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 THE LIBRARY 
 
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 THE UNIVERSITY 
 
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 SCHOOL OF LAW
 
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 LAW LIBRARY, 
 
 OF 
 LOS ANGELES COUNTY 
 
 POMONA BRANCH 
 
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 FEDERAL ^ ^ 
 
 LIABILITIES OF CARRIERS 
 
 A TREATISE UPON THE DUTIES AND LIABII>ITIES OF COMMON 
 CARRIERS BY RAILROADS UNDER ALL, FEDERAL LAWS. WITH 
 AN APPENDIX CONTAINING A COPY OF THE FEDERAL 
 STATUTES AFFECTING RAIUROADS, AND THE GEN- 
 ERAL ORDERS OF THE DIRECTOR GENERAL OF 
 RAILROADS UNDER THE FEDERAL CONTROL 
 ACT OF 1918. 
 
 By M. G. ROBERTS 
 
 Of the Missouri Bar 
 
 Aut)W7- of ''Injuries to Interstate Employes on Railroads' 
 
 IN TWO VOLUMES 
 
 VOLUME I 
 
 CHICAGO 
 
 CALLAGHAN AND COMPANY 
 
 191S
 
 '^ 
 
 T 
 1918 
 
 COPYRIGHT 1918 
 
 BY 
 M. G. ROBERTS.
 
 c 
 
 (*3 
 
 
 TO THE 
 MEMORY OF MY 
 
 FATHER AND MOTHER 
 
 7358B7
 
 PREFACE 
 
 At least tliree-fourtlis of the traffic carried by the 
 railroads within the United States is interstate or 
 foreign in character and, therefore, falls within the 
 control of Congress under the commerce clause. During 
 the course of recent years, state laws, rules and regu- 
 lations governing the rights of interstate shippers 
 and employes and the correlative duties of the carriers 
 have been superseded by federal statutes and common 
 law principles as intei7)reted and applied in the national 
 courts. 
 
 The vast and revolutionary changes wrought by the 
 enactment of these national laws, have created a 
 distinct and separate body of jurisprudence from tliat 
 which regulates the obligations of common carriers to 
 intrastate shippers and employes. The law of carriers, 
 therefore, as expounded in text books dealing with the 
 diversified statutes of the several states and the 
 principles of the common law as inter]ireted in the 
 decisions of state courts, has become obsolete as to all 
 transportation duties not intrastate in character: for 
 the enactment of the Interstate Commerce Act, the 
 Carmack Amendment, the first and second Cummins 
 amendments of 1915 and 1916, the Act of 1918 providing 
 for government control during the war with Germany, 
 the federal Em^iloyers' Liability Act, the Safety Ap- 
 pliance Act, the Hours of Service Act, and other 
 federal statutes, has produced and established uniform 
 rules of liability govci'iiing cari-iers throughout the 
 United States. 
 
 vii
 
 viii Preface. 
 
 c^ ,,-A treatise dealing witli the responsibilities of the 
 faiTi'oad'5 imder /ajl 0:f these federal laws in the light 
 of the binding decisions of the national courts and 
 the application thereof by state courts, is opportune 
 and should be of pornvanent value. The jirofession has 
 been liberally supplied with digests and annotations of 
 decisions under federal statutes, but the limitations of 
 such useful publications are such that no attempt is 
 usually made to distinguish the wheat from the chaff, 
 the correct from the erroneous ruling, or to extract 
 the elementai'y principles from a nuiltitude of judicial 
 voices. 
 
 In the following pages, an effort has been made to 
 methodically classify and expound the fundamental rules 
 vshich measure the obligations of carriers under the 
 national lau's; to illustrate these principles by their 
 application in the leading adjudicated cases in federal 
 and state courts ; to point out the decisions which do 
 not correctly interpret the law of interstate commerce 
 as regulated by the federal statutes, and, in short, to 
 write a text book covering the entire subject matter 
 and not a digest or an annotation. Recognizing also 
 the dual control of the federal government and the 
 states, one over interstate and the other over intra- 
 state transportation, an endeavor has been made to 
 discuss the principles defining the "twilight zone" 
 wherein the jurisdiction of the one ends and the other 
 begins. Such problems, in the absence of an amend- 
 ment to the federal Constitution, will constantly arise 
 in the a))pIication of the rules of law to the concrete 
 facts of a particular case. 
 
 Part One of the Treatise deals with the general 
 rules governing federal and state control over inter- 
 state common carriers and transportation under the 
 commerce clause, and also, separately, during times of 
 war under the war clause of the Constitution, includ- 
 ing the national act of 1918 providing for federal 
 control of carriers during the war with Germany. 
 
 Part Two treats of the duties and liabilities of 
 common carriers to shippers under all federal inter-
 
 Preface. ix 
 
 state laws including the Interstate Commerce Act and 
 supplementary k'<;islation— tlio n"])])v.rn Act of 1906, 
 tlie Carmack Anicndnicni and tlie first and second 
 Cummins amendments. 
 
 Part Three deals with personal injuries to inter- 
 state employes of common carriers by railroad, being 
 a treatise of the Federal Employers' Liability Act. 
 This part of the work includes the author's former 
 treatise, ''Injuries to Interstate Employes on Rail- 
 roads" which has been thoroughly revised, rewritten, 
 greatly enlarged and contains copious citations of the 
 new and late decisions. 
 
 Part Four treats of the duties and liabilities of 
 interstate carriers under the federal Safety Appliance 
 Act, as amended. 
 
 Part Five includes the duties of carriers under 
 other miscellaneous federal interstate laws such as the 
 Hours of Service Act, Twenty-eight Hour Live Stock 
 Law, the Boiler Inspection Act, xVdamson Law, etc. 
 
 I am greatly indebted to Mr. J. C. Cahill, Managing 
 Editor of Callaghan and Company for many helpful 
 suggestions, and to Judge M. M. Milligan of Richmond, 
 Missouri, and Mr. M. J. Henderson of the Kansas City 
 Bar for valuable assistance during the four years the 
 work has been in course of preparation. 
 
 St. Joseph, Mo. 
 
 November, 1918. 
 
 M. G. Roberts.
 
 TABLE OF CONTENTS 
 
 VOLUME I. 
 
 Part One 
 federal and state control over common carriers. 
 
 chapter i. 
 
 THE COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION. 
 
 Sec. 1. Congress Vested with Authority to Regulate All Interstate 
 and Foreign Commerce. 
 
 Sec. 2. Early Judicial Construction of the Commerce Clause— Gib- 
 bons V. Ogden. 
 
 Sec. 3. Judicial Definitions of Term "Interstate Commerce" as Used 
 in the Federal Constitution. 
 
 Sec. 4. Transportation from one State to Another an Essential Ele- 
 ment of Interstate Commerce. 
 
 Sec. 5. Congressional Grant "to Regulate" Commerce Defined and 
 Explained. 
 
 Sec. 6. Importation of Legitimate Articles of Commerce from one 
 State to Another Immune from State Legislation. 
 
 Sec. 7. Commencement and Termination of Protection of the Com- 
 merce Clause. — Original Package Rule. 
 
 Sec. 8. States may Forbid Introduction of or E.\portation of all 
 Articles not Legitimate Subjects of Trade and Commerce. 
 
 Sec. 9. Statutory Exceptions Empowering States to Regulate Inter- 
 state Shipments of Intoxicating Liquors. 
 
 (xi)
 
 xii Federal Liahili iiks of Carriers. 
 
 CHAPTER II. 
 
 RESPECTIVE POWERS OF THE STATES AND NATIONAL GOVERN- 
 MENT OVER INTERSTATE AND INTRASTATE 
 CARRIERS. 
 
 Sec. 10. Introductory. 
 
 Sec. 11. General Principles Determining State and National Control 
 Over Interstate Carriers and Transportation. 
 
 Sec. 12. Foregoing Doctrines Illustrated and Applied to Divers Phases 
 of Interstate Carriage and Transportation. 
 
 Sec. 13. Federal Laws and Regulations Encroaching upon Powers 
 of the States over Their Internal Affairs, Invalid. 
 
 Sec. 14. Federal Regulation to be Valid Must Have Real or Substan- 
 tial Connection with Interstate Commerce. 
 
 Sec. 15. "When Congressional Power may be Validly Exercised over 
 Intrastate Subject Matters. 
 
 Sec. 16. When Congress Legislates upon a Subject Matter of Com- 
 merce, State Laws Covering Same Field are Thereby Super- 
 seded. 
 
 Sec. 17. Difficulty of Defining Field or Subject Matter Covered by 
 Congressional Legislation. 
 
 Sec. 18. Common Law Principles as Applied in State Courts Super- 
 seded as to Subject Matters Covered by Federal Statutes. 
 
 Sec. 19. Power of States to Regulate Interstate Rates of Carriers 
 Formerly Upheld by Supreme Court — The Granger Cases. 
 
 Sec. 20. State Control Over and Power to Regulate Rates and Charges 
 on Interstate Shipments Denied. 
 
 Sec. 21. Passenger Fares for Interstate Journeys Prescribed by Munic- 
 ipal Ordinances and Accepted by Carriers Invalid. 
 
 Sec. 22. Power of States over Intrastate Commerce as Broad and 
 Exclusive as Control of Congress over Interstate Com- 
 merce. 
 
 Sec. 23. States May Regulate and Fix Reasonable Rates for Intra- 
 state Transportation. 
 
 Sec. 24. Statutes of States Regulating Delivery of Cars for Inter- 
 state Shipment Inoperative. 
 
 Sec. 25. States may Compel Switch Connections with Private Side 
 Tracks for Intrastate Business. 
 
 Sec. 26. State Statutes Prescribing Rates Specified in Bill of Lading 
 Void as to Interstate by Valid as to Intrastate Ship- 
 ments. 
 
 Sec. 27. State Laws and Decisions Governing Liability for Loss and 
 Damage to Property Superseded by Carmack Amendment. 
 
 Sec. 28. State Statute Authorizing Issuance of Transports^tion in 
 Payment for Advertising Invalid. 
 
 Sec. 29. States May Require Operation of Trains Between Intrastate 
 Points on Interstate Lines — Limitations and Exceptions.
 
 Table op Contents. xiii 
 
 Sec. 30. State and Municipal Regulations Prescribing Speed, Signals 
 and Stoppage of Interstate Trains. 
 
 Sec. 31. Georgia "Blow-Post" Law Invalid, Being a Direct Burd> n 
 upon Interstate Commerce. 
 
 Sec. 32. States May Compel Carriers to Make and Maintain Track 
 Connections for Interchange of Traffic. 
 
 Sec. 33. Validity of State Laws Providing for "Full Crews" on Inter- 
 state Trains. 
 
 Sec. 34. State Regulations or Charges for Transportation by Water. 
 
 Sec. 35. Statutory Enactment of States Requiring Facilities and Ap- 
 pliances on Interstate Trains. 
 
 Sec. 36. Power of States over Interstate Employers and Employes 
 in Absence of Federal Legislation. 
 
 Sec. 37. Interstate Messages by Telegraph Prior to Amendment of 
 1910 to Act to Regulate Commerce. 
 
 Sec. 38. State Laws Regulating Interstate and Foreign Messages of 
 Telegraph, Telephone, and Cable Companies, Invalid. 
 
 Sec. 39. States May Not Regulate "Ticker Service" of Interstate 
 Telegraph Companies. 
 
 Sec. 40. State and Municipal Regulations of the Interstate Business 
 of Express Companies. 
 
 Sec. 41. Valid Municipal Regulations of Drivers on Streets Carry- 
 ing Interstate TraflSc. 
 
 CHAPTER III. 
 
 FEDERAL CONTROL OF CARRIERS DURING TIMES OF WAR. 
 
 Sec. 42. Powers of Congress over Carriers during Times of Peace 
 and War Distinguished. 
 
 Sec. 43. President Empowered to Assume Control of Transportation 
 Systems in Time of War. 
 
 Sec. 44. Proclamation Assuming Control of Railroads Under Fore- 
 going Provisions. 
 
 Sec. 45. National Statute Providing for Federal Control and Com- 
 pensation of Carriers During the Period of War with Ger- 
 many. 
 
 Sec. 46. Purpose of Congress in Enacting the Act Providing for Fed- 
 eral Control During War. 
 
 Sec. 47. Effect of National Statute Providing for Federal Control 
 upon other Laws, Federal and State. 
 
 Sec. 48. President Authorized to Initiate Rates and Charges for 
 Transportation During Period of Federal Control. 
 
 Sec. 49. Actions at Law or Suits in Equity may be Brought by and 
 Against Carriers under Federal Control. 
 
 Sec. 50. Penalty for Violations of the Provisions of the Federal Con- 
 trol Act. 
 
 Sec. 51. When Federal Control of Transportation System Under the 
 Statute shall Terminate.
 
 xiv Fedeeal Liabilities of Carriers. 
 
 Part Two 
 
 DUTIES AND LIABILITIES OF COMMON CARRIERS TO SHIPPERS 
 UNDER ALL FEDERAL INTERSTATE LAWS. 
 
 The Act to Regulate Commerce and 
 Supplementary Legislation. 
 
 Carmack and Cummins Amendments. 
 Federal Bill of Lading Law. 
 
 CHAPTER IV. 
 
 THE ACT TO REGULATE COMMERCE AS ORIGINALLY ENACTED 
 
 —ITS GENESIS, PURPOSE, GENERAL SCOPE 
 
 AND VALIDITY. 
 
 Sec. 52. Brief Historical Review of Federal Control over Carriers 
 and Scope Thereof. 
 
 Sec. 53. Causes Leading to Enactment of the Act to Regulate Com- 
 merce. 
 
 Sec. 54. Principles of the Common Law Inadequate to Curb Evils of 
 Railroad Operation. 
 
 Sec. 55. Futile Attempts of the States to Regulate Charges for Inter- 
 state Transportation. 
 
 Sec. 56. Effect of the Decision in Wabash, St. L. & P. Ry. Co. v. Illi- 
 nois. 
 
 Sec. 57. Power of Congress to Regulate the Duties of Carriers of 
 Interstate Traffic. 
 
 Sec. 58. First Step Towards Federal Regulation of Interstate Trans- 
 portation by Rail — The CuUom Committee. 
 
 Sec. 59. Report of Cullom Committee to Congress and Bill Recom- 
 mended on January 18, 1886. 
 
 Sec. 60. Fundamental Requirements of the Act to Regulate Commerce 
 as Originally Enacted in 1887. 
 
 Sec. 61. Purpose of Congress in Enacting Original Act to Regulate 
 Interstate Commerce. 
 
 Sec. 62. How the Interstate Commerce A^t should be Construed and 
 Interpreted. 
 
 Sec. 63. Commission not Authorized Under Original Act of 1887 to 
 Prescribe Rates for Transportation. 
 
 CHAPTER V. 
 
 CHRONOLOGICAL REVIEW OF LEADING AMENDMENTS OF 
 
 STATUTE. 
 
 Sec. 64. Scope of the Chapter. 
 
 Sec. 65. Amendments of 1889 and 1891 to the Interstate Commerce 
 
 Act. 
 Sec. 66. Invalid Provision of Section 12 Remedied by Passage of 
 
 Compulsory Testimony Act of 1893.
 
 Table of Contents. xv 
 
 Sec. 67. Provisions rrohil)itinj< Rebates and Discriminations Strength- 
 ened by Passage of Klkins Act of 1903. 
 
 Sec. H8. Scope of Act and Powers of Commission Greatly Extended 
 Through Amendments Incorporated by Hepburn Act of 
 1906. 
 
 Sec. 69. Initial Carrier Liable for Loss and Damage on Lines of Con- 
 necting Carrier — Carmack Amendment. 
 
 Sec. 70. Commission Empowered to Order Switch Connection with 
 Private Side Tracks and Lateral Branch Lines. 
 
 Sec. 71. Carriers Prohibited from Owning or Having an Interest in 
 Freight Transported — the Commodity Clause. 
 
 Sec. 72. Amendments Authorizing Commission to Prescribe Through 
 Routes and Joint Rates. 
 
 Sec. 73. Commission Authorized to Determine Allowances to Ship- 
 pers for Services Rendered in Connection with Transpor- 
 tation. 
 
 Sec. 74. Amendment of 1906 Prohibiting the Issuance and Giving of 
 Free Passes — Persons Excepted. 
 
 Sec. 75. Forms of All Accounts, Records and Memoranda Kept by 
 Interstate Carriers Placed under Jurisdiction of Commis- 
 sion. 
 
 Sec. 76. Amendments and Additions to the Statute by the Mann- 
 Elkins Act of 1910. 
 
 Sec. 77. Fraudulent Claims for Loss and Damage by Shippers Against 
 Carriers Penalized. 
 
 Sec. 78. Power Conferred upon Commission by 1910 Amendment to 
 Suspend Proposed Changes in Rates. 
 
 Sec. 79. The 1910 Amendment to the Long and Short Haul Provi- 
 sion. 
 
 Sec. 80. Statutory Duty of Carriers to Route Interstate Freight as 
 Directed by Shippers. 
 
 Sec. 81. Carriers and Their Agents Prohibited from Giving Informa- 
 tion Relating to Business of Interstate Shippers. 
 
 Sec. 82. Extension of Jurisdiction of Commission over Water Car- 
 riers by Panama Canal Act of 1912. 
 
 Sec. 83. Act of 1913 Requiring Commission to Ascertain Valuation 
 of Property Owned or Used by all Interstate Carriers. 
 
 Sec. 84. Amendment of 1917 Penalizing Persons for Obstructing 
 Movement of Interstate Commerce During War. 
 
 Sec. 85. President Authorized During War to Direct Movement of 
 Commodities Essential to National Defense. 
 
 CHAPTER VI. 
 
 COMMON CARRIERS SUBJECT TO THE INTERSTATE COMMERCE 
 
 ACT. 
 
 Sec. 86. The Statutory Provision. 
 
 Sec. 87. Who are Common Carriers Within the Cleaning of the Inter- 
 state Commerce Act.
 
 xvi Fedekal Liabilities oe Carbiees. 
 
 Sec. 8S. Distinction Between Common Carriers and Plant Facilities 
 — Industrial Railways. 
 
 Sec. 89. All Carriers in Territories, District of Columbia and Alaska 
 Included. 
 
 Sec. 90. When Railroads Wholly Within Limits of Single State are 
 Under Federal Control — Former and Present Rule. 
 
 Sec. 91. Carriers Engaged in Transportation Between Points in 
 United States and Adjacent Foreign Countries. 
 
 Sec. 92. Carriers by Water Included as to Continuous Shipments 
 Under Common Arrangements with Carriers by Rail. 
 
 Sec. 93. Independent Ferry Companies Included as to Shipments Un- 
 der Common Arrangement with Rail Carriers. 
 
 Sec. 94. Common Control, Management, and Arrangement for Con- 
 tinuous Transportation, Defined and Explained. 
 
 Sec. 95. Extension of Federal Jurisdiction Over Water Carriers by 
 Panama Canal Act of 1912. 
 
 Sec. 96. Amendment Applies to Traffic Between Two Points in United 
 States Passing Through Panama Canal "or Otherwise." 
 
 Sec. 97. Control or Ownership of Competitive Water Line by Rail 
 Carrier Subject to Approval of Commission. 
 
 Sec. 98. Policy of Congress in Adoption of That Part of Panama 
 Canal Act Forbidding Ownership of Water Lines by Rail 
 roads. 
 
 Sec. 99. Bridges and Bridge Companies Subject to Federal Act, 
 When. 
 
 Sec. 100. Street Railroads Crossing State Lines not Subject to Inter 
 state Commerce Act. 
 
 Sec. 101. Electric Interurban Railroads Engaged in Interstate Com- 
 merce Controlled by Statute. 
 
 Sec. 102. Status of Terminal Railroads and Belt Lines Participating 
 in Movement of Interstate Traffic. 
 
 Sec. 103. Stock Yards Company Transferring Livestock Between its 
 Pens and Tracks of Trunk Lines, a Common Carrier. 
 
 Sec. 104. Status of Logging Roads as Interstate Carriers — the Tap 
 Line Cases. 
 
 Sec. 105. Private Car Lines not Common Carriers within Meaning 
 of Act to Regulate Commerce. 
 
 Sec. 106. Common Carriers of Oil and Other Commodities by Pipe 
 Line Included. 
 
 Sec. 107. Pipe Line Companies Transporting Solely Their Own Oil, 
 Common Carriers, When. 
 
 Sec. 108. Assumption of National Control over Interstate and For- 
 eign Cable, Telephone and Telegraph Companies. 
 
 Sec. 109. Independent Express Companies Included by Hepburn 
 Amendment of 1906. 
 
 Sec. 110. Sleeping Car Companies Placed Under Jurisdiction of Com- 
 mission by Hepburn Act of 1906. 
 
 Sec. 111. Receivers and Purchasers Pendente Lite.
 
 Tahle of Contents. xv.i 
 
 Sec. 112. Railroad Companies Incorporated In Foreign Countries and 
 
 Engaged in Interstate Commerce. 
 Sec. 113. Statute Applies to Individuals and Partnerships as Weli as 
 
 Incorporated Companies. 
 
 CHAPTER VII. 
 
 SHIPMENTS AND TRANSPORTATION SERVICES CONTROLLEn 
 BY INTERSTATE COMMERCE ACT. 
 
 Sec. 114. Constitutive Elements of Interstate Transportation Within 
 the Act. 
 
 Sec. 115. Illustrative Applications of the Foregoing Principles in 
 Adjudicated Cases. 
 
 Sec. 116. Shipments Between Two Points in Same State Passing En- 
 route Through Another State. 
 
 Sec. 117. Absence of Definite Destination in Foreign Country or in 
 Other State Immaterial. 
 
 Sec. 118. Change of Destination in Transit as Affecting Interstate 
 Character of Shipment. 
 
 Sec. 119. Interstate Transportation Includes Receipt and Delivery of 
 Traffic as Well as Actual Carriage. 
 
 Sec. 120. When Temporary Stoppage or Interruption Changes Inter- 
 state Character of Shipment into Intrastate and Vice 
 Versa. 
 
 Sec. 121. When Interstate or Intrastate Character of a Shipment is 
 not Changed by Temporary Stoppage or Interruption. 
 
 Sec. 122. Sale and Delivery of Coal f. o. b. Cars at Mine for Trans- 
 portation to Purchasers Outside the State. 
 
 Sec. 123. Shipments from Points in One State to a Port of Trans- 
 shipment in Same State for Export Included. 
 
 Sec. 124. Shipments from One Foreign Country to Another Through 
 the United States Beyond Control of Commission. 
 
 Sec. 125. Regulation of Terminal Charges, Service and Facilities for 
 Interstate Shipments. 
 
 Sec. 126. Transportation Wholly Within One State Not Under Fed- 
 eral Control. 
 
 Sec. 127. Transit Privileges Part of Transportation Under Control 
 of Interstate Commerce Commission. 
 
 Sec. 128. Regulation of Grain Elevation Service Under Federal Con- 
 trol. 
 
 Sec. 129. Loading, Dunnage and Special Preparation of Freight Cars 
 for Shipments of Particular Commodities. 
 
 Sec. 130. Weighing of Interstate Shipments of Freight Under Federal 
 Control. 
 
 Sec. 131. Regulations and Rules Concerning Baggage of Interstate 
 Passengers Under Control of Commission. 
 
 Sec. 132. Refrigeration, Ventilation and Icing of Property in Cars 
 Part of Transportation Duties of Interstate Carriers. 
 
 Sec. 133. Track Storage and Demurrage Charges in Connection With 
 
 1 Control Carriers B
 
 xviii Feueeal Ll\bilities or Carriers. 
 
 Interstate Shipments Under Control of Commission. 
 
 Sec. 134. Wharves and Connecting Tracks of Interstate Carriers Pub- 
 lic Facilities Under Federal Control. 
 
 Sec. 135. Jurisdiction of Commission Over Port Switching Servicf; 
 Performed on Import Traffic. 
 
 Sec. 136. Interstate Transportation by Land of Explosives and Other 
 Dangerous Articles Under Federal Control. 
 
 Sec. 137. Peddling Merchandise from Cars not Transportation Serv- 
 ice Which Carriers may be Compelled to Furnish. 
 ' Sec. 138. Terms "Railroad" and "Transportation" Defined by Stat- 
 ute. 
 
 Sec. 139. Statute not Applicable to all Interstate Commerce. 
 
 CHAPTER VIII. 
 
 UNJUST DISCRIMINATIONS AND UNLAWFUL PREFERENCES 
 
 BY INTERSTATE CARRIERS— GENERAL 
 
 PRINCIPLES. 
 
 Sec. 140. Statutory Definitions of Unjust Discriminations and Undue 
 Preferences. 
 
 Sec. 141. Unlawful Discriminations and Preferences Between Ship- 
 pers Under the Common Law. 
 
 Sec. 142. Origin and History of Sections Two and Three of the Inter- 
 state Commerce Act. 
 
 Sec. 143. Purpose and Object of Congress in the Enactment of Sec- 
 tions Two and Three. 
 
 Sec. 144. Relation and Distinction Between Sections Two and Three. 
 
 Sec. 14.5. Distinction Between Section Two and Clause in Section 
 One Prohibiting Unjust and Unreasonable Charges. 
 
 Sec. 146. Statutory Conditions Rendered Difference in Charges Un- 
 lawful Under Section Two. 
 
 Sec. 147. Circumstances and Conditions Determining Dissimilarity of 
 Service Under Section 2 Refer Strictly to Matters of Car- 
 riage. 
 
 Sec. 148. Unjust Discrimination and Preference Sections of Original 
 Act Apply to Subsequent Amendments Defining Railroads 
 and Transportation. 
 
 Sec. 149. Distinction Between Ordinary Definition of Rebate and the 
 Meaning of That Term Under Provisions of Section Two. 
 
 Sec. 150. Discrimination Under Section 3 Must Ordinarily be Prej- 
 udicial to One Party and Source of Advantage of the 
 Other. 
 
 Sec. 151. Relation of Discrimination Clause to the Elkins Act of 
 1903. 
 
 Sec. 152. All Methods and Means Employed Unlawful if Ultimate 
 Results Thereof Cause Unjust Discriminations. 
 
 Sec. 153. Effect of Statute Upon Contracts with Discriminatory Pro- 
 visions.
 
 Table of Contents. xix 
 
 Sec. 154. Terras "Unreasonable" or "I'ndue" Imply Comparison of 
 all Facts and Circumstances Applicable. 
 
 Sec. 155. Existence of Undue Preference or Unjust Discrimination 
 a Question of Fact. 
 
 Sec. 156. Strict Uniformity Not Always Required. 
 
 Sec. 157. Long Existence of Undue Discrimination No Justification 
 for its Continuance. 
 
 Sec. 158. Prohibition Against Unjust Discrimination Covers .Judg- 
 ments by Consent and Waiver of Valid Defenses. 
 
 Sec. 159. Proof of Injury and Measure of Damages in Actions for 
 Unlawful Discrimination. 
 
 CHAPTER IX. 
 
 DISCRIMINATIONS BETWEEN SHIPPERS AS TO RATES, SERV- 
 ICES, FACILITIES AND ALLOWANCES. 
 
 Sec. 160. Carrier Must Deal with All Its Shippers on Absolute Equal- 
 ity and Must Afford Equal Facilities. 
 
 Sec. 161. Difference in Rates When Based Upon Difference in Serv- 
 ice Not Discriminatory. 
 
 Sec. 162. Different Rates for Wholesalers and Retailers Prohibited. 
 
 Sec. 163. Rates for Train Loads Lower Than for Single Car Loads 
 Subject Small Shippers to Undue Disadvantage. 
 
 Sec. 164. Higher Rates on Domestic Than on Export Traffic Between 
 Ports of Entry and Inland Points not Discriminatory. 
 
 Sec. 165. Doctrine of Import Case Applied and Illustrated. 
 
 Sec. 166. Use of Terminal Facilities by Permitting Interchange of 
 Traffic with one Carrier and Denying it to Another. 
 
 Sec. 167. Discrimination in Reserving Right to Route Through Ship- 
 ments Beyond Carrier's Terminal — Former and Present 
 Rule. 
 
 Sec. 168. Discrimination in Refusal of Rail Carriers to Establish 
 Through Routes and Joint Rates with Water Lines. 
 
 Sec. 169. Exclusive Privileges for Auxiliary Facilities at Stations 
 and Terminal Grounds Lawful. 
 
 Sec. 170. Distribution of Cars Among Shippers During Time of Short- 
 age Must be Free from Discrimination. 
 
 Sec. 171. Preferences and Discriminations in Demurrage and Track 
 Storage Charges. 
 
 Sec. 172. Unreasonable Compensation to Shippers for Services in 
 Connection with Transportation. 
 
 Sec. 173. Abnormal Division of Joint Rates to Carrier Unlawful. 
 
 Sec. 174. Undue Discriminations in Divisions of Joint Through Rates 
 to Tap Lines or Logging Roads. 
 
 Sec. 175. Grant of Wharfage Privileges to One Shipoer Denied to 
 Others Unlawful. 
 
 Sec. 176. Unlawful Discriminations and Preferemces in Transit 
 Privileges.
 
 XX Federal Liabilities of CVrriees. 
 
 Sec. 177. Compensation for Transit Privileges Not Limited to Actual 
 Cost. 
 
 Sec. 178. Extension of Transit Privilege Over Twelve Months Un- 
 reasonable — Exceptions Permitted. 
 
 Sec. 179. Carriers ^lay Allow Compensation to One Shipper for Trans- 
 portation Services and Deny Same Privilege to Another. 
 
 Sec. 180. Contracts Requiring Expedited Services Not Open to All 
 Shippers Invalid. 
 
