerned, the law provides that 
 such a road as the defendant is, the Northern Pacific, which
 
 APPENDIX G. 895 
 
 is a highway of interstate commerce, is prohibited from 
 handling or hauling cars defective in certain respects ; that 
 it must equip all of its cars with coupling devices that 
 couple automatically upon impact; that is, the mere fact of 
 bringing the cars together and the coupling device together, 
 that that impact couples the cars, and they must be so 
 equipped that they can be uncoupled without it being neces- 
 sary for a man to go between the ends of the cars, and if 
 they are not equipped so they act in this manner, then they 
 are liable to a penalty for using such cars. The law pro- 
 vides, however, an exception or proviso to the effect that 
 if a car is properly equipped by tlie company and it gets 
 out of order and becomes defective while in use on its line, 
 that after that defect is discovered it may be hauled or 
 moved to the nearest available repair point without in- 
 curring this penalty, providing the movement is necessary 
 in order to have the repair made, and that it cannot be made 
 except at this repair point to which it is moved. The same 
 proviso, however, contains this exception : That is, that 
 nothing in the proviso shall authorize the movement or 
 hauling cars by means of chains instead of drawbars, un- 
 less those cars are being used to haul live stock or perish- 
 ables. The question, then, in this case, if you find from the 
 evidence, if you believe from the evidence, that those two 
 cars mentioned in the first two causes of action were hauled 
 from Auburn ; that when they left Auburn they were using 
 chains instead of drawbars, and that there was room on the 
 tracks there at Auburn to switch them out, then there is no 
 excuse for their being used by the defendant company, 
 unless being used to transport either live stock or perish- 
 ables. 
 
 Regarding the other two counts which concern missing 
 coupling and uncoupling levers at Auburn, you will deter- 
 mine whether or not it was necessary to haul those cars 
 on beyond Auburn, in order to repair these defects, to some 
 repair point. Now, what is necessary, you are to determine 
 as practical men. It means what was reasonably necessary, 
 operating a road as practical men should, in view of this
 
 896 FEDERAL SAFETY APPLIANCE ACT. 
 
 law. It does not mean whether it would have been possible 
 with the utmost endeavor to have repaired them there, tak- 
 ing unlimited time ; it does not mean anything of that kind. 
 The law provides that cars, after the discovery of defect, 
 if properly equipped, the sense of it being if they are prop- 
 erly equipped when they left the last repair point, and the 
 discovery of the defect has occurred while it is in use along 
 the line, it must be taken to the nearest available repair 
 point. The nearest available repair point means the nearest 
 available repair point for making repairs of the kind that 
 that car needs. Of course you can understand, as far as this 
 law is concerned, an engine comes within it. There could 
 be an engine partly destroyed, and there might be very few 
 repair points where it could be repaired. I state this ex- 
 treme illustration to give you a means of understanding 
 what the word "available" means there. 
 
 The same instructions will apply to this matter at Cen- 
 tralia, supposing that Centralia was a repair point, where 
 they have skilled men for making the repairs these cars 
 needed and the material there for the purpose of making 
 such repairs, then the company would not be excused for 
 hauling the defective car through that point to reach some 
 other point where it was more convenient for them to make 
 such repairs, because this proviso in the statute which pro- 
 vides that cars be removed to the nearest available repair 
 point, if the repairs cannot be made except at that repair 
 point ; that is, if they can not be made before they reach 
 there. If they had equipment and men at Centralia cap- 
 able of making such repairs, that would be the place to 
 make them. It would be no excuse, because they were 
 not keeping men to repair cars that did not reach Tacoma, 
 Seattle or Vancouver, or other ])laces where they had more 
 complete esta])lishinents for tiiat purpose, all the time 
 qualifying the instruction tliat the equipment at Centralia 
 must be suitable for making the repairs that these cars 
 needed. 
 
 There was some testimony, I believe, of Mr. Richards, 
 regarding that at Auburn, they juight have had a man there
 
 APPENDIX G. ggj 
 
 for a certain length of time before these particular defects 
 mentioned in these causes of action occurred. Now, the 
 fact that they had had repair men there would not make 
 it a repair point at this time ; they would have to have a 
 repair man there at that time to make it a repair point. 
 The mere fact that they occasionally in the past had had 
 men there for that purpose would not make it a repair 
 point unless they did have at the time the defect occurred. 
 
 The court will read to you some written instructions. If 
 they repeat to some extent what I have already told you, 
 you wall not conclude that the court is trying to unduly 
 impress upon you certain parts of the case to the exclusion 
 of others : 
 
 In case No. 1327 the Government is suing to recover 
 seven penalties on account of the movements of seven cars 
 alleged to have been defective in violation of the safety 
 appliance statutes of the United States. The court instructs 
 with respect to the law appertaining to the various causes 
 of actions, as follows: 
 
 In the first cause of action in case No. 1327 it is alleged 
 that on December 20, 1912, the defendant hauled Northern 
 Pacific car 55653 from Auburn in a northerly direction witli 
 the coupling and uncoupling apparatus on the A end of 
 said car inoperative, the coupler being missing therefrom, 
 and said car being chained to Northern Pacific car 36182, 
 thus necessitating a man going between the ends of the cars 
 to uncouple them in violation of the Safety Appliance Laws. 
 
 In the second cause of action in said case it is alleged that 
 on December 20, 1912, the defendant hauled Northern 
 Pacific car 36182 over its railroad from Auburn, in the 
 state of Washington, in a northerly direction when the 
 coupling and uncoupling apparatus on the A end of said 
 car was inoperative, the knuckle being missing from the 
 coupler on said end of said car and said car being chained 
 to Northern Pacific 55653. 
 
 The defendant by its answer admits that said cars were 
 hauled at the time stated, but denies that thereby the acts 
 of Congress referred to were violated, in that the ears were
 
 g98 FEDERAL SAFETY APPLIANCE ACT. 
 
 properly equipped when placed in service, and became de- 
 fective and out of repair after being put in use, and said 
 defects were not discovered until said car reached Auburn, 
 at which point defendant alleges it did not have or main- 
 tain any means or facilities for the repair of such defective 
 equipment, and that the said cars were hauled to Seattle 
 or South Tacoma, as the case may be, being the nearest 
 repair point at which facilities for the repair thereof were 
 located; and it is alleged that such movement was neces- 
 sary in order that said cars might be repaired. 
 
 The acts of Congress known as the Safety Appliance 
 Laws, under which this suit is brought, prohibit the use on 
 an interstate railroad such as the defendant of any car not 
 equipped with couplers, coupling automaticallj^ by impact, 
 and which can be uncoupled without the necessity of men 
 going between the ends of the cars, and prohibit the use of 
 cars not so equipped under a penalty provided in the act. 
 
 You are instructed, however, that the same statute which 
 prohibits the movement of defective equipment as above 
 explained also provides that where any car shall have been 
 properly equipped with automatic coupling devices, and 
 such car shall become defective while being used, the same 
 may be hauled from the place where such equipment was 
 first discovered to be defective or insecure to the nearest 
 available point where such cars can be repaired without in- 
 curring liability for the penalties imposed, provided such 
 movement was necessary to make such repairs and such 
 repairs could not be made except at such repair point. But 
 it is also provided in said statute that the said defective 
 equipment shall not be hauled by means of chains instead 
 of drawbars, in revenue trains or in association with other 
 cars that are commercially used, unless such defective cars 
 contain live stock or perishable freight. 
 
 I believe when I stated that rule to you orally I neglected 
 to state that the prohibition was against hauling in revenue 
 trains. There has been some argument made to you in re- 
 gard to the harshness of this law prohibiting the move- 
 ment of cars by means of chains instead of drawbars.
 
 APPENDIX G. §99 
 
 Neither the jury nor the court can be concerned with that 
 phase of the case. The jury and the court are sworn to 
 enforce the written laws, and if anybody is going to remove 
 the harshness of the law, it must be Congress. But the ex- 
 treme case put in argument does not obtain here. You will 
 notice that this proviso also contains the regulation that if 
 a car was properly equipped and it became defective on the 
 line of the road when in use, that after the discovery of the 
 defect it might be hauled to the nearest available repair 
 point ; but, added to that, is this, that nothing in the proviso 
 sliould authorize the hauling of a car by means of chains 
 instead of drawbars. That means the hauling of a car to the 
 nearest repair point. That is, the exception engrafted on 
 the proviso refers to hauling the car, which was authorized 
 in the proviso, to the nearest repair point. If the nearest repair 
 point happened to be the nearest place where this car could 
 be got off the main line, then it would authorize its being 
 hauled there, but if before they reached the repair point 
 there was a track where they could put a car that it was 
 necessary to handle in that manner, then that was the place 
 to put it and go out with the tools and repair it, or else haul 
 it in to the repair point in trains otherwise than in revenue 
 trains, unless it was hauling live stock or perishables. 
 
 In the third cause of action in said case No. 1327 it is 
 alleged that on December 20, 1912, the defendant hauled 
 Northern Pacific car 1022 from Auburn in a southerly direc- 
 tion when the coupling and uncoupling apparatus on the 
 A end of said car was out of repair and inoperative, the un- 
 coupling lever being missing from said end of said car. 
 
 In the fourth cause of action in said case No. 1327 it is 
 alleged that on December 20, 1912, the defendant hauled 
 Northern Pacific car 82751 from Auburn in a northerly di- 
 rection when the coupling and uncoupling apparatus on the 
 B end of said car was out of repair and inoperative, the un- 
 coupling lever being missing from said end of said car. 
 
 The defendant by its answer to said third and fourth 
 causes of action admits that said cars were moved at the 
 time stated, but denies that thereby the act of Congress was
 
 900 FEDERAL SAFETY APPLIANCE ACT. 
 
 violated, and alleges that said movement was necessary in 
 order that said ears could be repaired, as there existed no 
 repair point at which said car could be repaired when the 
 said defect was discovered ; and with respect to car No. 
 82751 mentioned in the fourth cause of action, defendant 
 denies that the same was defective in any particular, and 
 alleges that even if the same was defective the movement 
 thereof from Enumclaw to Seattle was necessary in order 
 that the same could be repaired. 
 
 You are instructed that the acts of Congress under which 
 these suits are brought prohibit the use on an interstate 
 railroad such as the defendant of any car not equipped 
 with couplers coupling automatically by impact and which 
 can be uncoupled without the necessity of men going be- 
 tween the ends of the cars, and the violation of said statutes 
 is punishable by the penalty provided in the act. 
 
 The court instructs you that the same statute prohibiting 
 the movement of defective equipment as above explained 
 also provides that where any car shall have been properly 
 equipped with automatic coupling devices, and sufficient 
 handholds and hand brakes, and such car shall become de- 
 fective while being used, it may be hauled from the place 
 where such equipment was first discovered to be defective 
 or insecure to the nearest available point where the ear can 
 be repaired, without incurring liability for the penalties 
 imposed, provided such movement is necessary to make the 
 repairs and such repairs could not be made except at such 
 repair point. 
 
 You are instructed that if you believe from the evidence 
 that the particular cars referred to were properly equipped 
 and in a good state of repair at the time they were placed 
 in service, or passed the last repair point, and that said cars 
 became defective and insecure after leaving such repair 
 point and that such defects were discovered by defendant, 
 then you are instructed that the defendant might lawfully 
 move said cars to the nearest repair point, such as Seattle or 
 South Tacoma, in order to repair the same, provided you 
 find and ])elieve from the evidence that the movement
 
 APPENDIX G. 901 
 
 thereof to such repair point was necessary in order to re- 
 pair said cars. And by "necessary" is not meant that it 
 was impossible to repair said cars at Auburn, by sending 
 out repair car or sending men from the shops to repair the 
 same; but if you believe that the only practicable method 
 of railroading requires that such cars when out of repair 
 should be taken to the shops for that purpose, and that it 
 was reasonably necessary in view of the practicable opera- 
 tion of railroading to repair such cars in the shops, then 
 the movement thereof for such purpose was not a violation 
 of the law, and you will find for the defendant on these 
 causes of action. 
 
 In the fifth cause of action in said case No. 1327 it is 
 alleged that on December 31, 1912, the defendant hauled on 
 its line of railroad Northern Pacific car 85932 from Cen- 
 tralia in a westerly direction when the coupling and un- 
 coupling apparatus on the B end of said car was out of 
 repair and inoperative, the uncoupling chain on said end of 
 said car being broken. 
 
 In the sixth cause of action in said case No. 1327 it is 
 alleged that on December 31, 1912, defendant hauled North- 
 ern Pacific car 85165 from Centralia westerly when the lock 
 link of the coupler on said end of said car was broken and 
 said coupler was inoperative. 
 
 In the seventh cause of action in said case No. 1327 it is 
 alleged that on December 31, 1912, defendant hauled North- 
 ern Pacific car 85080 from Centralia westerly when the 
 coupling and uncoupling apparatus on the A end of said 
 car was out of repair, the uncoupling cliain being broken. 
 
 You are instructed that the acts of Congress under which 
 this suit is brought prohibit the use on an interstate rail- 
 road, such as the defendant, of any car not equipped with 
 couplers coupling automatically by impact, and which can 
 be uncoupled without the necessity of men going between 
 the ends of the cars, and any violation of said statutes is 
 punishable by a penalty provided in the act. 
 
 The court further instructs you that the same statute also 
 provides that where any car shall have been properly
 
 902 FEDERAL SAFETY APPLIANCE ACT. 
 
 equipped with automatic coupling devices and such car 
 shall become defective while being used, that the same may 
 be hauled from the place where such equipment was first 
 discovered to be defective or insecure to the nearest avail- 
 able point where such cars can be repaired, without in- 
 curring liability for the penalties imposed, provided such 
 movement is necessary to make the repairs. The instruction 
 I gave you regarding the Auburn cars where the levers were 
 missing would apply to those I have already given you in 
 my oral instructions. I will not repeat them on that point. 
 
 This is a civil and not a criminal suit, and the Govern- 
 ment is not, therefore, required to prove its case beyond a 
 reasonable doubt, but only by a preponderance of the evi- 
 dence. 
 
 By preponderance of the evidence is not meant neces- 
 sarily the greater number of witnesses, but it means that 
 character of evidence which to the jury seems the most con- 
 vincing and entitled to the greatest weight. 
 
 If the defendant on May 20, 1912, hauled Northern Pa- 
 cific cars 55653 and 36182 from Auburn in a revenue train 
 by means of chains instead of drawbars, it can not be ex- 
 cused thereby because it could not have made the repairs 
 at Auburn unless, as I have instructed you, the cars were 
 being used to haul live stock or perishables, and providing 
 there were means at Auburn for cutting these cars out of 
 the train and leaving them there on storage tracks or 
 switches. 
 
 If the defendant on December 20, 1912, hauled from Au- 
 burn Northern Pacific cars 82751 and 1022 when the un- 
 coupling lever was missing from end of each car, it can not 
 plead as a defense that it was necessary to haul the cars 
 from Auburn for the purpose of making the repairs if the 
 character of defects were such that they could have been 
 repaired at Auburn, as I have already instructed you. 
 
 In considering the necessity of moving a car from Auburn 
 for repairs, the jury sliould take into consideration all the 
 sui'fouiKiitig (;ii-(;uniKtan('("s, including the particular char- 
 a(;ler of llie defect coinpljiiiied of.
 
 APPENDIX G. 9Q3 
 
 If Centralia was in December, 1912, a repair point, and 
 Northern Pacific cars 85982, 85165 and 85080 were hauled 
 from there at the time and in the defective condition com- 
 plained of by the Government, the verdict of the jury should 
 be for the plaintiff, providing Centralia was a repair point 
 available for the repair of defects of the kind which these 
 cars had suffered or had. 
 
 The fact that a car was later repaired after leaving the 
 repair point in a defective condition is no defense, nor is it 
 a defense for the company to say that it did not as a rule 
 inspect all such cars at such repair point. The defendant 
 must see or know, at its peril, that before it hauls these cars 
 from a repair point that such cars are ecjuipped with auto- 
 matic couplers coupling upon impact and not require the 
 men to go between the ends of the cars to uncouple them; 
 that is, providing that repair point was a repair point where 
 defects such as these cars had could have been reasonably 
 repaired. 
 
 United States Circuit Court of Appeals for the Ninth Circuit. 
 No. 2258. 
 
 SPOKANE & INLAND EMPIRE RAILROAD COMPANY, 
 A CORPORATION, PLAINTIFF IN ERROR, 
 
 V. 
 
 THE UNITED STATES OP AMERICA, DEFENDANT IN 
 
 ERROR. 
 
 In error to the United States District Court for the Eastern District of Wash- 
 ington, Northern Division. 
 
 Submitted September S, 1913. Decided January 5, 1914- 
 
 1. An interurban electric railroad engaged in interstate commerce which runs 
 upon standard gauge tracks large passenger coaches, having no grabirons 
 or handholds on the ends of such cars, in trains made up according to 
 standard railroad rules, with markers, and run on schedules and by train
 
 904 FEDERAL. SAFETY APPLIANCE ACT. 
 
 orders, for a distance of 40 miles over its own right of way, and which 
 has all the characteristics in build and operation of a standard steam 
 road, is subject to the Safety Appliance Act and is not within the exception 
 in said act of cars "used upon street railways" by reason of the fact that 
 the company uses the tracks of its street car lines for a mere trifle of the 
 distance between its terminal points in order to reach the center of a large 
 city, which is one of its terminals; and use of cars in such trains without 
 grabirons or handholds is a violation of the act of Congress. 
 
 2. The exception from the operation of the Safety Appliance Act of cars "used 
 
 upon street railways" means, if not those solely used on street railways, 
 at least such as are used on such railways in street railway traffic. 
 
 3. The question as to whether certain openings in the buffer on the ends of cars 
 
 afford the security intended by the act of Congress requiring grabirons 
 or handholds on such cars is not the subject of expert testimony, and the 
 personal inspection of such openings by sensible jurors is a safer guide 
 to the truth in regard to the matter than the mere opinion of witnesses. 
 
 Graves, Kizer & Graves, for plaintiff in error. 
 
 Philip J. Dolieriy and Oscar Cain, for defendant in error. 
 
 Before Gilbert, Eoss and Morrow, Circuit Judges. 
 
 OPINION OF THE COURT. 
 
 Eoss, Circuit Judge: 
 
 The plaintiff in error was at the times here in question a 
 common carrier engaged in interstate commerce by means 
 of an electric railroad between the city of Spokane, in the 
 state of Washington, and Coeur d'Alene City, in the state 
 of Idaho, and for alleged violations of the act of Congress 
 known as the Safety Appliance Act, approved March 2, 
 1893 (27 Stats. 531), as amended April 1, 1896 (29 Stats. 
 85), and as further amended March 2, 1903 (32 Stats. 1911), 
 the present action was brought by the Government, the com- 
 plaint in which action contains 15 counts, the first 12 of 
 which allege in substance that the violation of the statute 
 consisted in hauling over its road certain designated cars 
 which were not ])rovi(l('d with the gra])irons or handholds 
 required by the staliilc, and the last three of which alleged 
 in substance the; violalion of 1lie statute to have consisted
 
 APPENDIX G. 905 
 
 in hauling over its road certain designated cars not pro- 
 vided Avith the automatic couplers thereby required. 
 
 The case was tried with a jury, which returned a verdict 
 against the railroad company, upon which judgment was 
 given against it, resulting in the present writ of error in 
 its behalf. 
 
 It is first urged that the cars in question do not come 
 within the provisions of the Safety Appliance Act, and, sec- 
 ond, that the trial court erred in refusing to permit the 
 railroad company to introduce certain testimony and in its 
 instructions to the jury. 
 
 The first point thus urged is based upon the exception 
 contained in section 1 of the Act of March 2, 1903, except- 
 ing from the operation thereof cars "which are used upon 
 street railways." The section reads as follows: 
 
 Be it enacted by the Seriate and Ilovse of Representatives of the United States 
 of America in Congress assembled. That the provisions and requirements of 
 the act entitled "An act to promote the safety of emphiyees and travelers 
 upon railroads by compelling common carriers engaged in interstate commerce 
 to equip their cars with automatic couplers and continuous brakes and their 
 locomotives with driving-wheel l)rakcs, and for other purposes," approved 
 March 2, 1893, and amended April 1, 1890, shall be held to apply to common 
 carriers by railroads in the Territories and the District of ('olumbia, and shall 
 apply in all cases, whether or not the couplers brought together are of the same 
 kind, make, or type; and in the provisions and requirements hereof and of said 
 acts relating to train brakes, automatic couplers, grabirons, and the height 
 of draw bars shall be lield to apply to all trains, locomotives, tenders, cars, and 
 similar vehicles used on any railroad engaged in interstate commerce, and in the 
 Territories and the District of Columbia, and to all other locomotives, tenders, 
 cars, and similar vehicles used in connection therewith, excepting those trains, 
 cars, and locomotives exempted by the provisions of section 6 of said act of 
 March 2, 18!).'}, as amended by the act of April 1, 1896, or which are used upon 
 street railways. 
 
 These among other facts appear from the undisputed 
 evidence : 
 
 In addition to its interurban lines, one of which extends 
 from Spokane to Coeur d'Alene, a distance of about 40 
 miles, the plaintiff in error owns the street railway system 
 in Spokane. The interurban line extending to Coeur d'Alene 
 is of standard gauge and of standard weight of rails. The 
 superintendent of that system testified, among other things, 
 as follows:
 
 906 FEDERAL. SAFETY APPLIANCE ACT. 
 
 My superintendency is over the interurban lines. I do not control the street 
 railway lines. On the interurban line tickets are sold for particular stations 
 the same as a railroad. We handle baggage for our passengers. Our trains 
 are made up according to standard railroad rules, with markers to designate the 
 trains, and are run on schedules and by train orders. The employees who are 
 engaged in the street car service do not have anything to do with the operation 
 of the interurban service. They use the same tracks, however, that come from 
 the freight depot to the passenger terminal in the heart of the city. We do 
 not take passengers on the interurban trains witiiin the city limits exclusively. 
 We receive passengers at points within the city limits for transportation out- 
 side and drop passengers on interurban trains at various points within the city, 
 but within the city limits we do no strictly street car business. 
 
 The trains of the company in which were the cars here in 
 question leave its passenger depot near the center of Spo- 
 kane and go out over the tracks of the company's street 
 railroad system for a little over a mile to the yards of the 
 company, where they take the direct line to Coeur d'Alene, 
 which is on the company's private right of way. Those of 
 the cars in question which are mentioned in the first 12 
 counts of the complaint are large passenger coaches, having 
 no grabirons or handholds on the ends of the cars ; instead, 
 on their ends there is a radial coupler and a heavy steel sill 
 or buifer, round on the corners, in which buffer or sill, on 
 the passenger coaches, there are, on each side of the coupler, 
 openings measuring from 18 to 22 inches in length and 
 from 21 to 3 inches in clearance, but on the baggage and 
 mail ears the sill or buffer is solid. 
 
 The three cars mentioned in the last three counts of the 
 complaint, and which it appears were brought into the in- 
 terurban service because of a pressure of traffic, were street 
 railway cars which not only had no automatic couplers 
 thereon but, because of their small size, were incapable of 
 having them. 
 
 There is testimony to the effect — and none to the con- 
 trary — that the sharpness of the curves on the street car 
 line is such as to make it impossible to run cars over that 
 line having grabirons or handholds on the end of the cars. 
 Conceding that to be true, it is no answer to the Govern- 
 ment's action if the act of Congress in question is applicable 
 to the company's interurbfin lines. To hold with the plain- 
 tiff in error on this point would be to iiold that, because
 
 APPENDIX G. 907 
 
 the company uses tlie tracks of its street car lines for a 
 mere trifle of the distance between its terminal points in 
 order to reach the center of the city of Spokane, its entire 
 interurban line, which has all of the characteristics in build 
 and operation of a standard steam road, is not subject to 
 tlie safety appliance act. That would, indeed, be a case of 
 "the tail wagging the dog." 
 
 We are of the opinion that the act of Congress does not 
 admit of such an interpretation, especially in view of the 
 manifest purpose of the legislation. The exception from its 
 operation of cars "used upon street railways," we think, 
 means, if not those solely used on street railways, at least 
 such as are used on such railways in street railwaij traffic, 
 which was not the case here, according to the testimony of 
 the company's own witnesses. 
 
 In Moore et al. v. American Transportation Company (24 
 How. 1) the Supreme Court, in speaking of that provision 
 of the act of March 3, 1851, entitled "An act to limit the 
 liability of shipowners, and for other purposes," wiiich 
 declared '"Tbis act shall not apply to the owner or owners 
 of any canal boat, barge, or lighter, or to any vessel of any 
 description whatsoever used in rivers or inland navigation," 
 said: 
 
 This word used means, in the connection found, employed, and doubtless in 
 the mind of Congress was intended to refer to vessels solely employed in river 
 or inland navigation. 
 
 The use of such interurban cars as we have here, engaged 
 as they are in interstate commerce, for a comparatively 
 short and relatively inconsiderable distance on a street rail- 
 way in order to reach the city terminus of the company 
 handling no street car business, can hardly be considered 
 as intermingling of traffic; but if so, it w^ould, in our opin- 
 ion, no more make inapplicable the Safety Appliance Act to 
 the interurban line than does the intermingling of intra- 
 state with interstate traffic defeat the power of Congress 
 over the latter. See Baltimore & Ohio Railroad Company 
 V. Interstate Commerce Commission (221 U. S. 612) ; South- 
 ern Railway Company v. The United States (222 U. S. 20).
 
 908 FEDERAL SAP^ETY APPLIANCE ACT. 
 
 We also regard as tending to support our conclusion in 
 this respect the decision of the Supreme Court in the case 
 of United States v. Atchison, Topeka & Santa Fe Railway 
 Company (220 U. S. 37), where that court had under con- 
 sideration that provision of the act of March 4, 1907 (34 
 Stats. 1415, 1416), making it unlawful for common carriers 
 subject to the act to permit any employee subject thereto 
 to be on duty for a longer period than 16 consecutive hours, 
 or after that period to go on duty again until he has had 
 at least 10 consecutive hours off duty, or 8 hours after 16 
 hours' work in the aggregate, with certain exceptions not 
 necessary to be mentioned, in which case the court said : 
 
 A trifling interruption would not be considered, and it is possible that even 
 three hours by night and three hours by day would not exclude the oflBce from 
 all operation of the law and to that extent defeat what we believe was its 
 intent. 
 
 The rulings and instructions of the court below remain to 
 be considered. During the trial the witness Robertson tes- 
 tified, among other things, that he had been employed for 
 23 years as brakeman, switchman, yardmaster, and con- 
 ductor, and had had a great deal of experience in coupling 
 and uncoupling cars, and was familiar with the types of 
 handholds ordinarily provided on steam railroads for the 
 security of men going between the cars, and that generally 
 there is uniformity in such appliances and the place of their 
 location ; that — 
 
 Where there is a handhold on passenger coaches on steam roads, it is about 
 midway from the bottom of the wooden sill to the bottom of the car above the 
 track. The handholds that are used on steam railroads are about the height 
 of my shoulder from the track. I am ,5 feet 10 or 11 inches, and the handhold 
 would strike me just about the shoulder. I have examined the passenger 
 coaches on the Sixikanc & Inland Empire Railroad (.'omjjany with reference to 
 the opening which it claims is a handhold in the buffer or sill of their cars. 
 