 Sec. 181. Preferential Rates to Other Carriers as Shippers Prohibited. 
 
 Sec. 182. Foregoing Rules Illustrated and Applied. 
 
 See. 183. Storage Regulations Must Be Enforced Without Preference 
 or Discrimination. 
 
 Sec. 184. Haulage by Stage or Wagon from Destination Points not 
 a Dissimilar Circumstance Justifying Lower Rates. 
 
 Sec. 185. Preparing Cars for Shipment of Commodities for Some 
 Shippers and Refusing Same Service to Others. 
 
 Sec. 186. Grain Elevator Service Must be Open to All Shippers With- 
 out Preference. 
 
 Sec. 187. Allowances When Owner of Elevator is Shipper of Grain 
 — Former and Present Rule. 
 
 Sec. 188. Allowances for Lighterage Services to Shipper Within Free 
 Delivery Zone not Discriminatory as to Shipper Beyond 
 Zone. 
 
 Sec. 189. Rebating Part of Freight Rates in Payment for Land for 
 Right of Way. 
 
 Sec. 190. Assisting One Shipper to Collect Private Charges and Re- 
 fusing Same Service to Another. 
 
 Sec. 191. Discrimination in Demanding Cash Payment of Some Ship- 
 pers and Extending Credit to Others — Conflicting De- 
 cisions. 
 
 Sec. 192. Deduction from Freight Rates to Pay Shipper for Building 
 Tie Hoist Invalid. 
 
 Sec. 193. Difference in Rates on Freight Not Justified by Different 
 Methods of Loading. 
 
 Sec. 194. Carrier "Spotting" Cars for One Shipper and Refusing 
 Same Service to Another Similarly Situated. 
 
 Sec. 195. Trap Car Service Not Unlawful If Practiced Without DL,- 
 crimination. 
 
 CHAPTER X. 
 
 UNLAWFUL PREFERENCES IN RATES AND PRACTICES 
 BETWEEN CITIES, COMMUNITIES AND LOCALITIES. 
 
 Sec. 196. Preferences Between Cities and Localities Under the Com- 
 mon Law Not Forbidden. 
 
 Sec. 197. Equality Between Communities under Similar Circum- 
 stances and Conditions Required. 
 
 Sec. 198. When Higher Rates to One Point Than to Another are Un- 
 justly Discriminatory.
 
 Tabi.k of Contents. xxi 
 
 Sec. 199. All Localities Entitled to Non-Discriminatory Itates. 
 
 Sec. 200. Undue Prejudice Between Localities Resulting from Dif- 
 ferent Interstate and Intrastate Rates— Shreveport Case. 
 
 Sec. 20L Kvery City and Locality Entitled to Benefit of Natural Ad- 
 vantages. 
 
 Sec. 202. Rates to One Locality Per Se Reasonable, Unlawful if 
 Another Locality is Prejudiced Thereby. 
 
 Sec. 203. Basing Point System of Rate-Making Legal but Subject 
 to Control of Commission. 
 
 Sec. 204. Discriminations and Preferences Produced by Competition 
 Between Localities not Undue or Unreasonable. 
 
 Sec. 205. Limitation Upon Competition in Determining Whether Dis- 
 crimination is Unjust or Preference Undue. 
 
 Sec. 206. Difference in Amount of Traffic Between Localities Simi- 
 larly Situated no Justification for Discriminatory Rates 
 and Fares. 
 
 Sec. 207. Carrier not Guilty of Discrimination Between Localities 
 When it Does not Participate in Rates to Favored Point. 
 
 Sec. 208. Discrimination Between Different Coal Fields Served by 
 Different Carriers not Unlawful. 
 
 Sec. 209. Discrimination in the Establishment and .Maintenance of 
 Group Rates. 
 
 Sec. 210. Different Rates in Opposite Directions Over Same Lines 
 Not Discriminatory. 
 
 Sec. 211. Discrimination in Absorbing Switching Charges at Ono 
 Point and Refusing at Another. 
 
 Sec. 212. Discrimination Through Joint Rates Between Two Local- 
 ities Similarly Situated Prohibited, When. 
 
 Sec. 213. Differentials Between Atlantic Coast Cities Legitimately 
 Based upon Competitive Relations. 
 
 Sec. 214. Maintaining Higher Rates on Branch Line Parallel to Main 
 Line Serving Same Territory. 
 
 Sec. 215. Proportional Part of Through Rate Lower Than Local Rates 
 Between Same Points Not Discriminatory. 
 
 Sec. 216. Rebilling and Reshipping Privilege at Nashville on Grain 
 From Ohio River to Southeastern Points Discriminatory. 
 
 Sec. 217. Differential Between Cities on Opposite Banks of Rivers 
 Crossed by Expensive Bridges. 
 
 Sec. 218. Carriers Unduly Favoring Industries on Their Own Lines 
 as Against Competitors on Other Lines. 
 
 Sec. 219. Stopping Carload Shipments at Points En Route to Finish 
 Loading Discriminatory, When. 
 
 CHAPTER XI. 
 
 UNLAWFUL PREFERENCE OR ADVANTAGE TO PARTICULAR 
 KINDS OF TRAFFIC. 
 
 Sec. 220. Unreasonable Preferences to any Particular Description of 
 TraflSc.
 
 xxii Federaij Liabilities of Carriees. 
 
 Sec. 221. Passage of Statute Prohibiting Discriminations Stimulated 
 Movement for a More Uniform Classification. 
 
 Sec. 222. Duty of Commission When Classification is Used to Effect 
 Unjust Discrimination. 
 
 Sec. 223. Controlling Considerations in Making Classifications of 
 Freight. 
 
 Sec. 224. Discriminations and Preferences in the Classification of 
 Commodities. 
 
 Sec. 225. Differential Between Raw Material and Manufactured Prod- 
 ucts — Grain and Flour, Livestock and Meats, Etc. 
 
 Sec. 226. Differential between Carload and Less than Carload Rates 
 Lawful. 
 
 Sec. 227. Relation Between Carload and Less Than Carload Rates 
 Must not be Excessive. 
 
 Sec. 228. Application of Carload Rates to Carload Lots when Goods 
 Belong to Several Owners. 
 
 Sec. 229. Wheat and Coarse Grain Not "Like Traffic" Requiring Same 
 Rate. 
 
 Sec. 230. Different Uses to which Commodity is Put, No Justification 
 for Different Rates. 
 
 Sec. 231. Justifiable Discrimination Between Shipments of Oil in 
 Barrels and in Tank Cars. 
 
 Sec. 232. Relationship of Rates on Lumber and Lumher Products 
 Must be Free From Discrimination. 
 
 Sec. 233. Differentials Between Similar Commodities Justified by Dif- 
 ferent Conditions and Circumstances Affecting Transpor- 
 tation — Lumber and Logs. 
 
 Sec. 234. Lower Rates on Returned Shipments Illegal Except When 
 Refused by Consignees. 
 
 CHAPTER XII. 
 
 UNJUST DISCRIMINATION AND UNLAWFUL PREFERENCE IN 
 PASSENGER SERVICE. 
 
 Sec. 235. Federal Statute Includes Passenger as Well as Freight 
 Transportation. 
 
 Sec. 236. Carrying Personal Baggage of Passengers Free Not Undue 
 Discrimination. 
 
 Sec. 237. Collection of Additional Fare on Trains From Passengers 
 Without Tickets not Unlawful. 
 
 Sec. 238. Discrimination Between White and Colored Passenger Un- 
 lawful. 
 
 Sec. 239. Lower Rates to Settlers Unlawful. 
 
 Sec. 240. Control of Commission over Preference in Mileage, Excur- 
 sion and Commutation Passenger Tickets. 
 
 Sec. 241. Legality of Sale of Tickets for Number of Persons at Less 
 Rate Than for a Single Passenger— Party Rate Case. 
 
 Sec. 242. But Party Rate Tickets Cannot be Limited to Particular 
 Classes of Persons,
 
 Table of Contents. xxiii 
 
 Sec. 243. Distinction Between Wholesale Rates in Passenger ajid 
 
 Freight Traffic. 
 Sec. 244. Regulations Governing Commutation Tickets Must Not be 
 
 Discriminative Between Classes of Persons. 
 Sec. 245. Discrimination in Trans-Continental Passenger F'ares as 
 
 Affecting Intermediate Localities. 
 
 CHAPTER XIII. 
 
 FILING AND PUBLICATION OF INTERSTATE RATES, AND EF- 
 FECT THEREOF. 
 
 Sec. 246. Publicity and Permanency of Rates and Charges of Com- 
 mon Carriers at Common Law. 
 
 Sec. 247. Publication, Certainty and Stability of Rates Necessary to 
 Eliminate Rebates and Discriminations. 
 
 Sec. 248. The Act to Regulate Commerce on Publicity of Rates and 
 Adherence Thereto. 
 
 Sec. 249. Purpose of Congress in the Passage of the Provisions of 
 Section 6 of the Act. 
 
 Sec. 250. Publication and Filing of all Rates, Fares and Charges for 
 Interstate Transportation Mandatory. 
 
 Sec. 251. Necessary Steps to Put Rates Legally in Force — Posting 
 not Essential. 
 
 Sec. 252. What the Schedules of Rates, Fares and Charges Filed with 
 the Commission Must Contain. 
 
 Sec. 253. Privileges or Facilities Furnished Shippers and Not Speci 
 fied in Tariffs Unlawful. 
 
 Sec. 254. Regulations Concerning Baggage of Interstate Passengers 
 Must be Published. 
 
 Sec. 255. Demurrage Charges on Interstate Shipments Must be Filed 
 with Commission. 
 
 Sec. 256. No Changes in Rates, Fares and Charges Permitted With- 
 out Thirty Days Notice to the Commission. 
 
 Sec. 257. Carriers Prohibited from Departing to any Extent from 
 Published Schedules of Rates and Charges Filed With 
 Commission. 
 
 Sec. 258. Foregoing Rule Equally Applicable to Transit and Special 
 Services Provided in Tariffs. 
 
 Sec. 259. Forwarders are Shippers within Statute Prohibiting Re- 
 funds from Published Rates and Charges. 
 
 Sec. 260. Oral Contracts or Special Arrangements for Interstate Trans- 
 portation Contravening Published Schedules. Unlawful. 
 
 Sec. 261. Shippers and Passengers Conclusively Presumed to Have 
 Knowledge of Published Schedules of Rates, Fares an.l 
 Charges. 
 
 Sec. 262. Courts Bound by Published Rates and Charges Until Set 
 Aside by Commission. 
 
 Sec. 263. Carriers Must Collect the Scheduled Rates and Charges for 
 Interstate Transportation.
 
 xxiv Fedeeal Liabilities of Carriees. 
 
 Sec. 264. Illustrative Cases Wherein the Foregoing Rule was Applied 
 and Enforced. 
 
 Sec. 265. Defense of Estoppel to Actions Against Shippers for Under- 
 charges. 
 
 Sec. 266. Penalty for Making Erroneous Quotation of Rate When Ship- 
 per is Damaged Thereby. 
 
 Sec. 267. In Actions to Collect Scheduled Rates Counterclaims for 
 Damages to Goods Prohibited. 
 
 Sec. 268. Damages Not Recoverable for Failure to Post Rates at Sta- 
 tions. 
 
 Sec. 269. Rule Stated in Foregoing Paragraph Illustrated in Adjudi- 
 cated Cases. 
 
 Sec. 270. Shipper May Recover Damages for Collection of Rate in 
 Excess of that Fixed by Schedule. 
 
 Sec. 271. Nothing but Money May be Lawfully Received for Trans- 
 portation of Either Passengers or Property. 
 
 Sec. 272. Acceptance of Promissory Notes in Payment for Freight 
 Charges Unlawful. 
 
 Sec. 273. Separately Established Rates must be Published in Absence 
 of Joint Rates over Through Route. 
 
 Sec. 274. When Through Rate is Made up of Sum of Locals, Rates 
 in Effect on Date of Shipment Apply. 
 
 Sec. 275. Departures from Published Tariffs Permitted in Perform- 
 ance of Private Duties of Carriers. 
 
 Sec. 276. Rates for Passage of Vehicles on Railroad Ferries Must be 
 Filed. 
 
 CHAPTER XIV. 
 
 DAMAGES OR REPARATION FOR VIOLATIONS OF COMMERCE 
 ACT— JURISDICTION OF COURTS AND COM- 
 MISSION. 
 
 Sec. 277. Statutory Provision Creating Civil Liability for Damages 
 Due to Violation of Interstate Commerce Act. 
 
 Sec. 278. Statutory Authority of Commission and Courts to Award 
 Damages for Violation of Act. 
 
 Sec. 279. Commission Without Authority to Award Damages Prior 
 to Amendment of 1889. 
 
 Sec. 280. Award of Damages by Commission for Unlawful Discrimina- 
 tion — Former and Present Rule. 
 
 Sec. 281. Authority of Commission to Award Damages Extends Only 
 to Violations of Act to Regulate Commerce. 
 
 Sec. 282. Conflicting Provisions Harmonized and Exclusiveness of 
 Remedy before Commission, in Certain Cases, Established. 
 
 Sec. 283. Courts Without Primary Jurisdiction to Award Damages 
 for Exaction of Excessive Interstate Rates. 
 
 Sec. 284. But Actions for Overcharges Exceeding Scheduled Rates 
 may be Prosecuted in Courts without Previous Determina- 
 tion of Commission.
 
 Table of Contents. xxv 
 
 Sec. 285. Suits for Damages Recoverable Under Section 8 Cannot be 
 
 Prosecuted in State Courts. 
 Sec. 286. Damages Caused by Unjust Discrimination, Preliminary 
 
 Order of Commission Essential, When. 
 Sec. 287. Original Jurisdiction of State Courts to Award Damages 
 
 Against Interstate Carriers not Wholly Superseded. 
 Sec. 288. In Actions for Damages for Violation of Statute Pecuniary 
 
 Loss Must be Shown. 
 Sec. 289. Measure of Damages for Unreasonable Rates and Unlawful 
 
 Discriminations. 
 Sec. 290. Parties Entitled to Damages for Excessive Freight Charges 
 
 — Consignors and Consignees. 
 Sec. 291. Right of Shipper to Reparation When Arbitrary Sum Is 
 
 Added to Sale Price to Cover Excessive Charges. 
 Sec. 292. Foregoing Principle Approved by Federal Supreme Court 
 
 — Southern P. Co. v. Darnell-Taenzer Lumber Co. 
 Sec. 293. Reparation on Past Shipments not Automatically Awarded 
 
 on Finding that Rate is Excessive. 
 Sec. 294. Damages Growing out of Inadequate Service or Facilities. 
 Sec. 295. Damages for Misrouting Shipments May be Awarded by 
 
 Commission, When. 
 Sec. 290. Reparation Awarded by Commission for Overcharges a Bar 
 
 to Subsequent Action for Additional Damages. 
 Sec. 297. Findings of Commission on Reasonableness of Rates Inure 
 
 to Benefit of Every Person Paying the Unjust Rate. 
 Sec. 298. Findings of Fact Required When Commission Awards Dam- 
 ages Against a Carrier. 
 Sec. 299. Statute Prescribing Findings and Orders of Commission 
 
 Prima Facie Evidence of Facts Therein Stated, Consti- 
 tutional. 
 Sec. 300. Commission May Order Reparation without Prescribing' 
 
 Maximum Rate to be Observed in the Future. 
 Sec. 301. Actions to Enforce Orders of Commission Awarding Dam- 
 ages may be Prosecuted in State as well as Federal Courts. 
 Sec. 302. Complaints for Damages before Commission must be Filed 
 
 within Two Years. 
 Sec. 303. Assignability of Claims for Damages under the Interstate 
 
 Commerce Act. 
 Sec. 304. Allowance of Attorney's Fees for Services in Reparation 
 
 Cases Before Commission not Permitted. 
 
 CHAPTER XV. 
 
 LIABILITIES FOR LOSS AND DAMAGE TO INTERSTATE SHIP- 
 MENTS— CARMACK AMENDMENT. 
 
 Sec. 305. Initial Carriers Liable for Loss and Damage to Property 
 
 Moving in Interstate Commerce. 
 Sec. 30(). Constitutionality and Validity of the Carmack Amendment.
 
 xxvi Fedkral Liabilities of Carriees. 
 
 Sec. 307. Law Governing Duties of Carriers for Loss or Damage to 
 Interstate Shipments Prior to 1906. 
 
 Sec. 308. Purpose of Congress in the Enactment of the Carmack 
 Amendment. 
 
 Sec. 309. Stipulations Exempting Initial Carrier from Liability for 
 Loss and Damage on Connecting Lines Invalid. 
 
 Sec. 310. All State Laws and Rules Regulating Liabilities for Loss 
 and Damage, Superseded as to Interstate Shipments. 
 
 Sec. 311. Decisions of Federal Courts Control in Construing Carmack 
 Amendment. 
 
 Sec. 312. State Courts may Enforce Provisions of Carmack Amend- 
 ment and Award Damages Thereunder. 
 
 Sec. 313. Actions Brought in State Courts under Carmack Amend- 
 ment not Removable, When. 
 
 Sec. 314. Initial Carrier may not be Sued in Domicile of Terminal 
 Carrier. 
 
 Sec. 315. Receipt from Shipper of Money Paid by Initial Carrier 
 Binding upon Connecting Carrier in Absence if Fraud. 
 
 Sec. 31G. Recovery Against Initial Carrier Bars an Action Against Con- 
 necting Carriers. 
 
 CHAPTER XVI. 
 
 THE CARMACK AMENDMENT AS MODIFIED BY FIRST AND 
 SECOND CUMMINS AMENDMENTS. 
 
 Sec. 317. Text of the Carmack Amendment as Modified by First and 
 Second Cummins Amendments. 
 
 Sec. 318. Causes Leading to Enactment of First Cummins Amendment 
 — Agreed Valuation Clauses and Notices of Loss. 
 
 Sec. 319. Effect of Second Amendment upon Provisions of First Cum- 
 mins Amendment. 
 
 Sec. 320. Object and Purpose of Congress in Enacting Second Cum- 
 mins Amendment of 1916. 
 
 Sec. 321. Cummins Amendment has no Retroactive Effect. 
 
 Sec. 322. Initial Carriers Subject to the Statute as Changed by Cum- 
 mins Amendment. 
 
 Sec. 323. Interurban Electric Railroad Subject to Statute, When. 
 
 Sec. 324. Carriers Liable for Full Actual Loss, Damage or Injury to 
 Ordinary Live Stock. 
 
 Sec. 325. Limitations of Liability Valid as to Property Other Than 
 Live Stock, When. 
 
 Sec. 326. Stipulations as to Notice of Claims and Limitations upon 
 Filing of Suits Now Regulated by Statute. 
 
 Sec. 327. Statute not Applicable to Export and Import Shipments to 
 and from Countries not Adjacent to United States.
 
 Tai'.lk of Contknt.s xxvii 
 
 CHAPTER X\^II. 
 
 BASIS, NATURE AND EXTENT OF LIABILITY UNDER CARMACK 
 AMENDMENT AS AMENDED. 
 
 Ses. 328. Liability Imposed by the Statute is that of Common Law 
 
 Doctrines Governing Duties of Carriers. 
 Sec. 329. Ancient Common Law and Modern Exceptions to Liabilities 
 
 of Common Carriers. 
 Sec. 330. Interstate Carriers may Contract Against Loss by Fire not 
 
 Due to Negligence. 
 Sec. 330a. Stipulations Exonerating Carrier from its Own Negligence 
 
 Invalid Though Filed with Commission. 
 Sec. 331. Proviso Reserving all Remedies under Existing Laws Re- 
 lates Solely to Remedies under Federal Laws. 
 Sec. 332. Duties and Obligations of Initial Carrier Commence with 
 
 Delivery of Property for Transportation. 
 Sec. 333. Effect of Failure or Refusal of Initial Carrier to Issue Bill 
 
 of Lading. 
 Sec. 334. Term "Lawful Holder" of Bill of Lading not Limited to 
 
 Owner of Property Transported. 
 Sec. 335. Bill of Lading Issued by Initial Carrier Governs Entire 
 
 Transportation — Second Bill Void. 
 Sec. 336. Statute Embraces Damages due to Delay as Well as for Loss 
 
 or Injury in Course of Transportation. 
 Sec. 337. Wrongful Delivery by a Terminal Carrier a "Loss" Within 
 
 Meaning of Statute. 
 Sec. 338. Initial Carriers Liable for Property Held by Terminal 
 
 Carrier as Warehouseman — Conflicting Decisions. 
 Sec. 339. Nature of Carrier's Liability as Warehouseman. 
 Sec. 340. Quantum of Proof Necessary to Establish Liability under 
 
 Federal Statute. 
 Sec. 341. Federal Rule as to Negligent Delay Co-operating with Act of 
 
 God in Destruction of Property. 
 Sec. 342. Connecting and Terminal Carriers Liable Under Carmack 
 
 Amendment as Amended, When. 
 Sec. 343. Connecting and Terminal Carriers not Liable for Acts of 
 
 Initial Carrier. 
 Sec. 344. Presumption that Loss or Damage Occurred on Line of Ter- 
 minal Carrier — Contrary Rulings. 
 Sec. 345. Last Carrier not Liable in Absence of Proof of Damage on 
 
 its Line. 
 Sec. 346. Effect of Re-routing or Change of Destination upon Liabil- 
 ity of Initial Carrier. 
 Sec. 347. Carriers May Limit Liability for Value of Property at Time 
 
 and Place of Shipment. 
 Sec. 348. Provisions of Shipper's Contract with Initial Carrier Inure 
 
 to Benefit of Connecting Carrier.
 
 xxviii Fedeem. Ijarilities of CarriEks. 
 
 CHAPTER XVIII. 
 
 THE FEDERAL BILL OF LADING LAW. 
 
 Sec. 349. Origin and General Scope of tlie Federal Bill of Lading 
 
 Law. 
 Sec. 350. Constitutionality and Validity of the Act. 
 Sec. 351. Leading Provisions of Act— Rule in Friedlander v. Texas & 
 Pacific R. Co., Modified. 
 
 CHAPTER XIX. 
 
 THE INTERSTATE COMMERCE COMMISSION— ITS NATURE, 
 FUNCTIONS, POWERS AND DUTIES. 
 
 Sec. 352. Necessity of a National Commission to Enforce Federal 
 
 Legislation Regulating Railroads. 
 Sec. 353. Statutory Provision Creating the Interstate Commerc3 
 Commission. 
 
 Sec. 354. Amendments of 1906 and 1917 Increasing Membership and 
 Salaries of the Commissioners. 
 
 Sec. 355. Commission an Administrative Body Exercising Quasi 
 Judicial Functions. 
 
 Sec. 356. General Statement of Powers and Duties of Commission 
 over Interstate Carriers. 
 
 Sec. 357. Commission Authorized to Divide its Members into Divisions. 
 
 Sec. 358. Three Divisions of Commission Established Pursuant to 
 Foregoing Amendment. 
 
 Sec. 359. Limitation upon Powers of Commission in Regulating In- 
 terstate Carriers and Transportation. 
 
 Sec. 360. Commission Without Authority to Compel Carriers to Ac- 
 quire and Furnish Special Kind of Cars. 
 
 Sec. 361. Duty to Furnish Cars for Interstate Shipments a Judicial 
 Question for Courts and not Administrative in Character. 
 
 Sec. 362. Maximum Rates and Charges for Interstate Transportation 
 may be Prescribed by Commission. 
 
 Sec. 363. Proposed Advances in Rates may be Suspended by Commis- 
 sion Pending Investigation of Propriety. 
 
 Sec. 364. Amendment of 1917 Prohibiting Filing of Increased Rates 
 without Approval of Commission. 
 
 Sec. 365. Rules of Carriers Governing Distribution, Exchange, Inter- 
 change and Return of Cars. 
 
 Sec. 366. Statute Compelling Carriers to Establish Through Routes 
 and Joint Rates upon Order of Commission, Valid. 
 
 Sec. 367. Powers of, and Limitations Upon, Commission in Establish- 
 ing Through Routes and Joint Rates. 
 
 Sec. 368. When Commission may Establish Through Routes and Max- 
 imum Joint Rates between Rail and Water Lines. 
 
 Sec. 369. Jurisdiction of Commission in Connection with Transpor- 
 tation to Adjacent Foreign Countries.
 
 Table of Contents. xxix 
 
 Sec. 370. Commission may not Compel a Carrier to Rer-elve and 
 
 Switch Carload Freight to Industries on Its Terminals. 
 Sec. 371. Commission may Authorize Carriers to Charge Less for 
 
 Longer than for Shorter Distance. 
 Sec. 372. Commission may Authorize Rail Carriers to Continue Own- 
 ership of Water Lines. 
 Sec. 373. Commission may Prescribe the Forms of all Schedules of 
 
 Rates and Charges. 
 Sec. 374. Charges by Shippers against Carriers for Services Connected 
 
 with Transportation under Control of Commission. 
 Sec. 375. Commission may Formulate Regulations for the Transpor- 
 tation of Explosives. 
 Sec. 376. Switch Connections may be Ordered by the Commission, 
 
 When. 
 Sec. 377. Forms of all Accounts, Records and Memoranda of Carriers 
 
 Subject to Control of Commission. 
 Sec. 378. Power of Commission over Rail Carriers Discriminating 
 
 against Steamship Lines to Foreign Countries. 
 Sec. 379. Rail Rates Reduced to Meet Water Competition may not be 
 
 Raised without Permission of Commission. 
 Sec. 380. Physical Connection between Line of Rail Carriers and Water 
 
 Carriers may be Established by Commission. 
 Sec. 381. Maximum Proportional Rates by Rail to and From Ports 
 
 may be Established by Commission, When. 
 Sec. 382. Commission Without Jurisdiction to Regulate Charges in 
 
 Connection with 28-Hour Livestock Law. 
 Sec. 383. Commission Required to Make Annual Reports to Congress. 
 Sec. 384. Rules and Regulations for Inspection of Locomotive Boilers 
 
 Controlled by Commission. 
 Sec. 385. Carriers Required to Make Monthly Reports of all Accidents 
 
 to Commission. 
 Sec. 386. Commission May Require Annual Reports from all Common 
 
 Carriers Subject to Statute. 
 Sec. 387. Power of Commission over Safety Appliances on Railroad 
 
 Cars and Engines. 
 Sec. 388. Commission Empowered to Investigate Railroad Accidents 
 to Make Reports. 
 
 CHAPTER XX. 
 
 PROCEDURE BEFORE INTERSTATE COMMERCE COMMISSION. 
 
 Sec. 389. Who May Make Complaints to the Commission. 
 
 Sec. 390. Absence of Direct Damage to Complainant not Ground foi 
 
 Dismissal of Complaint. 
 Sec. 391. Power of Commission to Proceed when Acting upon its 
 
 Own Motion. 
 Sec. 392. Power of Commission to Formulate Rules of Procedure. 
 Sec. 393. Rules Governing Complaints Filed Before Commission. 
 Sec. 394. Essentials of Complaints When Reparation is Sought.
 
 XXX Federal. Liabilities of Carriers. 
 
 Sec. 395. Formal Claims for Reparation Based upon Findings of Com- 
 mission. 
 
 Sec. 396. Specifications of Complaints, Answers, Briefs, Petitions, Ap- 
 plications, etc. 
 
 Sec. 397. Applications to Carriers Under Fourth Section. 
 
 Sec. 398. Suspensions of Tariff Schedules under Section 1.5. 
 
 Sec. 399. Requirements of the Rules at to Answers Filed Before Com- 
 mission. 
 
 Sec. 400. Method of Serving Papers. 
 
 Sec. 401. Amendments to Complaints or Answers in Proceedings Be- 
 fore Commission. 
 
 Sec. 402. Commission May Order Testimony to be Taken by Deposi- 
 tion at any Stage of Proceedings. 
 
 Sec. 403. Method of Hearing Before the Commission. 
 
 Sec. 404. May Hold Hearings or Prosecute Inquiries Anywhere in the 
 LTnited States. 
 
 Sec. 405. Continuances, Extensions of Time and Stipulations. 
 
 Sec. 406. Commission may Compel Attendance and Testimony of Wit- 
 nesses and Production of Papers. 
 
 Sec. 407. Schedules, Contracts and Annual Reports Filed with Com- 
 mission — Public Records Receivable as Prima Facie Evi- 
 dence, When. 
 
 Sec. 408. Transcripts of Testimony to be Furnished Complainant and 
 Defendant. 
 
 Sec. 409. Rules Governing Filing of Briefs. 
 
 Sec. 410. Orders of the Commission — Enforcement, Service of, and 
 Duties of Carriers Thereunder. 
 
 Sec. 411. Applications for Rehearing or Reopening before the Com- 
 mission — Procedure. 
 
 Sec. 412. Employment of Attorneys to Aid Commission Authorized. 
 
 Part Three 
 
 PERSONAL INJURIES TO INTERSTATE EMPLOYES OF COMMON 
 
 CARRIERS, 
 
 The Federal Employers' Liability Act. 
 
 CHAPTER XXI. 
 
 SCOPE, PURPOSE, VALIDITY AND EFFECT OF FEDERAL 
 LIABILITY ACT. 
 
 Sec. 413. Source, Nature and Extent of Power of Congress to Regu- 
 late Relation of Master and Servant. 
 Sec. 414. Employers' Liability Act of 1906 Invalid. 
 Sec. 415. Second Federal Employers' Liability Act Valid. 
 Sec. 416. Scope of the Federal Employers' Liability Act.
 
 Tai'.lk of (Vjntknts. xxxi 
 
 Sec. 417. Purpose of ConKress in Enactment of Federal Act — Uniform- 
 ity and Modification of Common Law Rules. 
 