 The record proceeds : 
 
 Thereupon counsel for defendant asked the witness then on the stand this 
 question: 
 
 "What wouhl you say of them as a safe and proper appliance; one that 
 would tend to preserve men from injury who might have to go Ijetween the 
 cars for any purpose?" 
 
 PlaintifiP's conn.scl llicrcupoii o])j('ct('d to the ((uestion,
 
 APPENDIX G. 909 
 
 stating that "the question is, is it a handhold?" The court 
 sustained the objection "on the ground that it invades the 
 province of the jury;" that defendant was seeking to prove 
 by the witness the very question that the jury were to de- 
 cide. Counsel for defendant thereupon made the following 
 offer of proof: 
 
 Now, if your honor pleases, I offer to prove by the witness on the stand, 
 and I will call other witnesses, and particularly experienced railroad men, of 
 years of experience, to prove by him and by them, by questions and answers 
 addressed to them, that the opening in the beam of buffer of these electric cars 
 is intended to subserve and does subserve the same purpose as the round iron 
 appliance that is prescribed by the rules of the Interstate Commerce Commis- 
 sion at the present time and is in use on steam railroads, that it is a better 
 appliance than those are for the purpose of protecting men from injury who 
 have to go between cars. I offer to prove that and to ask questions of this 
 witness to that effect. 
 
 Thereupon counsel for plaintiff objected to the offer, and the court sustained 
 the objection upon the ground that it was not a question for expert testimony, 
 but was a matter of common knowledge. 
 
 To which ruling the defendant excepted. 
 
 Another witness, Arlington Mahan, who was general 
 foreman in the shops of the plaintiff in error, testified 
 among other things as follows: 
 
 I am familiar with the passenger coaches of that company that have a buffer 
 at the end and an opening in it. I was in the employ of the company at the 
 time these cars, or some of them, were purchased. The openings were in the 
 beam or sill when the cars were received. There were handholds up and down 
 the sides of the cars when they were received. There were none on the ends of 
 the cars in the place where they are put on steam cars. I know of no reason 
 for the openings on top of the angle iron on that beam. The men use them for 
 grab irons whenever they have occasion to couple or uncouple cars or go be- 
 tween them. I have had occasion to couple and uncouple cars in that yard 
 and other yards. 
 
 The record proceeds: 
 
 Thereupon counsel for defendant asked the following question: 
 
 "Does that opening in the top of the sill serve the same purpose, and is it 
 as well fitted for the purpose of protecting the lives and limbs of men who 
 have occasion to go between the cars in the exercise of their duties as the form 
 of grabiron that is used on steam cars that is brought below the end of the 
 car?" 
 
 Counsel for plaintiff objected to the question, and the court sustained the 
 objection on the following grounds: 
 
 "I am of the opinion that this is one of the cases where witnesses must state 
 facts and not conclusions, whether that is a reasonably safe appliance is within 
 the knowledge of the ordinary man, and no special experience is required."
 
 920 FEDERAL SAFETY APPLIANCE ACT. 
 
 Thereupon defendant asked and was allowed an excep- 
 tion to the ruling. The witness further testified: 
 
 I am familiar with the form of grabiron or handhold that is used on the 
 passenger cars of steam railroads. It is attached to tlie end of the car, one on 
 each corner, and projects downward. The Interstate Commerce Commission 
 requires that they shall have a clearance of at least 2 inches, preferably 2}^, 
 below the car sill. The handle runs different lengths. Tiic Interstate Com- 
 merce Commission requires that it shall be not less than IG inches inside clear- 
 ance. There is one of these on each side of the draw bar. The opening in the 
 angle iron in that buffer on the Spokane & Inland Empire cars runs in length 
 from 16 to 24 inches. It is from 21^ to 2^ inches wide, and there is one of such 
 openings on each side of the draw bar on both ends of the car, making four in 
 all. It would be impossible to put on the passenger cars of the defendant such 
 grabirons as are in use on the cars of steam railroads, because in going around 
 the curves on the city streets the coupler would strike a brake. 
 
 And thereupon the following question was asked, and the following matters 
 occurred : 
 
 In your opinion, Mr. Mahan, and observation of these cars, is the opening in 
 the angle bar a better and safer appliance for the safety of persons having 
 occasion to go between the cars in the discharge of their duties than those that 
 are used upon steam railroads? 
 
 Mr. Doherty. The question is objected to. 
 
 The Court. I will sustain the objection. 
 
 Mr. Graves. To which we take an exception. 
 
 I now offer to prove by this witness and also by other witnesses called, with 
 your honor's permission, that the opening in this angle iron or sill or buffer is 
 a better and safer appliance, better protection, greater protection to the men 
 who have occasion to go between the cars than any form of grabiron or hand- 
 hold that is known in railroad circles. 
 
 Mr. DoiiERTY. I object to that. 
 
 The Court. Objection sustained on the ground that it is a question for the 
 jury. 
 
 Mr. Gr.a.ves. To which the defendant excepts. 
 
 In its instructions to the jury regarding this matter the 
 court told them that the act of Congress relative to safety- 
 appliances provided that railroad cars "used in interstate 
 commerce shall be provided with secure grabirons or hand- 
 holds on the ends and sides of each car for greater safety 
 to men in coupling and uncoupling cars," and instructed 
 them as follows: 
 
 The purpose of the act is to afford greater security to men coupling or un- 
 coupling cars by reason of the presence of grabirons or handliolds than would 
 be possible if there were nothing of the sort on tlie ends of the c;irs. If you 
 should find from the evidence in this case that although there might not have 
 he(!n on the ends of the cars referred to anytliing whicii would be known tech- 
 nically as grabirons or handliolds, yet if there were upon the ends of such 
 cars an a[)i)liance which could be use<l as a grabiron or handhold and which 
 would afford as much security to men coupling or uncoupling the cars as would 
 !>(• afi'orflcfl by having what would be technit'ally known as graI)irons or hand- 
 holds on the ends of the cjirs, then vour verdict should be for the defendant.
 
 APPENDIX G. 911 
 
 The law does not require any particular kind of graliiron or handliold to be 
 placed upon the end of the car, but only recjuireH that some such appliance 
 shall be placed there which will afford the person coupling or uncoujiling cars 
 equal security with that which would be ol)taincd by the inelhod I have given. 
 (lentlemen, you have heard the testimony in this case, and you have examined 
 the handholds in question, and it is for you to say from that testimony and 
 from your personal examination of the cars whether the appliance provided by 
 this company complies, with the act of Congress; in other words, whether 
 it affords that safety and protection to employees which the law contemplates 
 and requires. The burden is upon the Government to establish its case by a 
 preponderance of the testimony. If, from a preponderance of the testimony 
 offered herein, you are satisfied that the defendant has not furnished grab- 
 irons or handholds as I have defined these terms to you within the meaning 
 of the law, you will find the defendant guilty on the first 12 counts. 
 
 We are of the opinion that the plaintiff in error has no 
 valid ground of objection to these instructions and agree 
 with the trial judge that the question as to whether the 
 openings in the buffer on the ends of the cars aff'orded the 
 security intended by the act of Congress was not the sub- 
 ject of expert testimony, and that the personal inspection 
 of such openings by sensible jurors was a safer guide to the 
 truth in regard to the matter than the mere opinion of 
 witnesses. 
 
 The judgment is affirmed. 
 
 (United States Circuit Court of Appeals, Fourth Circuit.) 
 No. 1228. 
 
 UNITED STATES, PLAINTIFF IN ERROR, 
 
 V. 
 
 CHESAPEAKE & OHIO RAILWAY CO., DEFENDANT 
 
 IN ERROR. 
 
 In error to the District Court of the United States for the Eastern District 
 of Virginia, at Richmond. 
 
 Argued February 19, 1914. Decided February 27, 19U. 
 
 The Safety Appliance Acts apply to equipment used on side tracks and yard 
 tracks as well as main lines, and to hold otherwise would in a large meas- 
 ure give to the acts such a narrow and artificial construction as to deny 
 protection to those for whose benefit the law was passed.
 
 012 FEDERAL. SAFETY APPLIANCE ACT. 
 
 ll. It d<efecti\-v txitiipiiKent is tiis«.>»wred. and it can W iviviiivtl at tlio jn^int 
 of discovery, tlieu it is incuml^emt u|x>a the railrvKtd tximjwny to n^jviir 
 the sMue as so«jo as the serxTces trf a rejMir man cau l»e had. but if the 
 defect is of such chaiacter that it cannot l>e rf^jviirwl at the jKuut where 
 discovered such car may be hauletl to the nearest avjiilable jK>int for that 
 puipoise, and must not be othenvise use^i lietween stations or iu yards. 
 
 Before Peitchard and Woods, Circuit Judges, and Dayton, 
 District Judge, 
 
 D, Lawrence Qroner, United States attornev, and PhiUp J, 
 Dokerty, special assistant United States attorney {Hiram M. 
 Smithy assistant United States attorney on brief), for plaintiff 
 in error. 
 
 David U, Leake (D, H, Leake and Walter Leake on brief), 
 for defendant in error. 
 
 OPINION OF THK COURT. 
 Prttchard, Circuit Judge: 
 
 This action was begun by the Uiuccvi States ou August 6. 
 1912, to recover ^200 from the defendant in error, the 
 Chesapeake & Ohio Railway Co., for violation of the Safety 
 Appliance Act. The declaration contained two counts, the 
 first count relating to a violation of the act in the use by 
 tlie railway company of New York, New Haven & Hartford 
 Railroad ear No. 75653 while the same was in a defective 
 condition, and the second count relating to a Southern Rail- 
 way car, as to which there is no controvei*sy ou this writ of 
 error. The jury, by direction of the court, found against 
 the United States as to the first count and for the United 
 States as to the second count. A motion was made by the 
 United States to set aside the verdict, which was overruled. 
 (The interstate character of the railway aud the cars in 
 question is admitted."* 
 
 The evidence, so far as it relates to the nrst couut of the 
 declaration, as to which, as just stated, the jury found 
 against the United States, briefly, is as follows: 
 
 Car No. 75653 of the New York, New Haven iS: Hartford 
 Railroad Co. was brought into the Seventeenth Street vard
 
 APPENDIX G. 9]^3 
 
 of the Chesapeake & Ohio Railway Co. at Richmond, Va., 
 on February 29, 1012. This car formed part of a train, 
 which arrived at the yard about 3 :15 p. m., and on its 
 arrival was inspected by Government inspectors, who found 
 the chain at the "B" end of the car connecting the lock 
 and climax coujjler broken, so that there was no connection 
 between the uncoupling lever and the uncoupling mech- 
 anism, and in its then condition it was impossible to couple 
 the car, or open the coupler, otherwise than by going in 
 between the cars. 
 
 Shortly after this discovery by the inspectors the car was 
 inspected by the railroad inspector located at the Seven- 
 teenth Street yard, and a bad order mark was placed on it, 
 and it was thereupon switched from point to jjoint several 
 times with a number of other cars and placed on different 
 tracks. Late in the afternoon, while it was standing on the 
 track near the scales, Brakeman John Scott went in be- 
 tween the end of the defective car and another car for the 
 purpose of raising the mechanism and separating it from 
 the other car, shortly after which engine 44 coupled to the 
 car and pushed it down from the Seventeenth Street yard 
 on to track Xo. 9 in the Broad Street yard, the trip consum- 
 ing about 10 minutes, the distance being about three-quar- 
 ters of a mile. The car, both when it arrived at the Seven- 
 teenth Street yard and later in the day when it arrived at 
 the Broad Street yard, was loaded with corn and sealed, and 
 remained at the Broad Street yard from February 29 until 
 March 12, without having the repairs made, and on the 
 latter date it was returned to the Seventeenth Street yard 
 and shifted to almost the identical point which it had 
 occupied when it was removed from there to the Broad 
 Street yard 12 days before, and was then and there repaired. 
 
 The witness for the railroad testified that a lock block 
 and a new lock chain were required to make the repairs, 
 and that such repairs could have been and were eventually 
 made in about 10 minutes ; that it was not necessary to take 
 the car to the shops; that there were more facilities for re- 
 pairing the defects at the Seventeenth Street yard than at
 
 924 FEDERAL. SAP^ETY APPLIANCE ACT. 
 
 the Broad Street yard, and that the inspector who actually 
 made the repairs, to wit, W. J. Gibson, intended when he 
 put the bad order mark on it that it should be, as later it 
 was, repaired at the Seventeenth Street yard. 
 
 At the conclusion of the evidence both plaintiff and de- 
 fendant moved for an instructed verdict, and the court 
 instructed the jury to find a verdict for the defendant on 
 the first count, and the case now comes here on writ of 
 error. 
 
 It is contended by the defendant below that the following 
 proviso in the amendment of 1910 exempts it from liability 
 in this instance : 
 
 WTiere any car shall have been properly equipped, as provided in this act 
 and the other acts mentioned herein, and such equipment shall have become 
 defective or insecure while such car was being used by such carrier upon its 
 line of railroad, such car may be hauled from the place where such equipment 
 was first discovered to be defective or insecure to the nearest available point 
 where such car can be repaired. 
 
 It is manifestly the purpose of this statute in cases where 
 equipment on any car may become defective to permit the 
 railroad company to haul the same to the nearest available 
 point where the proper repairs can be speedily made. 
 
 Any movement of a defective car was held to be a viola- 
 tion of the act as originally passed. It was undoubtedly 
 the purpose of Congress in adopting the amendment of 1910 
 to somewhat relax the rigid rule which had theretofore been 
 announced as to the time within which repairs of defective 
 cars should be made. "While this is true, did Congress by 
 this proviso intend to afford no protection to the employees 
 while cars were being operated within the yard limits? The 
 learned judge who heard this case in the court below was 
 of the opinion tliat the movements of the car in question 
 could be continued indefinitely so long as the same were 
 exclusively within the yard limits of the road. 
 
 It is a matter of common knowledge that the danger inci- 
 dent to coupling ears is as great, if not greater, in switching 
 yards than on the line between stations. The fact that the 
 statute pi'ovides that "such car may be hauled fi'om the 
 place where such equipment was first discovered to be de-
 
 APPENDIX G. 9]^5 
 
 fective or insecure to the nearest available point where such 
 car can be repaired," clearly shows that it was the purpose 
 of Congress not to permit unnecessary delay in making re- 
 pairs of defective equipment by keeping such cars on side 
 tracks and moving them from place to place unless it should 
 be for the purpose of hauling them to the nearest available 
 point for the purpose of making needed repairs. 
 
 It can not be reasonably contended that the movements 
 of the car in question from Seventeenth Street to Broad 
 Street and from Broad Street back to Seventeenth Street 
 was for the purpose of repairing the same, inasmuch as it 
 appears by the evidence that the repairs could have been 
 made when discovered, and at all events could have been 
 made at Seventeenth Street before it was moved from that 
 point. Even if it were not the duty of the inspector to 
 make the repairs, he certainly was charged with the duty 
 of reporting the defective condition of the equipment, and 
 this he must have done in making his report of the day's 
 work. Therefore, it is but fair to assume that the com- 
 pany had full knowledge of the defective condition of this 
 equipment within at least 12 hours from the time the in- 
 spector made the discovery. But, notwithstanding this fact, 
 the equipment was permitted to remain in a defective con- 
 dition while the car was being shifted from point to point 
 at Broad Street and finally to Seventeenth Street, and was 
 not taken back for repairs until 12 days thereafter. During 
 this time the employees of the company whose duty it was 
 to couple and uncouple the cars were continually subjected 
 to the dangers incident to the defective condition of the 
 equipment. Under this evidence can it be said that the 
 defendant hauled this car after it discovered its condition 
 "to the nearest available point where such car could be 
 repaired"? 
 
 District Judge Sessions in the ease of United States 
 against Pere Marquette Railroad Co., in referring to the 
 contention that in that case the movement of the train in 
 question Avas what is known as a "switching movement," 
 and that under this proviso did not apply, said:
 
 915 FEDERAL, SAFETY APPLIAXCE ACT. 
 
 The name given to the movement is of no importance, and its character is 
 not controlling. That the use of a car whose coupling apparatus is inoperative 
 upon the tracks of a railroad company engaged in interstate commerce and in 
 connection with such commerce, either in a switch yard or in actual road ser- 
 vice upon the main line, is a violation of the Safety Appliance Acts is no longer 
 an open question. 
 
 To hold that this proviso applies only to trains operated 
 on lines between stations would in a large measure deny 
 protection to those for whose benefit the law was passed 
 and give a narrow and artificial construction to the statute. 
 
 We do not deem it necessary to review the many authori- 
 ties cited by counsel for the Government, as well as those 
 cited by defendant, further than to say that we have care- 
 fully considered the case of Erie Eailroad Co. v. United 
 State (197 Fed. 287), decided by the Circuit Court of Ap- 
 peals for the Third Circuit. That ease supports the de- 
 fendant's contention, notwithstanding the facts upon which 
 it is based differ somewhat from the case at bar. While we 
 have the greatest respect for that court in its decision, yet 
 a careful consideration of the statute impels us to dissent 
 from the views therein expressed. 
 
 To hold that the words "while such car was being used 
 by such carrier upon its line of railroad" is intended to 
 limit the statute in its application to the main line, would 
 in a large degree nullify the act. When we consider the 
 statute in regard to safety appliances, we are forced to the 
 conclusion that it must have been the intention of Congress 
 that the same should apply to sidetracks and yard tracks 
 as well as the main lines. 
 
 The requirement that a car with defective equipment 
 may be hauled from where such eciuipmcnt is first dis- 
 covered to be defective or insecure "to the nearest available 
 point w^here such car can be repaired" was evidently de- 
 signed for the purpose of giving the railroad company suf- 
 ficient time within which to nuike such repairs as could 
 only be made at the shops of the company, or at a point 
 where material and appliances were kept for that purpose. 
 However, in Uiis instance, it is admitted by the railroad 
 that it was not necessary to haul the car in (juestion to the
 
 APPENDIX G. 
 
 917 
 
 shops or to any particular point in order to repair the de- 
 fective equipment. It could have been repaired at the 
 Seventeenth Street j^ard, where the defect was discovered, 
 or it could have been repaired at the Broad Street yard ; 
 and no excuse is shown for not making the repairs while 
 the car was kept at either of these places. In other words, we 
 think the statute contemplates tliat if when the defective equip- 
 ment is discovered it can be repaired at the point where the dis- 
 covery is first made, then it is incumbent upon the railroad 
 company to repair the same as soon as the services of a 
 repair man can be had, but if the defect is of such char- 
 acter that it can not be repaired at the point where dis- 
 covered, such car may be hauled to the nearest available 
 point for that purpose, and not used in the meantime on 
 its lines between stations or in its yards. 
 
 The failure on the part of a railroad company, as in this 
 instance, to repair defective equipment, as to the existence 
 of which the company had had knowledge for the space of 
 12 days, during which time such car had been moved from 
 one place to another, from time to time, on its tracks, indi- 
 cates that it was unmindful of the duty imposed upon it by 
 the statute. 
 
 We are therefore of the opinion that the conduct of the 
 railroad in moving its car from Seventeenth Street to 
 Broad Street and placing it on the sidetrack where, from 
 the very nature of things, it was required to be moved fre- 
 quently; and this, coupled with the failure on the part of 
 the railroad company to make the needed repairs until it 
 was moved back to Seventeenth Street 12 days thereafter, 
 was a violation of the act under which this suit was in- 
 stituted. 
 
 For the reasons stated, we are of opinion that the court 
 below erred in directing a verdict in favor of the defendant 
 on the first count, therefore the judgment of the lower 
 court is reversed.
 
 APPENDIX H. 
 
 DECISIONS UNDER THE HOURS OF SERVICE ACT. 
 
 (In the United States Circuit Court of Appeals, Eighth Circuit.) 
 (No. 3998— September Term, 1913.) 
 
 UNITED STATES OF AMERICA v. SOUTHERN PACIFIC 
 
 COMPANY. 
 
 (In Error to the District Court of the United States for the District of Utah.) 
 Decided November 13, 1913. 
 
 Philip J. Dolierty (with whom Iliram E. Booth, United 
 States attorney, was on the brief), for plaintiff in error. 
 
 George H. Smith (with whom P. L. }YiUiams, William F. 
 Herrin and John V. Lyle were on the brief), for defendant in 
 error. 
 
 Before Hook and Carland, Circuit Judges, and Van Val- 
 KENBURGH, District Judge. 
 
 OPINION OF THE COURT. 
 
 Carland, Circuit Judge, delivered the opinion of the court. 
 
 The United States brought this action to recover from 
 the Southern Pacific Co. (hereinafter called the "Com- 
 pany") the sum of $6,000 as penalties for the violation of 
 an act to promote the safety of employees and travelers 
 upon railroads by limiting the hours of service of employees 
 tliereon. (34 Stat. 1415.) The complaint contained 12 
 counts on each of which a penalty of $500 was demanded. 
 At the li'ial, the facts being undisputed, the court directed 
 018
 
 APPENDIX H. 9][9 
 
 the jury to return a verdict for the Company, The United 
 States brings the case here assigning as error such ruling 
 of the court. 
 
 The facts appearing at the trial are as follows: The Com- 
 pany is a common carrier engaged in interstate commerce 
 in the state of Utah. At Ogden, in said state, it maintains 
 a train dispatcher's office continuously operated night and 
 day. H. H. Hoover, C. M. Sewall, F. F. Small, and Edward 
 Miller were employees of the Company in said office, en- 
 gaged in using the telegraph to report, transmit, receive, 
 and deliver orders pertaining to or affecting train move- 
 ments. The business of train dispatching at Ogden in the 
 months of August and September, 1912, was performed by 
 a chief train dispatcher, who had charge of the office and 
 supervision and direction of six operators or train dis- 
 patchers employed in the same. The division of railroad 
 over which this office had jurisdiction extended from Ogden, 
 Utah, to Carlin, Nev., a distance of 149 miles. The six 
 train dispatchers performed their duties by working eight- 
 hour "tricks," so called. The first trick extended from 
 7 o'clock a. m. to 3 p. m. ; the second from 3 o'clock p. m. 
 to 11 o'clock p. m. ; and the third from 11 o'clock p. m. to 
 7 o'clock a. m., two dispatchers to each trick. The chief 
 dispatcher was an executive officer under the superintendent 
 of division, and had no duty to perform with reference to 
 the actual operation of the telegraph. However, he could 
 operate the telegraph. An operator or train dispatcher by 
 the name of Johnson, employed in the Ogden office by the 
 Company, on August 27, 1912, became suddenly ill and did 
 not report for duty till September 2. By reason of the 
 Illness of Johnson, the operators hereinbefore mentioned 
 were required to work as follows: 
 
 H. H. Hoover from 3 p. m. August 27, 1912, to 3 a. m. 
 August 28, 1912. 
 
 H. H. Hoover from 3 p. m. August 28, 1912, to 3 a. m. 
 August 29, 1912. 
 
 H. H. Hoover from 3 p. m. August 29, 1912, to 3 a. m. 
 August 30, 1912.
 
 920 HOURS OF SERVICE ACT. 
 
 C. M. Sewall from 3 a. m. August 29, 1912, to 3 p. m. 
 August 29, 1912. 
 
 C. M. Sewall from 3 a. m. August 30, 1912, to 3 p. m. 
 August 30, 1912. 
 
 C. M. Sewall from 3 a. m. August 31, 1912, to 3 p. m. 
 August 31, 1912. 
 
 F. F. Small from 3 p. m. August 30, 1912, to 3 a. m. 
 August 31, 1912. 
 
 F. F. Small from 3 p. m. August 31, 1912, to 3 a. m. 
 September 1, 1912. 
 
 F. F. Small from 3 p. m. September 1, 1912, to 3 a. m. 
 September 2, 1912. 
 
 Edward Miller from 3 a. m. September 1, 1912, to 3 p. m. 
 September 1, 1912. 
 
 Edward Miller from 3 a. m. September 2, 1912, to 3 p. m. 
 September 2, 1912. 
 
 Edward Miller from 3 a. m. September 3, 1912, to 3 p. m. 
 September 3, 1912. 
 
 The chief train dispatcher after diligent effort was un- 
 able to obtain an operator or train dispatcher to take the 
 place of Johnson while he was ill. A telegraph operator 
 merely, without further training in a train dispatcher's 
 office, is incompetent to perform the duties of train dis- 
 patcher. Of the six operators employed in the office at 
 Ogden at the time in question, all had been continuously 
 employed from 15 months to 8 years, and during a period 
 of seven years immediately preceding the trial below but 
 two occasions had arisen where disj^atchers unexpectedly 
 failed to report for duty. 
 
 The statute under which the United States claims a lia- 
 bility is established against the Company by the foregoing 
 facts, is found in the first proviso of section 2, chapter 2939, 
 34 Statute 1415. So far as material, it reads as follows: 
 
 That it shall be unlawful for any common carrier * * * to require or 
 permit any * * * operator, train (lisjiatclicr, or other employee who by the 
 use of tclcfjraph or t('lcj)liono dispatches, rej)()rts, transmits, receives, or delivers 
 orders perlaiiiiiifj to or affcfliii^ train movemiMits * * * to be or remain 
 on duty for a lonj^er period than !) hours in any 2-1-liour period in * * * 
 stations continuously operated nifjlit and day * * * except in case of
 
 APPENDIX n. 921 
 
 emergency, when the employees named * * * niay be permitted to be 
 and remain on duty for 4 additional hours in a 24-hour period not exceeding 
 3 days in any week. 
 
 Applying the law to the facts, the question arises: Did 
 the illness of Johnson, coupled with the inability of the 
 Company to obtain a man to take his place during the time 
 he was ill, constitute an emergency within the meaning of 
 the statute, so as to relieve the Company from the penalties 
 which would otherwise result from requiring Hoover, Sewall, 
 Small and Miller to remain on duty for a longer period 
 than 9 hours in a 24-hour period? 
 
 It does not appear that Congress used the word "emer- 
 gency" in any other than its ordinary or popular sense. 
 Webster defines the word ''emergency" as "Any event or 
 occasional combination of circumstances which calls for im- 
 mediate action or remedy; pressing necessity; exigency." 
 
 The Century Dictionary defines the word as follows: 
 "Sudden or unexpected happening; an unforeseen occur- 
 rence or condition." 
 
 The definition as given by the Century Dictionary was 
 approved in Sheean v. City of New York (75 N. Y, Supp. 
 802). 
 
 In support of the contention of the United States, the 
 following cases are cited: United States v. Kansas City 
 Southern (202 Fed. 828) ; B. & 0. E. E. v. I. C. C. (221 U. 
 S. 612) ; Ellis V. United States (206 U. S. 257) ; United States 
 V. Garbish (222 U. S. 261). 
 
 The case first cited was an action under the first clause 
 of section 2 of the law now under consideration. This court 
 in that case simply held that all the usual causes of delay 
 incident to the operation of trains standing alone would not 
 excuse the Railroad Company under the terms of the first 
 proviso of section 3, but that the Company must further 
 show that such delays could not have been foreseen and 
 prevented by the high degree of diligence demanded. Of 
 course this must be so. If the usual causes of delay incident 
 to operation were to excuse, then the statute would be 
 wholly ineffective to accomplish its purpose.
 