 Sec. 418. Defects in Act of 1908 and Amendments of 1910. 
 
 Sec. 419. Congressional Purpose in the Enactment of the Amendments 
 of 1910. 
 
 Sec. 420. Extent of Power Exercised by Congress In Passing the 
 Liability Act. 
 
 Sec. 421. Exclusiveness of the Federal Act and its Effect upon State 
 Laws. 
 
 Sec. 422. State Workmen's Compensation Laws Superseded by Fed- 
 eral Act as to Injuries Arising in Interstate Commerce. 
 
 Sec. 423. Common Law Right of Parents to Recover for Loss of Serv- 
 ice of Minor Employe Injured, Superseded. 
 
 Sec. 424. Remedy Provided by Statute Limited to Employes Only of 
 Common Carriers by Railroad. 
 
 Sec. 425. Employes on Ocean-going Ships Owned by Common Carriers 
 by Railroads not Included. 
 
 Sec. 42G. Decisions of National Courts Construing Act Control. 
 
 Sec. 427. Laws of State Control as to Procedure. 
 
 Sec. 428. Fellow Servant Rule Abolished as to all Interstate Em- 
 ployes. 
 
 CHAPTER XXII. 
 
 CARRIERS SUBJECT TO LIABILITY ACT. 
 Sec. 429. General Rule as to When Railroad Companies are Engaged 
 
 in Interstate and Foreign Commerce. 
 Sec. 430. Railroads Within the Act Defined — Spur Tracks. 
 Sec. 431. Railroad Must be a Common Carrier — Tap Lines and Logging 
 
 Roads. 
 Sec. 432. Carriers Owning and Operating Lines Wholly Within a 
 
 Single State Subject to Federal Act, When. 
 Sec. 433. Railroad Carriers Engaged in Foreign Commerce Subject to 
 
 the Statute. 
 Sec. 434. Lessor of Railroad Engaged in Interstate Commerce Liable, 
 
 When. 
 Sec. 435. Interurban Electric Railroads Included Within the Act. 
 Sec. 436. Railroads Carrying Passengers and no Freight. 
 Sec. 437. Ships or Vessels not a Part of a Railroad System. 
 Sec. 438. Street Railroads not Within the Terms of the National Act. 
 Sec. 439. Receivers of Railroad Corporations Included Within the Act. 
 Sec. 440. Sleeping Car Companies not Common Carriers by Railroad. 
 Sec. 441. Express Companies not Common Carriers by Railroad Under 
 
 Federal Act. 
 Sec. 442. All Carriers by Railroad and all their Employes Within 
 
 Territories Included. 
 Sec. 443. Beginning and Ending of Interstate Character of Shipments. 
 Sec. 444. Hauling Empty Cars or Company Property over State Line. 
 Sec. 445. Transportation from Point to Point in One State Passing 
 
 Through Another State in Transit.
 
 xxxii Federal Liabilities of Carriees. 
 
 Sec. 446. When Reshipment from Point of Delivery Changes Inter- 
 state Character of Traffic. 
 
 Sec. 447. When Reshipment from Point of Delivery Does not Change 
 Interstate Character of Traffic. 
 
 Sec. 448. Proof that Injured Servant Is Employed in Interstate Com- 
 merce Sufficient to show that the Railroad is so Engaged. 
 
 CHAPTER XXIII. 
 
 EMPLOYES ENGAGED IN INTERSTATE COMMERCE— GENERAL 
 
 PRINCIPLES. 
 
 Sec. 449. Statute Includes Only Employes Injured While Engaged in 
 Interstate Commerce. 
 
 Sec. 450. Employment in Interstate Commerce not Restricted or Lim- 
 ited to Actual Transportation from One State to Another. 
 
 Sec. 451. Same Act May Constitute Interstate Employment in One 
 Relation and not in Another. 
 
 Sec. 452. Criterion Adopted by United States Supreme Court in De- 
 termining Employment in Interstate Commerce. 
 
 Sec. 453. Employes Presumed to be Engaged in Intrastate Commerce. 
 
 Sec. 454. Prior or Subsequent Employment Immaterial in Determin- 
 ing Applicability of Federal Statute. 
 
 Sec. 455. Servants Employed in Both Intrastate and Interstate Com- 
 merce. 
 
 Sec. 456. Employes on Premises of Railroad Company Going to or 
 from Work. 
 
 Sec. 457. Status of Employes Injured While Going to or from Day's 
 Work Partly in Interstate and Partly in State Commerce. 
 
 Sec. 458. Employer not Liable to Employe Injured After Day's Work 
 is Over — Sleeping in Cars. 
 
 Sec. 459. Effect of Temporary Cessation in or Abandonment of Work 
 in Interstate Commerce. 
 
 Sec. 460. Employes of Private Carriers Transporting their Own Prop- 
 erty not Subject to Statute. 
 
 Sec. 461. When Questions of Employment in Interstate Commerce 
 should be Submitted to Jury. 
 
 Sec. 462. Decisions Construing Federal Safety Appliance Act not 
 always Applicable in Construing Employers' Liability Act. 
 
 Sec. 463. Instances where Employes were Engaged in Interstate Com- 
 merce but Erroneously Held to Have Been Engaged in In- 
 trastate Commerce. 
 
 Sec. 464. Instances Where Employes Were Engaged Exclusively in 
 Intrastate Commerce but Erroneously Held to have been 
 Engaged in Interstate Commerce. 
 
 Sec. 465. Burden of Proving Interstate Employment is Upon the 
 Plaintiff. 
 
 Sec. 466. Burden of Proving Interstate Employment upon Defend- 
 ant, When.
 
 Tablk of Contents. xxxiii 
 
 CHAPTER XXIV. 
 EMPLOYES ENGAGED IN CONSTRUCTION AND REPAIR WORK. 
 
 Sec. 467. Employes Engaged in Construction of Instrumentalities for 
 Future Use in Intfrstate Commerce. 
 
 Sec. 468. Distinction between Original Construction Work and Re- 
 pair or Maintenance of Interstate Highways by Rail. 
 
 Sec. 469. Bridge Workers and Carpenters Employed in Interstate 
 Commerce, When. 
 
 Sec. 470. Far Reaching Effect of Pedersen Case in Extending National 
 Control over Railroad Employes. 
 
 Sec. 471. Erecting Foundation for New Bridges under Old Bridges 
 Forming Parts of Interstate Lines. 
 
 Sec. 472. Removing Bolts from Timbers after Having Been Taken Out 
 of Interstate Bridges. 
 
 Sec. 473. Repairing Tracks of Interstate Carriers — Section men and 
 Track Laborers. 
 
 Sec. 474. Status of Laborers Repairing Side Tracks, Spur Tracks and 
 Switches. 
 
 Sec. 475. Maintenance and Repair of Turntables on Interstate Rail- 
 roads. 
 
 Sec. 476. Clearing Debris from Interstate Lines after Wrecks and 
 Constructing Temporary Tracks. 
 
 Sec. 477. Employes Surveying Track to Improve Condition of Road- 
 bed. 
 
 Sec. 478. Employes Handling Rails on Tracks of Interstate Carriers. 
 
 Sec. 479. Picking up Old Rails and Storing New Ones Along Track for 
 Future Use. 
 
 Sec. 480. When Laborers Handling Ties for Common Carriers are Un- 
 der the Federal Act. 
 
 Sec. 481. Employes Handling Ballast, Gravel, Sand, Etc.. for Use 
 in Repairing Interstate Tracks. 
 
 Sec. 482. Excavating and Deepening Ditches Along Railroad Tracks 
 for I^rainage Purposes. 
 
 Sec. 483. Repairing or Rebuilding Depots, Roundhouses, Sheds, etr. 
 not Employment in Interstate Commerce. 
 
 Sec. 484. Employes Working in Machine and Repair Shops, Round- 
 houses and Other Like Buildings. 
 
 Sec. 485. Earlier Decisions Overruled by Rulings of National Supreme 
 Court Cited in Two Foregoing Paragraphs. 
 
 Sec. 486. When Car and Engine Repairers are Employed in Inter- 
 state Commerce. 
 
 Sec. 487. Employes Repairing Engines and Cars in Transit or Tem- 
 porarily Delayed. 
 
 Sec. 488. Statutes of Shopmen Repairing Empty Cars in Terminal 
 
 Yards and Engines in Roundhouses. 
 Sec. 489. Subsequent Cases Applying the Doctrine of the Winters 
 Case to Car and Engine Repairers. 
 
 1 Control Carriers C
 
 xxxiv Federal Ll^bilities of Carriees. 
 
 Sec. 490. Differentiating Factors Between Rulings in Winters and 
 Pedersen Cases. 
 
 Sec. 491. Illustrative Cases in which Car and Engine Repairers were 
 not Employed in Interstate Commerce. 
 
 Sec. 492. Repairing Cars and Engines Used Exclusively in Interstate 
 Commerce. 
 
 Sec. 493. Interstate Status of Employes Painting Instrumentalities 
 of Commerce Among the States. 
 
 Sec. 494. Linemen Repairing Telegraph and Telephone Lines of Inter- 
 state Carriers. 
 
 CHAPTER XXV. 
 INTERSTATE STATUS OF TRAIN AND SWITCHING CREWS. 
 
 Sec. 495. Train Men on Interstate Trains are Employed in Interstate 
 Commerce. 
 
 Sec. 496. When Trainmen are not Engaged in Interstate Commerce. 
 
 Sec. 497. Employes Preparing Interstate Trains for Movement. 
 
 Sec. 498. Beginning and Termination of Federal Control over Crews 
 on Trains Carrying Interstate Commerce. 
 
 Sec. 499. Interstate Employment of Train Crews on Return Trip 
 not Shown by Proof that Train on Outgoing Trip Carried 
 Interstate Freight. 
 
 Sec. 500. Train and Switching Crews "Making Up" and "Breaking Up" 
 Interstate Trains in Railroad Yards. 
 
 Sec. 501. Switching Cars Containing Intrastate Shipments into or out 
 of Interstate Trains — Early Conflicting Rulings. 
 
 Sec. 502. Status of Such Employes Finally Held to be Under Federal 
 Control. 
 
 Sec. 503. Test in Determining when Switching Crews are Employed in 
 Interstate Commerce. 
 
 Sec. 504. Doctrine of Behrens Case as to Interstate Status of Switch- 
 ing Crews Reaffirmed and Applied. 
 
 Sec. 505. Exceptions to Rule that Switching Crews Moving Intra- 
 state Cars Exclusively are Governed by State Law. 
 
 Sec. 506. Switching Movements of Empty Cars in Railroad Yards to 
 be Loaded with Interstate Freight. 
 
 Sec. 507. Weighing of Cars containing Interstate Freight after Un- 
 loading to Determine Weight of Contents. 
 
 Sec. 508. Switching Movement of Cars After Termination of Inter- 
 state Journey or After Receipt by Consignee. 
 
 Sec. 509. Switching Cars Loaded with Interstate Freight for Re- 
 pairs. 
 
 Sec. 510. Local Movement of Cars in Yard Between Completion of 
 one Interstate Trip and Commencement of Another. 
 
 Sec. 511. Exceptions to Rule that Delivery of Cars at Destination 
 ends its Interstate Status. 
 
 Sec. 512. Switching Movement of Car of Lumber to be Used in Re- 
 pairing the Building Cars Used in Interstate Commerce.
 
 Tahlf. of Contents. xxxv 
 
 Sec. 513. Employes Making up Train of Another Company for an In- 
 state Run over the Latter's Track. 
 
 Sec. 514. Illustrative Cases Showing Employment of Switching Cre-vs 
 In Interstate Commerce. 
 
 CHAPTER XXVI. 
 INTERSTATE STATUS OF MISCELLANEOUS EMPLOYES. 
 
 Sec. 515. Employes Procuring Supplies and Materials to be Used on 
 Interstate Trains. 
 
 Sec. 516. Supplying and Moving Coal for Use of Engines Pulling Inter- 
 state Trains. 
 
 Sec. 517. Status of Employes Dumping Coal from Chutes into Tenders 
 of Interstate Engines. 
 
 Sec. 518. Loading and Unloading Freight from Interstate Trains Con- 
 stitutes Work in Interstate Commerce. 
 
 Sec. 519. Status of Watchmen, Detectives and other Employes doing 
 Police Duties. 
 
 Sec. 520. Yard Clerks Engaged in Interstate Commerce, When. 
 
 Sec. 521. Servants of Railroad Companies Handling United States 
 Mail in Connection with Interstate Trains. 
 
 Sec. 522. Agents of Express Companies. 
 
 Sec. 523. Interstate Status of Express Messengers Employed Jointly 
 by Railroad and Express Companies. 
 
 Sec. 524. Pullman Employes. 
 
 Sec. 525. Miscellaneous Employes. 
 
 CHAPTER XXVII. 
 NEGLIGENCE UNDER FEDERAL ACT. 
 
 Sec. 526. The Statutory Provision. 
 
 Sec. 527. Tw^o Branches of Negligence Under First Section. 
 
 Sec. 528. Negligence Criterion of Liability of Carrier Under National 
 Statute. 
 
 Sec. 529. Negligence need not be Proven when Violation of Safety Ap- 
 pliance Act is Cause of Injury. 
 
 Sec. 530. Negligence of Human Agencies Not Limited to Fellow Serv- 
 ants as Construed under Common Law. 
 
 Sec. 531. Negligence of Common Carrier Need Not be Shown by 
 Direct or Positive Proof. 
 
 Sec. 532. Judicial Definition of Negligence. 
 
 Sec. 533. Carrier not Required to Furnish Latest, Best and Safest 
 Appliances for Interstate Employes. 
 
 Sec. 534. Custom or Practice of Other Railroads not Conclusive in 
 Determining Exercise of Ordinary Care. 
 
 Sec. 535. Decisions of National Courts Control in Determining Neg- 
 ligence — Contrary Rulings. 
 
 Sec. 536. Conflicting Rulings Finally Eliminated by Controlling De- 
 cisions of National Supreme Court. 
 
 Sec. 537. Negligent Act Must have been Committed while Employe 
 was Acting within Scope of Employment.
 
 xxxvi Fedekal Ll\bilities of Carkiees. 
 
 Sec. 538. Negligence Must be Proximate Cause of Injury. 
 
 Sec. 539. :Meaning of the Phrase "In Whole or in Part." 
 
 Sec. 540. State Statutes Creating Presumption of Negligence from In- 
 jury Inapplicable to Interstate Employes. 
 
 Sec. 541. Mississippi "Prima Facie" Statute Held Applicable to Actions 
 under Federal Act. 
 
 Sec. 542. Sufficiency of Evidence of Negligence to Submit Cause to 
 Jury not Governed by Decisions of State Courts. 
 
 Sec. 543. Effect of State Law Prohibiting Employment of Minors in 
 Determining Negligence. 
 
 Sec. 544. Applicability of Rule of Res Ipsa Loquitur to Actions under 
 Federal Act — Conflicting Rulings. 
 
 Sec. 545. Recovery Cannot be Defeated When Defendant's Negligence 
 is Part of Causation. 
 
 Sec. 546. Casualties Due to Sole Negligence of Employe, no Recovery 
 under Federal Act. 
 
 Sec. 547. Foregoing Principle Further Illustrated and Applied. 
 
 Sec. 548. Cases Under Federal Act in Which the Facts were Held to 
 Show Actionable Negligence. 
 
 Sec. 549. Cases Under Federal Act in Which the Facts were Held not 
 to Show Actionable Negligence. 
 
 Sec. 550. Statute Covers Acts of Intrastate Employes and Defects in 
 Instrumentalities Used Solely in Intrastate Commerce. 
 
 Sec. 551. Intrastate Employes Injured by Negligence of Interstate Em- 
 ployes or Instrumentalities of Interstate Commerce have 
 no Remedy under Federal Act. 
 
 Sec. 552. Willful Wrongs not Within Terms of Act. 
 
 CHAPTER XXVIII. 
 ASSUMPTION OF RISK UNDER LIABILITY ACT. 
 
 Sec. 553. The Statutory Provision. 
 
 Sec. 554. Assumption of Risk a Defense under the Federal Act. 
 
 Sec. 555. Doctrine of Horton Case Reexamined and Reaffirmed by 
 
 National Supreme Court. 
 Sec. 556. Effect of State Constitutions and Statutes Abolishing or 
 
 Modifying Assumption of Risk on Interstate Employes. 
 Sec. 557. Decisions of Federal Courts Control in Determining When 
 
 Employe Assumes Risk. 
 Sec. 558. Ordinary Risks and Known or Obvious Extraordinary Risks 
 
 Assumed by Interstate Employees. 
 Sec. 559. Exception to Rule that Servant Assumes Obvious or Known 
 
 Risk — Promises of Repair. 
 Sec. 560. When Assumption of Risk is a Defense to Negligent Acts 
 
 of Fellow Servants. 
 Sec. 561. Analysis of Federal Decisions Applying Doctrine of As- 
 sumption of Risk to Interstate Employes of Railroads. 
 Sec. 562. Distinction Between Assumption of Risk and Contributory 
 
 Negligence.
 
 I'vuLK OF Contents. xxxvii 
 
 Sec. 563. When Assumption of Risk is not a Defense — Federal Safety 
 
 Appliance Laws. 
 Sec. 5G4. State Statutes for Safety of Employes not Inchided. 
 Sec. 565. Assumption of Risk Elliminated in Actions for Violation of 
 
 Hours of Service Act. 
 Sec. 566. Confusing Assumption of liisk with Contributory Negligence 
 
 in Jury Instructions under Federal Act. 
 Sec. 567. When Assumption of Risk is no Defense When there is a 
 
 Plurality of Causes. 
 Sec. 568. Violations of Rules not Assumption of Risk. 
 Sec. 509. Concrete Instruction must be Given, if Requested. 
 Sec. 570. Failure to Instruct on Assumption of Risk not Error When 
 
 Defendant has not been Prejudiced Thereby. 
 Sec. 571. Burden of Proving Assumption of Risk upon Defendant. 
 Sec. 572. Defense of Assumption of Risk Must be Pleaded to be 
 
 Available. 
 Sec. 573. Cases in Which Interstate Employes were Held to have 
 
 Assumed the Risk. 
 Sec. 574. Cases in Which Interstate Employes were Held not to have 
 
 Assumed the Risk. 
 
 CHAPTER XXIX. 
 CONTRIBUTORY NEGLIGENCE UNDER LIABILITY ACT. 
 
 Sec. 575. The Statutory Provision. 
 
 Sec. 576. Contributory Negligence Defined. 
 
 Sec. 577. Right of Recovery under Federal Act not Barred by Con- 
 tributory Negligence. 
 
 Sec. 578. Two Theories of Comparative Negligence Extant in United 
 States. 
 
 Sec. 579. Purpose of Congress in Modifying Common Law Rule of 
 Contributory Negligence. 
 
 Sec. 580. Apportionment of Damages under Federal Act Different from 
 Georgia Statute. 
 
 Sec. 581. Employe's Contributory Negligence to Reduce Damages must 
 Proximately Contribute to Injury. 
 
 Sec. 582. Gross Negligence of Plaintiff and Slight Negligence of De- 
 fendant Cannot Defeat Recovery. 
 
 Sec. 583. When Defendant's Act is no Part of Causation, Plaintiff Can- 
 not Recover. 
 
 Sec. 584. How Damages Apportioned When Employe is Guilty of Con- 
 tributory Negligence. 
 
 Sec. 585. When Duty of Trial Court to Instruct on Contributory Neg- 
 ligence Arises under Federal Act. 
 
 Sec. 586. Method of Instructing the Jury When there is Evidence of 
 Contriliutory Negligence. 
 
 Sec. 587. Instruction on Contributory Negligence in Language of Stat 
 ute not Erroneous. 
 
 Sec. 588. Erroneous Instructions on Contributory Negligence Under ihe 
 Federal Act.
 
 xxxviii Fedkkal Liawlities of Carrieks. 
 
 Sec. 589. When Contributory Negligence of Employe Does not Dimin- 
 ish Damages— Federal Safety Appliance Laws. 
 
 Sec. 590. Burden is Upon Defendant to Prove Contributory Negli- 
 gence. 
 
 Sec. 591. Whether Contributory Negligence Must be Pleaded, Deter- 
 mined by State Law. 
 
 Sec. 592. Evidence of Contributory Negligence Admissible Under Gen- 
 eral Denial, When. 
 
 CHAPTER XXX. 
 
 BENEFICIARIES UNDER LIABILITY ACT. 
 
 Sec. 593. Beneficiaries under the Federal Statute. 
 
 Sec. 594. Parents not Entitled to Damages when there is a Widow 
 or Children. 
 
 Sec. 595. Alien Dependents Residing Abroad may Recover under 
 Federal Act. 
 
 Sec. 596. Existence of Beneficiaries Named in Statute .Jurisdictional. 
 
 Sec. 597. Who are "Next of Kin" under Federal Act must be De- 
 termined by State Law. 
 
 Sec. 598. Illegitimate Children may be Next of Kin within Meaning 
 of Federal Statute. 
 
 VOLUME II. 
 
 Part Three— Continued, 
 chapter xxxi. 
 
 DAMAGES IN DEATH CASES UNDER LIABILITY ACT. 
 
 Sec. 599. The Statute. 
 
 Sec. 600. No recovery under Federal Act unless Relatives Named in 
 Statute Suffer Pecuniary Loss. 
 
 Sec. 601. If Injured Employe Lives an Appreciable Length of Time, 
 Beneficiaries May Also Recover Under 1910 Amendment. 
 
 Sec. 602. Damages Under Section 9 Limited to Loss and Suffering 
 While Deceased Employe Lived. 
 
 Sec. 603. Loss of Future Earnings of Decedent not Included in Dam- 
 ages Due Beneficiaries Under Section 9. 
 
 Sec. G04. No Recovery for Pain and Suffering of Deceased by Bene- 
 ficiaries Prior to 1910 Amendment. 
 
 Sec. 605. No Recovery of Damages under Section 9 when Death of 
 Employe is Instantaneous. 
 
 Sec. 606. Death Must be Result of Negligence before Beneflciaaes 
 can Recover under Section 1, but not under Section 9. 
 
 Sec. 607. Decisions of National Courts on Measure of Damages Con- 
 trol. 
 
 Sec. 608. Measure of Damages in Cases of Death under Section One of 
 the Federal Act.
 
 TAm.F. OF Contents. xxxix 
 
 Sec. 609. Damages Due Beneficiaries for Loss of Future Benefits Lim- 
 ited to Present Cash Value. 
 
 Sec. 610. Subsequent Application of Doctrine of Kelly Case in State 
 Courts. 
 
 Sec. fill. Statutory Action is not for the p:qual Benefit of each of the 
 Surviving Beneficiaries. 
 
 Sec. 012. Pecuniary Loss not Dependent upon any Legal Liability of 
 the Employe to the Beneficiaries. 
 
 Sec. 613. Distribution of Amount Recovered Controlled by Federal 
 Statute and not State Laws. 
 
 Sec. 614. Method of Apportioning Fund Among Beneficiaries upon a 
 Lump Sum Settlement. 
 
 Sec. 615. No Presumption of Damage to Widow and Child. 
 
 Sec. 616. Effect of Abandonment by Husband on Right of Widow and 
 Child to Recover. 
 
 Sec. 617. Loss of Society, Companionship and Wounded Affections not 
 Elements of Damages. 
 
 Sec. filS. Loss of Care, Counsel, Trainin.!^- and Education cf Minors 
 Proper Elements of Daniages. 
 
 Sec. 619. Damages for the Estate of Decedent not Recoveralile. 
 
 Sec. 620. Necessity of Evidence Showing Earnings Etneficiarie.s have 
 been Deprived of. 
 
 Sec. 621. Award of Exemplary Damages not Permissible as to Inter- 
 state Employes. 
 
 Sec. 622. Funeral Expenses not Recoverable in Actions under the 
 Federal Act. 
 
 Sec. 623. Necessity of Showing Contributions during Lifetime of De- 
 ceased to Beneficiaries of First and Second Classes. 
 
 Sec. 624. Illustrative Cases' Involving Sufficiency of Proof to Estab- 
 lish Dependency. 
 
 Sec. 625. Actual Dependency Either Total or Partial must be shown 
 by Beneficiaries of Third Class. 
 
 Sec. 626. What Constitutes Dependency as to Third Class Bene- 
 ficiaries. 
 
 Sec. 627. Proof of Occasional Gifts does not Create Dependency us to 
 Beneficiaries of Third Class. 
 
 Sec. 628. Cases Declaring the True Measure of Damages and Approved 
 by the United States Supreme Court. 
 
 Sec. 629. Erroneous Instructions on Measure of Damages under Fed- 
 eral Act. 
 
 Sec. 630. Errorless Instructions on IMeasure of Damages under Federal 
 Act. 
 
 Sec. 631. Reference in Instructions on IMeasure of Damages to Sum 
 Sued for, not Erroneous. 
 
 Sec. 632. State Statutes Limiting Amounts Recoverable in Death 
 Cases Inapplicable to Interstate Employes. 
 
 Sec. 633. State Law Giving Earnings of Minor Son to Father Appli- 
 cable in Determining Pecuniary Loss. 
 
 Sec. 634. Effect of Excessive Apportionment to one Beneficiary.
 
 vl Federal Liarilitiks of Caeriees. 
 
 Sec. 635. Remittitur may Cure Error of Failure to Reduce Damages 
 on Account of Contributory Negligence. 
 
 Sec. 636. Propriety of Special Verdicts When Actions Involve Re- 
 duction of Damages Due to Contributory Negligence. 
 
 Sec. 637. Settlement with One Beneficiary does not Defeat Action by 
 a Personal Representative. 
 
 Sec. 638. Damages Due Each Beneficiary ]\Iay be Apportioned in the 
 Verdict. 
 
 CHAPTER XXXII. 
 
 CONTRACTS FORBIDDEN BY LIABILITY ACT. 
 
 Sec. 639. The Statutory Provision. 
 
 Sec. 640. Statute Prohibiting Carriers from Evading Liability by Con- 
 tracts or Regulations, Valid. 
 
 Sec. 641. Statute Applies to Existing as Well as Future Contracts. 
 
 Sec. 642. Acceptance of Benefits from Employer no Bar to Suit Against 
 Joint Tort-Feasor. 
 
 Sec. 643. Inhibition of Section 5 Limited to Employes of the Car- 
 rier. 
 
 Ses. 644. Release of Cause of Action for Injury not a Contract With- 
 in Section 6. 
 
 CHAPTER XXXIII. 
 
 STATUTE OF LIMITATION. 
 
 Sec. 645. Statutory Provision. 
 
 Sec. 646. Institution of Suit Within Specified Time a Condition Prece- 
 dent to Recovery. 
 
 Sec. 647. Plea of Limitation not Required When Record Shows Fil- 
 ing of Suit after Lapse of TWo Years. 
 
 Sec. 648. Limitation Period may not be Avoided by Estoppel or 
 Fraudulent Representations. 
 
 Sec. 649. Insanity of Injured Employe Cannot Operate to Extend 
 Time for Filing Suit. 
 
 Sec. 650. When Cause of Action under Federal Act Accrues in Death 
 Cases. 
 
 Sec. 651. Time of Commencement of Action a Question of Procedure. 
 
 Sec. 652. Error to Submit Question of Limitation to Jury When 
 Facts Appear Without Dispute. 
 
 CHAPTER XXXIV. 
 
 JURISDICTION OF STATE AND FEDERAL COURTS. 
 
 Sec. 653. Actions may be Brought in Federal Courts. 
 
 Sec. 654. Suits under Federal Act may Also be Prosecuted in State 
 
 Courts. 
 Sec. 655. Causes Instituted in State Courts not Removable to Federal 
 
 Courts. 
 Sec. 656. Removability when Petition States Cause of Action under 
 
 both State Law and Federal Act in Separate Courts.
 
 Table of Contents. xU 
 
 Sec. 657. Contrary Decisions by Other Federal Courts. 
 
 See. 658. When Petition Does not State Cause of Action Under 
 Federal Act Although so Intended. 
 
 Sec. 659. Judgment of Highest State Court in Action undc^r Federal 
 Act may be Reviewed by United States Supreme Court. 
 When. 
 
 Sec. 660. Remedy by Writ of Error Excluded in Certain Cases by 
 Amendatory Act of 1916. 
 
 Sec. 661. Record must Show Right under Federal Laws was Specially 
 Set up and Denied by State Court. 
 
 Sec. 662. Contention that there is or is not Sufficient Evidence to 
 Show Liability, Will Support Writ of Error. 
 
 Sec. 663. Power to Review does not Extend to Questions Merely 
 Incidental and Non-Federal in Character. 
 
 Sec. 664. Ruling of State Court that Federal Question was Sufficient- 
 ly Raised Binding upon United States Supreme Court. 
 
 Sec. 665. Federal Questions to Support Writ of Error to United 
 States Supreme Court, need not be Raised by the Pleadings. 
 
 Sec. 660. Foregoing Rule Subsequently Qualified, Limited and Ex- 
 plained. 
 
 Sec. 667. Pleading Federal Act and Submitting Case to Jury Under 
 State Law, no Denial of Federal Right. 
 
 Sec. 6G8. When Petition not Stating a Good Cause of Action under 
 Federal Act Raises a Federal Question. 
 
 Sec. 669. Claim that Verdict is Excessive not Reviewable by Writ 
 of Error. 
 
 Sec. 670. Pleading and Practice in State Courts Under Employers' 
 Liability Statute not Federal Questions. 
 
 Sec. 671. State Law Requiring Facts Showing Applicability of Federal 
 Act to be Pleaded no Denial of Federal Right. 
 
 Sec. 672. Refusal of Trial Court to Take Case from Jury Will not be 
 Disturbed by National Supreme Court Unless Palpably Er- 
 roneous. 
 
 CHAPTER XXXV. 
 
 PARTIES, PLAINTIFFS AND DEFENDANTS, IN ACTIONS UNDER 
 LIABILITY ACT. 
 
 Sec. 673. Personal Representative Only can Bring Suit in Case of 
 Death. • 
 
 Sec. 674. W^idow Cannot Maintain Suit in Individual Capacity Al- 
 though she May be Sole Beneficiary. 
 
 Sec. 675. Want of Legal Capacity in Widow to Sue Cannot be 
 Waived. 
 
 Sec. 676. Ancillary Administrator may Sue Under the Federal Act. 
 
 Sec. 677. Personal Representative Alone may Revive Suit Commenced 
 by Employe in his Lifetime. 
 
 Sec. 678. Existence of Other Property Not Necessary to Secure Ap- 
 pointment of Personal Representative.
 
 xlii Federal Liabilities of Carriers. 
 
 Sec. 679. Agents and Servants Whose Negligence Caused Injury, not 
 
 Liable under the Federal Act. 
 Sec. 680. Lessor of a Railroad may be Made Party Defendant. 
 Sec. 681. Personal Representative Appointed in One State CannoL 
 
 Sue in Another State Without Consent. 
 
 CHAPTER XXXVI. 
 PLEADINGS UNDER LIABILITY ACT. 
 Sec. 682. Plaintiff's Petition Must Plead Facts Showing That Injury 
 or Death Occurred under Conditions Described in Federal 
 Act. 
 If Petition States Cause of Action Solely under Federal 
 Law, There can be no Recovery under State Law — Con- 
 trary Rulings. 
 Petition Stating a Cause of Action Under State Law, Re- 
 covery Permitted under Federal Act When Omitted Al- 
 legations are Supplied by the Answer. 
 Recovery under Petition Stating Cause of Action under 
 State Law Though Evidence Shows a Case under Federal 
 Act, Harmless Error on Appeal, When. 
 Pleading Cause of Action under State Law in One Count 
 
 and under Federal Act in Another Count, Allowed. 
 Petition Need not Specifically Refer to the Act if Facts 
 
 Showing Liability Thereunder are Pleaded. 
 State Law as to Sufficiency of Pleading Governs. 
 Allegations as to Engagement in Interstate Commerce Held 
 
 Sufficient. 
 Allegation to Show Cause of Action under the Federal Act 
 
 Held not Sufficient. 
 In cases of Death Petition Must Allege Survival of Bene- 
 ficiaries Named in Statute. 
 Petition Must Allege Pecuniary Loss to Beneficiaries. 
 In Suits under State or Common Law, Applicability of Fed- 
 eral Act may be Raised by Answer. 
 Where Petition is Under State Law and Evidence Shows 
 
 Case under Federal Statute, Plaintiff Cannot Recover. 
 Defendant in Suit under State Law Must Specifically Plead 
 Facts under Federal Act to Defeat Recovery. 
 Sec. 696. Amendment Setting up New Cause of Action after Two-Year 
 
 Period of Limitation not Allowed. 
 Sec. 697. Amendments Permissible after Two-Year Period of Limi- 
 tation. 
 
 CHAPTER XXXVII. 
 EVIDENCE UNDER LIABILITY ACT. 
 Sec. 698. Rules of Evidence Governed by State Law. 
 Sec. 699. Law of Forum Determines Whether Widow or Other Bene- 
 ficiaries may Testify. 
 
 Sec. 
 
 683. 
 
 Sec. 
 
 684. 
 
 Sec. 
 
 685. 
 
 Sec. 
 
 686. 
 
 Sec. 
 
 087. 
 
 Sec. 
 
 688. 
 
 Sec. 
 
 689. 
 
 Sec. 
 
 690. 
 
 Sec. 
 
 691. 
 
 Sec. 
 
 692. 
 
 Sec. 
 
 693. 
 
 Sec. 
 
 694. 
 
 Sec. 
 
 695.
 
 Table of Contents. xliii 
 
 Sec. 700. state Law not Applicable in Passing on Demurrer to the 
 Evidence. 
 
 Sec. 701. Record Evidence of Interstate Shipments— Statutory Pro- 
 vision and Order of Interstate Commerce Commission. 
 
 Sec. 702. Method of Proving When Train and Switching Crews are 
 ■ Engaged in Interstate Commerce. 
 
 Sec. 703. Method of Proving When Other Railroad Employes are 
 Engaged in Interstate Commerce. 
 
 Sec. 704. Evidence Held Sufficient to Show that Train was Carrying 
 Interstate Commerce. 
 
 Sec. 705. Evidence Held not Sufficient to Show that Train was Carry- 
 ing Interstate Commerce. 
 
 CHAPTER XXXVIII. 
 
 MATTERS OF PRACTICE UNDER LIABILITY ACT. 
 
 Sec. 706. At What Stage of Proceedings, Motion to Elect Should be 
 Sustained — Practical Considerations. 
 
 Sec. 707. Motions to Elect under Iowa Statute in Actions under Fed- 
 eral Act. 
 
 Sec. 708. Instances Where Motion to Elect Should have been Sus- 
 tained before Trial. 
 
 Sec. 709. Widow Suing in her Own Name in One Suit and as Ad- 
 ministratrix in Another, Cannot be Compelled to Elect. 
 
 Sec. 710. Verdicts by Less Than Twelve Jurors, When Permissible 
 under State Law, Valid in Actions under Federal Statute. 
 
 Sec. 711. Commencement of Action under State Law no Bar to Sub- 
 sequent Suit under Federal Act. 
 
 Sec. 712. When Suit under State Law is Res Adjudicata. 
 
 Sec. 713. Errors in Actions under Federal Act Held Harmless on Ap- 
 peal. 
 
 Sec. 714. Practice of Granting Partial new Trials in Actions under 
 Federal Act, Proper, When. 
 
 Sec. 715. Power of State Courts under Federal Act to Direct Entry of 
 Judgment Notwithstanding Verdict. 
 
 Sec. 716. Power of Administrator to Settle Claims under Federal Act 
 Without Consent of Court. 
 
 Sec. 717. State Laws Adding Penalties to Judgment when Affirmed 
 on Appeal Applicable under Federal Act. 
 
 Sec. 718. Plaintiff in Action under Federal Act may Sue as a Poor 
 Person in United States Courts, When.
 
 xliv Federal Liabilities of Carriers. 
 
 Part Four 
 
 FEDERAL SAFETY APPLIANCE ACT. 
 
 CHAPTER XXXIX. 
 
 HISTORICAL REVIEW OF ORIGINAL ACT AND AMENDMENTS 
 AND ORDERS THEREUNDER. 
 
 Sec. 719. Futile Legislation of the States Requiring the Use of Auto- 
 matic Couplers. 
 
 Sec. 720. Liability of Carriers under the Common Law as to Couplers 
 and Brakes. 
 
 Sec. 721. Causes Including the Enactment of the Original Federal 
 Safety Appliance Act. 
 
 Sec. 722. Summary of the Provisions of the Original Act of 1893. 
 
 Sec. 723. Original Order of Commission Prescribing Standard Height 
 of Drawbars on Freight Cars. 
 
 Sec. 724. Inadequacies and Defects of Statute and Difficulties in its 
 Enforcement. 
 
 Sec. 725. Summary of the Amendments of 1903. 
 
 Sec. 726. Order of Commission Increasing Minimum Percentage of 
 Cars in Trains to be Equipped with Air Brakes. 
 
 Sec. 727. Agitation for Standard Safety Appliances on all Cars used 
 by Railroads Engaged in Interstate Commerce. 
 
 Sec. 728. Interstate Commerce Commission Authorized to Standardize 
 Appliances by Amendment of 1910. 
 
 Sec. 729. New Order Concerning Height of Drawbars on Freight Cars. 
 
 Sec. 730. Standardization Order of the Interstate Commerce Com- 
 mission. 
 
 CHAPTER XL. 
 
 PURPOSE, GENERAL SCOPE, VALIDITY, INTERPRETATION AND 
 EFFECT OF STATUTE. 
 
 Sec. 731. Validity of the Original Safety Appliance Act of 1903. 
 
 Sec. 732. Purpose and Object of Congress in Enacting the Safety Ap- 
 pliance Act. 
 
 Sec. 733. Construction of Statute. 
 
 Sec. 734. Rules Governing Construction of Criminal Statute not Ap- 
 plicable. 
 
 Sec. 735. Federal Decisions Control in Construing Safety Appliance 
 Act. 
 
 Sec. 736. Custom of Railroads with Acquiescence of Commission Per- 
 suasive in Determining Meaning of Statute. 
 
 Sec. 737. Distinction Between This Statute and Employers' Liabil- 
 ity Act as to Intrastate Commerce. 
 
 Sec. 738. Remedial Provisions of Safety Appliance Act not Limited 
 to Employes.
 
 Table of Contents. xlv 
 
 Sec. 739. statute Applies to All the Territories of the United States 
 and the District of Columbia. 
 
 Sec. 740. Safety Appliance Act as Amended Includes Cars Used in 
 Intrastate as Well as in Interstate Commerce. 
 
 Sec. 741. Constitutionality of Amendment Including Cars Used Ex- 
 clusively In Intrastate Commerce. 
 
 Sec. 742- Relationship of Intrastate Cars to Interstate Commerce. 
 
 Sec. 743. Meaning of the Term "Used" on Interstate Highways. 
 
 Sec. 744. Applicability of Statute to Intrastate Cars on Tracks Other 
 Than Main Lines. 
 
 Sec. 745. No Distinction Between Passenger and Freight Cars. 
 
 Sec. 746. State Laws as to Safety Appliances on all Cars of Inter- 
 state Railroads Invalid. 
 
 Sec. 747. Punishment of Crime Against Two Sovereignties Not Ap- 
 plicable in Such Cases. 
 
 Sec. 748. Delegation to American Railway Association and Commis- 
 sion of Authority to Designate Height of Drawbars Valid. 
 
 Sec. 749. Cars and Vehicles Subject to the Statute. 
 
 Sec. 750. Statute Applies to Island of Porto Rico. 
 
 Ses. 751. Carriers Hauling Car with Defective Appliances over Track 
 of Another Railroad Subject to Penalty. 
 
 CHAPTER XLI. 
 
 WHEN CARRIERS ARE ENGAGED AND CARS ARE USED IN 
 INTERSTATE COMMERCE UNDER SAFETY APPLIANCE ACT. 
 
 Sec. 752. Scope of Chapter. 
 
 Sec. 753. What Constitutes Interstate Commerce within Purview of 
 Safety Appliance Act. 
 
 Sec. 754. Railroad Must be a Common Carrier. 
 
 Sec. 755. Two Requirements as to Interstate Character of Carriers 
 and Cars Prior to 1903 Amendment. 
 
 Sec. 756. Proof of Use of Car in Moving Interstate Traffic not Es- 
 sential Since the 1903 Amendment. 
 
 Sec. 757. But Use of Car in Moving Interstate Traffic Still Material 
 in Determining Application of Employers' Liability Act. 
 
 Sec. 758. Interstate Status of Belt Lines, Terminal Railroads and 
 Stock Yard Companies. 
 
 Sec. 759. Railroad Wholly Within State Transporting Freight in Con- 
 tinuous Shipment Without Traffic Agreement with Other 
 Carriers. 
 
 Sec. 760. Foregoing Principle Illustrated and Applied in Adjudicated 
 Cases. 
 
 Sec. 761. Interurban Electric Railroads Participating in Movement of 
 Interstate Traffic. 
 
 Sec. 7G2. Industrial Railroads Forming Connecting Link for Inter- 
 state Transportation. 
 
 Sec. 763. Transportation from One Point to Another in Same State 
 Passing in Transit Through Another State.
 
 xlvi Federal Liabilities of Carkieks. 
 
 Sec. 764. All Cars Hauled in Interstate Trains Impressed with Inter- 
 state Character. 
 
 Sec. 765. Switching of Car From One Yard to Another Preparatory 
 for Interstate Trip. 
 
 Sec. 766. Re-billing Does not Control in Determining Whether a 
 Shipment is Interstate or Intrastate. 
 
 Sec. 767. Hauling Empty Car Over the State Line Constitutes Inter- 
 state Commerce. 
 
 Sec. 768. Car Containing Interstate Traffic Placed on Switching Track 
 for Repairs. 
 
 Sec. 769. Dining Car on Siding Regularly Hauled in Interstate Trains. 
 
 Sec. 770. Transportation of Interstate Traffic for Express Companies. 
 
 Sec. 771. Transportation of Company Property Over State Line is In- 
 terstate Commerce. 
 
 Sec. 772. Distinctions between "Haul" and "Use" of Cars Eliminated 
 by 1903 Amendment. 
 
 Sec. 773. Movement of Cars From Transfer Tracks to Industrial 
 Track. 
 
 CHAPTER XLII. 
 BASIS, NATURE AND EXTENT OF LIABILITY UNDER STATUTE. 
 Sec. 774. Disregard of Requirements of Statute Negligence Per Se. ^ 
 Sec. 775. Statute Imposes Absolute and Unqualified Duty to Maintain 
 
 Appliances in Secure Condition. 
 Sec. 776. Substitutes for Appliances Required by Safety Appliance Act 
 
 not Lawful. 
 Sec. 777. Duty of Carrier in Personal Injury Suits as Broad as in 
 
 Actions for Penalites. 
 Sec. 778. Remedial Features of the Statute Apply to Movements of 
 
 Cars Solely for Repairs. 
 Sec. 779. Doctrine of Seigel v. New York, C. & H. R. R. Co., and 
 
 Like Cases, Overruled. 
 Sec. 780. Duties Imposed by Statute in One Relation not Actionable in 
 
 Another. 
 Sec. 781. Proof of Knowledge of Defect Not an Element of Violation 
 
 of Statute. 
 Sec. 782. Use of Care and Diligence in Discovering and Repairing 
 
 Defects, No Defense. 
 Sec. 783. Proof of Negligence Under Liability Act not Required if 
 
 Injury was Due to Violation of Safety Appliance Act. 
 Sec. 784. Same Subject— Taylor v. St. Louis, I. M. & S. Ry. Co. 
 Sec. 785. When Employe's Negligence is Sole Cause of Injury, No 
 
 Recovery Permitted. 
 Sec. 786. Duties Imposed by Statute Cannot be Evaded by Contract. 
 Sec. 787. Inconvenience and Impracticability of Statutory Require- 
 ments Will not Excuse Violation. 
 Sec. 788. Appliances Required by Statute must be Operative.
 
 Table of Contents. xlvii 
 
 Sec. 789. Failure of Employe to Operate Appliance Capable of Being 
 
 Operated, no Offense. 
 Sec. 790. Deliberate Act of Employe in Causing Appliance to become 
 
 Defective, no Defense. 
 Sec. 791. Duties Placed upon Carrier by Statute Cannot be Evaded by 
 
 Assignment. 
 Sec. 792. Railroad Liable for Condition of Foreign Cars. 
 Sec. 793. Carriers may Refuse Defective Cars from Connecting Lines. 
 Sec. 794. Defective Equipment Must be Proximate Cause of Injury. 
 Sec. 795. Question of Proximate Cause Ordinarily for the Jury. 
 
 CHAPTER XLin. 
 STATUTORY REQUIREMENTS AS TO AIR BRAKES. 
 
 Sec. 796. Former and Present Requirements as to Power or Air Brakes 
 
 on Trains. 
 Sec. 797. Air Brake Provision not Applicable to Switching Movements. 
 Sec. 798. What Constitutes a "Train" Under Air Brake Provision. 
 Sec. 799. Inter-yard IMovements as Distinguished from Intra-yard 
 
 Movements Within Air Brake Provision — Transfer Trains. 
 Sec. 800. Air Brakes Required on Interurbau Electric Trains and 
 
 Motors. 
 Sec. 801. Injuries in Collisions Due to Failure of Train Brakes to 
 
 Work. 
 Sec. 802. Use of Hand Brakes in Train Movements Prohibited and 
 
 Operation of Air Brakes Mandatory. 
 Sec. 803. Absolute Duty to Maintain Appliances in Repair Applies 
 
 to Air Brakes. 
 
 CHAPTER XLIV. 
 
 STATUTORY REQUIREMENTS AS TO AUTOMATIC COUPLERS. 
 
 Sec. 804. The Statutory Provision. 
 
 Sec. 805. Object of Congress in Requiring Automatic Couplers on 
 Railroad Cars. 
 
 Sec. 80G. Illustrative Cases Showing Defective Couplers in Violation 
 of Statute. 
 
 Sec. 807. Failure of Coupler to Work Under all Circumstances Con- 
 stitutes Violation of Statute. 
 
 Sec. 808. Employes Entitled to Protection of Statute Requiring .Auto- 
 matic Couplers. 
 
 Sec. 809. Trainmen on Top of Cars and not Actually Engaged in 
 Coupling Them. 
 
 Sec. 810. When Violation of Automatic Coupler Provision is not Ac- 
 tionable as to Employes Injured on Duty. 
 
 Sec. 811. Employes Entering Between Cars for Other Purposes Than 
 Coupling or Uncoupling. 
 
 Sec. 812. Effect of Equipping Cars with Automatic Couplers of Dif- 
 ferent Patterns.
 
 xlviii Federal Liabilities of Oabeiees. 
 
 Sec. 813. Coupler Provision Applies to all Cars on Interstate High- 
 ways by Rail. 
 
 Sec. 814. Automatic Couplers Required in Switching Operations as 
 well as in Line Movements. 
 
 Sec. 815. Statute Applies to Coupling as Well as to Uncoupling. 
 
 Sec. 816. Coupling of Air and Steam Hose Between Cars no Part of 
 Coupling Operation. 
 
 Sec. 817. Operative Couplers Required at Both Ends of Cars. 
 
 Sec. 818. Exception to the Foregoing — Conflicting Rulings. 
 
 Sec. 819. Automatic Couplers not Required on Singly Operated Self- 
 Propelled Trolley Cars. 
 
 Sec. 820. Preparation of Car for Coupling, Part of Act Regulated by 
 Statute. 
 
 Sec. 821. That Coupling Could Have Been Automatically Effected by 
 Using Lever on Other Side, no Defense. 
 
 Sec. 822. Automatic Couplers not Required between Engine and 
 Tender. 
 
 Sec. 823. Actual Use of Coupler not Necessary to Constitute Of- 
 fense. 
 
 Sec. 824. Failure of Pin Lifter to Open Knuckles. 
 
 Sec. 825. Illustrative Cases in which Violations of Coupler Provision 
 Held to be Proximate Cause of Injuries. 
 
 Sec. 826. Forms of Instructions for Violation of Coupler Provision in 
 Personal Injury Cases. 
 
 Sec. 827. Model Couplers May be Exhibited to the Jury. 
 
 CHAPTER XLV. 
 
 DUTIES OF CARRIERS AS TO GRAB IRONS, SILL STEPS, 
 RUNNING BOARDS AND HAND BRAKES. 
 
 Sec. 828. Requirement of Original Act Limited to Handholds for Cou- 
 pling and Uncoupling Purposes Only. 
 
 Sec. 829. Grab Iron Provision Enlarged by Amendment of 1903 to 
 Include Intrastate Cars. 
 
 Sec. 830. Sill Steps, Hand Brakes, Ladders, Running Beards and Cer- 
 tain Grab Irons. 
 
 Sec. 831. Employes Using Grab Irons for Other Purposes Than Cou- 
 pling Cars, Within Protection of Statute. 
 
 Sec. 832. No Distinction between Foreign and Domestic Cars. 
 
 Sec. 833. Substitutes Affording Equal Security with Grab Iron or 
 Handhold Unlawful. 
 
 Sec. 834. Duty to Furnish Sill Steps, Running Boards, Hand Brakes 
 and Handholds Absolute and Mandatory. 
 
 Sec. 83.5. Duties of Carriers Include Maintenance as well as Equipment 
 of Cars with Statutory Appliances. 
 
 Sec. 836. Patton v. Illinois C. R. Co. and Like Cases Overruled. 
 
 Sec. 837. Extent of the Requirements of Section 2 of the 1910 Amend- 
 ment.
 
 Tabi.e of Contents. xlix 
 
 Sec. 83S. Illustrative Violation of Failure to Maintain Secure Running 
 Board. 
 
 Sec. 739. Erroneous Views as to Non-Applicability of Hand Urake Pro- 
 vision to Switching Operations. 
 
 Sec. 840. Requirements of Section 2 of 1910 Amendment not Affected 
 by Order of Interstate Commerce Commission under Sec- 
 tion 3. 
 
 Sec. 841. Purpose of Congress in Empowering Commission to Prescribe 
 Standardized Equipments on all Cars. 
 
 CHAPTER XLVI. 
 STATUTORY REQUIREMENTS AS TO DRAWBARS. 
 
 Sec. 842. Standard Height of Drawbar Required After December 31, 
 
 1910. 
 Sec. 843. Distinction Between New and Old Orders as to Height of 
 
 Drawbars. 
 Sec. 844. Ruling in St. Louis, I. M. & S. Ry. Co. v. Taylor, Modified 
 
 by New Order. 
 Sec. 845. Instruction Erroneous Under Both Old and New Orders. 
 Sec. 846. Instructions Erroneous Under Old Order but Correct Under 
 
 the New Order. 
 Sec. 847. Drawbar Provision Applicable to Engines as well as Cars. 
 Sec. 848. Duty as to Height of Drawbars Cannot be Delegated or 
 
 Evaded by Casting it Upon Others. 
 
 CHAPTER XLVII. 
 
 CARS AND MOVEMENTS EXCEPTED FROM REQUIREMENTS OF 
 
 STATUTE. 
 
 Sec. 849. The Statutory Provision. 
 
 Sec. 850. "Necessary IMovement" for Repairs Defined. 
 
 Sec. 851. When Duty Arises to Repair Cars at Point of Discovery. 
 
 Sec. 852. All Movements of Cars from Repair Points Prohibited. 
 
 Sec. 853. Illustrative Movements in Violation of 1910 Proviso. 
 
 Sec. 854. Burden upon Carrier to Bring Itself Within Proviso of Act 
 
 of 1910. 
 Sec. 855. Defective Cars may be Hauled to Repair Points in Revenue 
 
 Trains or with Other Cars Commercially Used. 
 Sec. 856. Exceptions to the Safety Appliance Act must be Strictly 
 
 Construed. 
 Sec. 857. Exempted Movements for Repair do not Affect Liability for 
 
 Personal Injuries. 
 Sec. 858. Cars on Interurban Railroads Moving Partly Over Street 
 
 Railroad Tracks Not Exempted. 
 Sec. 859. INIay Haul Defective Cars Containing Livestock or Perishable 
 
 Freight with Chains. 
 Sec. 860. Necessity of Movement for Repairs Generally a Question for 
 
 the Jury. 
 
 1 Control Carriers D
 
 1 Fedeeal Liabilities of Careiers. 
 
 Sec. 861. Law as to IMovement of Defective Cars Prior to 1910 Amend- 
 ment. 
 
 Sec. 862. Cars Exempted from Requirements of Act on Interstate 
 Highways not Subject to State Laws. 
 
 CHAPTER XLVIII. 
 
 ASSUMPTION OF RISK AND CONTRIBUTORY NEGLIGENCE 
 UNDER SAFETY APPLIANCE ACT. 
 
 Sec. 863. Assumption of Risk no Defense to Injury Due to Violation of 
 
 Safety Appliance Act. 
 Sec. 864. Employe's Knowledge of Defect no Bar to a Suit. 
 Sec. 865. Assumption of Risk When Two Distinct Acts of Negligence 
 
 are Submitted. 
 Sec. 866. Distinction between Assumption of Risk and Contributory 
 
 Negligence. 
 Sec. 867. Contributory Negligence a Defense Prior to Enactment of 
 
 Employers' Liability Act. 
 Sec. 868. Contributory Negligence no Defense When Injured Employe 
 
 is Engaged in Interstate Commerce. 
 Sec. 869. Contributory Negligence a Defense When Employe is En- 
 gaged in Intrastate Commerce. 
 Sec. 870. State Statutes Abolishing Defense of Contributory Negligence 
 
 Applicable under Safety Appliance Act, When. 
 Sec. 871. Effect of Rule Forbidding Employes from Going Between 
 
 Cars While in Motion. 
 Sec. 872. Contributory Negligence a Defense to Failure to Have Air 
 
 Brakes on Logging Trains on Interstate Railroads. 
 Sec. 873. Contributory Negligence as a Matter of Law in Choosing 
 
 Dangerous Way to Uncouple Cars with Safe Method 
 
 Available. 
 Sec. 874. Errorless Instructions on Contributory Negligence in Such 
 
 Cases. 
 Sec. 875. When Contributory Negligence is a Question for the Jury. 
 Sec. 876. Illustrative Cases in which Employes Going Between Cars 
 
 were Not Guilty of Contributory Negligence as a Matter of 
 
 Law. 
 
 CHAPTER XLIX. 
 
 JURISDICTION OF COURTS AND MATTERS OF PLEADING AND 
 PRACTICE IN PERSONAL INJURY CASES, 
 
 Sec. 877. Rights under Statute for Personal Injuries May be Enforced 
 
 in State Courts. 
 Sec. 878. Procedure Controlled by State Rules. 
 Sec. 879. Petition in Personal Injury Cases Need Specifically Refer 
 
 to Statute. 
 Sec. 880. Plaintiff Not Required to Negative Provisos.
 
 Table of Contents. U 
 
 Sec. 881. Allegation as to Use of Car in Moving Intrastate Traffic. 
 
 Sec. 882. Submitting Case under Safety Appliance Act Without Al- 
 legation of Interstate Employment not Error, When. 
 
 Sec. 88.3. Judicial Notice of Orders of Commission under Saftey Ap- 
 pliance Act. 
 
 Sec. 884. Federal Statute of Limitation Controls When Employe is 
 Engaged in Interstate Commerce. 
 
 Sec. 885. State Statute of Limitation Controls in Absence of Interstate 
 Employment. 
 
 Sec. 886. Effect of Amendment Stating a New Cause of Action After 
 Statute has Run. 
 
 CHAPTER L. 
 
 ACTIONS FOR PENALTIES. 
 
 Sec. 887. In Prosecutions for Penalty, Carrier Liable as to Each Car 
 
 Hauled in Violation of Statute. 
 Sec. 888. Appropriate Remedy for Recovery of Statutory Penalty. 
 Sec. 889. Proceedings for Penalties Not Criminal Actions. 
 Sec. 890. Burden and Quantum of Proof in Actions for Penalties. 
 Sec. 891. Preponderance of the Evidence Defined. 
 
 Part Five 
 
 MISCELLANEOUS FEDEEAL LAWS REGULATING CARRIERS. 
 
 Hours of Service Act. 
 
 28-Hour Live Stock Law. 
 
 Boiler Inspection Act. 
 
 Ash Pan Act. 
 
 Accident Reports Act. 
 
 Adamson Law. 
 
 CHAPTER LI. 
 FEDERAL HOURS OF SERVICE ACT. 
 
 PlKPO.SE, SCOPK, VaI.IUITY AM) InTKRI'KKTATION OK AcT. 
 
 state and Federal Control over Hours of Labor of Employes 
 
 of Interstate Carriers. 
 Carriers and Employes Subject to the Hours of Service Act. 
 Constitutionality of the Hours of Service Act Affirmed. 
 Statute not Void for Uncertainty. 
 
 Classification of Operators in Section 2 of Statute does not 
 Render Statute Invalid. 
 Sec. 897. Power of Commission to Require Monthly Reports by Car- 
 riers Showing Violations of Statute. 
 Sec. 898. Purpose of Congress in the Enactment of the Hours of 
 Service Act. 
 
 
 A 
 
 Sec. 
 
 892. 
 
 Sec. 
 
 893. 
 
 Sec. 
 
 894. 
 
 Sec. 
 
 895. 
 
 Sec. 
 
 896.
 
 lii FeDF.KAL LlARlLTTlES OF OaEETEES. 
 
 Sec. 899. The Statute, being Remedial, should be Liberally Construed. 
 
 Sec. 900. Term "Railroad" as Used in the Act Defined. 
 
 Sec. 901. Penalties for Violation of Statute— Procedure and Duty of 
 Interstate Commerce Commission. 
 
 Sec. 902. Separate Penalty Incurred for each Employe Kept on Duty 
 Beyond Statutory Period Though Due to Same Cause. 
 
 Sec. 903. Statute may not be Evaded by Requiring Service of Another 
 Kind after Statutory Period. 
 
 B. Limitations Upon Hours of Service. 
 
 Sec. 904. Limitation upon the Hours of Service of Employes Engaged 
 in or Connected with Movement of Trains. 
 
 Sec. 905. When an Employe is "on Duty." 
 
 Sec. 906. Effect of Brief Periods Off Duty in Breaking Continuity of 
 Service. 
 
 Sec. 907. Release from Duty for Definite Period of Two Consecutive 
 Hours. 
 
 Sec. 908. Duty to Substitute Relief Crews at Intermediate Terminals 
 to Prevent Excessive Hours. 
 
 Sec. 909. Fireman Engaged in Watching an Engine on Duty Within 
 Meaning of Statute. 
 
 Sec. 910. Limitation upon the Hours of Service of Employes Handling 
 Orders Affecting Train Movements. 
 
 Sec. 911. Applicability of Operators' Proviso to Tower Men and Switch 
 Tenders in Railroad Yards — Confiicting Rulings. 
 
 Sec. 912. Hours of Service in Telegraph Offices Operated During Day 
 and Part of Night. 
 