 922 HOURS OF SERVICE ACT. 
 
 B. & 0. R. R. V. I. C. C. is a case in which the Supreme 
 Court held that the law in question was a constitutional 
 exercise of the power of Congress. 
 
 Ellis V. United States is a case where the Supreme Court 
 decided that the disappointment of a contractor with re- 
 gard to obtaining some of his materials, did not create an 
 extraordinary emergency within the meaning of the act of 
 August 1, 1892 (27 Stat. 340). In disposing of this particu- 
 lar question, the court said: 
 
 He found more diflSculty than he expected, although he expected some trouble 
 in getting certain oak and pine piles called for by the contract, and, having 
 been delayed by that cause, he permitted his associate in the business to employ 
 men for nine hours, in the hurry to get the work done. The judge instructed 
 the jury that the evidence did not show an "extraordinary emergency" within 
 the meaning of the act. The judge was right in ruling upon the matter. Even 
 if, as in other instances, a nice case might be left to the jury, what emergencies 
 are within the statute is me.-ely a constituent element of a question of law, 
 since the determination of that element determines the extent of the statutory 
 prohibition and is material only to that end. 
 
 United States v. Garbish is a case wherein under the act 
 last cited the Supreme Court held that the extraordinary 
 emergency which excuses is not one that is contemplated 
 and inheres necessarily in the work. In so deciding the 
 court said: 
 
 And, besides, the extraordinary emergency which relieves from the act is 
 not one that is contemplated and inheres necessarily in the work. United 
 States r. Sheridan-Kirk Contract Co. (149 Fed. 809). It is a special occurrence, 
 and the phrase used emphasizes this. It is not an emergency simply which is 
 expressed by it, something merely sudden and unexpected, but an extra- 
 ordinary one, one exceeding the common degree. 
 
 It is manifest that none of the cases cited decides the 
 question at issue in the present case. The law now being 
 considered does not recjuire an extraordinary emergency, 
 but simply an emergency. And we think the facts as they 
 appear in the record warranted the court in deciding that 
 an emergency within the meaning of the statute existed. 
 As was said in the Ellis case, supra, "what emergencies 
 are within the statute is merely a constituent element of a 
 question of law, since the determination of that element 
 determines the extent of the statutory prohibition and is 
 mat •■rial only lo 1 hat end."
 
 APPENDIX H. 923 
 
 It is claimed by counsel for the United States, however, 
 that the Company should have had extra train dispatchers 
 under pay ready to take the place of Johnson when he be- 
 came ill. The law recognizes the fact that emergencies may 
 arise. Congress no doubt used the word "emergency" with 
 reference to the business of dispatching trains when con- 
 ducted in the exercise of the ordinary care recjuired in such 
 business. If Congress had intended that the railroads should 
 provide against all emergencies, then there was no use in 
 granting to the Company the right to require longer hours 
 in the case of emergency. If we decide that it was the duty 
 of the Company to keep extra train dispatchers under pay 
 to take the place of those who became suddenly ill, how 
 many should it have kept in the present case — one or six? 
 And as the extra dispatcher or dispatchers might also have 
 become ill, should not the Company also provide for that 
 contingency? Speaking generally, sickness and death are 
 the common lot of all and must be expected, but within the 
 expectancy of life health and not sickness is the general 
 rule. In view of the showing that for a period of seven 
 years only one other unexpected absence of an employee on 
 account of illness or other cause had occurred, we think the 
 Company was not so negligent in not having an extra dis- 
 patcher on hand to take Johnson's place as to deprive it 
 of the privilege granted by the law. No question is made 
 as to the necessity of the performance of the work required 
 of the employees mentioned. We do not think the chief 
 train dispatcher was required under the circumstances to 
 perform the work of Johnson, as that would have left the 
 business of the office without superintendence or supervi- 
 sion. We also think that the word "week" in the statute 
 was intended to mean a period of seven days and not neces- 
 sarily a calendar week, and that the statute is not violated 
 if no employee worked overtime more than three days out 
 of seven. 
 
 We do not decide that sudden illness in all cases or stand- 
 ing alone would constitute an emergency. Each case must 
 depend upon its own facts. Sudden illness might continue
 
 924 HOURS OF SERVICE ACT. 
 
 for sueli a number of days as to cease to be an emergency. 
 Under our ruling in Kansas City Southern case, supra — to 
 the effect that the statute in question, being highly remedial, 
 should be liberally construed so that its purposes may be 
 effected — we think the illness of Johnson, coupled with the 
 inability of the Company to secure other help during the 
 time he was sick, constituted an emergency within the 
 meaning of the law. 
 Judgment affirmed. 
 
 (United States Circuit Court of Appeals, Fourth Circuit.) 
 No. 1191. 
 
 UNITED STATES OF AMERICA 
 
 V. 
 
 ATLANTIC COAST LINE RAILROAD COMPANY. 
 
 (In Error to the District Court of the United States for the Eastern District of 
 South Carolina, at Columbia.) 
 
 Argued November 21, 1913. Decided February 3, 19H. 
 
 In a case arising under the Federal Hours of Service Act (34 Stat., p. 1415) 
 where the question presented is whether a railroad telegraph office which 
 is regularly kept open for business from 6:30 a. m. until 10:15 p. m., and 
 never later than 11 p. m., is a' "continuously operated night and day" 
 office within the meaning of the proviso in section 2 of said act: Held, 
 That— 
 
 1. The Federal Hours of Service Act is not a criminal statute, and therefore is 
 
 not governed by the rule of strict construction; it is rather a remedial 
 statute, which should be so construed, if its language permits, as to best 
 accompli.sh the protective purpose for which it was enacted, the end to 
 be attained by the law being a guide to its interpretation. 
 
 2. The classification of an office is fixed by the length of time it is kept open, 
 
 and not in the least by the nature of the duties performed, if only those 
 duties include the handling of train orders as occasion may require. 
 
 3. The statute covers all telegraph offices in which interstate train orders are 
 
 handled. 
 
 4. The objects of the liiw require llifit a prefercnfo be accorded to a construc- 
 
 tion wliicli recognizes the Icgihljilive intent to j)ermit 13 hours of service
 
 APPENDIX H. 
 
 925 
 
 in offices kept open only such number of hours in the aggregate as do not 
 materially or substantially exceed the length of an ordinary day and to 
 prohibit more than 9 hours' service in offices kept open such number of 
 hours in the aggregate as necessarily include a material or substantial 
 portion of tlie night. 
 
 5. The statute assumes that all offices will be operated during the daytime, 
 
 and for those operated during the daytime only it makes the 13-hour 
 requirement; for those which are operated during the daytime with a 
 continuance of operation into the night it makes the 9-hour requirement. 
 
 6. The office in question falls into the 9-hour class. 
 
 Before Knapp and Woods, Circuit Judges, and Rose, District 
 Judge. 
 
 Ernest F. Cochran, United States attorney, and Philip J. 
 Dohertij, special assistant United States attorney, for plaintiff 
 in error, and George B. Elliott {P. A. Willcox on brief) for 
 defendant in error. 
 
 OPINION OF THE COURT. 
 
 Knapp, Circuit Judge: 
 
 This suit is brought by the United States to recover pen- 
 alties for alleged violations of the act of Congress approved 
 March 4, 1907, commonly known as the Hours of Service 
 Law, and the employees directly concerned are telegraphers 
 in the service of defendant in error at Bennettsville, S. C. 
 
 From the stipulated facts on which the action was tried 
 it appears that the telegraph office at the station named was 
 regularly kept open for business from 6 :30 a. m. to 10 :15 
 p. m., or 15 hours and 45 minutes in each 24-hour period; 
 that two operators were employed at this station, one of 
 whom was required to be on duty from 6 :30 a. m. to 12 
 o'clock noon, and from 1 p. m. to 6:30 p. m., and the other 
 known as a "second-trick" operator, from 10:15 a. m, to 
 5:30 p. m., and from 6:30 p. m. to 10:15 p. m., or a total of 
 11 hours in each case ; that the office in question, during the 
 period covered by the suit, was closed for business, and the 
 operators entirely relieved from duty, from 10 :15 p. m. to 
 6:30 a. m., or 8 hours and 15 minutes, except on a few speci- 
 fied dates when the second-trick operator remained on duty
 
 926 HOURS OF SERVICE ACT. 
 
 from 15 to 45 minutes after 10 :15 p. m. ; that during the 
 hours from 6 :30 a. m. to 10 :15 p. m., when the office was 
 kept open for business as aforesaid, the operators employed 
 therein, by the use of telegraph and telephone, received and 
 delivered, more or less frequently, orders relating to or 
 affecting the movement of trains engaged in interstate com- 
 merce ; and that these operators received such train orders 
 from the office of the chief dispatcher, which was located 
 at Florence, S. C, and kept continuously open throughout 
 the 24 hours. 
 
 The question to be decided is whether the defendant in 
 error, by requiring or permitting its Bennettsville operators 
 to be on duty during the 11 hours above described, to say 
 nothing of the instances of somewhat longer hours, violated 
 the proviso of section 2 of said act, which reads as follows: 
 
 Provided, That no operator, train dispatcher, or other employee who, by the 
 use of the telegraph or telephone, dispatches, reports, transmits, receives, or 
 dehvers orders pertaining to or affecting train movements shall be required or 
 permitted to be or remain on duty for a longer period than 9 hours in any 24- 
 hour period in all towers, ofEces, places, and stations continuously operated 
 night and day, nor for a longer period than 13 hours in all towers, ofBces, places, 
 and stations operated only during the daytime, except in case of emergency, 
 when the employees named in this proviso may be permitted to be and remain 
 on duty for 4 additional hours in a 24-hour period of not exceeding 3 days in 
 any week. 
 
 As the operators in question were customarily kept on 
 duty for 11 hours out of the 24, and sometimes a little 
 longer, it is apparent that defendant in error was charge- 
 al)le with repeated violations of the statute, if the Bennetts- 
 ville office belongs in the class of offices "continuously op- 
 erated night and day," and equally apparent, since the 
 hours of duty were always less than 13, that the law was 
 fully observed and the defendant in error free from liability, 
 if this office belongs in the class of those "oi)erated only 
 during the daytime." The trial court held that it was an 
 office of the latter class, and accordingly directed a verdict 
 in favor of defendant. The correctness of that ruling is 
 challenged by the writ of error to this court. 
 
 The meaning and intent of the Hours of Service Act in 
 various particulars has been the subject of considerable
 
 APPENDIX H. g27 
 
 litigation, and some aid to the conclusion which should be 
 reached in this case, or at least a starting point for discus- 
 sion, is found in the decision of the Supreme Court in 
 United States v. Atchison, Topeka & Santa Fe Ry. Co. (220 
 U. S. 37). In that case it is said: 
 
 We think that the Government is right in saying that the proviso is meant to 
 deal with all offices, and if so, we should go further than otherwise we might 
 in holding offices not operated only in the daytime as falling under the other 
 head. 
 
 In view of this declaration, that the statute covers all 
 telegraph offices in which interstate train orders are handled, 
 and since the statute itself makes only two classes of such 
 offices, it follows of course that this Bennettsville office is 
 one to which the law applies, and that the telegraphers there 
 employed can be kept on duty not more than 9 hours, if it 
 be adjudged a "night and daj^" office, but may be held up 
 to 13 hours, if it be adjudged a "daytime" office. It must 
 perforce be put in one class or the other. 
 
 This is not a criminal statute and therefore is not gov- 
 erned by the rule of strict construction. (Johnson v. South- 
 ern Pacific Co. 196 U. S. 17 ; St. Louis Southwestern Ry. Co. 
 V. United States, 183 Fed. 771.) It is rather a remedial stat- 
 ute which should be so construed, if its language permits, as 
 to best accomi^lish the protective purpose for which it was 
 enacted. (Stewart v. Bloom, 11 Wall. 493 ; Bechtel v. United 
 States, 101 U. S. 597.) Obviously, that purpose was to pro- 
 mote the safety of employees and the traveling public by 
 prohibiting hours of service which presumably result in 
 impaired efficiency for discharging their important duties. 
 The end to be attained by the law is a guide to its inter- 
 pretation. 
 
 It is argued by counsel for defendant in error that the 
 Congress intended to distinguish between (1) offices in 
 which train orders originate and from which they are issued, 
 and which in the nature of the case must ordinarily be kept 
 open for approximately the entire 24 hours, and (2) local 
 offices which merely receive and deliver the orders so is- 
 sued, and which may be and frequently are closed during
 
 928 HOURS OF SERVICE ACT. 
 
 a substantial part of each 24-hour period ; and that there- 
 fore the classification of a given office depends as a prac- 
 tical matter upon whether it is an office like that of a train 
 dispatcher, who actually directs and controls the move- 
 ment of trains, or only a way station office where the oper- 
 ator aids the dispatcher by communicating orders and send- 
 ing in reports. Besides, it is said that telegraphers in offices 
 mainly occupied with the dispatching of trains have heavier 
 responsibilities and are under greater strain, and conse- 
 quently should be restricted to shorter hours, than em- 
 ployees at local stations who perform miscellaneous duties 
 and perhaps devote only a small portion of their time to 
 the receipt and delivery of train orders and the transmission 
 of train reports. 
 
 The answer to this argument is twofold. In the first place, 
 we find nothing in the language of the act to support such 
 a distinction. The terms employed are plainly intended to 
 include every sort of place where train orders are handled, 
 however infrequently, by telegraph or telephone. There is 
 nothing to suggest that the permitted hours on duty, 
 whether 9 or 13, are determined by the number of train 
 orders handled, if they are handled at all, or by the pro- 
 portion of time which the employee spends in that particu- 
 lar service. Surely the descriptive words, "towers, offices, 
 places and stations," negative any intention to confine the 
 9-hour limitation to those offices, however designated, in 
 which the principal work of the operator is connected with 
 the movement of trains. In short, we deem it beyond dis- 
 pute that the classification of an office is fixed by the length 
 of time it is kept open, and not in the least by the nature 
 of the duties performed, if only those duties include the 
 handling of train orders as occasion may require. 
 
 In the second place, it is not to be assumed that the teleg- 
 rapher in a train dispatcher's office, or other similar office, 
 performs more wearisome labor, or becomes sooner fatigued, 
 than the operator at an ordinary local station. The latter, 
 it is true, may average only a small number of train orders 
 in the course of a day, but nevertheless he may have, and
 
 APPENDIX H. 929 
 
 usually does have, other duties which are varied and often 
 onerous. Even if he is not called upon to act as station 
 agent, and does little but use the telegraph or telephone, the 
 orders and messages of the company not relating to trains, 
 and the commercial business of the community, may involve 
 exertion and responsibility quite as fatiguing as the work 
 of a telegrapher engaged mainly in the transmission of train 
 orders. In other words, and for the reasons here suggested, 
 it seems to us that operators at local and subordinate sta- 
 tions are scarcely less liable than operators at main offices 
 to suffer loss of alertness and efficiency from excessive hours 
 of duty. In our judgment, neither the terms and purpose of 
 the statute, nor the conditions of actual service, justify us in 
 upholding the contention here considered. 
 
 It is conceded that an office need not literally be kept 
 open every minute of the 24 hours in order to be within the 
 9-hour restriction. But if it may be closed for one or more 
 substantial intervals of time and still remain in the 9-hour 
 class, where shall the line of division be drawn? In the 
 Atchison case, above cited, the office was shut from noon 
 to 3 p. m., and from midnight to 3 a. m., or 6 hours in all 
 out of the 24, and the Supreme Court strongly intimated, 
 though the point was not directly involved, that it should 
 be classed as a 9-hour office, because the proviso was meant 
 to deal with all offices and therefore "we should go further 
 than otherwise w^e might in holding offices not operated only 
 during the daytime as falling under the other head." But 
 where is the logical place to stop? The words "operated 
 only during the daytime" are quite as much entitled to be 
 made effective as the words "continuously operated night 
 and day." Manifestly, if we look only at the surface mean- 
 ing of the words, these two definitions are inconsistent, or 
 at least overlap each other, since there must be many offices 
 which could not be fairly described as "operated only dur- 
 ing the daytime" and yet are not, in any absolute sense, 
 "continuously operated night and day." For example, in 
 a case argued at the same time with this, the office was 
 open throughout the 24 hours, except from 1:30 a. m. to
 
 930 HOURS OF SERVICE ACT. 
 
 6 :30 a. m. To say that such an office is operated only in the 
 daytime is to do violence to the commonest understanding. 
 
 This is plainly a case where the natural significance of 
 terms must yield to the necessity for giving to the entire 
 proviso such reasonable meaning as will promote its bene- 
 ficial purpose. If it seems a strained and unwarranted con- 
 struction to hold that an office which is generally closed at 
 10:15 p. m., and never later than 11, and kept closed till 
 6:30 a. m., is nevertheless "continuously operated night and 
 day," is it not equally strained and unwarranted to hold 
 that an office which is kept open from 6 :30 a. m. to 10 :15 
 p. m., or later, is nevertheless "operated only during the 
 daytime." Since the office in question must be assigned to 
 one class or the other, we are of opinion on the whole that 
 it will be more correctly and usefully placed in the night 
 and day class than in the daytime class. If this conclusion 
 gives greater effect to the words "operated only during the 
 daytime" than to the words "continuously operated night 
 and day," we think the objects of the law require that 
 preference be accorded to a construction which recognizes 
 the legislative intent to permit 13 hours of service in offices 
 kept open only such number of hours in the aggregate as do 
 not materially or substantially exceed the length of an ordi- 
 nary day, and to prohibit more than 9 hours' service in 
 offices kept oj^en such number of hours in the aggregate as 
 necessarily include a material or substantial portion of the 
 night. 
 
 It follows that the judgment should be reversed and the 
 case remanded for a new trial. 
 
 "Woods, Circuit Judge, concurring: 
 
 The decision of this case depends on the meaning of the 
 word "continuously" in the following statute: 
 
 Prnmdrd, That no operator, train dispatcher, or other em]iloyee who by the 
 use of the ielef,'raph or telephone dispatches, reports, transmits, receives, or 
 delivers orders pertaining' to or affecting train movements shall l)e required 
 or permitt<'d to be or remain on duty for a lonjjcr period than 9 liours in any 
 21-hour period in all towers, offices, places, and stations continuously operated 
 night and day, nor for a longer period than l;} hours in all towers, offices.
 
 APPENDIX H, f)3]^ 
 
 places, and stations operated only during the daytime, except in case of emer- 
 gency, when the employees named in this proviso may he permitted to be and 
 remain on duty for 4 additional hours in a 24!-hour period of not exceeding 3 
 days in any week. 
 
 The defendant contends that "continuously" means with- 
 out cessation, and that the offices, etc., "continuously oper- 
 ated night and day" can only include places operated with- 
 out cessation throughout the night and day. The context 
 and the purpose of the statute shows that this is not the 
 sense in which the words were used. The statute was in- 
 tended to cover all telegraph offices. (United States v. 
 Atchison, etc., R. Co., 220 U. S. 37.) If the defendant's 
 construction were adopted it would cover only day offices 
 and offices operated throughout the day and night, leaving 
 out the offices operated during the day and into the night. 
 There is some reason for attributing the meaning of habit- 
 ually or regularly to the word continuously; but the plain 
 construction and that which will give the statute its full 
 signification is to take the whole phrase "offices, places, and 
 stations continuously operated night and day" to mean 
 offices whose operation is continued from the day into the 
 night. The statute assumes that all offices will be operated 
 during the daytime, and for those operated during the day- 
 time only it makes the 13-hour requirement ; for those which 
 are operated during the daytime with a continuance of opera- 
 tion into the night it makes the 9-hour requirement. The 
 office at Bennettville was in operation during the daytime 
 with continuance into the night, and therefore falls under 
 the 9-hour class.
 
 932 HOURS OF SERVICE ACT. 
 
 (United States Circuit Court of Appeals for the Ninth Circuit.) 
 
 No. 2343. 
 
 NORTHERN PACIFIC RAILWAY COMPANY, A COR- 
 PORATION, PLAINTIFF IN ERROR, 
 
 UNITED STATES OF AMERICA, DEFENDANT IN 
 
 ERROR. 
 
 (In Error to the District Court of the United States for the District of Montana.) 
 
 Decided May It, 19H. 
 
 Gunn, Basch d- Hall for plaintiff in error. 
 
 B. K. Wheeler, United States attorney (Bhilip J. Dolieriy 
 and ^Yalter N. Brown, special assistant United States attornej's, 
 on the brief), for defendant in error. 
 
 Before Gilbert and Ross, Circuit Judges, and Dietrich, 
 District Judge. 
 
 OPINION OF THE COURT. 
 Ross, Circuit Judge: 
 
 The Government brought this action against the plaintiff 
 in error railway company as defendant in the court below 
 for alleged violations of the act of Congress entitled "An 
 act to promote the safety of employees and travelers upon 
 railroads by limiting the hours of service of employees 
 thereon," approved March 4, 1907 (84 Stat. L., p. 1415), the 
 complaint containing two counts, the first alleging in sub- 
 stance that the defendant, in violation of the act, re(iuired 
 and permitted one of its firemen, named Drew — 
 
 iiprm its line of riiilroiid at and between the stations of Missouhi, in the State of 
 MonUina, and Avon, in said State —
 
 APPENDIX H. 933 
 
 to be and remain on duty as such for a longer period than 
 16 consecutive hours, to wit, from 10 p. m. of May 1, 1912, to 
 10:30 p. m. of May 2, 1912, the said fireman at the time 
 being — 
 
 engaged in and connected with the movement of said defendant's train No. 
 extra, drawn by its own locomotive engine No. 1654, said train being then and 
 there engaged in the movement of interstate trafEc — 
 
 and the second count alleging in substance a similar viola- 
 tion of the act by the defendant company in requiring and 
 permitting one of its firemen named Jenson — 
 
 upon its line of railroad at and between the stations of Missoula, in the State of 
 Montana, and EUiston, in said State — 
 
 to be and remain on duty as such for a longer period than 
 16 consecutive hours, to wit, from 3 :40 o'clock p. in. of May 
 1, 1912, to 4 o'clock p. m. of May 2, 1912, being at the time- 
 engaged in and connected with the movement of said defendant's train No. 
 extra, drawn by its own locomotive engine No. 1633, said train being then and 
 there engaged in the movement of interstate trafEc. 
 
 By its answer the defendant, in addition to the denial of 
 the alleged violations of the act of Congress, set up in re- 
 spect to the first count that Missoula is a district terminal 
 on the company's line of road, and Helena, Mont., is a 
 divisional terminal thereof, and that after extra train 1654 
 had left Missoula for Helena with Drew as fireman, it en- 
 countered storm and snowfall of such unusual and unpre- 
 cedented violence that when it arrived at the station of 
 Avon, the telegraph and telephone lines of the company 
 were down in both directions, destroying all means of com- 
 munication with the operators and dispatchers of the com- 
 pany along the portion of its line here in question ; that in 
 consequence of the impossibility of proceeding with the 
 train in such circumstances that train was left at Avon and 
 the crew thereof, including the fireman, Drew% having been 
 then on duty 15 hours and 30 minutes, was released from 
 duty in connection with the movement of the train, and 
 Drew placed to watch and guard the engine on a sidetrack. 
 
 Similar circumstances were pleaded in the answer to the
 
 934 HOURS OF SERVICE ACT. 
 
 second count of the complaint in respect to the service of 
 the fireman Jenson, on extra train 1633, that train being tied 
 up at Elliston, Mont. 
 
 Both trains proceeded east from Missoula, the stations in 
 their order being Bearmouth, Drummond, Garrison, Avon, 
 Elliston, and Blossberg, the last-named point being on the 
 Rocky Mountain Divide which extends between Elliston 
 and Helena. 
 
 The answer further alleged that the delay in the move- 
 ment of the trains in question and the necessity of watching 
 and guarding their engines by the said firemen were occa- 
 sioned by and due to the act of God and the result of causes 
 which were not known to the defendant company, its officers 
 or agents, at the time the trains left Missoula, and which 
 could not have been foreseen. 
 
 The act in question in its first section specifies the com- 
 mon carriers to which its provisions are made applicable, 
 and also declares that — 
 
 the term "employees" as used in this act shall be held to mean persons actually 
 engaged in or connected with the movement of any train. 
 
 Sections 2 and 3 are as follows : 
 
 Sec. 2. That it shall be unlawful for any common carrier, its officers or 
 agents, subject to this act to require or permit any employee subject to this 
 act to be or remain on duty for a longer period than 16 consecutive hours, 
 and whenever any such employee of such common carrier shall have been 
 continuously on duty for 10 hours he sh.all be relieved and not required or 
 permitted again to go on duty until he has had at least 10 consecutive hours 
 off duty; and no such employee who has been on duty IG hours in the aggregate 
 in any 24-h()ur period shall be required or permitted to continue or again go 
 on duty witliout having had at least 8 consecutive hours off duty. Provided, 
 That no operator, train dispatcher, or other employee who by the use of the 
 telegraph or telephone dis]>atches, reports, transmits, receives, or delivers 
 orders pertaining to or affecting train movements shall be required or per- 
 mitted to be or remain on duty for a longer ])eriod than 9 hours in any 24-hour 
 period in all towers, offices, jjlaces, and stations continuously operated night 
 and day, nor for a longer period than 13 hours in all towers, offices, places, and 
 stations operated only during the daytime, except in cases of emergency, when 
 the employees named in this proviso may be permitted to be and remain on 
 duty for 4 additional hours in a 24-hour period on not exceeding 3 days in 
 any week: Provided fiirlh/r. The Interstate Commerce Commission may after 
 full hearing in a [jarticular case and for good cause shown extend the period 
 within which a coniniori carrier shall conqjly with the j)rovisi()ns of this proviso 
 as to such case. 
 
 Sr.f. ;j. That any such coiiiinon carrier, or any officer or ngent thereof, 
 retpiiririg or permitting any employee to go, be, or remain on duty in violation
 
 APPENDIX H. 935 
 
 of the second section hereof, shall be liable to a penalty of not to exceed $500 
 for each and every violatit)n, to be recovered in a suit or suits to be brought 
 by the United States district attorney in the district court of the United States 
 having jurisdiction in the locality where such violation shall have been com- 
 mitted; and it shall be the duty of such district attorney to bring such suits 
 upon satisfactory information being lodged with him; but no such suit shall 
 be brought after the expiration of one year from the date of such violation; 
 and it shall also be the duty of the Interstate Commerce Commission to lodge 
 with the proper district attorneys information of any such violations as may 
 come to its knowledge. In all i)rosecutions under this act the common carrier 
 shall be deemed to have had knowledge of all acts of all its officers and agents: 
 Provided, That the provisions of this act shall not apply in any case of casualty 
 or unavoidable accident or the act of God; nor where the delay was the result 
 of a cause not known to the carrier or its ofiBcer or agent in charge of such 
 employee at the time said employee left a terminal, and which could not have 
 been foreseen: Provided furikrr. That the provisions of this act shall not apply 
 to the crews of wrecking or relief trains. (3-1 Stat. L., p. 1415.) 
 