 Sec. 913. Separate Periods of Service for Operators not Exceeding 
 Total of Nine Hours in Twenty-four Hours, not Unlawful. 
 
 Sec. 914. Two Telegraph Offices in One City Constitute One "Place" 
 Within Statute, When. 
 
 C. Statutory Exceptions and Excuses. 
 
 Sec. 91.0. When Provisions of Statute Limiting Hours of Service are 
 not Applicable. 
 
 Sec. 916. Terms "Casualty," "Unavoidable Accident" and "Act of 
 God" as Used in Section 3 Defined. 
 
 Sec. 917. High Degree of Diligence Required to Bring Carrier With- 
 in Statutory Exceptions. 
 
 Sec. 918. Derailments and Collisions of Trains Constitute "Casual- 
 ties" within Meaning of Exemption Clause. 
 
 Sec. 919. Ordinary Delays Incident to Train Operation not Valid Ex- 
 cuses. 
 
 Sec. 920. What Constitutes an Emergency Within Operators' Proviso 
 of Section 2. 
 
 Sec. 921. Insubordination of Employe may Constitute "Emergency" 
 
 Within Section 2. 
 Sec. 922. Burden of Proving Excessive Service to be Within Statutory 
 Exception is Upon Carrier.
 
 Table of Contents. liii 
 
 CHAPTER LII. 
 FEDERAL 28-HOUR LIVE STOCK LAW. 
 
 Sec. 923. Duties of Interstate Common Carriers in Transporting Live 
 
 Stock. 
 Sec. 924. Time Consumed in Loading and Unloading Live Stock Must 
 
 not be Considered — Exception as to Sheep. 
 Sec. 925. Time may be Extended upon Written Request of Owner. 
 Sec. 926. When Carriers are Excused from Complying with Statute. 
 Sec. 927. Animals Unloaded Pursuant to Statute may be Fed at 
 
 Expense of Owner. 
 Sec. 928. Penalty for Non-Compliance with 28-Hour Live Stock Law. 
 Sec. 929. Statute not Applicable when Animals are Properly Cared 
 
 For. 
 Sec. 930. Penalties may be Recovered by Civil Actions. 
 
 CHAPTER LIII. 
 FEDERAL BOILER INSPECTION ACT. 
 
 Sec, 931. Railroads and Employes Subject to Boiler Inspection Act. 
 
 Sec. 932. Duties and Obligations of Carriers Under Boiler Inspection 
 Act. 
 
 Sec. 933. President Authorized to Appoint Chief Inspectors of Loco- 
 motive Boilers. 
 
 Sec. 934. Fifty Boiler Inspection Districts Created with One Inspector 
 for Each. 
 
 Sec. 935. Duties of District Inspectors in the Enforcement of Statute 
 and Rules Thereunder. 
 
 Sec. 936. Carrier May Appeal from Decision of Inspector as to Con- 
 dition of Locomotive. 
 
 Sec. 937. Rules and Regulations for Inspection of Locomotive Boilers 
 Required to be Adopted and Enforced. 
 
 Sec. 938. Nature of Duty Created by Boiler Inspection Act. 
 
 Sec. 939. Reports of Accidents Affecting Locomotive Boilers, to be 
 Filed by Carriers, When. 
 
 Sec. 940. Commission May Publish Reports of Investigation of Ac- 
 cidents. 
 
 Sec. 941. Reports of Investigations not to be Used in Damage Suits. 
 
 Sec. 942. Penalties for Violation of Statute. 
 
 Sec. 943. Terms "Railroad" and "Employes" Within Statute Defined. 
 
 Sec. 944. Sworn Reports of Inspection by Carriers must be Filed. 
 
 Sec. 945. Chief Inspector Required to Make Annual Report to Inter- 
 state Commerce Commission. 
 
 Sec. 946. Amendment of 1915 to Boiler Inspection Act Extending 
 Statute to all Parts of Locomotives. 
 
 Sec. 947. State Laws Requiring Headlights Superseded by Amend- 
 ment of 1915.
 
 liv Federal Liabilities of Carkiees. 
 
 CHAPTER LIV. 
 
 FEDERAL ASH PAN ACT. 
 
 Sec. 948. Federal Ash Pan Act. 
 
 Sec. 949. Penalties for Violation of the Act. 
 
 Sec. 950. Duties of Interstate Commerce Commission. 
 
 Sec. 951. Receivers are Common Carriers within the Act. 
 
 Sec. 952. Statute not Applicable to Electric Locomotives. 
 
 CHAPTER LV. 
 FEDERAL ACCIDENT REPORTS ACT. 
 
 Sec. 953. Duties of Common Carriers under Federal Accident Reports 
 
 Act. 
 Sec. 954. Terms "Interstate Commerce" and "Foreign Commerce" 
 
 Within Statute Defined. 
 Sec. 955. Penalty for Failure to Make Such Reports Within Thirty 
 
 Days After End of Each Month. 
 Sec. 956. Interstate Commerce Commission Authorized to Investigate 
 
 all Collisions, Derailments, etc. 
 Sec. 957. Reports of such Investigations may be Published but may 
 
 not be Used in Damage Suits. 
 
 CHAPTER LVI. 
 
 ADAM SON LAW. 
 
 Sec. 958. Eight Hours shall be Deemed Day's Work for Purpose of 
 
 Reckoning Compensation of Interstate Employes. 
 Sec. 959. Railroads and Employes Excepted from the Provisions of the 
 
 Statute. 
 Sec. 960. President Empowered to Appoint Commission to Observe 
 
 Operation and Effect of Eight Hour Wage Law. 
 Sec. 961. Wages of Railway Employes Subject to Statute not to Be 
 
 Reduced Pending Report of Commission. 
 Sec. 962. Penalty for Violation of the Adamson Act. 
 Sec. 963. Adamson Act a Valid Exercise of the Power of Congress 
 
 Under the Commerce Clause.
 
 Table of Contents. Iv 
 
 Appendixes 
 
 Appendix A 
 
 The Act to Regulate Commerce as Amended. 
 Appendix B 
 
 The Elltins Act. 
 Appendix C 
 
 The Federal Bill of Lading Act. 
 Appendix D 
 
 The Act Providing for Federal Control of Transportation Systems 
 During War. 
 Appendix E 
 
 Rules of Practice before the Commission in Proceedings under 
 the Act to Regulate Commerce. 
 Appendix F 
 
 The Federal Employers' Liability Act as Amended. 
 Appendix G 
 
 Federal Safety Appliance Act as Amended. 
 Appendix H 
 
 Orders of Interstate Commerce Commission under Safety Ap- 
 pliance Act. 
 Appendix I 
 
 The Federal Hours of Service Act. 
 Appendix J 
 
 The Federal Boiler Inspection Act. 
 Appendix K 
 
 Rules and Orders of Interstate Commerce Commission under Boiler 
 Inspection Act. 
 Appendix L 
 
 The Federal 28-Hour Live Stock Law. 
 Appendix M. 
 
 The Federal Ash Pan Act. 
 Appendix N 
 
 The Federal Accident Reports Act. 
 Appendix O 
 
 The Adamson Law 
 Appendix P 
 
 The Transportation of Explosives Act. 
 Appendix Q 
 
 General Orders of Director General of Railroads Under Federal 
 Control Act of 1918.
 
 PART ONE 
 
 FEDERAL AND STATE CONTROL 
 OVER COMMON CARRIERS.
 
 FEDERAL AND STATE CONTROL 
 OVER COMMON CARRIERS. 
 
 CHAPTER 1. 
 
 The Commekce Ci^vuse of the Federal Constitution 
 
 Sec. 1. Congress Vested with Authority to Regulate All Interstate and 
 Foreign Commerce. 
 
 Sec. 2. Early Judicial Construction of the Commerce Clause — Gibbons 
 V. Ogden. 
 
 Sec. 3. Judicial Definitions of Term "Interstate Commerce" as Used 
 in the Federal Constitution. 
 
 Sec. 4. Transportation from one State to Another an Essential Ele- 
 ment of Interstate Commerce. 
 
 Sec. 5. Congressional Grant "to Regulate" Commerce Defined and 
 Explained. 
 
 Sec. 6. Importation of Legitimate Articles of Commerce from one 
 State to Another Immune from State Legislation. 
 
 Sec. 7. Commencement and Termination of Protection of the Com- 
 merce Clause — Original Package Rule. 
 
 Sec. 8^ States may Forbid Introduction or Exportation of all 
 Articles not Legitimate Subjects of Trade and Commerce. 
 
 Sec. 9. Statutory Exceptions Empowering States to Regulate Inter- 
 state Shipments of Intoxicating Liquors. 
 
 § 1. Congress Vested with Authority to Regulate 
 All Interstate and Foreign Commerce. Following its 
 ratification by the states, the Constitution of the United 
 States became et¥ective on the first Wednesday in 
 March, 1789. One of the provisions of that historic 
 document, which was destined to have a far-reaching 
 effect in the exercise of federal control within the states, 
 was the clause in Section 8 of Article 1 which provides 
 that "'The Congress shall have the power * * * to 
 regulate commerce with foreign nations, and among 
 the several states, and with the Indian Tribes." The 
 authority thus delegated to the legislative department 
 of the federal government to regulate interstate and 
 
 3
 
 4 Control Over Common Carriers [^ 1 
 
 foreign commerce, was perhaps the most benign gift 
 of the constitutional convention to the nation; for, 
 nnder the Articles of Confederation, the individual 
 states, finding themselves in the unlimited possession 
 of power over their own governments, passed iniquitous 
 laws and impolitic measures, from which grew up a 
 conflict of commercial regulations fatal to the interest 
 of the country at large. 
 
 Before the adoption of the federal constitution, 
 the several states frequently exacted duties upon goods 
 in transit within their boundaries destined for other 
 states and foreign countries. The evils resulting from 
 these conflicting regulations of the several states be- 
 came so flagrant that they threatened the dissolution 
 of the confederacy. The causes which led to the adop- 
 tion of the commerce clause were thus described by 
 Chief Justice Marshall:' "The oppressed and degraded 
 state of commerce previous to the adoption of the consti- 
 tution can scarcely be forgotten. It was regulated by 
 foreign nations with a single view to their own interests; 
 and our disunited efforts to counteract their restrictions 
 were rendered impotent by want of combination. Con- 
 gress, indeed, possessed the power of making treaties; 
 but the inability of the federal government to enforce 
 them had become so apparent as to render that power 
 in a great degree useless. Those who felt the injury 
 arising from this state of things, and those who were 
 capable of estimating the influence of commerce on the 
 prosperity of nations, perceived the necessity of giving 
 the control over this important subject to a single 
 government. It may be doubted whether any of the 
 evils proceeding from the feebleness of the federal 
 government, contributed more to that great revolution 
 which introduced the present system, than the deep and 
 general conviction that commerce ought to be regu- 
 lated by congress. It is not, therefore, matter of sur- 
 prise, that the grant should be as extensive as the 
 
 1. Brown v. Maryland, 12 
 Wheat. (U. S.) 419, 6 L. Ed. 678.
 
 § 2 J The Commfrce Ci.Aisi-:, 5 
 
 mischief, and should comprehend all foreign commerce 
 and all commorco amonf!: the States." 
 
 § 2, Early Judicial Construction of the Commerce 
 Clause — Gibbons v. Ogden. The judicial construction 
 of the interstate commerce clause of the national Con- 
 stitution by the United States Supreme Court com- 
 menced with the case of Gibbons v. Ogden- in 1824 
 in ■which Chief Justice Marshall wrote the opinion. 
 This great and famous case established the supremacy 
 of federal laws over state statutory enactments when 
 dealing with matters pertaining to interstate and for- 
 eign commerce. The question before the court was 
 the validity of a law of the state of New York giving 
 to Livingston and Fulton the exclusive right to navi- 
 gate the waters of that state by steamboat for a term 
 of years. Basing his right upon this statute, Ogden, 
 an assignee of the rights of Fulton and Livingston, 
 filed a bill in chancery in the New York courts to re- 
 strain Gibbons, who owned steamboats running be- 
 tween Elizabethtown, N. J., and New York City, from 
 navigating the waters within the territory of the state 
 of New York. Gibbons alleged in his answer that his 
 boats were duly enrolled and licensed to be employed 
 in the coasting trade under an act of Congress passed 
 in 1793, providing for enrolling and licensing ships 
 and vessels to be employed in the coasting trade and 
 for regulating the same. The injunction was award- 
 ed, and, on final liearing, made perpetual, the state courts, 
 both trial and appellate, being of the opinion that the 
 act was not repugnant to the Constitution of the United 
 States or federal statutes enacted pursuant thereto. 
 
 Such was the first historic clash between state and 
 federal autliority sul)mitted to the national Supreme 
 Court. It fell to a Virginian and a southerner on the 
 bench to proclaim the doctrine that national laws 
 pertaining to subject matters delegated by the Consti- 
 
 2. Gibbons v. Ogden, 9 Wheat. 
 (U. S.) 1, 6 L. Ed. 23.
 
 6 Control Over Common Carriers [§ 2 
 
 tutioii to Congress are supreme in their sphere and 
 that when state laws come into conflict with an act 
 of Congress enacted in pursuance to the Constitution, 
 they do not aifect the subject matter and each other 
 like equal opposing powers, but the federal is exclusive 
 and supreme. "The subject to which the power is 
 next applied," said Chief Justice Marshall, "is to 
 commerce 'among the several States.' The word 
 'among' means intermingled with. A thing which is 
 among others, is intermingled with them. Commerce 
 among the States, cannot stop at the external bound- 
 ary line of each State, but may be introduced into 
 the interior. It is not intended to say that these words 
 comprehend that commerce which is completely in- 
 ternal, which is carried on between man and man in 
 a State, or between different parts of the same State, 
 and which does not extend to or affect other States. 
 Such a power would be inconvenient, and is certain- 
 ly unnecessary. Comprehensive as the word 'among' 
 is, it may very properly be restricted to that commerce 
 which concerns more States than one. The phrase is 
 not one which would probably have been selected to 
 indicate the completely interior traffic of a State, 
 because it is not an apt phrase for that purpose; and 
 the enumeration of the particular classes of commerce 
 to which the power was to be extended, would not 
 have been made, had the intention been to extend the 
 power to every description. The enumeration pre- 
 supposes something not enumerated; and that some- 
 thing, if we regard the language, or the subject of 
 the sentence, must be the exclusively internal com- 
 merce of a State. The genius and character of the 
 whole government seem to be, that its action is to be 
 applied to all the external concerns of the nation, and 
 to those internal concerns which affect the States 
 generally; but not to those which are completely with- 
 in a particular State, which do not affect other States, 
 and with which it is not necessary to interfere, for the 
 purpose of executing some of the general powers of 
 the government. The completely internal commerce
 
 § 2] Trii. (V)jMmf.rce Clai-sk. 7 
 
 of a State, then, may be considered as reserved for the 
 State itself. * * * Since, however, in exercisinj? 
 the power of reii;-iilatiii^ tlieir own purely internal af- 
 fairs, whether of trading or police, the States may 
 sometimes enact laws, the validity of which depends on 
 their interfering with, and being contrary to, an act 
 of congress passed in pursuance of the constitution, 
 the court will enter upon the inquiry, whetlier the laws 
 of New York, as expounded by the highest tribunal 
 of that State, have, in their application to this case, 
 come into collision with an act of congress, and de- 
 prived a citizen of a right to which that act entitles 
 him. Should this collision exist, it will be immaterial 
 whether those laws were passed in virtue of a concur- 
 rent power 'to regulate commerce with foreign nations 
 and among the several States,' or, in virtue of a power 
 to regulate tlieir domestic trade and police. In one 
 case and the other, the acts of New York must yield 
 to the law of congress; and the decision sustaining 
 the privilege they confer, against a right given by a 
 law of the Union, must be erroneous! This opinion 
 has been frequently ex]iressed in this court, and is 
 founded as well on the nature of the government as 
 on the words of the constitution. In argument, how- 
 ever, it has been contended that, if a law passed by 
 a State, in the exercise of its acknowledged sovereign- 
 ty, comes into conflict with a law passed by congress 
 in pursuance of the constitution, they affect the sub- 
 ject, and each other, like equal opposing powers. But 
 the framers of our constitution foresaw this state of 
 things, and provided for it by declaring the supremacy 
 not only of itself, but of the laws made in pursuance 
 of it. The nullity of any act, inconsistent witli the 
 constitution, is produced by the declaration that the 
 constitution is the supreme law. The appropriate ap- 
 plication of that part of the clause which confers the 
 same supremacy on laws and treaties, is to such acts 
 of the state legislatures as do not transcend their 
 powers, interfere with, or are contrary to the laws of 
 congress, made in pursuance of the constitution, or
 
 8 CoNTEOL Over Common Caeriers [§ 2 
 
 some treaty made under the authority of the United 
 States. In every such case, the act of congress, or the 
 treaty, is supreme; and the law of the State, though 
 enacted in tlie exercise of powers not controverted, 
 must yield to it." 
 
 § 3. Judicial Definitions of Term "Interstate Com- 
 merce" as Used in the Federal Constitution. The 
 words ''commerce among the states," found in the third 
 paragraph of section 8 of article 1 of the federal Consti- 
 tution are not defined in that instrument. As new 
 agencies of commerce and modes of business between 
 the states are developed and discovered which were 
 unknown to former generations, no adequate and ex- 
 act definition of the phrase is possible; but its mean- 
 ing has been fairly established and can be arrived at 
 from the inclusive and exclusive definitions which have 
 been given it from time to time in the decisions of 
 the national courts. That the term "commerce" should 
 be confined to its primary and etymological meaning 
 — exchange of or trade in goods, wares and merchandise 
 — was early rejected by the Supreme Court with the 
 comment that it was something more than the mere 
 traffic in goods, that it described the commercial inter- 
 course between nations, and parts of nations in all 
 its branches and is regulated by prescribing rules for 
 carrying on that intercourse.^ 
 
 Every negotiation, contract, trade or dealing be- 
 tween citizens of different states which contemplates 
 and causes importation from one state to another, 
 whether it be of goods, persons or information, is a 
 transaction of interstate commerce.* A definition 
 
 3. Gibbons v. Ogden, 9 Wheat. Northern Securities Co. v. United 
 (U. S.) 1, 6 L. Ed. 23. States, 193 U. S. 197, 48 L. Ed. 679, 
 
 4. West V. Kansas Natural Gas 24 Sup. Ct. 430; Champion v. 
 Co., 221 U. S. 229, 55 L. Ed. 716, Ames, 188 U. S. 321, 47 L. Ed. 492, 
 31 Sup. Ct. 564, 35 L. R. A. (N. S.) 23 Sup. Ct. 321; Caldwell v. North 
 1193; International Text Book Carolina, 187 U. S. 622, 47 L. Ed. 
 Co. V. Pigg, 217 U. S. 91, 54 L. 336, 23 Sup. Ct. 229; Hanley v. 
 Ed. 678, 30 Sup. Ct. 481, 27 L. R. Kansas City Southern Ry. Co., 187 
 A. (N. S.) 493, 18 Ann. Cas. 1103; U. S. 617, 47 L. Ed. 333, 23 Sup.
 
 § 3.1 
 
 Thl' Commki^ce Clause, 
 
 frequently approved is the following: ''Commerce 
 with foreign countries and among the states strict- 
 ly considered, consists in intercourse and traffic, in- 
 cluding in these terms navigation and the transporta- 
 tion and the transit of persons and property, as well 
 as the purchase, sale and exchange of commodities."' 
 The term comprehends not only the exchange and 
 transportation of persons, commodities or visible tangi- 
 ble things, but also the transmission by telegraph and 
 
 Ct. 214; Lindsay & Phelps Co. v. 
 MuUen, 176 U. S. 126, 44 U Ed. 400. 
 20 Sup. Ct. 325; Addyston Pipe 
 & Steel Co. V. United States, 175 
 U. S. 211, 44 L. Ed. 136, 20 Sup. 
 Ct. 96; Hopkins v. United States, 
 171 U. S. 578, 43 L. Ed. 290, 19 
 Sup. Ct. 40; United States v. Joint- 
 Traffic Ass'n, 171 U. S. 505, 43 L. 
 Ed. 259, 19 Sup. Ct. 25; United 
 States V. Trans-Missouri Freight 
 Ass'n, 166 U. S. 290, 41 L. Ed. 
 1007, 17 Sup. Ct. 540; Henderson 
 Bridge Co. v. Com., 166 U. S. 150. 
 41 L. Ed. 953, 17 Sup. Ct. 532; 
 Western U. Tel. Co. v. James, 162 
 U. S. 650, 40 L. Ed. 1105, 16 Sup. 
 Ct. 934; United States v. E. C. 
 Knight Co., 156 U. S. 1, 39 U 
 Ed. 325, 15 Sup. Ct. 249; Cov- 
 ington & C. Bridge Co. "v. Com., 154 
 U. S. 204, 38 L. Ed. 962, 14 Sup. 
 Ct. 1087; Lehigh Valley R. Co. v. 
 Pennsylvania, 145 U. S. 192, 36 
 L. Ed. 672. 12 Sup. Ct. 806; Nor- 
 folk & W. R. Co. V. Pennsylvania, 
 136 U. S. 114 34 L. Ed. 394, 10 
 Sup. Ct. 958; McCall v. California, 
 136 U. S. 104. 34 L. Ed. 391. 10 
 Sup. Ct. 881; Leisy v. Hardin. 135 
 U. S. 100, 34 L. Ed. 128, 10 Sup. 
 Ct. 681; Kidd v. Pearson, 128 U. 
 S 1, 32 L. Ed. 346. 9 Sup. Ct. 6; 
 Bowman v. Chicago & N. W. Ry. 
 Co.. 125 U. S. 465, 31 L. Ed. 700, 8 
 Sup. Ct. 689: Woptcrn V. Tel. 
 
 Co. v. Pendleton, 122 U. S. 347, 
 30 L. Ed. 1187, 7 Sup. Ct. 1126; 
 Philadelphia, & Southern S. S. 
 Co. v. Pennsylvania, 122 U. S. 326, 
 30 L. Ed. 1200, 7 Sup. Ct. 1118; 
 Robbins v. Shelby County Tax- 
 ing Dist, 120 U. S. 489, 30 L. Ed. 
 694, 7 Sup. Ct. 592; Gloucester 
 Ferry Co. v. State, 114 U. S. 196, 
 29 L. Ed. 158, 5 Sup. Ct. 826;^ 
 County of Mobile v. Kimball. 102 
 U. S. 691, 26 L. Ed. 238; Pensacola 
 Tel. Co. v. Western U. Tel. Co., 96 
 U. S. 1, 24 L. Ed. 708; Hannibal 
 & St. J. R. Co. V. Husen, 95 U. S. 
 465, 24 L. Ed. 527; Welton v. 
 State, 91 U. S. 275, 23 L. Ed. 347; 
 Chicago & N. W. Ry. Co. v. Fuller, 
 17 Wall. (U. S.) 560, 21 L. Ed. 
 710; Philadelphia & R. R. Co. v. 
 Com.. 15 Wall. (U. S.;, 232. 21 L. 
 Ed. 146; United States v. Tucker, 
 188 Fed. 741; Butler Bros. Shoe 
 Co. V. United States Rubber Co., 
 84 C. C. A. 167, 156 Fed. 1. 
 
 5. Addyston Pipe & Steel Co. 
 V. United States, 175 U. S. 211, 
 44 L. Ed. 136, 20 Sup. Ct. 96; Mc- 
 Cali V. California, 136 U. S. 104. 
 34 L. Ed. 391, 10 Sup. Ct. 881: 
 Kidd V. Pearson, 128 U. S. 1. 32 L. 
 Ed. 346. 9 Sup. Ct. 6: Gloucester 
 Ferry Co. v. State, 114 U. S. 196. 
 29 L. Ed. 158, 5 Sup. Ct. 826; Coun- 
 ty of Mobile v. Kimball. 102 U. S. 
 691. 26 L. Ed. 238.
 
 10 Control Over Common Carriers [§ 3 
 
 telephone of ideas, wishes, orders and intelligence." 
 If any commercial transaction reaches an entirety in 
 two or more states, and if the parties dealing with 
 reference to that transaction deal from different states, 
 then the whole transaction is a part of interstate com- 
 merce of the United States.' No trade can be carried 
 on between the states to which the power of Congress 
 to regulate interstate commerce does not extend.^ For 
 example, a contract for the sale of merchandise which 
 contemplates the transportation of such merchandise 
 from one state to another, is a transaction of interstate 
 commerce.® 
 
 § 4. Transportation from one State to Another an 
 Essential Element of Interstate Commerce. While com- 
 merce between the states covers a multitude of trans- 
 actions and subject matters, actual transportation of 
 either persons or property or transmission of intelli- 
 gence, from a point in one state to a point in another 
 or to a foreign country by land or water, is an essential 
 element of the commerce within federal control.'" An 
 
 6 Champion v. Ames, 188 U. v Pigg, 217 U. S. 91, 54 L. Ed. 
 S. 321, 47 L. Ed. 492, 23 Sup. Ct. 678, 30 Sup. Ct. 481, 27 L. R. A. 
 321; Ratterman v. Western U. (N. S.) 493, 18 Ann. Cas. 1103; 
 Tel' Co 127 U. S. 411, 32 L. Ed. Ware & Leland Co. v. Mobile Coun- 
 229, 8 Sup. Ct. 1127; Western U. ty, 209 U. S. 405, 52 L. Ed. 855, 
 Tel' Co. V. Pendleton, 122 U. S. 28 Sup. Ct. 526. 14 Ann. Cas. 1031; 
 347 30 L- Ed. 1187, 7 Sup. Ct, Fairbank v. United States, 181 U. 
 ^^26 S- 283, 45 L. Ed. 862, 21 Sup. Ct. 
 
 7 In re Charge to Grand Jury, 648; Williams v. Fears, 179 U. S. 
 151 Fed. 834; United States v. 270, 45 L. Ed. 186, 21 Sup. Ct. 128; 
 Swift & Co., 122 Fed. 529. Hopkins v. United States, 171 U. 
 
 8. Hipolite Egg Co. v. United S. 578, 43 L. Ed. 290, 19 Sup. Ct. 
 States, 220 U. S. 45, 55 L. Ed. 364, 40; Noble v. Mitchell, 164 U. S. 
 31 Sup. Ct. 364. 367, 41 L. Ed. 472, 17 Sup. Ct. 110; 
 
 9. Royster Guano Co. v. Cole, Hooper v. State, 155 U. S. 648, 39 
 115 Me. 387, 99 Atl. 33. L. Ed. 297, 15 Sup. Ct. 207; Pacific 
 
 10 New York Life Ins. Co. v. Exp. Co. v. Seibert, 142 U. S. 339, 
 
 Deer Lodge County, 231 U. S. 495, 35 L. Ed. 1035, 12 Sup. Ct. 250; 
 
 58 L Ed. 332, 34 Sup. Ct. 167; Robbins v. Shelby County Taxing 
 
 United States Fidelity & Guaranty Dist., 120 U. S. 489, 30 L. Ed. 694, 
 
 Co. of Baltimore v. Com., 231 U. 7 Sup. Ct. 592; Philadelphia Fire 
 
 S 394, 58 L. Ed. 283. 34 Sup. Ct. Ass'n. v. People, 119 U. S. 110, 30 
 
 122; international Text Book Co. L. Ed. 342, 7 Sup. Ct. 108; Hanni-
 
 agent of a railroad company, for example, residing in 
 San Francisco and soliciting passengers for a railroad 
 running between Chicago and New York, was held to 
 be engaged in interstate commerce." A "drummer" 
 engaged in taking orders for goods from samples for 
 his employer in another state, is engaged in interstate 
 commerce when such orders are transmitted to the other 
 state and the sale is consummated by the transportation 
 of the lu-operty to the buyer.*- intercourse between 
 a text-book company conducting a correspondence 
 school, and its agents and scholars in other states, which 
 involved the transportation of books, apparatus and 
 papers from the state where the school was located to 
 the state where the students resided, constituted com- 
 merce between the states.'^ The carriage from one 
 state to another of lottery tickets, is within the federal 
 commerce clause." Persons travelling from place to 
 place within a state taking orders for the delivery of 
 goods and transmitting them to the manufacturer in 
 another state to be delivered in fulfillment of such 
 orders, and which are in fact shipped and delivered 
 to the persons ordering them, are engaged in interstate 
 
 bal & St. J. R. Co. V. Husen, 95 U. 430, 15 Sup. Ct. 367; Fickleii v. 
 
 S. 465, 24 L. Ed. 527. Shelby County Taxing Dist., 145 U. 
 
 11. McCall V. California, 136 U. S. 1, 36 L. Ed. 601, 12 Sup. Ct. 
 S. 104, 34 L. Ed. 391, 10 Sup Ct. 810; Stoutenburgh v. Hennick, 129 
 881. U. S. 141, 32 L. Ed. 637, 9 Sup. Ct. 
 
 12. Davis V. Com., 236 U. S. 697, 256; Asher v. Texas, 128 U. S. 
 59 L. Ed. 795, 35 Sup. Ct. 479; 129, 32 L. Ed. 368, 9 Sup. Ct. 1; 
 Singer Sewing Machine Co. v. Leloup v. Port of Mobile, 127 U. S. 
 Brickell, 233 U. S. 304, 58 L. Ed. 640, 32 L. Ed. 311. 8 Sup. Ct. 1380: 
 974, 34 Sup. Ct. 493; Browning v. Corson v. Maryland, 120 U. S. 502, 
 City of Waycross, 233 U. S. 16, 30 L. Ed. 699, 7 Sup. Ct. 655; Rob- 
 58 L. Ed. 828, 34 Sup. Ct. 578; bins v. Shelby County Taxing Dist. 
 Banker Bros. Co. v. Common- 120 U. S. 489, 30 L. Ed. 694, 7 
 wealth, 222 U. S. 210, 56 L. Ed. Sup. Ct. 592. 
 