 The contention of the plaintiff in error is that, as in each 
 of the present instances, the train and engine were side- 
 tracked within 16 hours, and their crews laid off for rest, 
 and that thereafter the respective firemen were placed in 
 charge of their respective engines only for the purpose of 
 keeping up the fires and steam and otherwise watching the 
 engines ; they were not during such time actually engaged 
 in or actually connected with the movement of a train, and 
 therefore were not permitted or required by the railroad 
 company to l)e or remain on duty for a longer period than 
 16 hours within the meaning of the act of Congress; and the 
 decision of the Supreme Court in the case of Baltimore & 
 Ohio Railroad Co. v. Interstate Commerce Commission (221 
 U. S. 612) is cited by counsel as sustaining that contention. 
 We can not take that view of that case. In so far as it 
 bears upon the question we have here we think the proper 
 conclusion to be drawn from it is quite the reverse, and 
 sustains our conclusion that the intent of the act vvas and 
 is to compel rest for each member of the train's crew at the 
 termination of the 16-hour period, to the end that his next 
 and succeeding hours of service may be efficient. For in the 
 case cited the court, at page 619, distinctly says: 
 
 The length of hours of service has direct relation to the efficiency of the 
 human agencies upon which protection of life and property necessarily depends. 
 This has been repeatedly emphasized in official reports of the Interstate Com- 
 merce Commission, and is a matter so plain as to require no elaboration. In 
 its power suitably to provide for the safety of employees and travelers, Congress
 
 936 HOURS OF SEIIVICE ACT. 
 
 was not limited to the enactment of laws relating to mechanical appliances, but 
 it was also competent to consider, and to endeavor to reduce, the dangers 
 incident to the strain of excessive hours of duty on the part of engineers, con- 
 ductors, train dispatchers, telegraphers, and other persons embraced within the 
 class defined by the act. And in imposing restrictions having reasonable rela- 
 tion to this end there is no interference with liberty of contract as guaranteed 
 by the Constitution. (Chicago, Burlington & Quincy Railroad Co. v. McGuire, 
 219 U. S. 549.) If, then, it be assumed, as it must be, that in the furtherance 
 of its purpose Congress can limit the hours of labor of employees engaged in 
 interstate transportation, it follows that this power cannot be defeated either 
 by prolonging the period of service through other requirements of the carriers 
 or by the commingling of duties relating to interstate and intrastate operations. 
 
 (See also United States v. Great Northern Railway Co., 
 206 Fed. 838 ; United States v. Missouri Pacific Railway Co., 
 Id., 647.) 
 
 That the present case does not come within either of the 
 provisions of the act declaring that it — 
 
 shall not apply in any case of casualty or unavoidable accident or the act of 
 God; nor where the delay was the result of a cause not known to the carrier 
 or its officer or agent in charge of such employee at the time said employee 
 left a terminal, and which could not have been foreseen — 
 
 is obvious, if for no other reason, because the uncontradicted 
 evidence, as well as the answer of the defendant company 
 itself, shows that each of the trains in question was stopped 
 by direction of the railroad company, sidetracked, and their 
 respective crews laid off for rest within 16 hours from the 
 time they left ]\Iissoula for the very purpose of complying 
 with the said statute, excepting only the two named fire- 
 men, who were continued at a duty which the company 
 claims was not within the inhibition of the law ; the mistake 
 made was its own mistake in continuing one of each of the 
 crews — the fireman — at the duty of watching the engines. 
 The judgment is affirmed.
 
 APPENDIX H. 93y 
 
 (United States Circuit Court of Appeals, Seventh Circuit.) 
 
 No. 2148. 
 
 FREDERICK A. DELANO, WILLIAM K. BIXBY, AND 
 
 EDWARD B. PRYOR, RECEIVERS OF WABASH 
 
 RAILROAD CO., PLAINTIFFS IN ERROR, 
 
 V. 
 
 UNITED STATES OF AMERICA, DEFENDANTS IN 
 ERROR. 
 
 (Error to the District Court of the United States for the Southern District of 
 Illinois, Southern Division.) 
 
 Decided January 5, 1915. 
 
 James M. Minnis, N. S. Broivn, R. H. McAnulty, Walter 
 McC. Allen, and Otis Scott Humphrey for plaintiff's in error. 
 
 Edward C. Knotts, United States attorney; Lawrence Elmer 
 Stone and Joseph. II. Story, assistant United States attorneys, 
 for defendants in error. 
 
 Before Baker, Seaman and Kohlsaat, Circuit Judges. 
 
 OPINION OF THE COURT. 
 
 Baker, Circuit Judge, delivered the opinion of the court: 
 
 Plaintiffs in error, defendants below, were adjudged to 
 have violated the Hours of Service Act (34 Stat. L. 1415). 
 
 Plaintiffs declared that defendants were engaged in op- 
 erating a railroad in interstate commerce and that they re- 
 quired a telegiapher, who was employed by them in a day 
 and night station to receive and deliver orders affecting 
 train movements, to be on duty 11 hours and 30 minutes 
 during each 24-hour period. 
 
 In a special plea defendants admitted all the averments 
 of the declaration except the one respecting the service of
 
 938 HOUR3 OF SERVICE ACT. 
 
 the operator. Concerning that they allege that he performed 
 the duties of a train dispatcher during the first six hours 
 of his service and that during the remaining five hours and 
 a half he was set at other duties that did not pertain to or 
 affect the movements of trains. 
 
 A demurrer to the plea was sustained; defendants de- 
 clined to plead further, and judgment followed. 
 
 Section 1 enacts that "the term 'employees' as used in 
 this act shall be held to mean persons actually engaged in 
 or connected with the movement of any train," By exclu- 
 sion or omission ticket sellers and inspectors or repairers 
 of telegraph lines and apparatus are not within the statute. 
 If our train dispatchers, defendants inquire, may lawfully 
 be employed, after we relieve them from train dispatching, 
 by the Majestic Theater to sell tickets or by the Western 
 Union to inspect and repair telegraph lines and apparatus, 
 why may not we also lawfully employ them in like capa- 
 cities? 
 
 An answer requires an examination of section 2, which is 
 as follows: 
 
 Sec. 2. That it shall he unlawful for any common carrier, its ofEcers or agents, 
 subject to this act to require or permit any employee subject to this act to be 
 or remain on duty for a longer period than sixteen consecutive hours, and when- 
 ever any such employee of such common carrier shall have been continuously 
 on duty for sixteen hours he shall be relieved and not required or permitted 
 again to go on duty until he has had at least ten consecutive hours off duty; and 
 no such employee who has been on duty sixteen hours in the aggregate in any 
 24-hour period shall be recjuired or permitted to continue or again go on duty 
 without having at least 8 consecutive hours off duty: Provided, That no operator, 
 train dispatcher, or other employee who by the use of the telegraph or telephone 
 dispatches, rejjorts, transmits, receives, or delivers orders pertaining to or 
 affecting train movements .shall be required or permitted to l)e or remain on 
 duty for a longer period than 9 hours in any 24-hour {)eriod in all towers, oflSces, 
 places, and stations continuously operated night and day. 
 
 To protect the lives of employees and of the traveling 
 public against accidents due to loss of efficiency from over- 
 work was the purpose of limiting the hours of service. 
 Actions for violations are civil; and the statute, in view of 
 its purpose, should be liberally construed to accomplish the 
 intended cure, U. S. r. G. N. Ry. Co. (at this session), — 
 Fed. — , and eases cited.
 
 APPENDIX H. 
 
 939 
 
 Defendants admit that the employee involved in this case 
 was engaged and used by them as a train dispatcher. There- 
 fore lie was within the class defined in section 1. But in pro- 
 tecting him under section 2 Congress stated no class of 
 duties in which he might be overworked by defendants and 
 so rendered inefficient as a train dispatcher. To justify 
 defendants' claim, the statute should read that — 
 
 no train dispatcher shall be required or permitted to be on duty as a train dis- 
 patcher for a longer period than 9 hours in any 24-hour period, but after he has 
 been relieved as a train dispatcher the carrier may require him to serve as a 
 ticket seller, provided he be given eight consecutive hours off duty. 
 
 That, however, is not the way the statute was written. An 
 adoption of defendants' revision Avould be not only contrary 
 to recognized canons of statutory construction, but also 
 destructive of the intended cure of a recognized evil. It is 
 a matter of common knowledge (attested by the carriers' 
 petitions to the Interstate Commerce Commission imme- 
 diately after the passage of the act for time in which to 
 secure additional shifts of train dispatchers) that prior to 
 the act carriers were having 24 hours' work divided be- 
 tween two shifts, and that at most of the stations the train 
 dispatchers acted also as ticket sellers or in other capacities. 
 If 12 hours of mixed work as train dispatcher and ticket 
 seller is forbidden, it would be simply an evasion to require 
 6 consecutive hours of duty as a train dispatcher to be fol- 
 lowed by 6 consecutive hours of duty as a ticket seller. The 
 evil to be cured did not come from the employees' selling 
 tickets or doing work for other people when off duty, but 
 from the power of the carriers, customarily exercised, to re- 
 quire their employees who were concerned with train move- 
 ments to do extra and overtime work. 
 
 Our conclusion is supported, we believe, by the decisions 
 in B. & 0. R. Co. v. I. C. C, 221 U. S. 612 ; M., K. & T. R. 
 Co. V. U. S., 231 U. S. 112; U. S. v. G. N. R. Co., 206 Fed. 
 838 ; S. P., L. A. & S. L. R. Co. v. U. S., 213 Fed. 326 ; and 
 it accords with the contemporaneous construction put upon 
 the act by the administrative officers (l-) I. C. C. 13-1; 13 
 I. C. C. 142 ; Instructions to carriers for reporting hours of
 
 940 HOURS OF SERVICE ACT. 
 
 service. Mar. 16, 1908), whose interpretation is entitled to 
 great weight and should not be overturned without clear 
 and cogent reasons. U. S. v. Moore, 95 U. S. 763 ; Heath v. 
 Wallace, 138 U. S. 582; U. S. v. Trans-Missouri Freight 
 Asso., 166 U. S. 290, 370. 
 The judgment is affirmed. 
 
 No. 2635. 
 
 UNITED STATES OF AMERICA 
 
 f. 
 
 NORTHERN PACIFIC RAILWAY COMPANY. 
 
 (In the District Court of the United States for the Western District of Wash- 
 ington.) 
 
 Decided February 13, 19H. 
 
 1. An employee goes on duty, within the meaning of the law, at the time he 
 
 reports for work, as required by the rules of the company, and begins 
 the work of looking after his train and seeing that it is in proper condi- 
 tion for road service. He remains on duty while he is in charge of his 
 train, performing service in and about the same, or held responsible for the 
 performance of such service should the occasion therefor arise. 
 
 2. An employee is not off duty until he is relieved from all responsibility as to 
 
 his train and becomes his own free agent to go and do as he pleases. Brief 
 interruptions, such as time necessary for meals while on the road, meeting 
 trains, waiting for orders, delays on account of congestion of traffic, can- 
 not be considered as time off duty, although during such detention no 
 active service whatever may be required of such employee. 
 
 3. After an employee in train service starts on his trip he cannot be said to be 
 
 off duty, within the meaning of the law, until he roaches the end of his 
 run, unless before reaching his destination he is released from all service 
 in connection with his train, or from all responsibility therefor should 
 the occasion arise, and is given an unqualified, bona fide release, and for 
 a definite and substantial period. 
 
 4. A bona fide release is one given to the employee for tlic purpose of giving 
 
 him an opj)ortunity for rest, and not given merely to cover a delay at a 
 certain [)Iace wliicli the company knows must be encountered, hoping 
 thereby lo evade tin; law.
 
 APPENDIX H. 94X 
 
 Winter S. Martin, assistant United States attorney, and 
 Monroe C. List, special assistant to United States attorney, for 
 plaintiff. 
 
 J. W. Quick, for defendant. 
 
 STATEMENT OF CASE. 
 
 The Government's petition in this case was in 12 counts; 
 the first 6 counts related to the crew of defendant's freight 
 train extra 59, running between Auburn and Arlington, the 
 continuous service required of the crew (as charged) being 
 18 hours and 45 minutes ; the last 6 counts related to the 
 crew of freight train No. 676, running between Suraas and 
 Auburn, the petition charging 17 hours and 25 minutes con- 
 tinuous service of the engineer and fireman and 17 hours 
 and 10 minutes of the conductor and brakemen. 
 
 The defense of the carrier was that in neither case were 
 the employees in question on duty over 16 consecutive 
 hours; that in the case of the first train the crew were defi- 
 nitely released from all service in connection with their 
 train at Snohomish for 2 hours and 45 minutes ; that a 
 similar release was given the crew of the second train at 
 the same place for 1 hour and 30 minutes ; and that these 
 releases operated to break the continuity of the employees' 
 services, and therefore they were not on duty more than 16 
 consecutive hours, as charged. 
 
 After extra 59 had completed its work and was ready to 
 leave Snohomish it was seen that on account of a congestion 
 of traffic and the delayed arrival of opposing trains it could 
 not leave that place for some time ; that under the practice 
 of the company the conductor wired the dispatcher, request- 
 ing a release for approximately the time he saw they would 
 be delayed at Snohomish, and that a message was sent him 
 to put his train in charge of a watchman and go "on re- 
 lease" for 2 hours and 45 minutes. 
 
 A similar message of release was sent to the conductor of 
 No. 676 at Snohomish, to cover a delay at that place which 
 the carrier knew would be encountered on account of the 
 coal-bunker machinery being out of order and having to
 
 942 HOURS OF SERVICE ACT. 
 
 coal the engine by hand. This machinery had been out of 
 commission for a week prior to the time in question, and 
 the carrier approximated the time of this delay to be about 
 1 hour and 30 minutes, the time set forth in the message ; 
 but on account of a slight delay in reaching Snohomish the 
 crew were 5 minutes late in spotting their train at 'the coal 
 bunker, and therefore consumed only 1 hour and 25 minutes 
 of the release. 
 
 The testimony of the superintendent and chief dispatcher 
 was to the effect that such releases were given, not pri- 
 marily for the purpose of affording the employees rest, but 
 to cover delays which the carrier saw would be encountered, 
 with a view of extending the time within which the crews 
 might operate their trains, although during such delays it 
 was known that no active service whatever would be re- 
 quired of the employees. 
 
 INSTRUCTIONS TO THE JURY. 
 
 CuSHMAN, District Judge: 
 
 Gentlemen of the jury, the issues in this case have been 
 thoroughly explained to you in the argument, and you will 
 take the pleadings out with you, to which you are expected 
 to resort in case you have any doubt in your mind. 
 
 Briefly, there are 12 causes of action set up in the Govern- 
 ment 's complaint. Six causes of action concern six men on 
 one train, workmen of the company — the engineer, fireman, 
 conductor, and brakemen — and six men on another train. 
 
 The Government alleges that the men on one train were 
 on duty 18 hours and 45 minutes, consecutive hours of duty; 
 that on the other train they were on duty 17 hours and 25 
 minutes, or 17 hours and 10 minutes, some of them, consecu- 
 tive hours of duty. 
 
 The railroad company, the defendant, denies that those 
 men were on duty that length of time ; in effect, denies that 
 any of them were on duty over 16 hours. That is the issue 
 for you to try, whether any of those men were on duty over
 
 APPENDIX H. 943 
 
 16 hours. You understand you will determine each one of 
 these causes of action by itself. 
 
 The law under which this suit is brought provides that 
 no railroad company engaged in interstate commerce shall 
 require any of its servants that are engaged in like com- 
 merce to be or permit them to be or remain on duty over 
 16 hours consecutively, and that when such employees have 
 been on duty 16 consecutive hours that they shall not be 
 again permitted or required to go on duty until they have 
 had 10 hours off duty, and that where a man has been 16 
 hours on duty in the aggregate that he shall not be required 
 or permitted to go on duty again until he has had 8 hours 
 off duty. 
 
 Now, in effect the Government here contends that in re- 
 gard to this 18 hours and 45 minutes in the one instance 
 where this train was out, and the other where it w^as out 17 
 hours and 25 minutes, the Government contends that the 
 men on that train were throughout that time on duty ; that 
 those hours of duty were consecutive. The railroad com- 
 pany, in effect, admits while the train was out this length 
 of time that the crews were not on duty the entire length 
 of time and that their hours on duty were in the aggregate 
 — that the duty w^as broken by a space in which they had an 
 opportunity to rest. 
 
 You will understand w^hat the words "consecutive" and 
 "in the aggregate" mean. This law prohibits men working 
 consecutively for one of these roads over 16 hours ; that 
 means one hour after another without break, without sub- 
 stantial break. Where it says 16 hours in the aggregate 
 it contemplates where there has been a substantial break 
 in the service, in the duty that they have been discharging. 
 You can understand that in determining what a sub- 
 stantial break in the service is, or the performance or the 
 discharge of the duty is, you should take into consideration, 
 what the purpose of the law was. The purpose of this law 
 was that it was considered when men that had been on duty 
 16 hours consecutively or 16 hours in the aggregate, in or- 
 der to render them fit to discharge the duty of railroading.
 
 944 HOURS OF SERVICE ACT. 
 
 it was necessary that they should have in one instance 10 
 hours off duty for rest and recuperation, and in the other 
 instance 8 hours off duty. Therefore, to determine what 
 may be a substantial break in the hours of service it is your 
 duty to consider whether the break was sufficient in length 
 of time and under circumstances which would allow the 
 men to gain some rest or recuperation. You understand 
 what that means. You were here in court when we took 
 recesses during the trial of cases for certain purposes, and 
 in schools children take recesses, are permitted to take re- 
 cesses for certain purposes, and in these matters, the opera- 
 tion of these trains, having in mind what the purpose of 
 the law was, tliat the trainmen in order to be sufficiently 
 alert and wideawake and active in mind and in body, so as 
 to, be intrusted with the handling of these trains, that they 
 should not be required to be on duty more than 16 hours 
 consecutively, or 16 hours in the aggregate in the other 
 case. You will take that purpose and keep it in your mind 
 in determining whether this break that is claimed by the 
 defendant to have taken place in the service of these men 
 was of such a length of time and of such a character and 
 under such circumstances that they could get some sub- 
 stantial rest. You will understand that it is not every brief 
 interruption of the work in getting a train through from one 
 terminal to another which you would be authorized to de- 
 duct from their duty. That is, where the trainmen stop for 
 a brief lunch or the passing of trains or the doing of work 
 as they ordinarily do it, you would not be authorized to 
 take that time out, because manifestly it is not of sufficient 
 duration to enable them to get a rest; and in the second 
 place they are on duty, charged with the responsibility of 
 caring for the train — it is in effect work. Something has 
 l)een said in the argument concerning tlie purposes with 
 which these releases, which are claimed to have been givenv 
 were given; that is, from the company's standpoint they 
 were given so that they could get the train in without 
 breaking the law. You will understand that if those re- 
 leases were a mere pretense and subterfuge and simply
 
 APPENDIX H. 945 
 
 merely a matter of color, and did not amount to anything, 
 that the men were still on duty and still responsible for 
 their train, charged with that responsibility and under- 
 stood it, and the company so intended, then the release 
 would not amount to anything and would be no defense. 
 But if the men were, by these releases or otherwise, relieved 
 from all responsibility for the train and were, as the law 
 says, "off duty" — if they w^ere relieved from all respon- 
 sibility for the train and had the opportunity to rest under 
 circumstances where they could rest, and for a length of 
 of time which would be substantial, considering it as a 
 matter of rest and recuperation, then the defendant would 
 not be liable in this ease even though it was to some extent 
 influenced by an effort to prevent violation of this law. 
 That is, if these releases were granted for two purposes — 
 for the purpose of protecting the company against the vio- 
 lation of the law, and for the honest purpose of giving these 
 men a chance and an opportunity to rest where they could 
 take advantage of it — then the defendant would not be 
 liable, even though it was actuated by a desire to protect 
 itself against the Government. 
 
 You will understand that the time they were off duty, as 
 I have defined it to you, should be deducted from the total 
 time they were out in determining whether the}^ were either 
 required or permitted by the defendant to be on duty over 
 16 hours. 
 
 The court will read to you certain other instructions, but 
 you will understand that if they repeat, either in words or 
 the ideas that I have already conveyed to you in the oral 
 instructions, that you are not to conclude that the court is 
 making an effort to direct your attention to one part of the 
 case more than another or to the exclusion of some other 
 part. I am simply doing it so as to cover the case as fully 
 as the court can. 
 
 This action is brought by the United States against the 
 defendant to recover certain penalties for alleged violations 
 of the Federal Hours of Service Act. This act was approved 
 March 4, 1907, and went into effect one year later, and, as
 
 946 HOURS OF SERVICE ACT. 
 
 its title indicates, was passed "to promote the safety of 
 employees and travelers upon railroads by limiting the hours 
 of service of employees thereon." That portion of section 
 2 of the act which the Government charges the defendant 
 with having violated reads as follows : 
 
 That it shall be unlawful for any common carrier, its oflBcers or agents, 
 subject to this act to require or permit any employee subject to this act to be 
 or remain on duty for a longer period than 16 consecutive hours. 
 
 The Government contends that the employees named in 
 the several causes of action of its complaint were required 
 and permitted to be and remain on duty for a longer period 
 than 16 consecutive hours. The defendant does not deny 
 that the employees named went on duty at the times and 
 places substantially as alleged and proved by the Govern- 
 ment ; nor does it deny that they were engaged in and con- 
 nected with the movements of trains extra 59, running be- 
 tween Auburn and Arlington, and No. 676, running between 
 Sumas and Auburn, and that these employees were not 
 finally relieved from service in connection with these trains 
 until the time alleged by the Government. But the de- 
 fendant contends that these employees were not in continu- 
 ous service over 16 hours; that in the case of extra 59, two 
 hours and forty-five minutes should be deducted from the 
 time charged by the Government, for the reason, the de- 
 fendant says, that the employees on this train were released 
 from service and, therefore, off duty, within the meaning of 
 the law, for that length of time at Snohomish ; and that in 
 the case of train No. 676, 1 hour and 25 minutes should be 
 deducted from the time charged, for a similar reason ; that 
 is, that the crew of this train were also released from ser- 
 vice and off duty, within the meaning of the law, for that 
 length of time at Snohomish. 
 
 Therefore, the question for the jury to decide is whether 
 the employees named- were required to be and remain on 
 duty for a longer period than 16 consecutive hours. 
 
 Til is is not a criminal action and the Government is not 
 re(| aired to prove to you beyond a reasonable doubt that 
 the law was violated. It is only required to prove to you
 
 APPENDIX H. 947 
 
 by a fair preponderance of the evidence that the employees 
 in question were required and permitted to be and remain 
 on duty for 9, longer period than 16 consecutive hours. 
 
 But you understand that before you can return a verdict 
 against the defendant and in favor of the Government on 
 any cause of action the Government must have established 
 all the material allegations of that cause of action, as I have 
 explained to you, by the fair preponderance of the evi- 
 dence, and if there has not been a fair preponderance of the 
 evidence in the Government's favor sustaining those ma- 
 terial allegations, as I have defined them to you, it would 
 be your duty to return a verdict in favor of the defendant ; 
 that is, if the evidence preponderates in favor of the defend- 
 ant or it is evenly balanced so that you are unable to say 
 on which side the preponderance is, then your verdict should 
 be for the defendant. 
 
 An employee goes on duty, within the meaning of the 
 law, at the time he reports for work, as required by the 
 rules of the company, and begins the work of looking after 
 his train and seeing that it is in proper condition for road 
 service. He remains on duty while he is in charge of his 
 train, performing service in and about the same, or held 
 responsible for the performance of such service should the 
 occasion therefor arise. 
 
 An employee is not off duty until he is relieved from all 
 responsibility as to his train and becomes his own free agent 
 to go and do as he pleases. Brief interruptions, such as 
 time necessary for meals while on the road, meeting trains, 
 waiting for orders, delays on account of congestion of traf- 
 fic, can not be considered as time off duty, although during 
 such detention no active service whatever may be required 
 of such employee. 
 
 Of course, what is a brief interruption is a relative term ; 
 in determining what a brief interruption is as covered by 
 this instruction you will take into consideration what I 
 have already told you. You can understand if a man was 
 engaged in a ''tug of war" that if he had 2 hours and 45 
 minutes off it would be a substantial rest from that occu-
 
 948 HOURS OF SERVICE ACT. 
 
 pation, and so here you must use your practical judgment 
 and experience as men in determining whether this inter- 
 ruption in this service such as is claimed by the defendant 
 was of substantial benefit for the purpose that Congress 
 intended this law, to enable the men to revive and recu- 
 perate and rest, so tliat they migbt renew tbeir service and 
 duty. After an employee in train service starts on his trip 
 he can not be said to be off duty, within the meaning of the 
 law, until he reaches the end of his run, unless before reach- 
 ing his destination he is released from all service in con- 
 nection with his train or from all responsibility therefor 
 should the occasion arise, and is given an uncjualified, bona 
 fide release, and for a definite and substantial period. 
 
 A bona fide release is one given to the employee for the 
 purpose of giving him an opportunity for rest, and not 
 given merely to cover a delay at a certain place which the 
 company knows must be encountered, hoping thereby to 
 evade the law. 
 
 I have already told you that it did not abrogate the re- 
 lease or destroy its effect if it was given for the two pur- 
 poses of enabling the railroad company to avoid the break- 
 ing of this law and at the same time for the honest purpose 
 of allowing the men to rest under circumstances where a 
 reasonal)le man would expect they could rest. 
 
 In considering the question of Avhether or not a release 
 is a bona fide one, the jury may take into consideration all 
 the surrounding circumstances; whether the employees in 
 question would have been subjected to more active duties 
 during the time delayed had the release not been given; and 
 whether or not the release afforded the employees oppor- 
 tunities for substantial rest and which would not have 
 been afforded them in the absence of such release. 
 
 If it appeared to the company that a certain train would 
 probably be delayed at a station for a certain time, by rea- 
 son of a congested condition of traffic or on account of 
 having to coal the engine by hand, and the carrier notified 
 the employees on that tiiiin that they were released for a 
 certain time, which was ai)i»i-oximately the time the com-
 
 APPENDIX H. 949 
 
 pany saw they would be delayed at that place, and the only rea- 
 son for such release was for the purpose of extending the 
 time within which the employees might operate their train, 
 and neither the purpose nor effect of the release was to 
 afford the trainmen any rest, the jury would be warranted 
 in finding that such release was not bona fide but merely a 
 subterfuge. 
 
 In considering the question as to whether a certain re- 
 lease was for a substantial period, the jury may consider all 
 the surrounding circumstances, the real object of the re- 
 lease, the rights of the company and the employees, the 
 time and place of the release, the effect of the cancellation 
 of the release had the same been made, and such other tes- 
 timony as to the jury might seem proper in its determina- 
 tion of this question. 
 