 168, 32 Sup. Ct. 38; Caldwell v. 13. International Text-Book Co. 
 
 North Carolina, 187 U. S. 622, 47 v. Pigg, 217 U. S. 91, 54 L. Ed. 678, 
 
 L. Ed. 336, 23 Sup. Ct. 229; Stock- 30 Sup. Ct. 481, 27 L. R. A. (N. S.) 
 
 ard V. Morgan, 185 U. S. 27, 46 493, 18 Ann. Cas. 1103. 
 
 L. Ed. 785, 22 Sup. Ct. 576; Emert 14. Lottery Case, 188 U. S. 321, 
 
 V. State, 156 U. S. 296, 39 L. Ed. 47 L. Ed. 492, 23 Sup. Ct. 321.
 
 12 
 
 Control Over Common Carriers 
 
 [^ 4 
 
 commerce.'' The transportation of natural gas from 
 one state to another is interstate commerce.'^ 
 But, on the other hand, policies of insurance is- 
 sued by a company in one state to a person in another 
 state, do not constitute interstate commerce trans- 
 actions although the premiums thereon are transmitted 
 from one state to- another, for policies of insurance are 
 not the subject of trade and barter and are not com- 
 modities to be shipped or forwarded from one state to 
 another.'' Similarly brokers who take orders on com- 
 mission for the purchase and sale of grain or cotton, 
 
 15. Rogers v. State, 227 U. S. 
 401, 57 L. Ed. 569, 33 Sup. Ct. 298; 
 Crenshaw v. State, 227 U. S. 389, 57 
 L. Ed. 565, 33 Sup. Ct. ?M; Dozier 
 V. State, 218 U. S. 124, 54 L. Ed. 
 965, 30 Sup. Ct. 649, 28 L. R. A. (N. 
 S.) 264. 
 
 16. West V. Kansas Natural Gas 
 Co., 221 U. S. 229, 55 L. Ed. 716, 
 31 Sup. Ct. 564, 35 L. R. A. (N. S.) 
 1193; Manufacturers' Gas & Oil Co. 
 V. Indiana Natural Gas & Oil Co., 
 156 Ind, 679, 59 N. E. 169, 60 N. E. 
 1080; State ex rel. Corwin v. In- 
 diana & Ohio Oil, Gas & Mining 
 Co., 120 Ind. 575, 6 L. R. A. 579, 
 22 N. E. 778. 
 
 17. New York Life Ins. Co. v. 
 Deer Lodge County, 231 U. S. 495, 
 58 L. Ed. 332, 34 Sup. Ct. 167; New 
 York Life Ins. Co. v. Cravens, 178 
 U. S. 389, 44 L. Ed. 1116, 20 Sup. 
 Ct. 962; Hooper v California, 155 
 U. S. 648, 39 L. Ed. 297, 15 Sup. 
 Ct. 207; Philadelphia Fire Ass'n. v. 
 People, 119 U. S. 110, 30 L. Ed. 342, 
 7 Sup. Ct. 108; Liverpool & L. Life 
 & Fire Ins. Co. v. Massachusetts, 
 10 Wall. 566, 19 L. Ed. 1029; Ducat 
 V. Chicago, 10 Wall. 410, 19 L. Ed. 
 972; Paul v. Virginia, 8 Wall. 168, 
 19 L. Ed. 357. 
 
 "Issuing a policy of insurance is 
 not a transaction of commerce. The 
 policies are simple contracts of in- 
 
 demnity against loss by fire, enter- 
 ed into between the corporations 
 and the assured, for a considera- 
 tion paid by the latter. These 
 contracts are not articles of com- 
 merce in any proper meaning of 
 the word. They are not subjects 
 of trade and barter offered in the 
 market as something having an 
 existence and value independent 
 of the parties to them-. They are 
 not commodities to be shipped or 
 forwarded from one State to an- 
 other, and then put up for sale. 
 They are like other personal con- 
 tracts between parties which are 
 completed by ther signature and 
 the transfer of the consideration. 
 Such contracts are not interstate 
 transactions, though the parties 
 may be domiciled in different 
 States. The policies do not take ef- 
 fect — are not executed contracts — 
 until delivered by the agent in 
 Virginia. They are, then, local 
 transactions, and are governed by 
 the local law. They do not consti- 
 tute a part of the commerce be- 
 tween the States any more than a 
 contract for the purchase and sale 
 of goods in Virginia by a citizen 
 of New York whilst in Virginia 
 would constitute a portion of such 
 commerce." Paul v. Virginia, 
 supra.
 
 § 4] Thk Commerce Clax'se. 13 
 
 and transmit tliem to otlior states to ])e consnmmated, 
 are not thereby engaged in interstate commerce when 
 no actual shipments of grain from one state to another 
 are involved. ^^ Manufacture and ]u-oduction of com- 
 modities do not constitute interstate commerce trans- 
 actions, for tlie function of manufacture is the trans- 
 formation of raw material into a change of form for 
 use, while commerce includes the buying and selling 
 and the transportation incidental thereto of commodi- 
 ties from one state to another.^^ Persons engaged as 
 agents in hiring laborers to be employed beyond the 
 limits of the state are not thereby engaged in interstate 
 commerce even though transportation must eventually 
 take place as the result of such employment, because 
 the business of hiring laborers is not so immediately 
 connected with interstate transportation or traffic that 
 it could be correctly said that those who followed it 
 were engaged in interstate commerce. -° Sales of stock 
 and bonds which do not contemplate or have anything 
 to do with the transportation of property from one state 
 to another, are not interstate commerce transactions 
 although the parties to such sales are residents of 
 different states.-^ A broker dealing in foreign bills 
 of exchange is not thereby engaged in foreign commerce 
 within the commerce clause of the Constitution.-- Per- 
 is. Ware & Leland Co v. IMobile 123 U. S. 623. 31 L. Ed. 205, S Sup. 
 County, 209 U. S. 405, 52 L. Ed. 855. Ct. 273; McCready v. Virginia, 94 
 28 Sup. Ct. 526, 14 Ann. Cas. 1031. U. S. 391, 24 L. Ed. 248. 
 
 19. Northern Securities Co. v. 20. Williams v. Fears, 179 U. 
 
 United States, 193 U. S. 197. 48 s. 270, 45 L. Ed. 186, 21 Sup. Ct. 
 L. Ed. 679, 24 Sup. Ct. 436; Dia- 128. 
 
 mond Glue Co. x. United States 21. Brodnax v. State, 219 U S 
 
 Glue Co., 187 U. S. 611, 47 L. Ed. 285, 55 L. Ed. 219, 31 Sup Ct 238- 
 328, 23 sup. Ct 206; capital City ^^^ ^ork e.x rel. Hatch v. Rear'- 
 
 ?r;^?-.:; Tl' rt 1 20 Ad ^-' 204 U. S. 152. 51 L. Ed. 415. 27 
 
 46 L. Ed. 171, 22 Sup. Ct. 120 Ad- 
 
 dyston Pipe & Steel Co. v. United ^up. Ct. 188, 9 Ann. Cas. 736;Rear. 
 
 States, 175 U. S. 211, 44 L. Ed. 136, ^^^' ^- Com., 203 U. S. 507. 51 L. Ed. 
 
 20 Sup. Ct. 9G; United States v. ^95, 27 Sup. Ct. 159; Woodruff v. 
 
 E. C. Knight Co.. 156 U. S. 1, 39 Parham. 8 Wall. 123. 19 L. Ed. 
 
 L. Ed. 325, 15 Sup. Ct. 249; Kidd 382. 
 
 V. Pearson, 128 U. S. 1, 32 L. Ed. 22. Nathan v. Louisiana, 8 How. 
 
 346. 9 Sup. Ct. 6; Mugler v. State, (U. S.) 73, 12 L. Ed. 992.
 
 14 
 
 Control Over Common Carriers 
 
 [§ -t 
 
 sons engaged in the business of receiving deposits of 
 money for safe keeping or for the purpose of transmis- 
 sion to other states and countries, are not engaged in for- 
 eign commerce, for the receiving of deposits which 
 precedes it, must not be confounded with a later trans- 
 mission of the money to foreign countries. ^^ 
 
 § 5. Congressional Grant "to Regulate" Com- 
 merce Defined and Explained. The power to regulate 
 interstate and foreign commerce granted to Congress 
 under the commerce clause, has been given a compre- 
 hensive meaning-* and includes both regulation and 
 prohibition." It has been defined as the power to 
 prescribe the rules by which commerce shall be govern- 
 ed, that is, the conditions upon which it shall be con- 
 ducted.-*^ It includes the power to provide the law for 
 
 23. Engel v. O'Malley, 219 U. S. 
 128, 55 L. Ed. 128, 31 L. Ed. 190. 
 
 24. Clark Distilling Co. v. Wes- 
 tern Maryland R. Co., 242 U. S. 
 311, 61 L. Ed. 326, 37 Sup. Ct. 180, 
 L. R. A. 1917B 1218, Ann. Cas. 
 1917B 845; Texas & P. Ry. Co. v. 
 Rigsby, 241 U. S. 33, 60 L. Ed. 874, 
 36 Sup. Ct. 482; Coppage v. State 
 of Kansas, 236 U. S. 1, 59 L. Ed. 
 441, 35 Sup. Ct. 240, L. R. A. 1915C 
 960; City of Sault Ste. Marie v. 
 International Transit Co., 234 U. 
 S. 333, 58 L. Ed. 1337, 34 Sup. Ct. 
 826, 52 L. R. A. (N. S.) 574; Balti- 
 more & O. R. Co. V. Interstate 
 Commerce Commission, 221 U. S. 
 612, 55 L. Ed. 878, 31 Sup. Ct. 621; 
 Adair v. United States, 208 U. S. 
 161, 52 L. Ed. 436, 28 Sup. Ct. 277, 
 13 Ann. Cas. 764; Atlantic Coast 
 Line R. Co. v. North Carolina Cor- 
 poration Commission, 206 U. S. 
 1, 51 L. Ed. 933, 27 Sup. Ct. 585, 11 
 Ann. Cas. 398; Reid v. Colorado, 
 187 U. S. 137, 47 L. Ed. 108, 23 
 Sup. Ct. 92; Addyston Pipe & Steel 
 Co. V. United States, 175 U. S. 211, 
 
 44 L. Ed. 136, 20 Sup. Ct. 96; 
 United States v. Joint-Traffic Ass'n. 
 171 U. S. 505, 43 L. Ed. 259, 19 
 Sup. Ct. 25; United States v. Trans- 
 Missouri Freight Ass'n., 166 U. S. 
 290, 41 L. Ed. 1007, 17 Sup. Ct. 540; 
 In re Rahrer, 140 U. S. 545, 35 L. 
 Ed. 572, 11 Sup. Ct. 865; Wabash, 
 St. L. & P. Ry. Co. V. People, 118 
 U. S. 557, 30 L. Ed. 244, 7 Sup. Ct. 
 4; Gloucester Ferry Co. v. State, 
 114 U. S. 196, 29 L. Ed. 158, 5 Sup. 
 Ct. 826; Western U. Tel. Co. v. 
 State, 105 U. S. 460, 26 L. Ed. 1067; 
 Henderson v. Wickham, 92 U. S. 
 259, 23 L. Ed. 543; Welton v. State, 
 91 U. S. 275, 23 L. Ed. 347. 
 
 25. Hoke v. United States, 227 
 U. S. 308, 57 L. Ed. 523, 33 Sup. Ct. 
 281, 43 L. R. A. (N. S.) 906, Ann. 
 Cas. 1913E 905; Hipolite Egg Co. 
 V. United States, 220 U. S. 45, 55 
 L. Ed. 364, 31 Sup. Ct. 364; Lottery 
 Case, 188 U. S. 321, 47 L. Ed. 492, 
 23 Sup. Ct. 321. 
 
 26. Northern Securities Co. v. 
 United States, 193 U. S. 197, 48 L. 
 Ed. 679, 24 Sup. Ct. 436; Austin v.
 
 § 5] 
 
 Thk Commkkce Clause. 
 
 15 
 
 the governmont of interstate commerce and to enact 
 all appropriate legislation for the welfare of those who 
 are immediately concerned, ^^ and of the public at 
 large;-'* to adopt measures to promote the growth of 
 commerce and to insure its safety;-' to prescribe the 
 rules not only for the carrying on of commerce, but, 
 in certain instances, to absolutely proliibit it;'"' to 
 maintain the efficiency of interstate transportation upon 
 fair terms and without molestation or hinderance.^^ 
 This power of regulation not only applies to inter- 
 state commerce itself, but extends to and embraces all 
 the instrumentalities, agencies and means by which 
 such commerce is carried on.^- It is not confined to 
 the instrumentalities and agencies of commerce as they 
 were known or in use when the Constitution was adopt- 
 
 State, 179 U. S. 343, 45 L. Ed. 224, 
 21 Sup. Ct. 132; United States v. 
 Joint-Traffic Ass'n., 171 U. S. 505, 
 43 L. Ed. 259, 19 Sup. Ct. 25; In- 
 terstate Commerce Commission v. 
 Brimson, 154 U. S. 447, 38 L.. Ed. 
 1047, 14 Sup. Ct. 1125; Picltard 
 Pullman Southern Car Co., 117 U. 
 S. 34, 29 L. Ed. 785, 6 Sup. Ct. 635; 
 Walling V. People, 116 U. S. 446, 29 
 L. Ed. 691, 6 Sup. Ct. 454; Glou- 
 cester Ferry Co. v. State, 114 U. S. 
 196. 29 L. Ed. 158. 5 Sup. Ct. 826; 
 Webber v. Virginia, 103 U. S. 334. 
 26 L. Ed. 565; Gibbons v. Ogden, 9 
 Wheat, (U. S.) 1, 6 L. Ed. 23. 
 
 27. Wilson v. New, 243, U. S. 
 332; 61 L. Ed. 755, 37 Sup. Ct. 
 298; Clark Distilling Co. v. Wes- 
 tern Maryland R. Co., 242 U. S. 
 311, 61 L. Ed. 326, 37 Sup. Ct. 180. 
 L. R. A. 1917B 1218, Ann. 1917B 
 845; Interstate Commerce Commis- 
 sion V. Brimson, 154 U. S. 447, 38 
 L. Ed. 1047, 14 Sup. Ct. 1125; The 
 Daniel Ball v. United States, 10 
 Wall. 557, 19 L. Ed. 999. 
 
 28. In re Second Employers' Lia- 
 bility Cases, 223 U. S. 1, 56 L. Ed. 
 
 327, 32 Sup. Ct. 169, 38 L. R. A. 
 (N. S.) 44. 
 
 29. County of Mobile v. Kimball, 
 102 U. S. 691, 26 L. Ed. 238. 
 
 30. Hipolite Egg Co. v. United 
 States, 220 U. S. 45, 55 L. Ed. 
 364, 31 Sup. Ct. 364. 
 
 31. Houston, East & West 
 Texas Ry. Co. v. United States, 
 234 U. S. 342. 58 L. Ed. 1341, 34 
 Sup. Ct. 833. 
 
 32. Southern R. Co. v. United 
 States, 222 U. S. 20, 56 L. Ed. 72. 
 32 Sup. Ct. 2; Interstate Com- 
 merce Commission v. Detroit, G. 
 H. & M. Ry. Co., 167 U. S. 633, 42 
 L. Ed. 306, 17 Sup. Ct. 986; In re 
 Debs. 158 U. S. 564, 39 L. Ed. 1092. 
 15 Sup. Ct. 900; Nashville, C. & 
 St. L. Ry. Co. V. Alabama, 128 U. 
 S. 96. 32 L. Ed. 352, 9 Sup. Ct. 28; 
 Smith V. Alabama, 124 U. S. 465. 
 31 L. Ed. 508, 8 Sup. Ct. 564; 
 Western U. Tel. Co. v. State, 105 U. 
 S. 460. 26 L. Ed. 1067; Hall v. De 
 Culr, 95 U. S. 485. 24 L. Ed. 547: 
 State Tonnage Tax Cases, 12 Wall. 
 204, 20 L. Ed. 370; The Daniel Ball 
 V. United States. 10 Wall. 557, 19 
 L. Ed. 999.
 
 16 CoNiK()i. Over Common Carrieks [§ 5 
 
 ed, but it extends from tlie sailing vessel to the steam- 
 boat,'' from the stage-eoach to the Pnllman car/* from 
 the messenger to the telegraph'' and wireless,'' from 
 the ox-cart to the automobile," and to all the new 
 agencies of interstate commerce as they are successively 
 brought to its aid.'' The power of Congress to regulate 
 commerce is complete in itself, is not dependent on and 
 cannot be hampered by the action of the states, and 
 is unrestrained by any qualification or limitation other 
 that such as are prescribed in the Constitution itself.'" 
 § 6. Importation of Legitimate Articles of Com- 
 merce from one State to Another Immune from State 
 Legislation. That portion or part of commerce with 
 foreign countries and between the states which consists 
 of the transportation and exchange of commodities, 
 that is, the importation of legitimate articles of com- 
 merce from one state to another, is under the protection 
 of the commerce clause of the . federal constitution. 
 All legitimate articles of commerce, therefore, moving 
 from one state to another or to a foreign country are 
 protected from hostile or interfering legislation of the 
 states from the commencement of the transportation 
 to the termination of the movement." For, if mer- 
 
 33. Gibbons v. Ogden, 9 Wheat. tern U. Tel. Co., 96 U. S. 1, 24 L. 
 (U. S.) 1, 6 L. Ed. 23. Ed. 708. 
 
 34. Allen v. Pullman's Palace 39. Wilson v. New, 243 U. S. 
 Car Co., 191 U. S. 171, 48 L. Ed. 332, 61 L. Ed. 755, 37 Sup. Ct. 298: 
 134, 24 Sup. Ct. 39; Pullman Co. Gibbons v. Ogden, 9 Wheat, (U. 
 V. Adams, 189 U. S. 420, 47 L. Ed. S.) 1, 6 L. Ed. 23. 
 
 877 23 Sup Ct 494; Tennessee v. 40. Rosenberger v. Pacific Exp. 
 
 Pullman Southern Car Co., 117 U. Co., 241 U. S. 48, 60 L. Ed. 880, 36 
 S 51 29 L Ed 791, 6 Sup. Ct. 643. Sup. Ct. 510; Price v. People, 238 
 
 or' o^ T • w cf^.,, TT T^«i U. S. 446, 59 L. Ed. 1400. 35 Sup. 
 
 35. St. Louis V. Western U. lei. • „ ^ ^ 
 
 n 148TT Q q? •?? T Fd 380 13 ^^- ^^^^ Adams Exp. Co. v. Com.. 
 Co., 148 U. S. 92, 37 L. Ed. 380 13 ^^^^ ^ ^ ^^^ ^^ ^ ^^ ^^67, 35 
 
 Sup. Ct. 485; Leloup v. Port of ^^^^ ^^ ^^4, Ann. Cas. 1915D 
 
 Mobile. 127 U. S. 640, 32 L. Ed. 311, ^^^^. ^^^^^ ^ ^^^^ ^ 238 U. S. 62, 
 
 8 Sup. Ct. 1380. 59 ^ ^^ ^201, 35 Sup. Ct. 677; 
 
 36. Act approved June 18, 1910, Kirmeyer v. State, 236 U. S. 568, 
 36 Stat, at L. 539. 59 j, Ed. 721, 35 Sup. Ct. 419; 
 
 37. Hendrick v. State, 235 U. S. Mutual Film Corporation of Mis- 
 610, 59 L. Ed. 385, 35 Sup. Ct. 140. souri v. Hodges, 236 U. S. 248, 59 
 
 38. Pensacola Tel. Co. v. Wes- L. Ed. 561, 35 Sup. Ct. 393; Hey-
 
 § G 
 
 Tjir. (.'oMJMEfUK Cj.alse. 
 
 17 
 
 eliaudiso, recognized as legitimate articles of commerce 
 and shipped in interstate or foreif^n commerce, can be 
 subjected to any restrictions by state legislation before 
 it is ming'led witli and l)ecomes a part of tlie general 
 
 man v. Hays, 236 V. S. 178. 59 
 L. Ed. 527; 35 Sup. Ct. 403; People 
 ex rel. Cornell Steamboat Co. v. 
 Sohmer, 235 U. S. 549, 59 L. Ed. 
 355, 35 Sup. Ct. 162; South Coving- 
 ton & C. St. R. Co. V. City of Cov- 
 ington, 235 U. S. 537, 59 L. Ed. 350, 
 35 Sup. Ct. 158, L. R. A. 1915F 
 792; St. Louis Southwestern R. Co. 
 V. State, 235 U. S. 350, 59 L. Ed. 
 265, 35 Sup. Ct. 99; Sioux Remedy 
 Co. V. Cope, 235 U. S. 197, 59 L. Ed. 
 193, 35 Sup. Ct. 57; Browning v. 
 City of Waycross, 233 U. S. 16, 
 58 L. Ed. 828, 34 Sup. Ct. 578; 
 Stewart v. People. 232 U. S. 665, 
 58 L. Ed. 786, 34 Sup. Ct. 476; Ohio 
 River & W. Ry. Co. v. Dittey, 232 
 U. S. 576, 58 L. Ed. 737, 34 Sup. 
 Ct. 372; D. E. Foote & Co. v. Stan- 
 ley, 232 U. S. 494, 58 L. Ed. 698, 
 34 Sup. Ct. 377; Louisville & N. R. 
 Co. V. F. W. Cook Brewing Co., 223 
 U. S. 70, 56 L. Ed. 355, 32 Sup. Ct. 
 189; Dozier v. State, 21S U. S. 124, 
 54 L. Ed. 965. 30 Sup. Ct. 649, 28 
 L. R. A. (N. S.) 264; Adams Exp. 
 Co. V. Com., 214 U. S. 218. 53 L. 
 Ed. 972, 29 Sup. Ct. 633; Heymann 
 v. Southern R. Co., 203 U. S. 270, 51 
 L. Ed. 178, 27 Sup. Ct. 104; Ameri- 
 can Exp. Co. v. Iowa, 196 U. S. 
 133, 49 L. Ed. 417, 25 Sup. Ct. 182; 
 Caldwell v. North Carolina, 187 U. 
 S. 622, 47 L. Ed. 336, 23 Sup. Ct. 
 229; Austin v. State. 179 U. S. 343, 
 45 L. Ed. 224, 21 Sup. Ct. 132; 
 Rhodes v. State, 170 U. S. 412, 42 
 L. Ed. 1088, 18 Sup. Ct. 664; Bow- 
 man V. Chicago & N. W. Ry. Co., 
 125 U. S. 465. 31 L. Ed. 700, 8 Sup. 
 Ct. 689, 1062. 
 
 "It i.s also certain that thf^ set- 
 tled doctrine is that the power to 
 ship merchandise from one State 
 into another carries with it, as an 
 incident, the right in the receiver 
 of the goods to sell them in the 
 original packages, any state regu- 
 lation to the contrary notwith- 
 standing; that is to say, that the 
 goods received by Interstate Com- 
 merce remain under the shelter 
 of the Interstate Commerce clause 
 of the Constitution, until by a 
 sale in the original package they 
 have been commingled with the 
 general mass of property in the 
 State." Vance v. W. A. Vander- 
 cook Co.. 179 U. S. 438, 42 L. Ed. 
 1100, 18 Sup. Ct. 674. 
 
 "At this late day it is not nec- 
 essary to cite cases to thow that 
 the right to engage in interstate 
 commerce is not the gift of a 
 State, and that it cannot be regu- 
 lated by a State, or that a State 
 cannot exclude from its limits 
 a corporation engaged in such 
 commerce." West v. Kansas Nat- 
 ural Gas Co.. 221 U. S. 229, 55 L. 
 Ed. 716, 31 Sup. Ct. 564, ?5 L. R. A. 
 (N. S.) 1193. 
 
 "Those cases rested upon the 
 broad principle of the freedom of 
 commerce between the States and 
 of the right of a citizen of one 
 State to freely contract to receive 
 merchandise from another State, 
 and of the equal right of the 
 citizen of a State to contract to 
 send merchandise into other 
 States." American Exp. Co. v. 
 Iowa, 196 U. S. 133, 49 L. Ed. 417, 
 25 Sup. Ct. 182. 
 
 1 CiMilrol CarrliT?
 
 18 
 
 Control Over Common Carriers 
 
 [§ 6 
 
 property of the state, the object of investing the con- 
 trol in Congress over interstate and foreign commerce 
 would be entirely destroyed/^ It follows that the 
 states cannot levy taxes on interstate and foreign com- 
 merce in any form by imposing it either upon the busi- 
 ness which constitutes such commerce, or the privilege 
 of engaging in it, or upon the receipts as such derived 
 from it.^- A person engaging in interstate commerce 
 cannot be compelled by a state or municipality to take 
 out a local license for the mere privilege of carrying 
 on interstate or foreign commerce." 
 
 41. City of Sault Ste. Marie v. 
 International Transit Co., 234 U. S. 
 333, 58 L. Ed. 1337, 34 Sup. Ct. 826, 
 52 L. R. A. (N. S.) 574; Crutcher v. 
 Kentucky, 141 U. S. 47, 35 L. Ed. 
 649, 11 Sup. Ct. 851; Philadelphia 
 
 6 Southern S. S. Co. v. Pennsyl- 
 vania, 122 U. S. 326, 30 L. Ed. 1200, 
 
 7 Sup. Ct. 1118; Robbins v. Shelby 
 County Taxing Dist. 120 U. S. 489, 
 30 L. Ed. 694, 7 Sup. Ct. 592; Wel- 
 ton V. State, 91 U. S. 275, 23 L. 
 Ed. 347. 
 
 42. Kansas City, Ft. S. & M. R. 
 Co. V. Botkin, 240 U. S. 227, 60 L. 
 Ed. 617, 36 Sup. Ct. 261; People 
 ex rel. Cornell Steamboat Co. v. 
 Sohmer, 235 U. S. 549, 59 L. Ed. 
 355, 35 Sup. Ct. 162; St. Louis 
 Southwestern R, Co. v. State, 235 
 U. S. 350, 59 L. Ed. 265, 35 Sup. 
 Ct. 99; Chicago, M. & St. P. R. Co. 
 V Iowa, 233 U. S. 334, 58 L. Ed. 
 988, 34 Sup. Ct. 592; Baltic Min. 
 Co. V. Massachusetts, 231 U. S. 
 68, 58 L. Ed. 127, 34 Sup. Ct. 15; 
 Meyer v. Wells, Fargo & Co., 223 
 U. S. 298, 56 L. Ed. 445, 32 Sup. 
 Ct. 218; Pullman Co. v. State ex 
 rel. Coleman, 216 U. S. 56, 54 L. Ed. 
 378, 30 Sup. Ct. 232; Western U. 
 Tel. Co. V. State, ex rel. Coleman, 
 216 U. S. 1, 54 L. Ed. 355, 30 Sup. 
 Ct. 190; Galveston, H. & S. A. R. 
 
 Co. V. State, 210 U. S. 217, 52 L. 
 Ed. 1031, 28 Sup. Ct. 638. 
 
 See also General Railway Sig- 
 nal Co. V. Commonwealth, 246 U. 
 
 S. , 62 L. Ed. , 38 Sup. 
 
 Ct. 360; Dalton Adding Machine 
 Co. V. Commonwealth, 246 U. S. 
 
 , 62 L. Ed. , 38 Sup. Ct. 
 
 361; Ireland v. Woods, 246 U. 
 
 S. , 62 L. Ed. , 38 Sup. Ct. 
 
 319; Locomobile Co. v. Massachu- 
 setts, 245 U. S. , 62 L. Ed. 
 
 , 38 Sup. Ct. 298; Interna- 
 tional Paper Co. v. Common- 
 wealth, 245 U. S. , 62 L. Ed. 
 
 , 38 Sup. Ct. 292; Looney v. 
 
 Crane Co., 245 U. S. 178, 62 L. 
 
 Ed. , 38 Sup. Ct. 85; Kansas 
 
 City S. R. Co. v. Stiles, 242 U. S. 
 Ill, 61 L. Ed. 176, 37 Sup. Ct. 58. 
 
 43. Browning v. City of Way- 
 cross, 233 U. S. 16, 58 L. Ed. 828, 
 34 Sup. Ct. 578; Barrett v. City of 
 New York, 232 U. S. 14, 58 L. Ed. 
 483, 34 Sup. Ct. 203; Crenshaw v. 
 State, 227 U. S. 389, 57 L. Ed. 565. 
 33 Sup. Ct. 294; Buck Stove & 
 Range Co. v. Vickers, 226 U. S. 205, 
 57 L. Ed. 189, 33 Sup. Ct. 41; 
 Leloup V. Port of Mobile, 127 U. 
 S. 640, 32 L. Ed. 311, 8 Sup. Ct. 
 1380; Robbins v. Shelby County 
 Taxing Dist., 120 U. S. 489, 30 L. 
 Ed. 694, 7 Sup. Ct. 592.
 
 § G] Thi: Commkkck Clavse. 19 
 
 This principle prohibitiu*^ tlip states from inter- 
 fering witli tile transportation of legitimate articles of 
 merchandise from one state to anotiier, and establishing 
 the freedom of interstate commerce, invalidates a state 
 law levying a tax of one dollar on each person leaving 
 a state;'** a law re(|uiring owners of vessels engaged 
 in foreign commerce to pay to state officials a certain 
 Sinn on account of every alien passenger brought from 
 a foreign country into the state;*' a state statute im- 
 posing a license upon importers for the privilege of 
 selling imported goods;" a tax of a certain sum upon 
 each ton of freight taken up within a state and carried 
 out of it, or taken up outside of the state and delivered 
 within it;*' a state statute imposing a tax on bills of 
 lading for gold or silver transported to any jjoint with- 
 out the state;" a license tax exacted by a state from 
 dealers in goods shipped from other states, as a condi- 
 tion upon their sale; *" a state law prohibiting certain 
 kinds of cattle from being conveyed into a state be- 
 tween March 1 and November 1 of each year;''" a law 
 taxing "drummers" offering for sale or selling goods 
 from another state by sample;''^ a state tax upon the 
 gross receipts of companies engaged in interstate com- 
 merce ;^^ a tax imposed upon the capital stock of ferry 
 companies engaged in interstate commerce ;^'^ a city 
 ordinance requiring a license of telegraph comi)anies 
 engaged in interstate commerce;^* a state law i^lacing 
 a tax of one cent on every telegraphic message sent out 
 
 44. Crandall v. State, 6 Wall. 50. Hannibal & St. J. R. Co. v. 
 (U. S.) 35, 18 L. Ed. 745. Husen, 95 U. S. 465, 24 L. Ed. 527. 
 
 45. Passenger Cases, 7 How. (U. 51. Robblns v. Shelby County 
 S.) 283, 12 L. Ed. 702. Taxing Dist., 120 U. S. 489, 30 L. 
 
 46. Brown v. Maryland, 12 ^d. 694, 7 Sup. Ct. 592. 
 
 Wheat (U. S ) 419, 6 L. Ed. 678. ^2. Philadelphia & Southern S. 
 
 S. Co. V. Pennsylvania, 122 U. S. 
 
 47. Philadelphia & R. R. Co. v. ^^^^ 3,^ ^ ^^ ^ ^^ ^^^^ 
 
 Com., 15 Wall. (U. S.) 232, 21 53 Gloucester Ferry Co. v. 
 
 ^ ^^- 1"*^- State. 114 U. S. 196, 29 L. Ed. 158, 
 
 48. Almy v. California, 24 How. 5 g^p q^ 325. 
 
 (U. S.) 169, 16 L. Ed. 644. 54. Leloup v. Port of Mobile, 127 
 
 49. Welton v. State, 91 U. S. 275, U. S. 640, 32 L. Ed. 311, 8 Sup. Ct. 
 23 L. Ed. 347. 1380.
 
 20 Control Over Common Carriers [<s^ 6 
 
 of the state ;^^ a statute giving- one telegraph company 
 the exclusive right to transmit intelligence by telegraph 
 over a certain portion of the territory of a state ;^*' an 
 ordinance requiring an express company to obtain a 
 license as a condition precedent to engaging in the 
 express business;" a municipal ordinance making it 
 unlawful for an interstate street railroad company to 
 permit more than one-third greater in number of the 
 passengers to ride in its cars over and above a number 
 for which seats were provided ;^^ a law forbidding a 
 person from bringing into the state cigarettes or ciga- 
 rette paper i""^ a statute levying a charter fee of one- 
 tenth of one per cent, of the authorized capital stock 
 of companies engaged in interstate commerce/'" 
 
 § 7. Commencement and Termination of Protec- 
 tion of the Commerce Clause— Original Package Rule. 
 
 The protection of the commerce clause against state 
 legislation interfering with commodities moving in 
 interstate and foreign commerce extends from the time 
 the transportation begins and continues until it 
 terminates.*'^ Whenever an article of commerce has 
 
 55. Western U. Tel. Co. v. Texas, U. S. 539, 61 L. Ed. 480, 37 Sup. Ct. 
 105 U. S. 460, 26 L. Ed. 1067. 217, L. R. A. 1917 F 514, Ann. Cas, 
 
 56. Pensacola Tel. Co. v. Wes- 1917 C 643; Clark Distilling Co. v. 
 tern U. Tel. Co. 96 U. S. 1, 24 L. Western Maryland R. Co., 242 U. 
 Ed. 708. S. 311, 61 L. Ed. 326, 37 Sup. Ct. 
 
 57. Barrett v. City of New 180, R. L. A. 1917 B 1218, Ann. Cas. 
 York, 232 U. S. 14, 58 L. Ed. 483, 34 1917 B 845; Rosenberger v. Pacific 
 Sup. Ct. 203. Exp. Co., 241 U. S. 48, 60 L. Ed. 880, 
 
 58. South Covington & C. St. R. 36 Sup. Ct. 510; Price v. People, 
 Co. V. City of Covington, 235 U. S. 238 U. S. 446, 59 L. Ed. 1400, 35 
 537, 59 L. Ed. 350, 35 Sup. Ct. 158, Sup. Ct. 892; Rossi v. Com., 238 
 L. R. A. 1915 F 792. U. S. 62, 59 L. Ed. 1201, 35 Sup. 
 
 59. Austin v. State, 179 U. 3. Ct. 677; Browning v. City of Way- 
 343, 45 L. Ed. 224, 21 Sup. Ct. 132. cross, 233 U. S. 16, 58 L. Ed. 828, 
 
 60. Pullman Co. v. State, ex rel. 34 Sup. Ct. 578; McDermott v. 
 Coleman, 216 U. S. 56, 54 L. Ed. State, 228 U. S. 115, 57 L. Ed. 754, 
 378, 30 Sup. Ct. 232; Western U. 33 Sup. Ct. 431, 47 L. R. A. (N. S). 
 Tel. Co. V. State, ex rel. Coleman, 984; Ann. Cas. 1915A 39; Purity 
 216 U. S. 1, 54 L. Ed. 355, 30 Sup. Extract & Tonic Co. v. Lynch, 226 
 Ct. 190. U. S. 192, 57 L. Ed. 184, 33 Sup. 
 
 61. Hall v. Geiger-Jones Co., 242 Ct. 184, 33 Sup. Ct. 44; Louisville
 
 § 71 
 
 The CoMMEiiCE Clause. 
 
 21 
 
 begun to move from one state to another, commerce 
 in tliat commodity among the states has commenced. *- 
 There must be a point of time when goods cease to be 
 governed exclusively by the state law and begin to In^ 
 governed and protected l)y tlie national law of commer- 
 cial regulation, and the time of transition from state 
 to federal control is the moment when they commence 
 their final movement of transportation from the state 
 of their origin to that of their destination.'" Com- 
 modities moving in such commerce do not become sub- 
 ject to the control of the states until after the termi- 
 nation of the interstate movement, that is, after the 
 arrival and delivery of the commodities and their sale 
 in the original packages.''* The states have, therefore, 
 no power to stop an interstate shipment at the state 
 
 & N. R. Co. V. F. W. Cook Brewing 
 Co., 223 U. S. 70, 5G L. Ed. 355, 32 
 Sup. Ct. 189; Dozier v. State, 218 
 U. S. 124, 54 L. Ed. 965, 30 Sup. Ct. 
 649, 28 L. R. A. (N. S.) 264; Adams 
 Exp. Co. V. Com., 206 U. S. 129, 
 51 L. Ed. 987, 27 Sup. Ct. 606; 
 Rearick v. Com., 203 U. S. 507, 51 
 L. Ed. 295, 27 Sup. Ct. 159; Cook v. 
 MarshaU County, 196 U. S. 261, 49 
 L Ed. 471, 25 Sup. Ct. 233; Ameri- 
 can Exp. Co. V. Iowa, 196 U. S. 
 133, 49 L. Ed. 417, 25 Sup. Ct. 
 182; Caldwell v. North Carolina, 
 187 U. S. 622, 47 L. Ed. 336, 23 
 Sup. Ct. 229; Austin v. State, 179 
 U. S. 343, 45 L. Ed. 224, 21 Sup. 
 Ct. 132; Schollenberger v. Com., 
 171 U. S. 1, 43 L. Ed. 49, 18 Sup. 
 Ct. 757; Vance v. W. A. Vander- 
 cook Co., 170 U. S. 438, 42 L. Ed. 
 1100, 18 Sup. Ct. 674; Leisy v. 
 Hardin, 135 U. S. 100, 34 L. Ed. 128, 
 10 Sup. Ct. 681; Cook v. Pennsyl- 
 vania, 97 U. S. 566, 24 L. Ed. 1015; 
 Brown v. Maryland, 12 Wheat. (U. 
 S.) 419, 6 L. Ed. 678. 
 
 62. The Daniel Ball v. United 
 States, 10 Wall. (U. S.) 557, 19 L. 
 Ed. 999. 
 
 63 Bay v. Merrill & Ring Log- 
 ging Co., 243 U. S. 40, 61 L. Ed. 
 580, 37 Sup. Ct. 376; McCluskey 
 V. Marysville & N. R. Co., 243 U. 
 S. 36, 61 L. Ed. 578, 37 Sup. Ct. 
 374; Coe v. Errol, 116 U. S. 517, 
 29 L. Ed. 715, 6 Sup. Ct. 475. 
 
 64. Kirmeyer v. State, 236 U. 
 S. 568, 59 L. Ed. 721, 35 Sup. Ct. 
 419, Adams Exp. Co. v. Com., 214 
 U. S. 218, 53 L. Ed. 972, 29 Sup. Ct. 
 633; Heymann v. Southern R. Co., 
 203 U. S. 270, 51 L. Ed. 178, 27 Sup. 
 Ct. 104, 7 Ann. Cas. 1130; Vance 
 V. W. A. Vandercook Co.. 170 U. S. 
 438, 42 L. Ed. 1100, 18 Sup. Ct. 674; 
 Leisy v. Hardin, 135 U. S. 100, 34 
 L. Ed. 128, 10 Sup. Ct. 681; Bow- 
 man V. Chicago & N. W. Ry. Co., 
 125 U. S. 465, 31 L. Ed. 700, 8 Sup. 
 Ct. 689, 1062; Welton v. State, 91 
 U. S. 275, 23 L. Ed. 347. 
 
 In McDermott v. State, 228 U. S. 
 115. 57 L. Ed. 754, 33 Sup. Ct. 431. 
 47 L. R. A. (N. S.) 984, Ann. Cas. 
 1915 A 39, the court said: "The 
 term 'original package' had its 
 origin in Brown v. Maryland, 12 
 Wheat. (U. S.) 419, 6 L. Ed. 678, 
 in which this court had to consider
 
 Control Over Common Carriers 
 
 [^ 7 
 
 line,^' and a statute wliicli denies the right to send a 
 recognized article of commerce from one state to an- 
 other, or substantially interferes with or hampers the 
 same, is in conflict with the commerce clause.'^ 
 
 The right of transportation of an article of com- 
 merce from one state to another includes, by necessary 
 implication, the right of the consignee to sell it in un- 
 broken packages at the place where the transportation 
 terminates." The extent of the federal control over 
 interstate commerce is well illustrated in Caldwell v. 
 North Carolina,''^ wherein the court held that the 
 agent of a foreign corporation, who, after receiving 
 packages of frames and pictures from a carrier, fitted 
 them together in a room in a hotel and then delivered 
 them to those who had ordered them from the corpora- 
 tion, in another state, was engaged in interstate com- 
 merce and not subject to a tax upon the business of 
 selling pictures, frames and photographs. 
 
 the extent of the protection given 
 under Federal authority to arti- 
 cles imported into this country 
 from abroad for sale, and it was 
 there held tha' (p. 441) ; 'When the 
 importer has so acted upon the 
 thing imported, that it has become 
 incorporated and mixed up with 
 the mass of property in the coun- 
 try, it has, perhaps, lost its distinc- 
 tive character as an import, and 
 has become subject to the taxing 
 power of the State; but while re- 
 maining the property of the im- 
 porter, in his warehouse, in the 
 orignal form or package in which 
 it was imported, a tax upon it is 
 too plainly a duty on imports to 
 escape the prohibition in the Con- 
 stitution.' That doctrine has been 
 many times applied in the deci- 
 sions of this court in defining the 
 line of demarcation which shall 
 separate the Federal from the 
 state authority where the sover- 
 eign power of the Nation or State 
 is involved in dealing with prop- 
 
 erty. And where it has been found 
 necessary to decide the boundary 
 of Federal authority it has been 
 generally held that, where goods 
 prepared and packed for shipment 
 in interstate commerce are trans- 
 ported in such commerce and de- 
 livered to the consignee and the 
 package by him separated into its 
 component parts, the power of 
 Federal regulation has ceased and 
 that of the State may be asserted." 
 
 65. Rhodes v. State, 170 U. S. 
 412, 42 L. Ed. 1088, 18 Sup. Ct. 
 664. 
 
 66. Kirmeyer v. State, 236 U. S. 
 568, 59 L. Ed. 721, 35 Sup. Ct. 419. 
 
 67. Louisville & N. R. Co. v. 
 F. W. Cook Brewing Co., 223 U. S. 
 70, 56 L. Ed. 355, 32 Sup. Ct. 189; 
 In re Rahrer, 140 U. S. 545, 35 
 L. Ed. 572, 11 Sup. Ct. 865; Leisy v. 
 Hardin, 135 U. S. 100, 34 L. Ed. 
 128, 10 Sup. Ct. 681. 
 
 68. Caldwell v. North Carolina, 
 187 U. S. 622, 47 L. Ed. 336, 23 Sup. 
 Ct. 229.
 
 § 7] 
 
 Thk CoMMF.KrK ('i.Arsi-:. 
 
 23 
 
 But tlie scope of the interstate fommerce clause 
 is not sucli as to embraco acts and transactions which 
 are local in tlieir nature. For example, while the 
 transportation of li.i^litning rods from one state to an- 
 other constitutes interstate commerce, tlie ])usiness of 
 erecting- lightning rods after tlie trans])ortation is 
 completed, is within the regulating power of the state 
 and not the subject of interstate commerce, because the 
 affixing of lightning rods to houses constitutes a busi- 
 ness of a strictly local character peculiarly within the 
 exclusive control of state authority and is wholly 
 separate from interstate commerce.'"'' 
 
 Tlie "original package" doctrine which defines 
 the line of demarcation between federal and state au- 
 
 69. Browning v. City of Way- 
 cross, 233 U. S. 16, 58 L. Ed. 828, 34 
 Sup. Ct. 578, in which the court 
 said: "It is true, that it was shown 
 that the contract under which the 
 rods were shipped bound the sel- 
 ler, at his own expense, to attach 
 the rods to the houses of the 
 persons who ordered rods, but it 
 was not within the power of the 
 parties by the form of their con- 
 tract to convert what was exclu- 
 sively a local business, subject to 
 state control, into an interstate 
 commerce business protected by 
 the commerce clause. It is mani- 
 fest that if the right here asserted 
 were recognized or the power to 
 accomplish by contract what is 
 here claimed, were to be upheld, 
 all lines of demarkation between 
 National and state authority would 
 become obliterated, since it would 
 necessarily follow that every kind 
 or form of material shipped from 
 one State to the other and in- 
 tended to be used after delivery 
 in the construction of buildings or 
 in the making of improvements in 
 any form would or could be made 
 interstate commerce. Of course 
 
 we are not called upon here to 
 consider how far interstate com- 
 merce might be held to continue to 
 apply to an article shipped from 
 one State to another, after de- 
 livery and up to and including the 
 time when the article was put to- 
 gether or made operative in the 
 l)lace of destination in a case 
 where because of some intrinsic 
 and peculiar quality or inherent 
 complexity of the article, the mak- 
 ing of such agreement was es- 
 sential to the accomplishment of 
 the interstate transaction. In say- 
 ing this we are not unmindful of 
 the fact that some suggestion is 
 here made that the putting up of 
 the lightning rods after delivery 
 by the agent of the seller was so 
 vital and so essential as to render 
 it impossible to contract without 
 an agreement to that effect, a 
 suggestion however which we 
 deem it unnecessary to do more 
 than mention in order to refute 
 it." See also General Railway Sig- 
 nal Co. V. Commonwealth, 246 U. 
 
 S. , G2 L. Ed. , 38 Sup. Ct. 
 
 360.
 
 24 Control Over Common Carriers [§ 7 
 
 thority means that where goods are prepared and pack- 
 ed for shipment in interstate commerce and are trans- 
 ported in such commerce, the protection of the com- 
 merce clause attaches thereto and continues until after 
 the arrival and delivery of the commodities and their 
 sale by the consignee in the original packages in which 
 the goods were shipped.'" The term ''original pack- 
 age" had its origin in Brown v. Maryland/' in which 
 the court had to consider the extent of the protection 
 given under federal authority to articles imported in- 
 to the country from abroad for sale, and it was there 
 held that "when the importer has so acted upon the 
 thing imported, that it has become incorporated and 
 mixed up with a mass of property in the country, it 
 has, perhaps, lost its distinctive character as an im- 
 port, and has become subject to the taxing power of 
 the state; but while remaining the property of the im- 
 porter, in his warehouse in the original form or pack- 
 age in which it was imported, a tax upon it is too 
 plainly a duty on imports to escape the prohibition in 
 the Constitution." 
 
 Subsequently, in Leisy v. Hardin," it was held 
 that the right to sell merchandise imported from an- 
 other state in the original package, free from inter- 
 ference of state laws, was protected by the Constitution 
 of the United States, as up to such sale, goods brought 
 into the state were not commingled with the mass of 
 property in the state. If, however, small packages 
 are associated together in their shipment into a state, 
 and are subsequently sold separately or in various lots, 
 these separate packages, although respectively in the 
 original envelopes, would not be within the rule in- 
 
 70. Rosenberger v. Pacific Exp. 261, 49 L. Ed. 471, 2.5 Sup. Ct. 233; 
 
 Co., 241 U. S. 48, 60 L. Ed. 880, 36 Austin v. State, 179 U. S. 343, 45 
 
 Sup. Ct. 510; Savage v. Jones, 225 l. Ed. 224, 21 Sup. Ct. 132. 
 U. S. 501, C6 L. Ed. 1182, 32 Sup. ^^ ^^ Wheat. (U. S.) 419, 6 
 
 Ct. 715; Heymann v. Southern R. ^ ^^ ^^^ 
 Co 203 U. S. 270, 51 L. Ed. 178, 
 
 27 sup Ct. 104, 7 Ann. Cas. 1130; ^2. 135 U. S. 100, 34 L. Ed. 128, 
 
 Cook V. Marshall County, 196 U. 8 10 Sup. Ct. C81.
 
 § 8] 
 
 Thf, (V)MMi:Kcr. ( 'i.aisk. 
 
 1^0 
 
 voked, so as to escape a local law governing- domestic 
 transactions." A contract, tlicrefoi-e, containing \)io- 
 visions for the sale of goods other tiian in the original 
 packages imi)orted, is subject to a state statute as 
 it applies to transactions outside of the protection ac- 
 corded by the federal Constitution to interstate com- 
 merce.'* Where merchandise shi])i)ed in interstate 
 commerce is delivered to the consignee and the pack- 
 age is by him separated into its component parts, 
 the power of federal regulation has ceased and tliat 
 of the state may be asserted.'^ 
 
 § 8. States may Forbid Introduction or Ex- 
 portation of all Articles not Legitimate Subjects of 
 Trade and Commerce. A¥hilo Congress lias the exclu- 
 sive right to regulate interstate and foreign commerce, 
 a state, in the exercise of its police power, may provide 
 local measures in the interest of the safety and wel- 
 fare of its people, although such regulations incidentally 
 or indirectly may involve or affect interstate and for- 
 eign commerce."'^ The limitations upon the police 
 
 73. Price v. People, 238 U. S 
 446, 59 L. Ed. 1400, 35 Sup. Ct. 892; 
 Purity Extract & Tonic Co. v. 
 Lynch, 226 U. S. 192, 57 L. Ed. 184, 
 33 Sup. Ct. 44; Austin v. State, 
 179 U. S. 343, 45 L. Ed. 224, 21 
 Sup. Ct. 132. 
 
 74. Purity Extract & Tonic Co. 
 V. Lynch, 226 U. S. 192, 57 L. Ed. 
 184, 33 Sup. Ct. 44. 
 
 75. Cook V. Marshall County, 
 196 U. S. 261, 49 L. Ed. 471, 25 
 Sup. Ct. 233; May v. City of New 
 Orleans, 178 U. S. 496, 44 L. Ed. 
 1165, 20 Sup. Ct. 976. 
 
 76. SUgh V. Kirkwood, 237 U. S. 
 52, 59 L. Ed. 835, 35 Sup. Ct. 501; 
 Eubank v. City of Richmond, 226 
 U. S. 137. .57 L. Ed. I.IG. 33 Sup. Ct. 
 76, 42 L. R. A. (N. S.) 1123, Ann. 
 Cas. 1914 B 192: Missouri Pac. R. 
 Co. V. State ex rel. Taylor, 216 U. 
 
 S. 262, 54 L. Ed. 472, 30 Sup. Ct. 
 330; Missouri P. R. Co. v. Larabee 
 Flour Mills Co., 211 U. S. 612, 53 
 L. Ed. 352, 29 Sup. Ct. 214; Asbell 
 V. State, 209 U. S. 251, 52 L. Ed. 
 778, 28 Sup. Ct. 485, 14 Ann. Cas. 
 1101; Chicago, B. & Q. R. Co. v. 
 People ex rel. Drainage Com'rs., 
 200 U. S. 561, 50 L. Ed. 596, 26 
 Sup. Ct. 341; 4 Ann. Cas. 1175, 
 Northern Securities Co. v. United 
 States, 193 U. S. 197, 48 L. Ed. 679. 
 24 Sup. Ct. 436; Reid v. Colorado, 
 187 U. S. 137, 47 L. Ed. 108. 23 
 Sup. Ct. 92; Smith v. St. Louis & 
 S. W. Ry. Co., 181 U. S. 248, 45 
 L. Ed. 847, 21 Sup. Ct. 603; Ras- 
 mussen v. State. 181 U. S. 198, 45 
 L. Ed. 820, 21 Sup. Ct. 594; Austin 
 V. State. 179 U. S. 343, 45 L. Ed. 
 224, 21 Sup. Ct. 132; Louisiana v. 
 State, 176 U. S. 1. 44 L. Ed. 347,
 
 26 
 
 Control Ovkr Common Carriers 
 
 [§ 8 
 
 powers of a state are hard to define under the numerous 
 decisions of the federal Supreme Court; but state au- 
 thority embraces every law or statute which concerns 
 the whole or any part of the people, whether it relates 
 to their rights or duties in their public or private rela- 
 tion/' 
 
 The authority of the state to prescribe regulations 
 which prevent the production within its borders of 
 impure foods, unfit for use, and such articles as would 
 spread disease and pestilence, is well established; for such 
 articles are not legitimate subjects of trade or com- 
 merce, and they are not, therefore, within the protec- 
 
 2o Sup. Ct. 251; Lake Shore & M. 
 S. Ry. Co. V. State, 173 U. S. 285, 
 43 L. Ed. 702, 19 Sup. Ct. 465; 
 Missouri, K. & T. Ry. Co. v. Haber, 
 169 U. S. 613, 42 L. Ed. 878, 18 
 Sup. Ct. 488; Bowman v. Chicago 
 & N. W. Ry. Co., 125 U. S. 465, 31 
 L. Ed. 700, 8 Sup. Ct. 689, 1062; 
 Morgan's L. & T. R. & S. S. Co. 
 V. Louisiana Board of Health, 118 
 U. S. 455, 30 L. Ed. 237, 6 Sup. Ct. 
 1114; Sherlock v. Ailing, 93 U. S. 
 99, 23 L. Ed. 819. 
 
 "It may also be admitted that 
 the police powers of a State justi- 
 fies the adoption of the precaution- 
 ary measures against social evils. 
 Under it a State may legislate to 
 prevent the spread of crime, or 
 pauperism, or disturbance of the 
 peace. It may exclude from its 
 limits convicts, paupers, idiots, and 
 lunatics, and persons likely to be- 
 come a public charge, as well as 
 persons afflicted by contagious or 
 infectious diseases; a right found- 
 ed, as intimated in The Passage 
 Cases, 7 How. 283, by Mr. Justice 
 Greer, in the sacred law of self- 
 defense. Vide 3 Sawyer 283. The 
 same principle, it may also be con- 
 ceded, would justify the exclusion 
 of property dangerous to the prop- 
 
 erty of citizens of the State; for 
 example, animals having contagi- 
 ous or infectious diseases. All 
 these exertions of power are in im- 
 mediate connection with the pro- 
 tection of persons and property 
 against noxious acts of other per- 
 sons, or such a use of property as 
 is injurious to the property of 
 others. They are self-defensive. 
 But whatever may be the nature 
 and reach of the police power of a 
 State, it cannot be exercised over 
 a subject confided exclusively to 
 Congress by the Federal Consti- 
 tution." Hannibal & St. J. R. Co. 
 V. Husen, 95 U. S. 465, 24 L. Ed. 
 527. 
 
 "But when the local police regu- 
 lation has real relation to the 
 suitable protection of the people 
 of the State, and is reasonable in 
 its requirements, it is not invalid 
 because it may incidentally af- 
 fect interstate commerce, provid- 
 ed it does not conflict with legis- 
 lation enacted by Congress pur- 
 suant to its constitutional author- 
 ity." Savage v. Jones, 225 U. S. 
 501, 56 L. Ed. 1182, 32 Sup. Ct. 
 715. 
 
 77. New York v. Miln, 11 Pet. 
 (U. S.) 102, 9 L. Ed. 648.
 
 § 8] TiiH Commerce Clause. 27 
 
 tion of the commorce clause of the federal constitution. 
 They may be outlawed, and the self-protecting power 
 of the state may rightfully be exerted against their 
 introduction.'* For example, a state law forbidding 
 a delivery for shipment in both intrastate and inter- 
 state commerce, of any citrus fruits which were im- 
 mature or otherwise unfit for consumption, was held 
 to be a valid exercise of the police power of tiie state." 
 A statutory enactment of a state forbidding any- 
 one from having in his possession game birds, killed 
 within the state, with the intention of ])rocuiing trans- 
 portation of the same without the limits of the state, 
 was held to be valid although interstate commerce 
 was indirectly affected thereby.*" Applying the same 
 rule, it has been held that a state may prohibit the 
 sale of imported game during the closed season there- 
 in, the law being sustained upon the ground that, 
 while foreign commerce was incidentally involved, the 
 state could prohibit the sale of such game in order to 
 
 78. Savage v. Jones, 225 U. S. Does the freedom of commerce 
 
 501, 56 L. Ed. 1182, 32 Sup. Ct. 715; among the States demand a recog- 
 
 Louisiana v. State, 176 U. S. 1, 44 nition of the right to practice a 
 
 L. Ed. 347, 20 Sup. Ct. 251; Geer deception upon the public in the 
 
 V. State, 161 U. S. 519, 40 L. Ed. sale of any articles, even those that 
 
 793, IG Sup. Ct. 600; Bowman v. may have become the subject of 
 
 Chicago & N. W. Ry. Co., 125 U. S. trade in different parts of the coun- 
 
 465, 31 L. Ed. 700, 8 Sup. Ct. 689, try? * * * Such legislation 
 
 1062. niay, indeed, indirectly or inci- 
 
 "The statute seeks to suppress dentally affect trade in such pro- 
 false pretences and to promote fair ducts transported from one State 
 dealing in the sale of an article of to another State. But that cir- 
 food. It compels the sale of oleo- cumstance does not show that laws 
 margarine for what it really is, of the character alluded to are in- 
 by preventing its sale for what it consistent with the power of Con- 
 is not. Can it be that the Consti- gress to regulate commerce among 
 tution of the United States secures the States." Plumley v. Com., 155 
 to any one the privilege of manu- U. S. 461, 39 L. Ed. 223, 15 Sup. 
 facturing and selling an article of Ct. 154. 
 
 food in such manner as to induce 79. Sligh v. Kirkwood, 237 U. 
 
 the mass of people to believe that S. 52, 59 L. Ed. 835, 35 Sup. Ct. 
 
 they are buying something which, 501. 
 
 in fact, is wholly different from 80. Geer v. State, 161 U. S. 519. 
 
 that which is offered for sale? 40 L. Ed. 793. 16 Sup. Ct. 600.
 
 28 Control Over Common Carriers [§ 8 
 
 protect local game during the closed season. ^^ A stat- 
 ute of a state passed to prevent deception in the manu- 
 facture of imitation butter was valid although the 
 article for the sale of which the defendant was con- 
 victed in the state court, had been received by him 
 from the manufacturers in another state as their 
 agent, and had been sold by him in the original pack- 
 age.^^ 
 
 In the exercise of its police power, a state may re- 
 quire a person transporting food-stutTs from another 
 state to disclose the ingredients contained therein.^^ 
 A law of a state designed to prevent the introduction 
 within its borders of diseased animals is valid in the 
 absence of federal regulation governing the same sub- 
 ject matter.^* ''It is said that the defendant has a 
 right," said the court in the Reid case, cited, "under 
 the Constitution of the United States to ship live stock 
 from one State to another State. This will be con- 
 ceded on all hands. But the defendant is not given 
 by that instrument the right to introduce into a state, 
 against its will, live stock affected by a contagious, 
 infectious or communicable disease, and whose presence 
 in the State will or may be injurious to its domestic 
 animals. The State — Congress not having assumed 
 charge of the matter as involved in interstate com- 
 merce — may protect its people and their property 
 against such dangers, taking care always that the 
 means employed to that end do not go beyond the neces- 
 sities of the case or unreasonably burden the exercise 
 of privileges secured by the Constitution of the United 
 
 81. New York ex rel. Silz v. the public, to require tlie disclosure 
 Hesterberg, 211 U. S. 31, 53 L. Ed. to which objection is made. The 
 75, 29 Sup. Ct. 10. provision was not an unreasonable 
 
 82. Plumley v. Com., 155 U. S. ^ne and the effect upon interstate 
 461, 39 L. Ed. 223, 15 Sup. Ct. 154. ,^^^^^^^ ^.^, incidental only." 
 