 Gentlemen of the jury, you are in this case, as in every 
 other case where questions of fact are submitted to the jury 
 for their determination, the sole and exclusive judges of 
 every question of fact in the case and the weight of the 
 evidence and the credibility of the witnesses. If either of 
 the attorneys in the case or the court has commented upon 
 or taken for granted that the evidence shows certain facts 
 that disagrees with your recollection of the evidence, you 
 will remember that it is your own judgment that should 
 prevail as to the evidence, and it is your duty to take the 
 instructions concerning the law from the court. In weigh- 
 ing the evidence and passing on the credibility of the wit- 
 nesses, you should take into consideration their conduct and 
 demeanor and appearance, whether they impress you as 
 being perfectly candid and trying to tell you the exact facts, 
 neither adding to or taking from them, or whether they 
 appear to you to be reluctant, evasive, or hesitating and 
 holding back something, it being necessary to repeat the 
 questions to them in order to get them to tell what they 
 claim to know ; or whether they impress you as being too 
 willing, too free, running on and volunteering information 
 which no one has asked them about. Also take into con- 
 sideration the position in which the witnesses were as en-
 
 950 HOURS OF SERVICE ACT. 
 
 abling them to know about the facts about which they 
 undertake to testif}^ ; whether their testimony appears to 
 be reasonable and probable, or whether it is contradictory 
 or corroborated by other evidence where you would expect 
 it to be corroborated if it were true; whether it is contra- 
 dicted by other evidence in the case. 
 
 So you will take into consideration the interest that any 
 Matness may be shown to have in the case, either by his 
 relation to it or the manner in which he gives his testimony. 
 
 No. 1483. 
 UNITED STATES OF AMERICA 
 
 V. 
 
 NORTHERN PACIFIC RAILWAY COMPANY. 
 
 (United States District Court, Eastern District of Washington, Northern 
 
 Division.) 
 
 Decided April 21, 19U. 
 
 The period of service of a given train crew ended 17 hours and 30 minutes 
 after its inception, but in the interim the men were entirely relieved from 
 duty for a predetermined period of 1 hour and 30 minutes, a watchman 
 then being in charge of the train; Held, That such a layoff or release from 
 duty, even though for a definite period, does not break the continuity 
 of service within the meaning of the Hours of Service Act. 
 
 Francis A. Garreclit, United States attorney, and Otis B. 
 Kent, special assistant United States attorney, for plaintiff. 
 Edward J. Cannon, for defendant. 
 
 OPINION OF THE COURT. 
 RuDKix, District Judge. 
 
 This is an action to recover penalties for violation of the 
 act of Congress of March 4, 1907, entitled "An act to pro- 
 mote the safety of employees and travelers upon railroads
 
 APPENDIX H. 95]^ 
 
 b}^ limiting the hours of service of employees thereon" (34 
 Stat. 1415), commonly known as "The Hours of Service 
 Act." The complaint contains six counts or causes of action 
 in all, based upon excessive hours of service by the several 
 members of the same train crew. The case has been sub- 
 mitted to the court upon an agreed statement of facts from 
 which the following appears: 
 
 The defendant is a common carrier by railroad engaged 
 in interstate commerce, and the several employees named 
 in the different counts or causes of action were in the em- 
 ploy of the defendant engaged in or in connection with the 
 movement of its trains; on the 10th day of January, 1912, 
 the engineer and fireman of engine No. 1507, hauling an 
 eastbound extra freight train from Tacoma, "Wash., to Cle 
 Elura, Wash., went on duty at the hour of 5 -.30 a. m. and 
 remained on duty until 11 p. m. of the same day; the con- 
 ductor and the remaining members of the crew went on duty 
 at the hour of 5 o'clock a. m. and remained on duty until 
 the hour of 10:30 o'clock p. m. ; the schedule time out of 
 Tacoma was 6 o'clock a. m. ; but the departure of the train 
 was delayed for 45 minutes by reason of a derailment in the 
 yards; the train arrived at Auburn, 18 miles east of Tacoma, 
 at 8 :25 a. m., and was there held for a period of 1 hour and 
 30 minutes to permit superior trains to meet and pass ; dur- 
 ing this period of 1 hour and 30 minutes the train was 
 placed in charge of an engine foreman or watchman at 
 Auburn, and the train crew laid off or released from duty. 
 If the layoff of 1 hour and 30 minutes at Auburn be in- 
 cluded in the hours of service of the crew, the law has been 
 transgressed ; but if excluded, the time of actual service falls 
 within the 16-hour period limited by law. The sole ques- 
 tion presented for decision is, therefore, does a definite lay- 
 off or release from duty for a period of 1 hour and 30 
 minutes, under the circumstances stated, break the con- 
 tinuity of the service within the meaning of the law? I am 
 of the opinion that it does not. In the case of United States 
 V. Chicago, Milwaukee & P. S. Ry. Co., 197 Fed. 624, I held 
 that a layoff of from 30 to 45 minutes for breakfast and of
 
 352 HOURS OF SERVICE ACT. 
 
 about 1 hour each for the midday and evening meals did not 
 break the continuity of the service. I further held in the 
 same case that an indefinite layoff of 3 hours while the 
 train crew was awaiting the arrival of a helper engine at a 
 small way station did not break the continuity of the serv- 
 ice. This decision was cited with apparent approval in the 
 case of M., K. & T. Ry. Co. v. U. S., 231 U. S. 112. That 
 case, it seems to me, is controlling here. The purpose of the 
 statute is plain, and it must be so construed as to promote 
 its policy. The hours of service of railway trainmen are 
 long at best, leaving only 8 hours for rest and recreation, 
 and if this brief period can be broken into fragments the 
 purpose and policy of the law will be entirely frustrated. 
 If a train crew may be laid off for an hour and a half at 
 one point to suit the convenience or necessities of the com- 
 pany, it may be laid off for a like period at another, and 
 the members of the crew thus wholly deprived of any sub- 
 stantial period for either sleep or rest. If this crew had not 
 been released from duty at Auburn, the members would 
 have been compelled to remain idle until the time of de- 
 parture arrived, and the release for the brief period allowed 
 by the company permitted them to do little else. The re- 
 lease was of no benefit to the crew and could subserve no 
 substantial purpose except to obviate the penalty imposed 
 by law. Perhaps it can not be said as a matter of law in 
 all cases whether a release from duty for a fixed period of 
 time will or will not be sufficient to break the continuity 
 of the service. No doubt in extreme cases the court may 
 declare as a matter of law that a given period is so short 
 as not to break the continuity of the service, or that another 
 period is so long as to break the continuity of the service; 
 but between these extremes there is a twilight zone, where 
 the question ])ecomes a mixed one of law and fact. This 
 case, however, has been submitted to the court for decision, 
 and whatever inferences are to be drawn from the admitted 
 facts must be drawn ])y the court, and under the admitted 
 facts I am of the opinion that the plain si)irit and policy of 
 tlie law has been violated. I therefore adjudge the defend-
 
 APPENDIX H. 953 
 
 ant guilty on each count or cause of action, and impose a 
 penalty of $100 and costs for each violation. 
 Let judgment be entered accordingly. 
 
 No. 683. 
 THE UNITED STATES OF AMERICA 
 
 V. 
 
 CHICAGO & NORTH WESTERN RAILWAY CO. 
 
 (In the District Court of the United States for the Western District of Michigan, 
 Northern Division.) 
 
 October 30, 19U. 
 
 In a prosecution for the statutory penalty under the Federal Hours of Service 
 Act the stipulated facts showed that certain telegraph operators in ofBccs 
 operated only during the daytime had full regular periods of one hour each 
 ofif for meals as a uniform and regular practice, which periods, if deducted, 
 were sufficient to reduce their period of service to less than 13 hours; that 
 if during a meal hour an unexpected train should arrive, these operators 
 would give it the necessary attention and complete their meal hour after 
 so doing, as a common practice; that they were paid for the full amount 
 of overtime charged and also for their regular service. Held, That such 
 operators were "on duty" during the time they were taking their meals. 
 (U. S. V. C, M. & P. S. Ry. Co., 197 Fed. 624; M., K. & T. Ry. Co. v. 
 U. S., 231 U. S. 112; U. S. v. Northern Pacific Ry. Co., 213 Fed. 539.) 
 
 The fact that a connecting carrier delivered a through passenger train late to 
 the defendant railway company did not constitute an emergency within 
 the meaning of the Federal Hours of Service Act which would justify the 
 defendant railway company in permitting the service of a telegraph opera- 
 tor in excess of 13 hours at a daytime office where no other operator was 
 employed. Such delays are usual incidents in the ordinary operation of 
 railroads and do not constitute an emergency within the meaning of the 
 law. (U. S. V. E. C. S. Ry. Co., 202 Fed. 828; U. S. v. K. C' S. Ry. Co., 189 
 Fed. 471.) 
 
 A telegraph operator at a daytime office whose regular hours were from 7 a. 
 m. to 7 p. m. worked overtime from 7 p. m. to 12 midnight, the excess serv- 
 ice being performed by reason of the fact that the departure of a carnival 
 company's train which was not due to leave the station in question until 
 9 o'clock that night, and which, on .account of physical conditions, it was
 
 954 HOURS OF SERVICE ACT. 
 
 necessary to load on the main line, was delayed due to some of the em- 
 ployees of the carnival company being intoxicated and running a wagon off 
 a flat car. Held, That accidents of this character furnish neither justifica- 
 tion nor excuse for a violation of a remedial statute like the one under 
 consideration. 
 
 Myron H. ]yal]i-er. United States attorney, and Walter N. 
 Brown, special assistant United States attorney, for plaintiff. 
 F. A. Bell for defendant. 
 
 OPINION OF THE COURT. 
 
 Sessions, Disirict Judge: 
 
 This is a suit to recover penalties for violations of the 
 Hours of Service Act of March 4, 1907, in keeping telegraph 
 operators on duty for more than 13 hours during periods 
 of 24 hours. The complaint or declaration contains 24 
 counts, in each of which a separate and distinct violation 
 is alleged. The defendant confesses liability under 14 of 
 the counts, but denies liability under the other 10 counts. 
 The decision of the ease in each of 8 counts hinges upon the 
 question of whether or not the time for meals of the oper- 
 ator should be deducted from the hours of his service. The 
 stipulated facts in this regard are as follows : 
 
 As to counts 2, 3, 7, 9, 10, 11, 12, and 13, the employees in each instance 
 were off duty for dinner or supper, or both, for full regular periods of one hour 
 for each meal sufficient to reduce the period of service to less than 13 hours. 
 And <as to these counts it is agreed that the testimony shows that the employee 
 always has a full hour ^)^ duty for dinner and also for supper as a uniform and 
 regular j)ractice; that they have no definite recollection as to the particular 
 days in question; that if during a meal hour an unexpected train should arrive 
 at their station they would give it the necessary attention and complete their 
 meal hour after doing so as a common practice; that they were paid for the 
 full amount of overtime charged, and also for their regular service. 
 
 From these facts it is apparent that the operator was 
 always subject to call whenever his services were required, 
 both during meal hours and at other times. It is well set- 
 tled that, within the meaning of the Hours of Service Act, 
 brief periods allowed for meals and other purposes do not 
 interrupt the continuity of service. Under the circum- 
 stances here shown, it must be held that the operator was 
 on duty during the time he was taking his meals. (United
 
 APPENDIX H. 955 
 
 States V. C, I^.I. & P. S. Ry. Co., 197 Fed. 624-627 ; M., K. & 
 T. Ry. Co. V. United States, 231 U. S. 112-119 ; United States 
 V. N. P. Ry. Co., 213 Fed. 539.) 
 
 The defense to the causes of action alleged in the remain- 
 ing two connts — 21 and 22 — is that in each case an emer- 
 gency existed which excused and justilied the excessive 
 time of service. As to count 21, the alleged emergency is 
 thus described in the stipulation of facts : 
 
 A regular passenger train through from Calumet, Mich., to Chicago, III., 
 over tlie Duluth, South Shore & Atlantic Railway and Chicago & North West- 
 ern, clue to be delivered to the Chicago & North Western Railway at Ish- 
 peming, Mich., at 0:1.5, and due out of Ishpeming at 0:.'30 p. ni., was not de- 
 livered to the Chicago & North Western so that it could leave there until 
 10 o'clock p. m.; tiiat on its departure the employee went at once off duty; 
 that the operator knew, about 5 o'clock p. m., that the train was late; that 
 Ishpeming is a daytime station, and there are no other operators there in the 
 employ of the defendant. > 
 
 Delays in the arrival and departure of trains are of fre- 
 quent occurrence and are usual incidents in the ordinary 
 operation of railroads. The fact that the defendant re- 
 ceived the through train in question from another railroad 
 is of no conse(|uence. Delays in the departure of trains 
 caused by trains upon connecting lines being late are com- 
 mon. Such delays do not constitute an emergency wathin 
 the meaning of the law. (United States v. K. C. S. Ry. Co., 
 202 Fed. 828-833, 834; United States v. K. C. S. Ry. Co., 189 
 Fed. 471-478.) 
 
 The facts, as stipulated, with reference to the overtime 
 service charged in count 22 are these : 
 
 A carnival company was loading its stuff in Norway for removal to Green 
 Bay, Wis. Some of its employees were intoxicated and ran a wagon off a flat 
 car, which caused a long delay in the train's departure. On account of physical 
 conditions this train was of necessity loaded on one of the main lines, and it 
 was necessary to clear said line as soon as possible. The assistant superin- 
 tendent was on the ground and directed the employee to stay, as he did, to 
 assist in getting orders for that train. The carnival company had been in Nor- 
 way several days and was due to leave there at 9 o'clock of the night of Sunday 
 the 21st. The regular assigned hours for which the employee was regularly 
 paid, including meal hours, were from 7 a. m. to 7 p. m., and the employee was 
 paid overtime from 7 to 12 p. m. 
 
 It thus appears that the accident which caused the delay 
 in the departure of the circus train occurred a considerable
 
 956 HOURS OF SERVICE ACT. 
 
 time before the expiration of the period during which the 
 operator might lawfully have worked. He had been con- 
 tinuously on duty since 7 o'clock in the morning and the 
 train was not due to leave until 9 o'clock at night. There 
 is no showing that another operator could not have been 
 procured. Accidents of this character often happen' and 
 are to be expected. They furnish neither justification nor 
 excuse for a violation of a remedial statute like the one 
 under consideration. (United States v. S. P. Ry. Co., 209 
 Fed. 562.) 
 
 Judgment will be entered in favor of the plaintiff and 
 against the defendant for the sum of $100 upon each count 
 of the declaration. Plaintiff will recover costs of suit to 
 be taxed. 
 
 UNITED STATES OF AMERICA 
 
 SOUTHERN RAILWAY CO. 
 
 (In the District Court of the United States for the Western District of South 
 
 Carolina.) 
 
 Greenville, S. C, October 30, 1913. 
 
 1. The occurrence of an accident or delay by the act of God, or of a casualty or 
 
 unavoidable accident, while a train is in course of transit from one ter- 
 minal point to another, does not suspend the entire Hours of Service Act 
 as to that train; the statute does not mean that as to a train so delayed 
 the operative period of service is extended from 16 to 21 or 26 hours, 
 according as some delay from the exempting causes may occur whilst 
 uie train is in transit. 
 
 2. The hours of service may be extended in such cases beyond the period fixed 
 
 in the statute, only so far as may be necessary to permit the train to be 
 operated to a point at which, due regard being had to all the circum- 
 .stances of the particular case and the character of the train, the train 
 crew could be relieved or be allowed to take the rest required by the 
 statute. 
 
 3. When a freight train was reported at a way station to have already exceeded 
 
 the sUitutory limit of service and there was no extraordinary exigency
 
 APPENDIX H. 957 
 
 that required this freight train to go on to its final terminal, if the jury 
 finds that such train reasonably could have been tied up at such way 
 station so as to give the employees the rest required by the statute, the 
 railroad officials were not justified in permitting them to continue to 
 exceed the statutory limit of labor. If there has been a delay produced 
 by justifiable causes at the time the train reached a way station, still if 
 there was a point either at that station or some other where the train 
 reasonably could have been tied up, or a new crew put on, the train could 
 only be operated after the limit of 10 hours until a suitable stopping place 
 could be reached; and it is the railroad's duty to have suitable stopping 
 places where rest can be had for its employees, at proper places along its 
 road, proportionate to the exigencies of the business. 
 4. Same rule laid down where train enroute is reported at a way station when 
 the period of service for the train crew is within a few minutes of the 
 expiration of the 16-hour period of service and there is no reasonable 
 expectation of being able to make the final terminal within the 16 hours. 
 
 Ernest F. Cochran, United States attorney, and Walter N. 
 Brown, special assistant United States attorney, for plaintiff. 
 Cothran, Dean & Cotliran, for defendant. 
 
 JUDGES CHARGE. 
 
 Smith, District Judge, charging jury: 
 
 Mr. Foreman and gentlemen of the jury: I instruct you 
 in this case that this statute which we ordinarily call 
 "Hours of Service Act" is a remedial statute of the highest 
 character. It was passed for the protection both of the 
 employee and of the public. The lawmaking power of this 
 country has concluded that the human machine, the em- 
 ployee of a railroad, under the stress and strain of railway 
 service in the operation of a railroad train, should not be 
 subjected to more than 16 consecutive hours of that service. 
 After that period, the theory of the statute is that the 
 human machine becomes fagged and is not properly ca- 
 pable of providing for the safety of tlie train, the safety of 
 the public, the safety of itself, the human faculties become 
 weary and fagged, and he must have rest in order to be 
 restored to the normal condition of capability, so they pro- 
 hibit the employee being subjected to that strain for more 
 than 16 hours' continuous employment.
 
 958 HOURS OF SERVICE ACT. 
 
 As I said before, it is for the protection of the public who 
 are travelers upon passenger trains and whom it may be 
 desired to protect from casualties and accidents and de- 
 struction through the enfeebled energies of a man who has 
 been on service for over 16 hours. It is intended for the 
 protection of the public itself, and intended for the pro- 
 tection of the human employee ; but the operation of rail- 
 roads must be in the hands of skilled, responsible people, 
 and necessarily, inasmuch as they are to be guided by the 
 principle of the safety of the public first, they can not be 
 controlled as to what are proper delays which may keep a 
 certain train back, or the proper methods of providing for 
 accidents that happen on their roads in the providing and 
 changing of trains to meet the public accommodation. The 
 persons in charge of the railway administration are the 
 persons really in charge of the operation of a railroad who 
 are responsible, and they are held to a heavy responsibility, 
 and therefore they must be given corresponding powers, 
 but it must be — whatever action they take must be — com- 
 patible with the law that the human machine must not be 
 worked more than 16 hours consecutively, except in excep- 
 tional instances. 
 
 A passenger train or a freight train might meet an un- 
 avoidable accident at a way station. If it is possible to 
 avoid it, the reason of the rule is not to delay and hold up a 
 train of passengers, and if it is a freight train you can not 
 hold up a freight train if at the point of the accident it 
 could be held to the eight hours' rest that is required by the 
 statute only at the risk of danger to other trains ; therefore 
 the statute makes certain provisions regulating in such 
 cases the enforcement of the statute, and I construe that 
 to mean that the provisions of the act, so far as requiring 
 16 consecutive hours of labor, mean only that the train may 
 be operated after that limit until a suitable stopping place 
 can })e reached, and it is the railroad's duty to have suitable 
 stopping places where rest can be had for its employees 
 at proper places along its route, proportionate to the exi- 
 gencies of the ])usiness.
 
 APPENDIX H. 959 
 
 NoAV, that is my instruction to you; I do not think that 
 there has been proven in this case that the brake beam 
 might not have been due to unavoidable accident. I think 
 the facts show that there was an inspection at the last place 
 the train left ; it is not shown that it was an improper in- 
 spection, and the conductor of this train left the place under 
 circumstances which would lead him to presume that the 
 train and the cars were in good operating condition. But 
 there may have been unavoidable accidents elsewhere which 
 caused what is called a detouring of other trains from a 
 different route to this, so as to load this line of transporta- 
 tion with more than the usual amount of travel ; yet the 
 testimony shows that was not unexpected, for the casualties 
 which are alleged to have caused the detouring of trains, 
 with the exception of a single train on what is known as 
 the Asheville Division, had been known for several days, 
 so that the railroad officials had been informed that this 
 part of the railroad would be loaded, so to say, with this 
 enhanced or increased or enlarged press of transportation 
 by increasing the number of trains, and they were to be 
 provided for, and the delays so occasioned are not such 
 delays as the act contemplates. 
 
 At the same time the testimony shows that this train had 
 been delayed nearly eight hours at a place, Mount Zion, be- 
 fore reaching Spartanburg, and before leaving Spartan- 
 burg, in time sufficient to notify the officials, and they ad- 
 mit that they were notified, that this train was eight hours 
 delayed then ; and that it left Spartanburg only six minutes 
 less than the full 16 hours time, and that when it left Spar- 
 tanburg, it left Spartanburg under conditions in which the 
 train dispatcher who was in charge of this train knew of 
 the consequent delays which would delay between Spar- 
 tanburg and Greenville; that is to say, that although it left 
 Spartanburg with only six minutes to its credit, when it left 
 Greers, a few miles from Spartanburg, it was more than 
 two hours still later, and was more than two hours over the 
 16-hour time limit, and it did not reach Greenville vintil 20 
 minutes past 5, or 19 hours and 5 minutes in the course of
 
 960 HOURS OF SERVICE ACT. 
 
 its transit, or 3 hours and 5 minutes over the statutory- 
 limit. 
 
 Now, I charge you, gentlemen, that if this accident caus- 
 ing delay had occurred, say, between Greers and Spartan- 
 burg, or before reaching Greers, or if the train had left 
 Spartanburg with the reasonable expectation of being able 
 to make Greenville within the 16 hours, and there occurred 
 an unexpected and unavoidable delay from the act of God, 
 or unavoidable casualty or unavoidable accident between 
 Spartanburg and Greenville, that in that case the railroad 
 would have had a right to require these train operators to 
 operate that train to the first proper stopping place, which 
 might vary according as it was a passenger or a freight 
 train ; but at the first proper stopping place where its 
 crews could be replaced or the train could be tied up the 
 crew should have been given a rest; and that if Spartan- 
 burg was a proper stopping place, or if Spartanburg Junc- 
 tion was — and from this testimony if you believe it was — at 
 which this train could have either had its crew replaced or 
 at which it could have tied up so as to give the crew on 
 service necessary rest, then it was the duty of the railway 
 officials to so provide, as they knew that it could not reach 
 Greenville within the stipulated time. And the same thing 
 as to Greers ; when the train was reported at Greers it had 
 already exceeded the statutory limit of time service, and I 
 charge you that from tlie testimonj^ it appears tliat the train 
 could have tied up at Greers, and it does not appear that 
 it was a passenger train, or that there was any extraordi- 
 nary exigency that rec[uired this freight train to go on to 
 Greenville so as to exceed the statutory limit of time. 
 Therefore, if you find that either at Spartanburg or at 
 Greers that this train reasonably could have been tied up, 
 under this testimony, so as to give the employees the rest 
 required by the statute, the railroad officials were not justi- 
 fied in pei-mitting them to e.xcecd the statutory limit of 
 ]a])or. 
 
 If, Mr. Foreman, the jury finds under this charge that at 
 Spartanburg or Greers tliis train could have been tied up —
 
 APPENDIX H. 
 
 961 
 
 as I charge you under the evidence, there has been shown 
 no reason for an unexpected or unavoidable delay caused 
 by an unavoidable and unforeseen casualty between Spar- 
 tanburg and Greers — if you find that, you will simply write 
 the word "guilty," date it, and sign your name. If the 
 jury, however, find neither of those places w^ere places at 
 which this crew could be rested, or a new crew be put on, 
 in that case you will find "not guilty," sign your name as 
 foreman, and date it. 
 
 Mr. Cothran". We except to the court's charge in the 
 construction of the statute, to the effect that notwithstand- 
 ing there may have been a delay produced by justifiable 
 causes at the time the train reached Spartanburg, still if 
 there was a point either at Spartanburg or at Mount Zion 
 or at Greers where they could have tied up the train it was 
 their duty to do so. Our construction of the law contended 
 for being — and we ask your honor to charge to that effect — 
 that the defendant railway company is entitled to credit 
 upon a charge of 18 hours and 50 minutes, or 2 hours and 
 50 minutes overtime, for the delays caused at Concord by 
 a broken beam, at Gastonia by a broken coupler, and by 
 the delay at Lowell, which was produced directly by the 
 delay at Concord and the delay at Gastonia, having the ef- 
 fect of throwing train second 71 out of its schedule, mak- 
 ing a total credit of 3 hours and 5 minutes. 
 
 Court. On that I rule that the occurrence of an accident 
 or delay by the act of God or any case of casualty or un- 
 avoidable accident wiiile the train is in course of transit 
 from one terminal point to another does not mean that the 
 entire act is suspended as to that train. To hold that the 
 entire act would be suspended as to that train w^ould be to 
 hold that the 16 hours' limit did not apply to any train be- 
 tween terminals during the progress of whose transit be- 
 tween terminals any delay occurred from the exempting 
 causes named in the statute. Tlie delay might be any num- 
 ber of hours, from 5 to 10, and I hold that the statute does 
 not mean that as to that train the operative period of service 
 is extended from 16 to 21 or 26 hours, according as some
 
 962 HOURS OF SERVICE ACT. 
 
 delay from the exempting causes may occur whilst the train 
 is in transit. I construe the statute to mean that the hours 
 of service shall be extended in such cases only so far as 
 may be necessary to permit the train to be operated to a 
 point at which, due regard being had to all the circum- 
 stances of the particular case and the character of the 
 train, the train crew could be relieved or be allowed to take 
 the rest required by the statute. 
 Verdict for Government.
 
 APPENDIX I. 953 
 
 APPENDIX I. 
 
 BOILER INSPECTION— AMENDATORY ACT. 
 
 An Act to amend an Act entitled "An Act to promote 
 the safety of employees and travelers upon railroads by 
 compelling common carriers engaged in interstate commerce 
 to equip their locomotives with safe and suitable boilers and 
 appurtenances thereto," approved February seventeenth, 
 nineteen hundred and eleven. 
 
 Be it enacted by the Senate and House of Representatives 
 of the United States of America in Congress assembled. That 
 section two of the Act entitled "An Act to promote the 
 safety of employees and travelers upon railroads by com- 
 pelling common carriers engaged in interstate commerce to 
 equip their locomotives with safe and suitable boilers and 
 appurtenances thereto," approved February seventeenth, 
 nineteen hundred and eleven, shall apply to and include the 
 entire locomotive and tender and all parts and appurten- 
 ances thereof. 
 
 Sec. 2. That the chief inspector and the two assistant 
 chief inspectors, together with all the district inspectors, 
 appointed under the Act of February seventeenth, nineteen 
 hundred and eleven, shall inspect and shall have the same 
 powers and duties with respect to all the parts and appur- 
 tenances of the locomotive and tender that they now have 
 with respect to the boiler of a locomotive and the appur- 
 tenances thereof, and the said Act of February seventeenth, 
 nineteen hundred and eleven, shall apply to and include the 
 entire locomotive and tender and all their parts with the 
 same force and effect as it now applies to locomotive boilers 
 and their appurtenances. That on the passage of this Act 
 all inspectors and applicants for the position of inspector
 
 964 AMENDATORY ACT. 
 
 shall be examined touching their qualifications and fitness 
 with respect to the additional duties imposed by this Act. 
 
 Sec. 3. That nothing in this Act shall be held to alter, 
 amend, change, repeal, or modify any other Act of Congress 
 than the said Act of February seventeenth, nineteen hun- 
 dred and eleven, to which reference is herein specifically 
 made, or any order of the Interstate Commerce Commission 
 promulgated under the Safety Appliance Act of March 
 second, eighteen hundred and ninety-three, and supplemen- 
 tal Acts. 
 
 Sec. 4. That this Act shall take effect six months after 
 its passage, except as otherwise herein provided. 
 
 Approved, March 4, 1915.

 
 ^»' •■■ '"■<'i!i^
 
 INDEX TO 
 FEDERAL EMPLOYERS' ACT. 
 
 [References are to pages.] 
 
 Abatement- 
 Action, see. 
 
 Act of 1906— 
 
 Oklahoma constitution did not adopt, 39, note. 
 
 Statute, 545. 
 
 Valid in District of Columbia and Territories, 40. 
 
 Act of 1 SOS- 
 Federal courts' construction of, followed by State courts, 42. 
 Forbids State legislation on subject, 34. 
 In pari materia with Safety Appliance Acts, 42. 
 Liberally construed, 40, 41. 
 Object and purpose, 1. 
 Remedial, 41. 
 Repeal, effect on State legislation, 36. 
 
 Action — 
 
 Accrues, when, 232. 
 
 Administrator brings, 213, 214, 233. 
 
 based on deceased's right of action, 218. 
 Beneficiary can not bring, 214. 
 
 Common law action does not lie, 36, note, 51 ; 39, note. 
 Defense that action only lies on statute, 37, note b\*. 
 Dismissal, 314. 
 
 Election, as to court requiring, 305. 
 Employee, .tee. 
 
 Employee can only sue under Federal statute, 31, 34. 
 Excludes all other statutes, 34. 
 Failure of deceased to bring, 219. 
 Foreign administrator may maintain, 217. 
 Instantaneous death, 219. 
 Joinder of different causes of action, 304, 220. 
 
 with action for a wilful injury, 292, note 11. 
 
 965
 
 966 INDEX TO employers' liability act. 
 
 [References are to pages.] 
 
 Action — Continued. 
 
 Judgment for deceased a bar to another action, 233. 
 
 Negligence basis of action, 290. 
 
 New cause of action given beneficiary, 293. 
 
 No new cause of action given employee, 292. 
 
 Statute of limitations, 230. 
 
 Survival, 259. 
 
 effect on measure of damages, 259, 262. 
 Test of, riglit to bring, 69. 
 Venue, 289, 312. 
 When must be brought, 69, 230. 
 Wilful injury statute does not cover, 292. 
 
 joinder with action for negligence, 292, note 11. 
 W^orkmen's compensation act, no action under, 36, note 51. 
 
 Administrator- 
 Action based on deceased's right of action, 218. 
 
 brings, 213, 214, 233. 
 Costs, not liable for, 234. 
 Failure of deceased to bring, 219. 
 Foreign administrator may sue, 217. 
 
 Judgment for deceased a bar to administrator's action, 233. 
 Substituting for beneficiary, 215, 309. 
 
 statute of limitations, 215. 
 Suit brings, 213, 214, 233. 
 
 Admiralty Rule — 
 
 Apportionment of damages, 167. 
 
 commended, 171. 
 
 origin, 169. 
 Alaska- 
 Statute applies to, 43. 
 
 Allen- 
 Beneficiary entitled to damages, 223, 235. 
 
 Amendments — 
 
 Local practice controls, 216, 294, 296, 302, note 49, 303. 
 Statute of limitations, 306. 
 To meet the evidence, 306. 
 
 Annuity Table — 
 
 Use of, as evidence, 250. 
 
 Answer- 
 Aiding complaint, 297, note 34. 
 Defense, nee. 
 Pleading, nee.
 
 INDEX TO employers' LIABILITY ACT. 967 
 
 [References are to pages.] 
 
 "Any Person" — 
 
 How words in statute construed, 80, note 9. 
 
 Appeal and Writ of Error — 
 
 Amount in controversy, 320, 325. 
 From Federal court, 320. 
 
 state court, 320. 
 Penalty imposed for frivolous appeals, 325. 
 Remittitur of damages, 325. 
 Right to recover not raised below, 39, note. 
 What questions can be raised on appeal, 324. 
 
 Assumption of Risk — 
 
 Abolished in part, 202. 
 
 Brakeman jarred from train, 203. 
 
 Cinder pit, falling into, 204. 
 
 Contributory negligence is not, 199. 
 
 Defective appliances, 210. 
 
 Defense of, how presented, 204, note 18. 
 
 Distinction between and contributory negligence, 199. 
 
 Engine tube bursting, 205. 
 
 Engine repairer failing into pit, 203. 
 
 Fellow servants' negligence does not assume, 208, note 27. 
 
 Grindstone bursting, 208, note 27. 
 
 Horton case, 205. 
 
 Inspector caught between parallel trains, 204. 
 
 Master's negligence not assumed, 207, note 20. 
 
 No recovery when injury arises out of, 173. 
 
 None when statute violated, 198. 
 
 Pile of cinders on track, 204. 
 
 Question as to assumption, 211. 
 
 Repairs, promise to make, 200. 
 
 Safety appliance acts violated, 207, 471. 
 
 statutes, 198. 
 
 statutes referred to, 200. 
 Section hand removing rails, 204. 
 Statutes referred to in Act, 198, 200. 
 Switchman shunting cars, 204. 
 Train detective injured, 204, 210. 
 Unknown rislv, 199. 
 Austria — 
 
 Rule as to fellow servant, 5. 560. 
 
 B. 
 
 Bastard- 
 Damages for can not be recovered, 227. .
 
 968 INDEX TO employers' liability act. 
 
 [References are to pages.] 
 
 Belgium — 
 
 Rule as to fellow servant, 5, 560. 
 
 Beneficiaries — 
 
 Adopted child, 228. 
 
 Alien, damages may be recovered for, 235. 
 
 Amendment of pleading to show, 308. 
 
 Apportionment of damages among, 258, 259. 
 
 Bastard, 227. 
 
 Brother, 224. 
 
 Can not maintain action, 214. 
 
 Complaint to recover damages for, 301. 
 
 Constitutionality of statute allowing a recovery for, 218. 
 
 Damages, see. 
 
 Death of abates action, 234. 
 
 Dependency on employee, 223. 
 
 Emancipated child, 228. 
 
 Existence of a jurisdictional fact, 229. 
 
 proving, 230. 
 Legal liability to support not necessary, 224. 
 New cause of action given to, 293. 
 Next of kin dependent on employee, 223. 
 
 determined by state statute, 225. 
 None in existence, 222. 
 Order in which entitled to benefits, 221. 
 Posthumous child. 228. 
 Release of damages, giving, effect, 273. 
 Right to damages based on deceased's right, 218. 
 Sister, 224. 
 
 Substituting administrator for, 215, 309. 
 Surviving deceased, must, 228. 
 
 complaint must show, 228. 
 Who are, 221. 
 
 dependent on deceased, 226. 
 Widow separated from her husband, 223. 
 
 Boiler Maker- 
 Helper of, falling into pit, 97. 
 
 Brakeman — 
 
 Looking about yard for tool bag, 100. 
 
 On passenger trains, 96. 
 
 When within proxiwions of statute, 96. 
 
 Branch Railroad— 
 
 Statute ap])iical;lc to, 47.
 
 INDEX TO EMrLOYERS' LIABILITY ACT. 969 
 
 [References are to pages.] 
 
 Bridge- 
 New bridge building, 99. 
 Repairing, 70, 72, 73, 82. 
 Working on, 98. 
 
 on interstate bridge, 50. 
 
 Burden- 
 Contributory negligence, to show, 180. 
 
 Illinois rule as to, 140. 
 On plaintiff to show he was engaged in interstate commerce, 83, IGl, 315. 
 
 
 
 c. 
 
 Cab— 
 
 An instrument of interstate commerce, 56, note 12. 
 
 Caboose — 
 
 Section hand injured when asleep in, 95. 
 Trainman injured when asleep in, 85. 
 
 Canal Zone — 
 
 Power of Congress in, 43. 
 
 Caretaker — 
 
 Injured on dead engine, 103. 
 
 Carpenter — 
 
 Bridge, see. 
 
 Working on roundhouse, 100. 
 
 Carrier — 
 
 Interstate commerce, engaging in, 43, 83. 
 
 Interurban roads, 53. 
 
 Liability enlarged, 5, note 1. 
 
 Railroad must be to be liable, 44. 
 
 Street railway company, 53. 
 
 To whom liable, 61. 
 
 While "engaging in" interstate commerce, 43, 83. 
 
 Cars- 
 Distributing, 105. 
 Empty, in interstate trains, 51, 59. 
 Inspecting, 103. 
 Repairing, 76, 105. 
 
 in shop, 101. 
 
 on switch, 80, 93, 97. 
 
 Children — 
 
 Beneficiaries, see.
 
 970 INDEX TO employers' liability act. 
 
 [References are to pages.] 
 
 Chisel- 
 Defective, causing injury, 211, note 38. 
 
 Cinder Pit- 
 Falling into, 204. 
 
 Cleri<s— 
 
 Not within provisions of statute, 94 
 
 Coal- 
 Dumping, 96, 97. 
 Mining, 107. 
 
 Unloading on vessel, 93, note. 
 Wheeling into shop, 96. 
 
 Code Napoleon — 
 
 Rule as to fellow servant under 5, 560. 
 
 Common Carrier — 
 
 Railroad must be to be held liable, 44. 
 
 Common Law — 
 
 Death, no action for lies at common law, 222. 
 
 Interstate commerce employee can not sue at common law, 35, 36, note. 
 
 Rules modified by statute, 1. 
 
 Comparative Negligence — 
 
 Assumption of risk under, 173. 
 
 Comparison between plaintiff's aad defendant's negligence, 159, 162. 
 
 Contributory negligence, sec. 
 
 Damages, see. 
 
 Differs from rule adopted liy Federal statute, 135. 
 
 Florida statute, 148, note. 
 
 Georgia, see. 
 
 Georgia statute, 134. 
 
 charge to jury under, 141. 
 
 statute construed, 136, 138. 
 Illinois, see. 
 
 Instructions must require comparisons, 165. 
 Jury mu.st compare negligence of parties, 165. 
 Kentucky, rule as to not in force, 148, note. 
 Origin of rule, 133. 
 
 Preponderance of negligence against defendants not sufficient, 164. 
 Slight negligence of plaintiff, effect, 16-1. 
 Tennessee, rule as to not in force, 147, note 43.
 
 INDEX TO employers' LIABILITY ACT. 971 
 
 [References are to pages.] 
 
 Comparative Negligence — Continued 
 Verdict, can not be directed, 177. 
 Wilful injury, no place in, 164. 
 Wrong in principle, 562. 
 
 Complaint- 
 Aided by answer, 297, note 34. 
 Pleading, see. 
 
 Congress — 
 
 Canal Zone, power in, 43. 
 
 Constitutionality, see. 
 
 District of Columbia, power in, 43. 
 
 Interstate commerce, power over, 27, 337. 
 
 Power limited to interstate commerce, 7, 27, 337. 
 
 to enact statute of 1908, 19. 
 
 to increase liability of master, 7, S. 
 
 to enact fellow servant rule, 7. 
 
 over railroad, 123, 337. 
 Territory, power in, 43. 
 
 Cooley, Judge — 
 
 Address on interstate commerce, 56, note 12. 
 
 Constitutionality — 
 
 Act of 1906 invalid, 24, 25. 
 
 Act of 1908 valid, 22. 
 
 Beneficiaries, statute concerning valid, 218. 
 
 Classifying instrumentalities, 18. 
 
 Congress, see. 
 
 Congress' power to enact statute of 1908, 19. 
 
 power over interstate commerce, 337. 
 
 power to increase liability of master, 7, S. 
 
 power over railroads, 123, 337. 
 Contract of release forbidding, 14, 22, note; 193, 300. 
 Contributory negligence, abrogating rule as to, 22, 7wte; 300. 
 Death, statute allowing a recovery for valid, 214. 
 Fellow servant, allowing a recovery for, 11, 13. 
 
 as to past contracts, 14. 
 Fifth section of statute, valid, 22, note; 300. 
 
 amendment, 17, 7iote 25. 
 Fourteenth amendment, 13, 15. 
 Interstate commerce legislation, 27. 
 Intrastate servant causing injury, 117. 
 Interrelation of intrastate and interstate emplo;/ees, 29. 
 Limiting statute to employees of railroad companies, 15.
 
 972 INDEX TO employers' liability act. 
 
 [References are to pages.] 
 
 Constitutionality — Continued. 
 Nebraska statute valid, 23. 
 Power of Congress, 7, 27. 
 Release of damages, forbidding, 265, 267. 
 State legislation, effect of Act of 1908 on, 29, 31, 34. 
 Statute, power of Congress to enact, 19. 
 Third section valid, 22, note. 
 Wisconsin statute valid, 23. 
 
 Construction — 
 
 How statute construed, 40, 42. 
 
 Liberally construed, 41. 
 
 Remedial, 42. 
 
 State courts must follow Federal courts' construction, 42. 
 
 "While," discussed, S3. 
 
 Contract — 
 
 Modification, 2. 
 
 Release from liability, forbidding, 14, 265, 267. 
 
 Validity of section forbidding, 22, 7wte; 265, 267. 
 
 Contributory Negligence — 
 
 Admiralty rule, 167. 
 
 commended, 171. 
 
 origin, 169. 
 Assumption of risk, see. 
 
 Assumption of risk, when statute enacted, 173. 
 Basis of action, 290. 
 Burden to show, ISO. 
 
 in Illinois, 140. 
 Common law rule, preventing recovery, 131. 
 Comparative negligence, see. 
 Comparative negligence introduced by statute, 133. 
 
 origin, 133. 
 Counterclaim as to damages not allowed, ISl, note 98. 
 Damages reduces, 253. 
 Defeats action, does not, 292. 
 Defense to action at common law, 130, 131. 
 
 defendant has burden to show, 180. 
 
 how presented, ISO. 
 Defined, 131. 
 Degrees of negligence, 132. 
 
 not adopted by statute, 177. 
 Georgia rules as to, 136, 141. 
 Cross and Kliglit distinguished, 157. 
 Illustrations, l(i6. 
 Instructions concerning, 179, 256. 
 Modification of rules as to, 2. 
 Negligence, see.
 
 INDEX TO employers' LIABILITY ACT. 973 
 
 [References are to pages.] 
 
 Contributory Negligence — Continued. 
 No defense, loO. 
 Pleading as a defense, 311. 
 Proximately contributing to injury, 131. 
 Recovery, does not prevent, 173. 
 Rule concerning, jury must consider, ISO. 
 Safety Appliance Acts violated, 180. 
 Statute concerning, 129. 
 
 modified rules concerning, 2. 
 
 violated, effect, 129. 
 Validity of statute as to, 22, noic. 
 Wisconsin statute, example and practice, 182, 197. 
 
 Costs — 
 
 Administrator not liable for, 234. 
 Poor person, 234, 549. 
 
 Counterclaim — 
 
 Not allowed, 181, note 98. 
 
 Coupling — 
 
 Employee making within Federal Liability Act, 97. 
 
 Courts- 
 Jurisdiction of Federal courts, 275, 287. 
 of state courts, 275, 276, 57G, 580. 
 Removal of cause to Federal courts. 287. 
 
 joinder of different causes of action, 288. 
 State courts follow Federal courts' construction of statute, 42. 
 Where action brought, 289. 
 
 Cut-Off— 
 
 Employee engaged in building not engaged in interstate commerce, 75 
 
 Damages — 
 
 Actual damages only recoverable, 237. 
 Administrator recovers, 213, 214. 
 Admiralty rule concerning, 167. 
 
 apportionment required, 167. 
 
 commended, 171. 
 
 origin. 169. 
 Adopted child, 228. 
 Alien beneficiary, 235. 
 Annuity tables to ascertain measure of, 250.
 
 974 INDEX TO employers' liability act. 
 
 [References are to pages.] 
 
 Damages — Continued. 
 Apportionment, 173. 
 
 among beneficiaries, 258. 
 
 difficulty to make, 172. 
 
 Georgia statute on, 143. 
 
 how made, 173. 
 
 no exact rule for, 175. 
 
 verdict should make, 258. 
 Bastard, damages for not recoverable, 227. 
 Beneficiaries, see. 
 Benefits accepted, 272. 
 Caution in considering past decisions, 236. 
 Contract releasing forbidden, 265. 
 
 beneficiary not bound by, 273. 
 
 constitutionalitj' of statute as to, 267. 
 
 release of damages by beneficiary, 273. 
 Contributory negligence reducing, 253. 
 
 apportionment, 173. 
 
 when does not diminish, 182. 
 Creditors not entitled to, 250. 
 Costs, recovery, 234. 
 
 Declarations of deceased as affecting, 248. 
 Dependency of beneficiary, 247. 
 Distribution, 259. 
 
 Earnings of deceased, can not exceed, 246, note 86. 
 Emancipated child, 228. 
 Estate of deceased, does not belong to, 250. 
 Fatal injury before 1910, 237. 
 Federal statute controls measure of, 236. 
 Illustrations of amounts, 251. 
 Instantaneous death, 217, 219, 259, 261, twfc 30. 
 Instructions concerning, 243, note 19. 
 
 when contributory negligence invobed, 256. 
 Insurance does not reduce, 273. 
 Interest can not be recovered, 250. 
 Judgment on state statute as res judicata, 215. 
 Measure when employee sues, 237, 7iotc 5. 
 
 differs according to relation of beneficiary, 242. 
 
 for beneficiary, 242. 
 Minor child's, 244. 
 Next of kin dependent on employee, 223. 
 
 how determined, 225. 
 No limit fixed by statute, 237, note 5. 
 Order of distribution, 221. 
 Pain and .suffering wl'.cie death occurs. 237.
 
 INDEX TO employers' LIABILITY ACT. 975 
 
 [References are to pages.] 
 
 Damages — Continued. 
 
 Pecuniary damages only given beneficiary, 239. 
 
 defined, 240. 
 Posthumous child, 228. 
 Prospective gifts by deceased, 242, not'' 17. 
 Punitive can not be recovered, 237. 
 Question for jury as to amount, 319. 
 Remittitur on appeal, 325. 
 Set-off against not allowed, 181 note 98. 
 Sister, damages for, 224. 
 Solatium, by way of, 243. 
 Survival of action for, 259, 262. 
 Verdict apportions, 258. 
 Who entitled to, 221. 
 Wisconsin rule, 182. 
 
 Death- 
 Accrual of action, 232. 
 Beneficiary dying, 234. 
 Instantaneous, 217, 219. 
 
 damages recoverable, 259, 261, note 30. 
 
 Defenses — 
 
 Local practice followed, 310, 311. 
 
 District of Columbia — 
 
 Act of 1906, valid in, 40. 
 
 Powers of Congress over carriers within, 23, 7wte 28. 
 
 Statute applies to, 62. 
 
 E. 
 Election — 
 
 Requiring plaintiff to elect, 305. 
 
 Employee — 
 
 Any employee, 62. 
 
 "Any person," how words in statute construed, 80, note 9. 
 
 Block system, installing, 98. 
 
 Boilermaker's helper, 97, 100 note 49. 
 
 Brakeman, 96. 
 
 looking about yard for tool bag, 100. 
 
 on passenger train, 96. 
 Bridge, new, building, 99. 
 
 repairing, 72, 73, 82. 
 
 working on, 98. 
 Caboose, sleeping in when injured, 85.
 
 976 INDEX TO employers' liability act. 
 
 [References are to pages.] 
 
 Employee — Continued. 
 
 Caretaker of dead engine, 97, 103. 
 Carpenter on roundhouse, 100. 
 Cars, distributing, 105. 
 
 coupling, 98. 
 
 inspecting, 102. 
 
 repairing, 76, 105. 
 
 in shop, 101. 
 
 on switch, 93. 
 Clerks, 94. 
 Coal dumping, 95, 96, 98. 
 
 chute building, 107. 
 
 mining, 107. 
 
 unloading onto ship, 93, note. 
 
 wheehng into shop, 96. 
 Coaling interstate engine, 96. 
 Coupling cars, 98. 
 Cut-off, building, 75. 
 
 Employed in both intrastate and interstate commerce, 91. 
 Employees covered by statute, 93. 
 Engine, cleaning in roundhouse, 98, 105. 
 
 boiler repairing, 105. 
 
 cooling, 96. 
 
 inspecting, 97. 
 
 oiling, 94. 
 
 operating on trial trip, 94. 
 
 repairing in roundhouse, 100. 
 
 steaming up, 107. 
 
 wiper, 98, 105. 
 Engineer, 106. 
 
 falling into roundhouse pit, 107. 
 
 inspecting engine, 97. 
 Everybody included, Congress could include, 93. 
 Express agent, 104. 
 Ferry boat, operating, 93, note. 
 Fireman shifting cars, 95. 
 Freight handlers, 93. 
 Gardener at depot grounds, 100. 
 Gatekeeper, 91, note 23. 
 Girder in machine shop, putting in, 106. 
 Going to and from work, 88, 101, 102, 125. 
 Hostler of engine, 107. 
 
 Ice, getting to cool water for passenger coach, 96, 127, note 2. 
 Incidental alisence from scene of work, 72. 
 Injured in line of duty, must be, 290, note 1. 
 Inspecting train, 108. 
 Intent to engage in work, 71.
 
 INDEX TO employers' LIABILITY ACT. 977 
 
 [References are to pages.] 
 Employee — Continued. 
 
 Interstate commerce, must be engaged in, 64. 
 
 Intrastate employee injuring interstate employee, 111, 117. 
 
 train hauling, 125. 
 
 train striking employee, 84, note 16. 
 Lineman, 93, 98. 
 
 Loading engine with coal, 95, 96, 99. 
 Machinist, 70. 
 
 Mail for work gang, going after, 103, 107. 
 Meaning of word "employee," 62, jiote 1. 
 Mechanic making repairs, 93, 107. 
 
 running machine, 107. 
 Millwright, 70. 
 
 Must be servant of carrier, 60, 61. 
 Oiling engine, 94. 
 
 On way to work, 88, 101, 102, 125. 
 Original construction of railroad, 74. 
 Plaintiff, see. 
 Porter on car, 96. 
 
 Pullman car employee, 104, 127, note 2. 
 Pumping water, 96, 101. 
 Rails, loading on car, 82. 
 
 unloading, 83, note 15. 
 Repairing car, 75, 105. 
 
 car on switch, 80. 
 
 instrumentalities of interstate commerce, 70, 72. 
 Riding on empty car, 97. 
 
 Right of action only lies under Federal act, 31, 34, 36, 39, note. 
 Round house repairing, 100. 
 Seal clerk, listing cars, 94, 106. 127, note 2. 
 Section hand sleeping in car, 95. 
 
 repairing track, 93, 100. 
 Servant of defendant, injured person must be, 62, 64, 86. 
 Ship, operating, 93, note. 
 Signal wires, laying, 93. 
 Snow, sweeping out of switches, 94. 
 Splinter injuring eye, 100, 107. 
 Station agents, 94. 
 
 Steam shovel, operating, 74, 78, note 4. 
 Stencils, cleaning, 70. 
 Street car conductor, 106. 
 Surgeon's malpractice, 104, 105. 
 Switch repairing, 73, 78, note 4; 94, 100. 
 Switching cars, 58, 92, 95, 98, 108. 
 
 with intent to immediately move interstate train, 108. 
 Switchman, 106. 
 Telegraph lines, repairing, 98. 
 
 operator, 93.
 
 978 INDEX TO employers' liability act. 
 
 [References are to pages.] 
 
 Employee — Continued. 
 
 Terminals, working on, 93. 
 Test of right to recover, 69, 76. 
 Ticket seller, 91, note 23; 94. 
 Tracks, laying additional, on bridge, 82. 
 
 relaying, 82, note 14. 
 
 repairing, 70, 73, 76, 78, note 4; 79, 93. 
 Trainman, 70. 
 Train, making up, 97. 
 Trestle, working on, 98. 
 Turmel, building, 105. 
 Unloading car, 96. 
 United States, of, 549. 
 Water hauling, 106. 
 Weigher of interstate cars, 96. 
 
 What employees may sue under Federal statute, 62. 
 When he enters on work, 85, 88. 
 When not engaged in interstate commerce, 105. 
 While engaged in interstate commerce, 62, 83. 
 Work must be part of interstate commerce, 71. 
 Yard clerk, listing cars, 94, 106, 127, note 2. 
 
 Employment — 
 
 ^Meaning of word, 62, note 1. 
 
 Empty Cars — 
 
 Interstate train of empty cars, 51, 59. 
 
 Engine — 
 
 Boiler, repairing, 105. 
 
 Caretaker, 97, 103. 
 
 Cleaning in roundhouse, 105. 
 
 Cooling, 96. 
 
 Hostler, 107. 
 
 Inspecting, 97. 
 
 Loading with coal, 91, note 23. 
 
 Oiling, 94. 
 
 Operating on trial trip, 94. 
 
 Repairing in roundhouse, 100. 
 
 Steaming up, 107. 
 
 Engineer — 
 
 Falling into roundhouse pit, 107. 
 
 Inspecting engine, 97. 
 
 Interstate engineer, hauling intrastate train, 125. 
 
 England — 
 
 Hulo as to fellow servant, 5. 
 Workmen's compensation act, 5.
 
 INDEX TO EJIPLOYERS' LIABILITY ACT. 979 
 
 [References are to pages.] 
 
 Evidence — 
 
 Amendment of pleading, to meet, 306, 308. 
 
 Annuity tables may be used, 250. 
 
 Burden, 315. 
 
 Declarations of deceased, 235, 248. 
 
 Federal case, showing, 315. 
 
 Member of church, showing deceased was, 243, note 19. 
 
 Variance, 313. 
 
 Witness, competency, 317. 
 
 Exclusiveness of Statute — 
 
 Statute excludes all other statutes, 34, 93. 
 
 F. 
 
 Fellow Servant — 
 
 Adoption of rule as to, 8. 
 Assumption of risk as to his negligence, 205. 
 Austria, rule in concerning, 5, 5G0. 
 Basis of rule allowing no recovery, 8. 
 Belgium, 5, 560. 
 English rule, 5. 
 
 European countries, rule in, 4, 6. 
 Exclusive remedy given to, 34. 
 
 Fourteenth Amendment, effect on legislation concerning, 15, 17, tiote 25. 
 France, rule in concerning, 5, 6, 500. 
 Germany, rule as to, 5, 559. 
 Harris, Addison C, address on, 11, iioti 17. 
 History of, 558. 
 Holland's rule, 5, 560. 
 
 Intrastate servant, causing injury, 111, 117. 
 Italy, rule concerning, 5, 560. 
 Nebraska statute construed, 116. 
 Railroad liable for his neglect. 111. 
 Swiss rule, 5, 560. 
 
 Validity of statute allowing a recovery for his negligence, 11, 13. 
 as to past contracts, 14. 
 
 Ferry Boat — 
 
 Employees on protected by statute, 93, noie. 
 
 Fifth Amendment — 
 
 Unequal protection to citizens forbids, 17, note 25. 
 
 Fireman — 
 
 Shifting cars, 95. 
 
 Flagman — 
 
 Not covered by statute, 108.
 
 980 INDEX TO employers' liability act. 
 
 [References are to pages.] 
 
 Florida — 
 
 Comparative negligence, statute on, 148, tiote. 
 
 Foot Board — 
 
 Defective, 210. 
 
 Foreign Countries — 
 
 Law of negligence differs from ours, 2. 
 
 Fourteenth Amendment — 
 
 Effect on statute, 13, 15, 17 note 25. 
 
 France — 
 
 Law as to fellow servant, 5, 6, 560. 
 
 Freight Handlers — 
 
 Within terms of statute, 93. 
 
 Gardner — 
 
 Keeping depot grounds, lOG. 
 
 Gateman — 
 
 Not within terms of statute, 91, noic 23. 
 
 Germany — 
 
 Rule as to fellow servant, 5, 559. 
 
 Georgia- 
 Apportionment of damages, 143. 
 Comparative negligence, statute, 134. 
 
 charge to jury under, 141. 
 
 contributory negligence of servant before defendant's begun, 138. 
 
 differs from Federal statute, 135. 
 
 epitome of cases, 144. 
 
 railway employee recovering, 142. 
 
 statutes construed, 134, 136, 138, 144. 
 
 widow of employee recovering, 142. 
 
 H. 
 Harris, Addison C— 
 
 Address on fellow servant, 11, ^lote 17. 
 
 Hawaiian Islands- 
 Statute applies to, 43. 
 
 Holland- 
 Rule concerning fellow scrvjint's nep.liRonce, 5, .560.
 
 INDEX TO employers' LIAEILITY ACT. 981 
 
 [References are to pages.] 
 
 Hostler of Engine — 
 
 When not within statute, 107. 
 
 Hours of Labor — 
 
 Safety Appliance Index, see. 
 
 I. 
 
 Illinois — 
 
 Comparative negligence, origin in, 133, 148, 150. 
 
 Defendant's negligence clearly exceeding plaintiil's, 150. 
 
 Extension of rule of comparative negligence, 151. 
 
 Freedom from fault, 161. 
 
 Gross and slight negligence distinguished, 157. 
 
 Ordinary care wanting, 151, 153, 155. 
 
 Rule as to comparative negligence, 148, 151. 
 
 Slight negligence on plaintiff's account, 151, 155. 
 
 Injury — 
 
 Relalnonship between employment and accident, 109. 
 
 Instructions — 
 
 Damages, concerning, 243, note 19. 
 
 where contributory negligence involved, 25G. 
 Generally, 317. 
 
 Insurance — 
 
 Damages does not deduct, 273. 
 
 Intention — 
 
 To engage in interstate commerce, 71. 
 
 Interest — 
 
 Can not be recovered on damages, 250. 
 
 Interurban Railroad- 
 Statute applies to, 53. 
 
 Interstate Commerce — 
 
 "Any person," how construed, 80, note 9. 
 Block system, installing, 98. 
 Boilermaker's helper, 97, 100, note 49. 
 Brakeman, 96. 
 
 looking about car yard for tool bag, 100. 
 
 on passenger train, 96. 
 Bridge, new, building, 99. 
 
 repairing old, 72, 73, 82, 98. 
 Cab, owned by railroad, 56, note 12. 
 Caretaker of dead engine, 97, 103. 
 Carpenter working on roundhouse, 100. 
 Carriers in, affected by, 43. 
 Cars carrying interstate traffic need not cross state line, 58. 
 
 coupling, 96.
 
 982 INDEX TO employers' liability act. 
 
 [References are to pages.] 
 
 Interstate Commerce — Continued. 
 
 distributing, 105. 
 
 inspecting, 103. 
 
 repairing, 76, 105. 
 
 repairing in shop, 101. 
 
 repairing on switch, 93. 
 Clerks, 94. 
 Coal, dumping, 95, 96, 99. 
 
 mining, 107. 
 
 shipped from another state, 56, note 12. 
 
 unloading onto ship, 96. 
 
 wheehng into shop, 96. 
 Coaling interstate engine, 96. 
 Congress, power over, 27, 337. 
 Cooley's (Judge's) address upon, 56, note 12. 
 Colorado case, 45. 
 Constitutionality, see. 
 Construction of railroad, 74. 
 Coupling cars, 98. 
 
 Employee must be engaged in, 62, 64. 
 Engine, cleaning in roundhouse, 98, 105. 
 
 boiler repairing, 105. 
 
 oihng, 94. 
 
 operating, 94. 
 
 repairing in roundhouse, 100. 
 
 steaming up, 107. 
 Engineer, 106. 
 
 falling into roundhouse pit, 107. 
 
 inspecting engine, 97. 
 Every servant engaged in, 78. 
 Express agent, 102. 
 Ferry operating, 93, note. 
 Fireman shifting cars, 95. 
 Flagman, 108. 
 Freight handler, 93. 
 Gardner, keeping depot grounds, 106. 
 Gatekeeper, 91, note 23. 
 Girder in machine shop, removing, 106. 
 Going to and from work, 88, 101, 102, 125. 
 Hostler of engine, 107. 
 
 Ice, getting for water cooler on car, 96, 127, note 2. 
 Illustrations of interstate commerce, 57. 
 Impeding progress of interstate commerce, 70, 75, 70. 
 Incidental absence from scene of work, 72. 
 Inspecting interstate train, 108. 
 
 Interrelation of intrastate and interstate employees, 29. 
 Int'-rruption of course of interstate commerce, 70.
 
 INDEX TO employers' LIABILITY ACT. 983 
 
 [References are to pages.] 
 
 Interstate Commerce — Continued. 
 
 Intrastate employees, Congress can not legislate concerning, 25. 
 
 train hauling, 125. 
 Lessor and lessee, 60. 
 Linemen, 93, 98. 
 Loading car with interstate traflSc, 56, note 12. 
 
 with railroad rails, 82. 
 
 unloading, 83, 7iote 15. 
 Mail for work gang, going after, 103, 107. 
 Mechanic, making repairs, 107. 
 
 running machine, 107. 
 Oiling engine, 94. 
 On way to work, 88, 101. 
 Porter on car, 96. 
 
 getting ice to put in water cooler, 96, 127 note 2. 
 Power of Congress over, 7, 27, 337. 
 Railroad construction not interstate commerce, 74. 
 
 cut-off building, 75. 
 
 must be engaged in interstate commerce, 54. 
 Repairing car, 75, 102. 
 
 car on switch, 80. 
 
 instrumentalities of commerce, 70, 72. 
 Relation between employment and accident, 109. 
 Riding on empty car, 97. 
 Safety Appliance Act, 44. 
 Seal clerk, listing cars, 94, 106, 127, note 2. 
 Section hand, sleeping in car, 95. 
 Signal wires, laying, 93. 
 Snow, sweeping out of switches, 94. 
 Splinter injuring eye, 100, 107. 
 Station agent, 94. 
 Steam shovel, repairing, 78, note 4. 
 
 operating, 74. 
 Stencils, cleaning, 70. 
 Street car conductor, 106. 
 Surgeon's malpractice, 104, 105. 
 Switching cars, 58, 95, 98, 108. 
 Switch repairing, 78, note 4; 72, 73, 74. 
 
 Switching, with intention to immediately move interstate cars, 108. 
 Switchmen, 106. 
 Telegraph lines, repairing, 98. 
 
 operator, 93. 
 Terminal, working on, 93.
 
 984 INDEX TO employers' liability act. 
 
 [References are to pages.] 
 
 Interstate Commerce — Continued. 
 Ticket seller, 91, note 23, 94. 
 Track repairing, 70, 73, 76, 78, note 4; 79, 93. 
 
 additional laying on bridge, 82. 
 
 relaying, 82, note 14. 
 Train, making up, 97. 
 Trestle, working on, 80. 
 Tunnel building, 105. 
 
 Two companies operating over same road, 59. 
 Unloading car, 96. 
 Water hauling, 106. 
 
 What is engaging in interstate commerce, 54, 346, 347. 
 When not engaged in interstate commerce, 105. 
 While engaged in interstate commerce, 62, 83. 
 Wiper of interstate cars, 78. 
 Work of injured employee must be a part of interstate commerce, 71. 
 
 Intrastate Employee — 
 
 Injuring interstate employee. 111, 117. 
 
 Italy- 
 Rule as to fellow servant, 5, 560. 
 
 interurban Railway — 
 
 Statute applies to, 53. 
 
 J. 
 
 Joinder — 
 
 Different causes of action, 304. 
 
 Judgment — 
 
 In favor of deceased bars administrator's cause of action, 233. 
 
 Judicial Notice — 
 
 Taken of United States Statute, 489. 
 
 Jurisdiction- 
 State courts have, 275, 276, 576, 580. 
 What Federal courts have, 287. 
 
 Jury— 
 
 Compares negligence of plaintiff with defendant's, 165. 
 Damages, assess, 319. 
 Questions for, 319. 
 Verdict, see. 
 
 K. 
 
 Kentucky— 
 
 Coinpurative negligence not in force in, 1 18, nnt<\
 
 INDEX TO employers' LIABILITY ACT. 985 
 
 [References are to pages.] 
 
 L. 
 
 Lessor and Lessee — 
 
 Liable under statute, GO. 
 
 Liability of Carrier — 
 
 Enlarged, 5, 7iote 1. 
 
 How question of under statute raised, 40, note. 
 
 Test, 110. 
 
 Lineman — 
 
 Statute applies to, 93, 98. 
 
 Logging Railroad — 
 
 Statute does not apply to, 47. 
 
 M. 
 
 Machinery Installing — 
 
 Statute does not apply to, 70. 
 
 Mail- 
 Going after for work gang, 103, 107. 
 
 Malpractice of Railroad Surgeon — 
 
 When railroad liable for, 104, 105. 
 
 Mechanic — 
 
 Repairs, making, 93. 
 Running machine, 107. 
 
 Mexico — 
 
 Rule as to fellow servant, 6. 
 
 N. 
 
 Nebraska — 
 
 State statute valid, 23, 116. 
 
 Negligence — 
 
 Admiralty, apportionment of damages, 167. 
 Basis of action, 290. 
 
 Common law applicable, 291. * 
 
 Comparative, 133. 
 
 Georgia statute as to, 134, 136. 
 
 in Illinois, 148. 
 
 origin of rule of, 133, 148, 150. 
 Contributory negligence, see. 
 
 Court telling jury a particular act is negligence. 179. 
 Degrees, 132, 177.
 
 986 . INDEX TO employers' liability act. 
 
 [References are to pages.] 
 
 Negligence — Continued. 
 Fellow servant's, 208. 
 Gross and ordinary, 132, 177. 
 Highway signals, failure to give, 201. 
 Injured in line of duty, must be, 290, note 1. 
 Intrastate employee causing injury. 111, 117. 
 Joinder of different causes of action, 220, 304. 
 Liability for, when railroad company is. 111. 
 New cause of action not given, 293. 
 Ordinary care wanting, 151. 
 
 defeats a recovery, 153. 
 
 slight, 155, 177. 
 Ordinary and gross, 177. 
 Question for jury, 319. 
 
 Relation between employment and accident, 94, 109. 
 Relative term, 150. 
 Safe appliances, 291. 
 
 place to work, 291. 
 Slight, 155, 177. 
 State law violated, 201. 
 Two branches of statute, 290. 
 Who liable for. 111. 
 Wilful injury, 292. 
 
 joinder, 292, 7iote 11. 
 
 Next of Kin- 
 Beneficiaries, see. 
 Determined by state statute, 225. 
 
 Nonsuit — 
 
 Discretion of court, 21G, note 19. 
 Sustaining motion for, 314. 
 
 Notice — 
 
 Of injury need not be given, 314. 
 
 0. 
 
 Object- 
 Purpose of statute. 1, 5, rjote 1; 113. 
 To enlarge liability of carriers, 5, note 1. 
 
 Oiling Engine — 
 
 When is interstate commerce, 94. 
 
 Oklahoma — 
 
 State constitution did not adopt act of 1906, 39, 7iote. 
 
 Ontario — 
 
 Rule as to fellow servant, 6.
 
 INDEX TO employers' LIABILITY ACT. 987 
 
 [References are to pages.] 
 
 P. 
 
 Panama Zone — 
 
 Statute in force in, 43, 62. 
 
 Petition- 
 Pleading, see. 
 
 Pit- 
 Falling into, 211, note 38. 
 
 Pleading- 
 Allegations that plaintiff and defendant v,-ere engaged in interstate com- 
 merce, 297. 
 Amendments, 216, 294, 296, 302, note 49, 303. 
 
 to meet evidence, 306. 
 Answer aiding complaint, 297, note 34. 
 Beneficiaries, allegations concerning, 301. 
 Complaint, by what law tested, 310, 311. 
 
 by employee, 294. 
 Contributory negligence, pleading as a defense, 311. 
 Defense, pleading, 310, 311. 
 
 local practice controls, 310, 311. 
 Election, requiring, 305. 
 Foot board, 210. 
 Joinder of causes of action, 304. 
 Local practice controls, 293. 
 New action given beneficiary, 293. 
 Negligence, basis of action, 290. 
 Petition, by what law tested, 310, 311. 
 
 by employee, 294. 
 Statute of limitations, pleading, 312. 
 Substituting administrator, 215. 
 
 local practice controls, 216. 
 Surviving deceased beneficiary, must be alleged, 228. 
 
 proving, 230. 
 Variance, 313. 
 Venue, alleging, 312. 
 Wilful injury, joining 292, note 11. 
 
 Poor Person — 
 
 Suit may bring without liability for costs, 234. 
 
 Porter — 
 
 On interstate car, 96. 
 
 Porto Rico — 
 
 Statute in force in, 43.
 
 988 INDEX TO employers' liability act. 
 
 [References are to pages.] 
 
 Practice- 
 Amendments, 216, 294, 296, 302, note 49; 303. 
 
 to meet evidence, 306. 
 Defense, local practice followed, 310, 311. 
 Election, requiring, 305. 
 Instructions generally, 317. 
 Joinder of causes of action, 304. 
 Local practice followed, 216, 293. 
 Konsuit, 314. 
 
 Notice of injury need not be given, 314. 
 Question for jury, 319. 
 Statute of limitations, pleading, 312. 
 Substituting administrator for beneficiary, 215, 309. 
 
 local practice controls, 216. 
 Surviving deceased, must be shown beneficiary did, 228. 
 
 proving, 230. 
 Variance, 313. 
 Verdict apportioning damages, 258. 
 
 directing, 314. 
 
 Proximate Cause of Injury— 
 
 P.elation between employment and injury, 94, 109. 
 
 Pullman Employee — 
 
 Not within terms of statute, 104; 127, note 2. 
 Release of damage, 273, note 9. 
 
 Pumping Water- 
 Employee within statute, 96, 101. 
 
 Purpose of Statute — 
 
 To enlarge liability of employer, 1, 5, note 1; 113. 
 
 Q. 
 
 Quebec- 
 Rule as to fellow servant's negligence, 6. 
 
 R. 
 
 Railroad- 
 Branch road, 49. 
 Carrier, nee. 
 
 Common carrier must be, 49. 
 
 Construction of road is not interstate commerce, 74. 
 Cut-off not devoted to interstate commerce, 50. 
 Empty cars in interstate train, 51. 
 Interstate carrier, affected, 43. 
 Intcrurban, 53.
 
 INDEX TO employers' LIABILITY ACT. 989 
 
 [References are to pages.] 
 
 Railroad — Continued. 
 Lessor and lessee, 60. 
 Logging railroad, 47. 
 
 Private railroad not affected by statute, 47, 49. 
 Servants of defendant road must cause injury, IIL 
 Street railway, 53. 
 Terminal tracks, 93. 
 
 Two companies operating over same road, 59. 
 While engaging in interstate commerce, 83. 
 
 Rails- 
 Loading on car, 82. 
 Relaying, 82, note 14. 
 Unloading, 82. 
 
 Receiver — 
 
 Action against, 548, 
 
 Release of Damages — 
 
 Beneficiary releasing, 273. 
 Constitutionality of statute, 267. 
 Contracts of release forbidden, 265, 273. 
 Damages, see. 
 Indemnity, meaning, 273. 
 Pullman car porter, 273, 7iote 9. 
 Receipt of relief money, 272. 
 Statute forbidding, 265. 
 
 Remedial — 
 
 Statute so construed, 42. 
 
 Remittitur — 
 
 Of damages on appeal, 325. 
 
 Removal of Case to Federal Court — 
 
 Joinder of different causes of action, 288. 
 Prohibited, 287. 
 
 Repairs — 
 
 Bridge, 82. 
 Cars, 105. 
 
 in shop, 101. 
 
 on side track, 97. 
 
 on tracks, 93. 
 
 on switch, 80. 
 Instrunxentalities of interstate commerce, 70, 72, 100. 
 Roundhouse, 100.
 
 990 INDEX TO employers' liability act. 
 
 [References are to pages.] 
 
 Repairs — Continued. 
 Switch, 100. 
 Telegraph lines, 98. 
 Tracks, 93. 
 
 Reports — 
 
 Congress, on Employer's Liability Act, 557. 
 accident reports, 555. 
 
 Risk- 
 Assumption of Risk, see. 
 
 Roundhouse- 
 Repairing, 100. 
 
 Res Judicata — 
 
 Judgment under state statute, 215. 
 
 S. 
 
 Safety Appliance Act — 
 
 Act of 1908 in pari materia, 42. 
 Assumption of risk, none, 198. 
 
 Seal Clerk- 
 Listing seals on interstate cars, 94, 106, 127, Jiote 2. 
 When not engaged in interstate commerce, 106. 
 
 Servant- 
 Employee, see. 
 
 Signal Wires- 
 Laying, 93. 
 
 Sister — 
 
 Dependent on deceased, 224. 
 Married sister, 224. 
 
 Snow — 
 
 Sweeping out of switch, 94. 
 
 Splinter- 
 Injury to eye by, 100, 107. 
 
 State Line- 
 Need not cross to constitute interstate commerce, 58. 
 
 State Statutes- 
 Effect of Act of 1908 upon, 28, 29, 31, 34. 
 Georgia's, on negligence, 134. 
 
 construed, 136. 
 
 differs from Federal statutes, 135.
 
 INDEX TO employers' LIABILITY ACT. 991 
 
 [References are to pages.] 
 
 State Statutes — Continued. 
 
 Interstate commerce servant can not sue under, 31, 34, 35, 36, 39, note. 
 Interstate legislation not repealed by, 39, note. 
 Nullified by Act of 1908, 36. 
 Supended by Federal statute, 36. 
 Violation of, showing negligence, 201. 
 
 Station Agent — 
 
 When within statute, 94. 
 
 Statute (Federal)— 
 
 Act of 1906 invalid, 19, 24, 25. 
 Act of 1908, 545. 
 
 valid in part, 19. 
 Assumption of risk, what statutes create exceptions, 200. 
 Carriers, to what ones it applies, 43. 
 Construction, 40, 42. 
 
 District of Columbia, Act of 1906 valid as to, 40. 
 Effect of Act of 1908 on state legislation, 28, 29, 31, 34. 
 Employer's liability statute, 545, 549. 
 English Employer's Liability Act, 599. 
 Exclusive remedy given, 34. 93. 
 Fourteenth Amendment, effect on, 13, 15. 
 Interstate commerce carriers, applies to, 43. 
 Interurban railways, applies to, 53. 
 Object, 1, 5. 
 
 Oklahoma constitution did not adopt, 39, note. 
 Power of Congress to enact, 7, 19, 27. 
 Railroads, to what ones it applies, 43. 
 Relation between employment and injury, 94, 109. 
 Remedial, 42. 
 
 Result of decisions upon, 34. 
 Servant, to what class it applies, 62, 64, 86. 
 State courts follow Federal courts in construing, 42. 
 State legislature, effect upon, 28, 31, 34. 
 Street railway, applies to, 53. 
 Supersedes state legislature, 36. 
 Territories, effect of Act of 1906 in, 40. 
 United States employees, 549. 
 Validity as to part contracts, 14. 
 When it can be applied, 54. 
 "While," meaning in statute, 54. 
 
 Statute of Limitations — 
 
 Accrual of action in case of death, 232. 
 Action must be brought within two years, 230.
 
 992 INDEX TO employers' liability act. 
 
 [References are to pages.] 
 
 Statute of Limitations — Continued. 
 Amendment of pleading, 307. 
 Answer as to, 312. 
 Substituting administrator for plaintiff beneficiary, 215, 309. 
 
 Steam Shovel — 
 
 Operating, 74, 78, note 4. 
 
 Street Railway — 
 
 Statute applies to, 53, 106. 
 
 Survival of Action — 
 
 Amendment of 1910, effect, 219. 
 Damages recoverable, 259, 262. 
 
 Substitution — 
 
 Administrator for beneficiary, 215, 309. 
 
 Switch- 
 Repairing, 72, 78, note 4; 100. 
 Snow, cleaning from, 94. 
 
 Switching Cars — 
 
 Cars destined for another state, 95. 
 
 Intent to immediately move into interstate commerce, 108. 
 
 Interstate cars, 58, 92. 
 
 Switchman — 
 
 When not engaged in interstate commerce, 106. 
 
 Switzerland — 
 
 Rule as to fellow servant, 5. 
 
 Telegraph Lines — 
 
 Repairing, 98. 
 
 Telegraph Operator — 
 
 Within statute, 93. 
 
 Terminal Tracks — 
 
 Injuries to servant working on, 93. 
 
 Territories — 
 
 Act of 1906 valid in, 40. 
 Power of Congress in, 43. 
 Railroads governed by statute, 43. 
 Statute applies to, 62.
 
 INDEX TO employers' LIABILITY ACT. 993 
 
 [References are to pages.] 
 
 Test— 
 
 Of liability, 110. 
 
 Right of action under, 76. 
 
 Ticket Selle - 
 
 Application of statute to, 91, note 23, 94. 
 
 Track — 
 
 Additional, laying, 82. 
 
 Defective, 210. 
 
 Relaying, 82, note 14. 
 
 Repairing, 70, 73, 76, 78, note 4, 79, 93, 210. 
 
 Train — 
 
 Inspecting, 108. 
 INIaiiing up, 97. 
 
 Trainman — 
 
 Application of statute to, 68, 70. 
 
 Trestle — 
 
 Working on, 98. 
 
 Tunnel — 
 
 Building, 105. 
 
 V. 
 
 Variance — 
 
 Decisions concerning, 313. 
 
 Venue — 
 
 Where action to be brought, 289, 312. 
 
 Verdict- 
 Damages, apportions, 258. 
 Directing, 314. 
 Quotient, 294. 
 
 W. 
 
 Water- 
 Hauling, 106. 
 
 Weigher — 
 
 Of interstate cars, 96. 
 
 While Engaged in Interstate Commerce — 
 
 Meaning, 62. 
 
 Rule as to, discussed, 54.
 
 994 INDEX TO employers' liability act. 
 
 [References are to pages.] 
 
 Widow — 
 
 Action, can not maintain, 214, 309. 
 
 Beneficiaries, see. 
 
 Georgia, statute as to, 142. 
 
 Separated from husband when he died, 223. 
 
 Wilful Injury — 
 
 Joinder of action for with one for negligence, 292, note 11. 
 No cause of action for given, 292. 
 
 Wisconsin — 
 
 Constitutionality of fellow servant statute, 23. 
 Damages under statute, rule as to, 182. 
 Practice under state statute, 197. 
 
 Witness — 
 
 Competency, 317. 
 
 Work- 
 Going to and from, 88, 101, 102, 125. 
 
 Workmen's Compensation Statute — 
 
 English Act, 5. 
 
 No recovery under for interstate employee, 36, note 50. 
 
 Writ of Error — 
 
 Appeal and Writ of Error, see.
 
 ^'^ A '.
 
 m
 
 INDEX TO 
 SAFETY APPLIANCE ACT. 
 
 [References are to pages.] 
 Accidents- 
 Reports concerning, 555. 
 
 Action — 
 
 Civil action, recovering penalty, 435, 750, 754, 768, 787, 791, 796, 801, 
 
 805, 823, 827, 843. 
 Courts, see. 
 
 Distinction between recovering damages and penalty, 435. 
 Penalty, sec. 
 Penalty, action to recover is a civil action, 435, 750, 754, 768, 787, 791, 
 
 796, 801, 805, 823, 827, 813. 
 Removal to Federal court, 412, 488. 
 
 Air Brakes — 
 
 Engine and tender counted as two cars, 768. 
 Percentage to train required, 768. 
 Transfer trains, on, 462. 
 
 Air Hose- 
 Employee connecting, engaged in interstate commerce, 780. 
 Obviating necessity for grabirons, 416. 
 
 American Railway Association — 
 
 Resolution concerning drawbar, 332. 
 
 Asli Pans — 
 
 Statute concerning, 690. 
 
 Assumption of Risk — 
 
 Bumper on car, 867. 
 
 Coupling defective cars, 867. 
 
 Employee, when he does not assume risk, 471. 
 
 Grab ''rons, defective, 455, note. 
 
 Safety cock, in turning, 867. 
 
 Automatic Brakes — 
 
 Brakes, see. 
 
 995
 
 996 INDEX TO SAFETY APPLIANCE ACT. 
 
 [References are to pages.] 
 
 B. 
 
 Bad Order Card- 
 Placing on defective car no defense, 411, 791. 
 
 Belt Railway- 
 Cars used on must be equipped according to Federal statute, 367, 735, 
 821. 
 
 Boiler Inspection — 
 
 Statute concerning, 683, 689. 
 
 Brakemen — 
 
 Constitutionality of statute fixing number of to train, 459, note 26. 
 
 Brake Step — 
 
 Order of Interstate Commerce Commission as to, 616. 
 
 Brakes — 
 
 Automatic, no statute requiring, 459, note 26. 
 
 Car must have handbrake, 415. 
 
 Failure to equip train with, 458. 
 
 Handbrakes, see. 
 
 Negligence in not equipping train with, 471, note 6a. 
 
 Percentage of number to train, 458, 459. 
 
 Statute concerning, 606. 
 
 Steps for, 616. 
 
 Switching, cars must have, 889. 
 
 Trains too long to operate with air brake, 466. 
 
 Bumpers — 
 
 Assumption of risk by employee as to, 867. 
 
 Burden — 
 
 Car used in interstate commerce, 545. 
 
 Car, equipping, burden on defendant to show, 867. 
 
 Due care in equipping cars, defendant must show, 827. 
 
 Excuse for not equipping, defendant must show, 419, note 3, 497, 498, 453. 
 
 Government has to show car was not equipped as statute requires, 495, 
 
 728. 
 In what respect appliance out of repair, 868. 
 Plaintiff in action to recover damages for injury, 867. 
 Preponderance of evidence, 728. 
 
 Rests on government to .show defects, 740, 744, 752, 760. 
 Right to move car, 453, 497, 498.
 
 INDEX TO SAFETY APPLIANCE ACT. 997 
 
 [References are to pages.] 
 C. 
 
 Caboose Cars- 
 Equipment, 639 to 646. 
 
 Care- 
 Burden to show diligence in equipping car, 867. 
 Cars, see. 
 
 Defect not discoverable, 708, 711, 786. 
 Diligence in repairing no defense, 728, 760, 772. 
 Duty to equip cars is absolute, 420, 426, 727, 745, 758, 760, 786, 824, 
 
 827, 840, 867. 
 Inspection, degree to be used, 708, 711. 
 Ordinary care used, no defense, 722. 
 Reasonable care used, no defense, 787, 796. 
 
 Cars- 
 Air brakes, see. 
 
 Bad order card, placing on, no defense, 411, 791- 
 Belt railway, using defective car on, 367, 735, 821. 
 Both ends of cars must be equipped, 745, 750, 763, 768, 772, 823, 
 
 840. 
 Brakes, see. 
 
 Burden to show right to move, 453. 
 Care, see. 
 Couplers, see. 
 
 Defect in, undiscoverable, 805. 
 Defined, 395. 
 
 Diligence in discovering defects, 420, 426. 
 Distance car hauled immaterial, 350, 364. 
 Drawbars, see. 
 
 Duty to repair absolute, 745, 758, 760. 
 Electric cars subject to statute, 398. 
 
 Employee putting out of order is act of railway company, 760, 772. 
 Empty cars must be equipped, 284, note e, 398, 399, 729, 847. 
 
 in interstate train, 250, 292. 
 Equipping according to statute, must be, 422, 806. 
 Foreign car, defendant hauling over its line, 840. 
 
 not bound to receive when defective, 411, 772. 
 Four-wheeled car, 400. 
 Handbrakes, must have, 415. 
 Handbrakes, see. 
 Handholes, see.
 
 998 INDEX TO SAFETY APPLIANCE ACT. 
 
 [References are to pages.] 
 
 Cars — Continued. 
 
 Hauling in interstate train, 371, 398, 722, 896, 901. 
 
 not essential to commission of offense, 370. 
 
 over another line of railway, 375, 380, note 45. 
 Height of drawbars differing, 404, note 18. 
 Inspection of continuous, duty, 827. 
 Insurer of equipment, company is not, 827. 
 Interstate articles carried by independent express company, 362. 
 
 car used in "connection" with intrastate car, 371. 
 
 freight car loaded with, 398. 
 
 must be equipped according to statute, 847. 
 Intrastate car on interstate railroad, 358. 
 Knowledge of object is not an element of the offense, 449. 
 Ladder, see. 
 
 Lading immaterial to constitute offense, 722. 
 Logging cars, 400. 
 
 Long commodities, loading car with, 415. 
 M. C. B. defect card, placing on car, 411, 791. 
 Making up train, 369. 
 
 Moved, must be to constitute offense, 745, 750, 824, 827. 
 Not loaded with interstate traffic, 357. 
 Permitting to be hauled over defendant's railway, 374, 755. 
 Presumption as to sufficiency of equipment, 426. 
 Proof of use in interstate commerce, 391, note 59e, 392. 
 Receiving defective car from another railroad, not bound to do so, 411, 
 
 772. 
 Repairing cars, see. 
 Repairing en route, 728. 
 Running boards, 415. 
 Running boards, see. 
 
 Sand cars, hauling defendant's sand, 355, note 10. 
 Sill steps, 415. 
 Sill steps, see. 
 
 Spur track, defective car on, 368. 
 Switching defective cars, an offense, 366, 367. 
 Temporary suspension of transportation, 374. 
 Terminal tracks, use of defective cars on, 367. 
 Test under statute, 855. 
 Train is test of statute, 357, note 12d. 
 Use of defective cars forbidden, 349, .351, 370, 479, 772. 
 
 in interstate commerce, 369, 371. 373, 352, 7iotc 6. 
 
 what is a use, 356. 
 
 when on switch track, 855.
 
 INDEX TO SAFETY APPLIANCE ACT. 999 
 
 [References are to pages.] 
 
 Chains- 
 Broken, using on cars, 755. 
 When may be used, 893. 
 When statute prohibits, 407. 
 
 Colorado Case — 
 
 Railroad wholly within state, 378, 379, 390. 
 
 Common Carriers — 
 
 Defined, 344. 
 
 Complaint — 
 
 Interstate commerce, must show car was used in, 703. 
 
 Constitutionality of Statute — 
 
 Hours of labor statute, 506, 508, 510. 
 
 Release of damages, 491. 
 
 Resolutions of American Railway Association, 332, note. 
 
 Safety Appliance Act, 334, 847. 
 
 Construction of Statute — 
 
 Intent of Congress to be ascertained, 791. 
 
 Liberally construed, 334, 439. 
 
 Remedial, statute is, 847. 
 
 Secret intent of legislation, 389. 
 
 Used in moving interstate traffic, 354, note 7. 
 
 Contributory Negligence^ 
 
 Comparative negligence when case not based on, 848. 
 Defeats action, 868. 
 Defense of, still in force, 867. 
 Knowledge of danger by employee, 867. 
 
 Couplers (Automatic)— 
 
 Adjacent cars, couplers defective, no excuse, 763. 
 Automatic, must be, 400, 762, 867. 
 
 locomotives must have, 659. 
 Belt railway cars must have automatic couplers, 821. 
 Both ends of car must have, 406, 729, 745, 768, 772, 823, 840. 
 Broken so can not be used, 728. 
 Coupling by impact, must, 400. 
 Difficult to use, 729, 770, 772. 
 Drawbars, see. 
 
 Engine, on, below minimum height, 887. 
 Height, failure to maintain at, 887. 
 Insufficient operation, 410. 
 Kind that must be used, 402.
 
 1000 INDEX TO SAFETY APPLIANCE ACT. 
 
 [References are to pages.] 
 
 Couplers (Automatic) — Continued. 
 Kinking, 760, 861. 
 
 employee going between car to adjust, 766. 
 Locomotive, front end, 410. 
 Models of, using in evidence, 878. 
 Necessity of going between cars to couple, 405, 766. 
 Negligence, not to equip car with, 868. 
 
 failing to use diligence, delinquency, 465. 
 Order of Interstate Commerce Commission concerning, 669. 
 Permitting car to be hauled with defective couplers, 755. 
 Preparation for coupling, 410. 
 Reasonable effort to operate, 728. 
 Shims to raise couplers, 449. 
 Stub pilot of locomotive, 469. 
 Sufficiency, 401, 405. 
 Switching, cars must have, 889. 
 Uncoupling, going between cars to make, 407, 703. 
 
 Courts — 
 
 Federal question, when presented, 412. 
 
 Removal of actions from state court, 412, 488. 
 
 State courts have power to entertain action for damages, 487. 
 
 D. 
 
 Damages — 
 
 Amount, 847. 
 
 Comparative negligence, when does not reduce, 848. 
 
 Suit in state court to recover, 487. 
 
 Validity of statute concerning releasing, 491. 
 
 What employees may recover, 468. 
 
 Defect in Car — 
 
 Knowledge of not necessary to constitute offense, 824, 829, 837. 
 
 Defense — 
 
 Burden to .show right to move car, 453. 
 
 Door Step — 
 
 Order of Interstate Commerce Commission, 643. 
 
 Drawbars — 
 
 Couplers, see. 
 
 Height above rails, 408, 409, 611, 728. 
 Order of Interstate Commerce Commission, 610, 611. 
 Repairing en route, 728. 
 
 Resolutions of American Railway Association, 332. 
 validity, 332, riole.
 
 INDEX TO SAFETY APPLIANCE ACT. 1001 
 
 [References are to pages.] 
 
 Drawings — 
 
 For equipment of cars, 663 to 680. 
 
 E. 
 
 Electric Cars — 
 
 Subject to statute, 397, 398. 
 
 Employee — 
 
 Congress may protect, 722. 
 Coupler, difficult to use, 766, 768. 
 
 putting out of order, railroad liable, 772. 
 Uncoupling, going between cars to make, 703. 
 
 Empty Cars — 
 
 Cars, sec. 
 
 jSIust be equipped, 356, 398, 399, 728, 847. 
 
 Engine — 
 
 Automatic couplers, must have, 659. 
 Couplers on, 887. 
 Front end, 410. 
 Locomotive, see. 
 
 Evidence — 
 
 Disposition of cars, 848. 
 
 Excuse, burden to siiow, 497, 498. 
 
 Expert testimony, 498. 
 
 concerning grabirons, 904. 
 Inspection by jury, 904. 
 Inspector's, weight, 496, 843. 
 
 failure to inform defendant of their official character, 877, 87J 
 
 memorandum made by, 497. 
 Jury must consider all the evidence, 843. 
 JModels of couplers, using, 496, 877. 
 Positive and negative, relative force, 828. 
 Preponderance sufficient. 868, 780, 787, 823, 827. 
 Reasonable doubt, 292. 
 Recitals in defendant's records, 848. 
 
 Reconciliation of conflicting statements, instruction, 861. 
 Satisfactory, must be to recover penalty, 728, 740, 744, 750, 768. 
 Sufficiency to recover penalty, 292, 805. 
 Weight, 848. 
 
 Express Company — 
 
 Carrying interstate traffic, 362.
 
 1002 INDEX TO SAFETY APPLIANCE ACT. 
 
 [References are to pages.] 
 
 F. 
 
 Federal Question — 
 
 When presented, 412. 
 
 Federal Court — 
 
 Removal of case to, 488. 
 
 Flat Cars- 
 Equipment, 629. 
 
 Freight Car — 
 
 Equipment, 681. 
 
 Geddes Case — 
 
 Discussion in, 376 to 378, 390. 
 Denied as an authority, 380. 
 
 Gondola Cars — 
 
 Equipment, 622, 624, 627. 
 
 Grab Irons — 
 
 Handholds, see. 
 
 Grip Irons — 
 
 Statute requiring, 606. 
 
 H. 
 
 Hand Brakes — 
 
 Hopper and gondola cars must have, 622. 
 
 Rules concerning, 607. 614 to 616, 622, 624, 625, 627, 629, 630, 632, 
 636, 639, 646, 657. 
 brake steps, 616. 
 Statute requiring, 606. 
 
 Handholds — 
 
 Car must have, 414, 415. 
 
 Coupling lever used as, question for jury, 843. 
 
 Expert testimony concerning, 904. 
 
 Failure to provide or repair, 451, 501. 
 
 Interstate Commerce Commission adopt rules concerning, 607, 610, 611, 
 
 613. 
 Intcrurban cars, 903. 
 Kind, what is sufficient, 843.
 
 INDEX TO SAFETY APPLIANCE ACT, 1003 
 
 [References are to pages.] 
 
 Handholds — Continued. 
 
 Location not fi.xed by statute, 787. 
 
 Long commodities on cars, 415. 
 
 Number of violations, 780. 
 
 On side of car not sufficient, 838. 
 
 Order of Interstate Commerce Commission, 614, 619, 625, 626, 628, 630, 
 
 631, 634, G35, 637, 638, 640, 641, 644, 645, 646, 647, 648, 649, 650, 
 
 651, 653, 656. 
 Penalty for failure to equip, 501, 60S, 609. 
 Repairing, 609. 
 
 Rules concerning, 619 to 621, 622, 624. 
 Statute requiring, 606. 
 Street cars, 904. 
 Substitute, 452, 780, 787. 
 Sufficiency, 413, 415, 455, note. 
 
 question for jury, 416. 
 Train defined, 353, 780. 
 Where to be put, 413, 415, 679. 
 
 Handrails- 
 Order of Interstate Commerce Commission, 658, 659. 
 
 Haul- 
 Defined, 353. 
 Distance defective car moved immaterial, 364. 
 
 Highway of Interstate Commerce — 
 
 Another company using, 375, 380, note 45. 
 Permitting cars to be hauled over, 374. 
 Railroad devoted to, 358. 
 
 Hopper Cars- 
 Equipment, 622. 
 
 Hours of Labor — 
 
 Accidents causing delay, 700, 956. 
 
 Act of God, 517, 700. 
 
 Action to recover damages, 539. 
 
 to recover penalty, 539. 
 All employees, applies to, 698. 
 Casualty, 517, 534, 700. 
 Change of work, 525, 526. 
 
 Commingling of intrastate and interstate duties, 524. 
 Congested traffic, 529. 
 Constitutionality of statute, 506, 510. 
 
 state statute, 508.
 
 1004 INDEX TO SAFETi' APPLIANCE ACT. 
 
 [References are to pages.] 
 
 Hours of Labor — Continued. 
 
 Construction is liberal, 513, 924. 
 
 "Consecutive" hours, 527. 
 
 Continuously operated day and night, 699. 
 
 "Continuous" hours, 527. 
 
 Continuity of service, 950, 953. 
 
 Criminal statute, act is not, 924. 
 
 Deadheading, 700. 
 
 Defense, 539. 
 
 Delay in starting caused by another train, 524. 
 
 Economical reasons as a defense, 539. 
 
 Emergency, 533, 956. 
 
 what is not, 953. 
 Employees subject to act, 515. 
 
 not liable to penalty, 700. 
 Engine watching, 932. 
 Extending time of service, 956. 
 Ferry employees, 701. 
 Fireman watching engine, 525. 
 Hotbo.x causing delay, 522. 
 Hours for labor, 521. 
 Illness of telegraph operator, 918. 
 Inability to compel employees to act, 514. 
 Indefinite respite from work, 528. 
 Inspecting engine, 521. 
 
 Interstate Commerce Commission's power, 700. 
 Jury, question for, 541. 
 
 Liability of railroad to penalty absolute, 513. 
 Meals, time of, not deducted 953. 
 Negligent injury to employee, 539. 
 Occurrence of conditions ordinarily expected, 537. 
 "Off duty" as defined in statute, 516. 
 
 when, 940. 
 Office continuously operated, 531. 
 
 keeping open, 924. 
 
 operated only during daytime, 530. 
 
 what is an office, 699. 
 "On duty" as defined in statute, 516. 
 
 what is, 940. 
 Operated only during the daytime, 699. 
 Operator at local station, 5.'y3. 
 Orders, .531. 
 
 of Interstate Commerce Commis.sion concerning, 696.
 
 INDEX TO SAFETY APPLIANCE ACT. 1005 
 
 [References are to pages.] 
 
 Hours of Labor — Continued. 
 
 "Other employee," as used in section two, 515. 
 Passenger delayed, liability for delay, 540. 
 Penalty, action to recover, 539. 
 
 amount of, 540. 
 "Period," as used in statute, 533, 546. 
 Permitting overwork, 513. 
 Proviso to section two, 530. 
 
 to section three, 534, 536. 
 Purpose of statute, 512, 699, 924. 
 Railroad, to what kind statute applicable, 698. 
 Release from duty for an hour and a half, 950. 
 
 what is, 940. 
 Remedial, statute is, 512, 514. 
 Reports, requirements of Interstate Commerce Commission, 697. 
 
 failure to make, 541. 
 Rules of Interstate Commerce Commission concerning, 698 to 702. 
 Scope of statute, 514. 
 Sidetracking trains, 523. 
 Stations, 530, 699. 
 Statute, 692. 
 
 Statutory provisions, 505. 
 Steam, unable to raise, 522. 
 Street railway's, 700. 
 
 Sudden illness of telegraph operator, 538. 
 Suspension of operation of statute for a given trip, 536. 
 Telegraph operators, 530, 531, 699, 701. 
 
 emergency, 953. 
 
 sudden illness, 53S, 918. 
 
 trainmen using, 702. 
 Telegraph office, what covered bj'^ statute, 924. 
 Ten consecutive hours, 698. 
 Terminal defined, 535. 
 
 Time delayed can not be deducted from period of time of service, 523. 
 Towers, 530, 699. 
 
 Towermen and switch tenders using telephone, 533. 
 Train baggagemen, 702. 
 
 despatchers, 937. 
 Unavoidable accident, 517, 534. 
 Unbroken intervals of time, 527. 
 Voluntary action on part of employee, 513. 
 Watching engine, 525, 932. 
 Week, 533.
 
 1006 INDEX TO SAFETY APPLIAKCE ACT. 
 
 [References are to pages.] 
 
 1. 
 
 Inspectors — 
 
 Discrediting, 596. 
 
 Failure to disclose defects in cars, 728. 
 
 Informing defendant of defects in cars, need not, 796, 801, 877, 878. 
 memorandum made by, as evidence, 597. 
 
 Instructions — 
 
 Degree of care required by defendant, 878. 
 Refusal of one covered by another, 878. 
 
 Interstate Car — 
 
 "Connection" with intrastate car, 371. 
 
 Intention — 
 
 Secret intention of Congress, interpretating statute, 389. 
 
 Interstate Commerce — 
 
 Air hose, employee coupling, engaged in, 780. 
 
 Belt railway, statute applies to, 367, 735, 821. 
 
 Car must be shown to have been used in, 814. 
 
 Freight designed for another state not yet left state of assignment, 376. 
 
 Highway of, 358. 
 
 Illustrations, 349. 
 
 Interterritorial Act of 1903, 351. 
 
 Instrumentalities of, 354, note 7. 
 
 Moving car in, necessary, 745. 
 
 Power of Congress concerning, 386. 
 
 Proof that car was used in, 391, 7w1e 59e, 392. 
 
 Railroad wholly within one state, 376 to 380, 714. 
 
 Return of train to state of origin, 355. 
 
 Statute concerning, 414. 
 
 Switching foreign cars, 797. 
 
 Test, 346, 855. 
 
 What is, 346, 347, 715. 
 
 When begins, 801, 822. 
 
 Interstate Commerce Commission — 
 
 Order concerning cc}uipment of cars, 610. 
 Rules may adopt concerning cars, 607. 
 
 Interstate Railroads — 
 
 B.lt lines, 307, 7.35, 821. 
 
 Crossings over, 386. 
 
 Highway of interstate commerce, see.
 
 INDEX TO SAFETY APPLIANCE ACT. 1007 
 
 [References are to pages.] 
 
 Interstate Traffic — 
 
 Car used in, 354, 369. 
 Interstate commerce, see. 
 What is, 354. 
 
 Interterritorial Act — 
 
 Equivalent to Act of 1903, 351. 
 
 Interurban Railway — 
 
 Subject to Act, 903. 
 
 J. 
 
 Jeopardy — 
 
 Twice in jeopardy, 504. 
 
 Judicial Notice — 
 
 Safety Appliance Act, 489. 
 
 Jury — 
 
 Contributory negligence, question for, 856. 
 
 Evidence, all, must consider, 843. 
 
 Handholds, may examine, 416. 
 
 Hours of labor statute, 520. 
 
 Penalty, action to recover, 498. 
 
 Trial by, in action for penalty, 498. 
 
 Verdict directing, 499. 
 
 Whether injured servant was engaged in interstate commerce, 412. 
 
 Knowledge of Defective Car — 
 
 Not necessary to commission of offense, 449. 
 
 L. 
 
 Ladders — 
 
 Caboose cars, 633 to 646. 
 
 Car must have, 415. 
 
 Freight cars, 661. 
 
 Gondola cars, 622 to 629. 
 
 Hopper cars, 622 to 629. 
 
 Locomotives, 652 to 660. 
 
 Order of interstate commerce commission concerning, 617, 624, 627, 628, 
 
 629, 643, 650, 653, 667. 
 Passenger cars, 646 to 652. 
 Rules concerning, 607, 617 to 619. 
 Statute requiring, 606.
 
 1008 INDEX TO SAFETY APPLIANCE ACT. 
 
 [References are to pages.] 
 
 Locomotive — 
 
 Engine, see. 
 
 Equipment, 652 to 660. 
 
 Front end, 410. 
 
 Ladders on, 652 to 660. 
 
 Stub-pilot, using on as an act of negligence, 469, note 3, 
 
 M. 
 
 M. C. B. Defect Card- 
 Placing on defective car no excuse for violating statute, 411, 791. 
 when used, 411, note 30. 
 
 Medals — 
 
 Statute awarding as badges of honor, 556. 
 
 N. 
 
 Negligence — 
 
 Automatic couplers, failure to use, 467. 
 Brakes, failure to use, 471, note 6a, 406, note 29. 
 Burden to show, 867. 
 Contributory negligence by plaintiff, 477, 485. 
 
 does not defeat action, 485. 
 Duty as to cars, 422. 
 Excuse for defendant, none alIov,-ed, 420, 423, 424, 722, 745, 758, 760, 
 
 786, 824, 827, 840, 867. 
 Failure to equip car with couplers, 867. 
 Handholds defective, 455, note. 
 Penalty not dependent upon, 824. 
 Pleading, sufficiency, 489. 
 Proximate cause of injury, 469. 
 Removal of actions to Federal Court, 488. 
 State courts, actions to recover damages, 487. 
 Stub-pilot, using on to coi;stitute, 469, note 3. 
 Two acts combining to produce injury, 486. 
 What employees may use, 408. 
 
 P. 
 
 Passenger Cars — 
 
 Equipment, 646 to 652. 
 
 Penalty — 
 
 Action to recover, 435, 492. 
 
 is a civil case, 493. 497, 750, 754, 760, 764, 768, 787, 791, 796, 801, 
 805, 823, 827, 843.
 
 INDEX TO SAFETY APPLIANCE ACT. 1009 
 
 [References are to pages.] 
 
 Penalty — Continued. 
 Amount, 5(X). 
 
 Burden on government, 492, 495. 
 Criminal action, 492. 
 Evidence sufficient to recover, 495, 805. 
 Handholds, failure to equip car with, 451, 501. 
 Hauling car in interstate train, 796, 801. 
 unequipped car, incurs penalty, 768. 
 Incurring, 762. 
 Jeopardy, 504. 
 Joint action to recover, 494. 
 Jury trial, entitled to, 498. 
 Knowledge of defect in car, 449. 
 Operating car in interstate commerce, 729. 
 Petition of government to recover, 494, 698. 
 Presumption, 492. 
 Proof, sufficiency, 495, 805. 
 Verdict, directing, 499. 
 What must be shown to recover, 714. 
 
 Plans— 
 
 For equipment of cars, 665 to 680. 
 
 Pleading — 
 
 Action for negligence, 489. 
 
 Government's petition to recover penalty, 494, 698. 
 
 R. 
 
 Railroad — 
 
 Defined, 345. 
 
 Reasonable Doubt- 
 Evidence, sec. 
 Proof beyond need not be made, 392, 823, 827. 
 
 Release of Damages — 
 
 Validity of statute, 847. 
 
 Removal of Action — 
 When allowed, 412. 
 
 Repairs — 
 
 Burden to show excuse for not making, 419, note 3. 
 Construction of statute concerning, 435. 
 Diligence in discovering defect, 420. 
 in making, 418.
 
 1010 INDEX TO SAFETY APPLIANCE ACT. 
 
 [References are to pages.] 
 
 Repairs — Continued. 
 
 Duty to make it absolute, 422, 763, 772. 
 
 Hauling car to shops for, 441, 444, 763, 848. 
 
 Immediate, should be made, 763, 772. 
 
 In transit, car in, 805. 
 
 Knowledge of defect, not necessary to offense, 420. 
 
 Presumption as to, 426, 446, 449, 805. 
 
 Sending cars to repair shops, 369. 
 
 Shops for, necessity to have, 444, note lid, 449. 
 
 Transit, repairing cars in, 426, 445, 448, 805. 
 
 When must be made, 912. 
 
 Repair Point — 
 
 Hauling car to, 893. 
 
 Nearest available repair point defined, 893. 
 
 Repair Shops — 
 
 Must have at convenient points, 444, note lid, 449. 
 
 Reports- 
 Requirements of interstate commerce commission, 695. 
 
 Running Boards — 
 
 Car must have, 415. 
 
 Order of interstate commerce commission concerning, 616, 632, 636, 639, 
 642, 657. 
 
 Safety Appliance Act — 
 
 Statute, 602. 
 
 Safety Railing — 
 
 Must provide, 631, 635, 638. 
 
 Servant — 
 
 Jury determines whether engaged in interstate commerce, 412. 
 Railroad liable for his neglect, 404, note 18. 
 
 Shims — 
 
 Use of to raise couplers, 455. 
 
 Shops for Repairs- 
 Must be at convenient points, 44, note lid, 449. 
 
 Sill Steps- 
 Car must have, 415, 607. 
 Order of interstate commerce commission concerning, 607, 617, 633, 637, 
 
 649, 651, 652, 655. 
 Statute requiring, 607.
 
 INDEX TO SAFETY APPLIANCE ACT. 1011 
 
 [References are to pages.] 
 
 Spur Track — 
 
 Using unequipped ear upon, 368. 
 
 State Courts- 
 Action in to recover damages for negligence, 487. 
 
 State Legislation- 
 Effect on Federal statute, 340. 
 
 Statute- 
 Ash pans, 690. 
 Boiler inspection, 683. 
 Car, meaning of, as used in statute, 395. 
 Constitutionality of Safety Appliance Act, 847. 
 Construction of Safety Appliance Act, 3-32, 3-39, 435, 453, 847. 
 Design of Safety Appliance Act, 333, 334, 354. 
 Fifth section of Safety Appliance Act, 409. 
 Handholds, 606. 
 Hours of labor, 692. 
 Intrastate commerce, 386. 
 Judicial notice of, 539. 
 Ladders, 606. 
 Medals of honor, 556. 
 Origin of Safety Appliance Act, 329. 
 
 President Harrison's message concerning Safety Appliance Act, 329. 
 Report of accidents, 555. 
 Safety Appliance Act, 602. 
 State legislation on same subject, 340, 414. 
 
 Statute of Limitations- 
 State statute controls, 491. 
 
 Street Railway — 
 
 Not subject to statute, 904. 
 
 Stub-Pilot— 
 
 Negligence in using, 469, note 3. 
 
 Switch- 
 Using defective cars upon, 365, 855. 
 must be properly equipped, 911. 
 
 Tank Cars — 
 
 Equipment, 630, 639.
 
 1012 INDEX TO SAFETY APPLIANCE ACT. 
 
 [References are to pages.] 
 
 Tenders — 
 
 Equipment, 658. 
 
 Terminal Tracks — 
 
 Use of defectively equipped cars upon, 367. 
 
 Test- 
 Train rather than cars, 357, note 12d, 855. 
 
 Train- 
 Defined, 353, 780, 461, 461, note 28. 
 Equipping with brakes, 458. 
 Making up, 369. 
 Test under Safety Appliance Act, 357, note 12d. 855. 
 
 Transportation — 
 
 Temporary suspensions, 374. 
 
 U. 
 
 Uncoupling Levers — 
 
 Order of interstate commerce commission concerning, 621, 638, 647, 648, 
 652, 654, 656. 
 
 Use- 
 Car in interstate commerce, 370, 373, 398. 
 Defective car an offense, 772. 
 Defined, 353. 
 
 Verdict — 
 
 Directing in action to recover a penalty, 499. 
 Setting aside, reluctance of court to do so, 847. 
 
 W. 
 
 Writ of Error — 
 
 Lies to Circuit Court of Appeals, 503. 
 
 Yard- 
 Movement of car in, 366.
 
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