 J'-JT'"^!" Tt^T.^^'V, 84. Asbell V. State, 209 U. S. 
 
 Wright, 225 U. S. 540, 56 L. Ed. 
 
 1197, 32 Sup. Ct. 784. in which the ^51, 52 L. Ed. 778, 28 Sup. Ct. 485. 
 
 court said: "It was competent for 14 Ann. Cas. 1101; Reid v. Colo- 
 
 the State, in the exercise of its rado, 187 U. S. 137, 47 L. Ed. 108, 
 
 power to prevent Imposition upon 23 Sup. Ct. 92.
 
 § S| Thk Commerce Clause. 29 
 
 States. Is the statute of Colorado liable to the ohjeo- 
 tion just stated I Can the courts hold that upon its 
 face it unreasonably obstructs the exercise of the 
 general right secured by the Constitution to ship or 
 send recognized articles of commerce from one State 
 to another without interference by local authority? 
 Those questions must be answered in the negative. The 
 Colorado statute, in effect, declares that live stock 
 coming, between the dates and from the territory speci- 
 fied, are, ordinarily, in such condition that their pres- 
 ence in the State may be dangerous to its domestic 
 animals; and hence the requirement that before being 
 brought or sent into the State they shall either be 
 kept at some place north of the 36th parallel of north 
 latitude for at least ninety days prior to their importa- 
 tion into the State, or the owner must procure from 
 the State Veterinary Sanitary Board a certificate or 
 bill of health that the cattle are free from all infec- 
 tious or contagious diseases, and have not been exposed 
 to any of said diseases at any time within ninety days 
 prior thereto. As there is no evidence in the case as 
 to the practical operation of this regulation upon ship- 
 pers of cattle, as it does not appear otherwise than 
 that the statute can be obeyed without serious em- 
 barrassment or unreasonable cost, the court cannot as- 
 sume arbitrarily that the State acted wholly without 
 authority or that it unduly burdened the exercise of 
 the privilege of engaging in interstate commerce. The 
 accused seems to have been content to rest his de- 
 fence upon such grounds as arose upon the face of the 
 local statute, without reference to any evidence bear- 
 ing upon the reasonableness or unreasonableness of the 
 particular methods adopted by the State to protect its 
 domestic animals. He seems to have been willing to 
 risk the case upon the simple proposition — based upon 
 the words of the State enactment and upon the act of 
 Congress, reinforced by certain regulations made by the 
 Agricultural Department — that the local statute was 
 inconsistent with that act, and with the general power 
 of Congress to regulate interstate commerce. As, there-
 
 30 Control Over Common Carriers [§ 8 
 
 fore, the statute does not forbid the introduction into 
 the State of all live stock coming from the defined 
 territory — that diseased as well as that not diseased — 
 but only prescribes certain methods to protect the do- 
 mestic animals of Colorado from contact with live stock 
 coming from that territory between certain dates, and 
 as those methods have been devised by the State un- 
 der the power to protect the property of its people 
 from injury, and do not appear upon their face to be 
 unreasonable, we must, in the absence of evidence show- 
 ing the contrary, assume that they are appropriate to 
 the object which the State is entitled to accomplish." 
 
 § 9. Statutory Exceptions Empowering States to 
 Regulate Interstate Shipments of Intoxicating Liquors. 
 
 Prior to the enactment of federal statutes commencing 
 with the Wilson Act in 1890^^ a state was without power 
 to control, regulate or legislate against the introduc- 
 tion of intoxicating liquors within its borders from other 
 states until after the arrival and delivery of such com- 
 modities and their sale within the state in the original 
 packages; for 'the courts uniformly held that intoxicat- 
 ing liquors were legitimate articles of commerce pro- 
 tected from hostile legislation of the states under the 
 commerce clause until delivery to the consignee and 
 a sale by him.^*^ In those states, therefore, where the 
 
 85. Act of Aug. 8, 1890, 26 Stat. Territory, and shaU not be exempt 
 at L. 313, which is as follows: therefrom by reason of being in- 
 "That all fermented, distilled, or troduced therein in original pack- 
 other intoxicating liquors or ages or otherwise." 
 liquids transported into any State 86. Leisy v. Hardin, 135 U. S. 
 or Territory or remaining there- 100, 34 L. Ed. 128, 10 Sup. Ct. 681. 
 in for use, consumption, sale, or "To concede to a State the power 
 storage therein, shall upon arrival to exclude, directly or indirectly, 
 in such State or Territory be sub- articles so situated," said Chief 
 ject to the operation and effect of Justice Fuller, "without congress- 
 the laws of such State or Terri- ional permission, is to concede to 
 tory enacted in the exercise of a majority of the people of a State, 
 its police powers, to the same ex- commercial intercourse between 
 tent and in the same manner as the States, by determining what 
 though such liquids or liquors had shall be its subjects, when that 
 been produced in such State or power was distinctly granted to be
 
 § 9] ThK COMMKHfE ClAUSK. 31 
 
 sale of intoxicating liquors was proliibited, the obser- 
 vance and the enforcement of such prohibitory laws 
 were largely rendered futile because of the protection 
 alTorded persons selling liquor in the original package 
 after delivery, when ship])ed from another state. 
 
 The Wilson Act i)rovid(*d that all intoxicating 
 liquors transported into any state or territory or 
 remaining there for use, consumption, sale, or storage, 
 became, upon arrival in such state or territory, 
 subject to the operation and the effect of laws of such 
 state or territory enacted in the exercise of its police 
 powers, to the same extent and in the same manner 
 as though such liquors had been produced in such 
 state or territory and were not exempt therefrom and 
 by reason of being introduced therein in the original 
 l)ackages or otherwise. The purpose of the AVilson Act, 
 as a regulation by Congress of interstate commerce, 
 was to allow the states as to intoxicating liquors, when 
 the subject of such commerce, to exercise ampler power 
 than could have been exercised before the enactment 
 of the statute. Congress thereby established a special 
 rule enabling the states to extend their authority as to 
 such liquor shipped from other states before it became 
 commingled witli the mass of other property in the 
 state by a sale in the original package. The words in 
 the statute "upon arrival in such state" were construed 
 to mean that the state power could not attach to intoxi- 
 cating liquors shipped in interstate commerce before 
 arrival and delivery within the state to the consignee, 
 
 exercised by the people of the stance, accommodation to it, with- 
 United States, represented in Con- out serious inconvenience, may 
 gress, and its possession by the readily be found, to use the Ian- 
 latter was considered essential to guage of Mr. .Justice .Tohnson. in 
 that more perfect Union which the Gibbons v. Ogden, WHieat. 1, 
 Constitution was adopted to create. 238, in 'a frank and candid co- 
 Undoubtedly. there is difficulty in operation for the general good.' 
 drawing the line between the mu- The legislation in question Is to 
 nlcipal powers of the one govern- the extent indicated repugnant to 
 ment and the commercial powers the third clause of section 8 of 
 of the other, but when that line Art. 1 of the Constitution of the 
 Is determined, in the particular in- United States."
 
 32 
 
 Control Ovj:e Common Carriers 
 
 [§ 9 
 
 but that the state control could be exercised before 
 a sale in the original package after delivery/' Under 
 the Wilson Act, as construed by the courts, shipments 
 of intoxicating liquors in interstate commerce were not 
 prohibited, but, on the contrary, were under the pro- 
 tection of the commerce clause until terminated by a 
 delivery to the consignee. 
 
 The law governing interstate shipments of intoxi- 
 cating liquors thus lemained until the enactment of 
 the Webb-Kenyon Act of March 1, 1913®^ which pro- 
 vides, in effect and in substance, that all shipments of 
 intoxicating liquors from foreign countries, territories 
 or other states into a state, which are intended to 
 be received, possessed, sold or in any manner used 
 either in the original package or otherwise, in viola- 
 tion of the law of such state, shall be prohibited. This 
 statute has been held to be a valid exercise of the power 
 of congress over interstate shipments of liquor.*" The 
 
 87. Rosenberger v. Pacific Exp. 
 Co., 241 U. S. 48, 60 L. Ed. 880, 36 
 Sup. Ct. 516; American Express 
 Co. V. Iowa, 196 U. S. 133, 49 L. 
 Ed. 417, 25 Sup. Ct. 182; Vance v. 
 W. A. Vandercook Co., 170 U. S. 
 438, 42 L. Ed. 1100, 18 Sup. Ct. 
 G74; Rhodes v. State, 170 U. S. 412, 
 42 L. Ed. 1088, 18 Sup. Ct. 664. 
 
 88. 37 Stat, at L. 699. The 
 Webb-Kenyon Act is as follows: 
 
 "The shipment or transporta- 
 tion, in any manner or by any 
 means whatsoever, of any spiritu- 
 ous, vinous, malted, fermented, or 
 other intoxicating liquor of any 
 kind, from one State, Territory, or 
 District of the United States, or 
 place noncontiguous to but sub- 
 ject to the jurisdiction thereof, into 
 any other State, Territory, or Dis- 
 trict of the United States, or placa 
 noncontiguous to but subject to 
 the jurisdiction thereof, or from 
 any foreign country into any State, 
 Territory, or District of the United 
 
 States, or place noncontiguous to 
 but subject to the jurisdiction 
 thereof, which said spirituous, 
 vinous, malted, fermented, or other 
 intoxicating liquor is Intended, 
 by any person interested therein, 
 to be received, possessed, sold, or 
 in any manner used, either in the 
 original package or otherwise, in 
 violation of any law of such State, 
 Territory or District of the United 
 States, or place noncontiguous to 
 but subject to the jurisdiction 
 thereof, is hereby prohibited." 
 
 89. United States. Seaboard Air 
 Line Ry. Co. v. State, 245 U. S. 
 
 298, 62 L. Ed. , 38 Sup. Ct. 
 
 96; Clark Distilling Co. v. Wes- 
 tern Maryland R. Co., 242 U. S. 
 311, 61 L. Ed. 326, 37 Sup. Ct. 180, 
 L. R. A. 1917 B 1218, Ann. Cas. 
 1917 B 845. 
 
 Iowa. State v. United States 
 Exp. Co., 164 Iowa 112, 145 N. W. 
 451.
 
 § 9] 
 
 TjiK Commerce Clause 
 
 33 
 
 Wcbb-Keiiyon Act was enacted for the purpose of ex- 
 teiidiug that wliicli was partly done by the Wilson Act, 
 that is, its purpose was to i)rohibit the immunity char- 
 acteristic of interstate commerce from being used to 
 permit the receipt of liquor througli such commerce 
 within the states contrary to their laws. Its effect was 
 to withdraw the protection of the commerce clause of 
 the federal constitution from interstate and foreign 
 shipments of intoxicating liquors and to place them 
 absolutely within the police powers of the state after 
 they crossed the state line.°° Under this statute if ship- 
 ments of intoxicating liquors are intended to be used, 
 possessed or sold in violation of a state law, their 
 transportation may be prohibited by the state; but, on 
 the other hand, if the liquor is not to be used, sold 
 or received in violation of the law^ of the state, it re- 
 mains under the protection of the commerce clause 
 and its transportation may not be prohibited by the 
 state.'' 
 
 Kansas. State v. Doe, 92 Kan. 
 212, 139 Pac. 1169. 
 
 Kentucky. Adams Exp. Co. v. 
 Com., 160 Ky. 66, 169 S. W. 603. 
 
 North Carolina. State v. Sea- 
 board Air Line R. Co., 169 N. C. 
 295, 84 S. E. 283. 
 
 South Carolina. Atkinson v. 
 Southern Exp. Co., 94 S. C. 444, 48 
 L. R. A. (N. S.) 349, 78 S. E. 516. 
 
 Texas. Ex Parte Peede. 7.5 Tex. 
 Cr. 247, 170 S. W. 749. 
 
 Virginia. Taylor v. Com., 117 
 Va. 909, 85 S. E. 499. 
 
 90. United States. West Virginia 
 V. Adams Exp. Co., 135 C. C. A. 
 464, 219 Fed. 794. 
 
 Alabama. Southern Exp. Co. v. 
 State, 188 Ala. 454, 66 So. 115. 
 
 Arizona. Sturgeon v. State, 17 
 Ariz. 513, L. R. A. 1917 B 1230, 154 
 Pac. 1050. 
 
 Delaware. Van Winkle v. State, 
 4 Boyce (Del.) 578, Ann. Cas. 1916 
 D 104, 91 Atl. 385. 
 
 Kansas. Kansas City Breweries 
 Co. V. Kansas City, 96 Kan. 731, 153 
 Pac. 523; State v. Missouri Pac. R. 
 Co., 96 Kan. 609, Ann. Cas. 1917 A 
 612, 152 Pac. 777. 
 
 Kentucky. Com. v. White, 166 
 Ky. 528, 179 S. W. 469; Adams 
 Exp. Co. V. Crigler & Crigler Co., 
 161 Ky. 89, 170 S. W. 542; Adams 
 Exp. Co. V. Com. 154 Ky. 462, 48 
 L. R. A. (N. S.) 342, 157 S. W. 908. 
 
 Mississippi. American Exp. Co. 
 V. Beer, 107 Miss. 528, Ann. Cas. 
 1916 D 127, 65 So. 575. 
 
 Tennessee. Palmer v. Southern 
 Exp. Co., 129 Tenn. 116, 165 S. W. 
 236. 
 
 Virginia. Bristol Distributing 
 Co. V. Southern Exp. Co., 117 Va. 
 7, 83 S. E. 1084. 
 
 91. Adams Exp. Co. v. Com., 
 238 U. S. 190, 59 L. Ed. 1267, 35 
 Sup. Ct. 824, Ann. Cas. 1915 D 1167, 
 Theo Hamm Brewing Co. v. Chl- 
 
 1 CVjntrol CanieiH 3
 
 
 Control Over Common Carriers 
 
 [§ 9 
 
 Under a congressional enactment known as tlie 
 Reed amendment to the Post Office Appropriation 
 Bill,^^ it is provided, inter alia: "Whoever shall order, 
 purchase, or cause intoxicating liquors to be trans- 
 ported in interstate commerce, except for scientific, 
 sacramental, medicinal and mechanical purposes, into 
 any state or territory the laws of which state or terri- 
 tory prohibit the manufacture or sale therein of intoxi- 
 cating liquors for beverage purposes shall be punished 
 as aforesaid; provided that nothing herein shall author- 
 ize the shipment of liquor into any state contrary to 
 the laws of such state." Under this amendment ship- 
 ments of intoxicating liquor from one state to another 
 state wherein the manufacture or sale of intoxicating 
 liquors is punished, is absolutely prohibited. 
 
 cago, R. I. & P. Ry. Co., 215 Fed. 
 072. 
 
 "It would be difficult to frame 
 language more plainly indicating 
 the purpose of Congress not to pro- 
 hibit all interstate shipment or 
 transportation of liquor into so- 
 called dry territory and to render 
 the prohibition of the statute oper- 
 ative only where the liquor is to 
 be dealt with in violation of the 
 local law of the State into which 
 it is thus shipped or transported, 
 Such shipments are prohibited 
 only when such person interested 
 intends that they shall be possess- 
 ed, sold or used in violation of any 
 law of the State wherein they are 
 received. Thus far and no farther 
 has Congress seen fit to extend the 
 
 prohibitions of the act in relation 
 to interstate shipments. Except 
 as affected by the Wilson Act, 
 which permits the state laws to 
 operate upon liquors after termin- 
 ation of the transportation to the 
 consignee, and the Webb-Kenyon 
 Act, which prohibits the transpor- 
 tation of liquors into the State to 
 be dealt with therein in violation 
 of local law, the subject-matter of 
 such interstate shipment is left 
 untouched and remains within the 
 sole jurisdiction of Congress un- 
 der the Federal Constitution." 
 Adams Express Co. v. Kentucky, 
 supra. 
 
 92. Act of March 3, 1917, 39 
 Stat, at L. 162.
 
 CHAPTER II 
 
 Respective Powers of the States and National Govern- 
 ment Over Common Carriers 
 
 Sec. 10. Introductory. 
 
 Sec. 11. General Principles Determining State and National Control 
 Over Interstate Carriers and Transportation. 
 
 Sec. 12. Foregoing Doctrines Illustrated and Applied to Divers Phases 
 of Interstate Carriage and Transportation. 
 
 Sec. 13. Federal Laws and Regulations Encroaching upon Powers of 
 the State over Their Internal Affairs, Invalid. 
 
 Sec. 14. Federal Regulation to be Valid Must Have Real or Substan- 
 tial Connection with Interstate Commerce. 
 
 Sec. 15. AVhen Congressional Power may be Validly Exercised over 
 Intrastate Subject Matters. 
 
 Sec. 16. When Congress Legislates upon a Subject Matter of Com- 
 merce, State Laws Covering Same Field are Thereby 
 Superseded. 
 
 Sec. 17. Difficulty of Defining Field or Subject Matter Covered by 
 Congressional Legislation. 
 
 Sec. 18. Common Law Principles as Applied in State Courts Super- 
 seded as to Subject-Matters Covered by Federal Statutes. 
 
 Sec. 10. Power of States to Regulate Interstate Rates of Carriers 
 Formerly Upheld by Supreme Court — The Granger Cases. 
 
 Sec. 20. State Control Over and Power to Regulate Rates and Charges 
 on Interstate Shipments Denied. 
 
 Sec. 21. Passenger Fares for Interstate Journeys Prescribed by Mu- 
 nicipal Ordinances and Accepted by Carriers Invalid. 
 
 Sec. 22. Power of States over Intrastate Commerce as Broad and Ex- 
 clusive as Control of Congress over Interstate Commerce. 
 
 Sec. 23. States ]\Iay Regulate and Fix Reasonable Rates for Intra- 
 state Transportation. 
 
 Sec. 24. Statutes of States Regulating Delivery of Cars for Interstate 
 Shipment Inoperative. 
 
 Sec. 25. States may Compel Switch Connections with Private Side 
 Tracks for Intrastate Business. 
 
 Sec. 26. State Statutes Prescribing Rates Specified in Bill of Lad- 
 ing Void as to Interstate but Valid as to Intrastate Ship- 
 ments. 
 
 Sec. 27. State Laws and Decisions Governing Liability for Loss and 
 Damage to Property Superseded by Carmack Amendment. 
 
 Sec. 28. State Statute Authorizing Issuance of Transportation In 
 Payment for Advertising Invalid. 
 
 35
 
 36 Control Over Common Carriers [^ 10 
 
 Sec. 29. States May Require Operation of Trains Between Intrastate 
 Points on Interstate Lines — Limitations and Exceptions, 
 
 Sec. 30. State and Municipal Regulations Prescribing Speed, Signals 
 and Stoppage of Interstate Trains. 
 
 Sec. 31. Georgia "Blow-Post" Law Invalid, Being a Direct Burden up- 
 on Interstate Commerce. 
 
 Sec. 32. States May Compel Carriers to Make and Maintain Track 
 Connections for Interchange of Traffic. 
 
 Sec. 33. Validity of State Laws Providing for "Full Crews" on In- 
 terstate Trains. 
 
 Sec. 34. State Regulations or Charges for Transportation by Water. 
 
 Sec. 35. Statutory Enactments of States Requiring Facilities and Ap- 
 pliances on Interstate Trains. 
 
 Sec. 36. Power of States over Interstate Employers and Employees in 
 Absence of Federal Legislation. 
 
 Sec. 37. Interstate Messages by Telegraph Prior to Amendment of 
 1910 to Act to Regulate Commerce. 
 
 Sec. 38. State Laws Regulating Interstate and Foreign Messages of 
 Telegraph, Telephone, and Cable Companies, Invalid. 
 
 Sec. 39. States May Not Regulate "Ticker Service" of Interstate 
 Telegraph Companies. 
 
 Sec. 40. State and Municipal Regulations of the Interstate Business 
 of Express Companies. 
 
 Sec. 41. Valid Municipal Regulations of Drivers on Streets Carrying 
 Interstate Traffic. 
 
 § 10, Introductory. Under our dual form of govern- 
 ment, presenting the rare and difficult scheme of one 
 general government, whose action extends over the 
 whole, but which possesses only certain enumerated 
 powers, and of numerous state governments which 
 retain and exercise all powers not delegated to the 
 Union, contests and clashes concerning their respective 
 powers must constantly arise. 
 
 The sole authority of the federal government during 
 times of peace over common carriers within the states 
 is contained in the commerce clause of the Constitution, 
 which provides that Congress may regulate interstate 
 and foreign commerce. The federal government may 
 not, therefore, regulate or control carriers engaged 
 exclusively in intrastate commerce or even the intrastate 
 business of interstate carriers; for all the attributes of a 
 sovereignty not delegated to Congress by the commerce 
 clause, have been retained by the states over common 
 carriers operating within their borders and they may
 
 §11] Statk AM) Federal Powers. 37 
 
 exercise their power and control over all transporta- 
 tion exclusively within their boundaries to the same 
 extent that the national government exercises over 
 transportation from one state to another and to foreign 
 countries. 
 
 In this chapter the author will discuss the prin- 
 ciples determining the respective powers of the states 
 and the national government during times of peace 
 over interstate common carriers and transportation 
 from one state to another and to foreign countries in 
 the light of the controlling decisions of the federal 
 Supreme Court. The power of the federal government 
 over common carriers under the war clause of the consti- 
 tution is considered in the next chapter. 
 
 § 11. General Principles Determining State and 
 National Control Over Interstate Carriers and Trans- 
 portation. The respective powers of the states and 
 the national government over subject matters included 
 within the term "interstate commerce" or "commerce 
 among the states" are divisible into three classes: 
 first, those over which the power of Congress is ex- 
 clusive and the states cannot reguhite at all; second, 
 those over which the states may regulate in the absence 
 of legislation by Congress and, thii'd, those over which 
 the powers of the states are exclusive. 
 
 The first class includes those subject matters of 
 interstate commerce which are national in their char- 
 acter and admit only of one uniform plan or system 
 of regulation throughout the country. These are 
 of such a nature as to demand that, if regulated at 
 all, their regulation should be prescribed by a single 
 authority. As to the sul)ject matters of commerce be- 
 tween the states so requiring a general system or 
 uniformity of regulation, the power of Congress is ex- 
 clusive and any state legislation attempting to regu- 
 late them is void.^ Even if not regulated by Congress, 
 
 1. South Covington & C. St. R. 537. 59 L. Ed. 350, 35 Sup. Ct. 158, 
 Co. V. City of Covington. 235 U. S. L. R. A. 1915 F 792; Simpson v.
 
 38 
 
 CONTEOL OVEK CoMMON CaREIEKS 
 
 [§ 11 
 
 the nonaction of the national assembly is an expression 
 of its will that the subjects therein included shall re- 
 main free from any control of the states. This prin- 
 ciple underlies the doctrine that the states cannot, under 
 any guise, impose direct burdens upon interstate com- 
 merce; for the states are not permitted to regulate or 
 restrain that which, from its nature, should be under the 
 control of one authority. 
 
 Shepard, 230 U. S. 352, 57 L. Ed. 
 1511, 33 Sup. Ct. 729, 348 L. R. A. 
 (N. S.) 1151, Ann. Cas. 1916 A 18; 
 Texas & N. 0. R. Co. v. Sabine 
 Tram Co., 227 U. S. Ill, 57 L. Ed. 
 442, 33 Sup. Ct. 229; Crenshaw v. 
 State, 227 U. S. 389, 57 L. Ed. 565, 
 33 Sup. Ct. 294; Bacon v. People. 
 227 U. S. 504, 57 L. Ed. 615, 33 
 Sup. Ct. 299; Yazoo & M. V. R. Co. 
 V. Greenwood Grocery Co., 227 U. 
 S. 1, 57 L. Ed. 389, 33 Sup. Ct. 
 '213; Railroad Commission of Ohio 
 V. Worthington, 225 U. S. 101, 56 
 L. Ed. 1004, 32 Sup. Ct. 653; Louis- 
 ville & N. R. Co. V. F. W. Cook 
 Brewing Co., 223 U. S. 70, 56 L. Ed. 
 355, 32 Sup. Ct. 189; Meyer v. 
 Wells, Fargo & Co., 223 U. S. 298, 
 56 L. Ed. 445, 32 Sup. Ct. 218; 
 Herndon v. Chicago, R. I. & P. R. 
 Co., 218 U. S. 135, 54 L. Ed. 970. 
 30 Sup. Ct. 633; Western U. Tel. 
 Co. T. State, 216 U. S. 1, 54 L. Ed. 
 355, 30 Sup. Ct. 190; Pullman Co. 
 V. State ex rel. Coleman, 216 U. 
 S. 56, 54 L. Ed. 378, 30 Sup. Ct. 232; 
 Galveston, H. & S. A. R. Co. v. 
 State, 210 U. S. 217, 52 L. Ed. 1031, 
 28 Sup. Ct. 638; Mississippi R. 
 Commission v. Illinois Cent. R. 
 Co., 203 U. S. 335, 51 L. Ed. 209, 
 27 Sup. Ct. 90; Hanley v. Kansas 
 City S. R. Co., 187 U. S. 617, 47 
 L. Ed. 333, 23 Sup. Ct. 214; Louis- 
 ville & N. R. Co. v. Eubank, 184 
 U. S. 27, 46 L. Ed. 416, 22 Sup. Ct. 
 277; Schollenberger v. Com., 171 
 
 U. S. 1, 43 L. Ed. 49, 18 Sup. Ct. 
 757; Vance v. W. A. Vandercook 
 Co., 170 U. S. 438, 42 L. Ed. 1100, 18 
 Sup. Ct. 674; Covington & C. 
 Bridge Co. v. Com., 15^ U. S. 204, 
 38 L. Ed. 962, 14 Sup. Ct. 1087; 
 Brennan v. City of Titusville, 153 
 U. S. 289, 38 L. Ed. 719, 14 Sup. 
 Ct. 829; McCall v. California, 136 
 U. S. 104, 34 L. Ed. 391, 10 Sup. 
 Ct. 881; Leisy v. Hardin, 135 U. 
 S. 100, 34 L. Ed. 128, 10 Sup. Ct. 
 681; Leloup v. Port of Mobile, 127 
 U. S. 640, 32 L. Ed. 311, 8 Sup. 
 Ct. 1380; Philadelphia & Southern 
 S. S. Co. V. Pennsylvania, 122 U. S. 
 326, 30 L. Ed. 1200, 7 Sup. Ct. 1118; 
 Robbins v. Shelby County Taxing 
 Dist., 120 U. S. 489, 30 L. Ed. 694, 
 7 Sup. Ct. 592; Wabash, St. L. & 
 P. Ry. Co. V. People, 118 U. S. 557, 
 30 L. Ed. 244, 7 Sup. Ct. 4; Coe 
 V Errol, 116 U. S. 517, 29 L. Ed. 
 715, 6 Sup. Ct. 475; Guy v. Balti- 
 more, 100 U. S. 434, 25 L. Ed. 743; 
 Hannibal & St. J. R. Co. v. Husen, 
 95 U. S. 465, 24 L. Ed. 527; Case of 
 State Freight Tax, 15 Wall. (U. S.) 
 232, 21 L. Ed. 146; Ward v. Mary- 
 land, 12 Wall. (U. S.) 418, 20 L. 
 Ed. 449; The Daniel Ball v. 
 United States, 10 Wall. (U. S.) 
 557, 19 L. Ed. 999; Passenger 
 Cases, 7 How. (U. S.) 283, 12 L. 
 Ed. 702; Crandal v. State, 6 Wall. 
 (U. S.) 35, 18 L. Ed. 745; M'Cul- 
 loch V. Maryland, 4 Wheat. (U. S.) 
 316, 4 L. Ed. 579.
 
 § 11] 
 
 State and Federal Powers. 
 
 39 
 
 The second class includes tliose subject matters 
 within the term "interstate commerce" which are of 
 such a nature that, if regulated, they do not require 
 or demand a general system or plan of uniform regula- 
 tion throughout the nation, tliat is, those subject 
 matters which admit of a diversity of regulation and 
 control according to the special requirements of local 
 conditions in each state. They include those matters 
 of a local concern as to which it is impossible to derive 
 from the constitutional grant of authority to Congress 
 an intention that they should go uncontrolled pending 
 federal legislation because of the necessity that they 
 should not remain uncontrolled. Hence, in the absence 
 of regulation by Congress as to such matters of local 
 concern, the states may continue to supply the needed 
 rules until Congress should decide to supersede them 
 by national legislation.^ 
 
 2. Southern R. Co. v. Railroad 
 Commission of Indiana, 236 U. S. 
 439, 59 L. Ed. 661; 35 Sup. Ct. 
 304; Atlantic Coast Line R. Co. 
 V. State, 234 U. S. 280, 58 L. Ed. 
 1312, 34 Sup. Ct. 829; United 
 States V. Pacific & A. Ry. & Nav. 
 Co., 228 U. S. 87, 57 L. Ed. 742, 
 33 Sup. Ct. 443; Chicago, B. & 
 Q. R. Co. V. Cram, 228 U. S. 70, 57 
 L. Ed. 734, 33 Sup. Ct. 437; Chi- 
 cago, B. & Q. R. Co. V. Miller, 226 
 U. S. 513, 57 L. Ed. 323, 33 Sup. 
 Ct. 155; Michigan Cent. R. Co. v. 
 Vreeland, 227 U. S. 59, 57 L. Ed. 
 417, 33 Sup. Ct. 192. Ann. Cas. 
 1914C 176; Southern Pac. Co. v. 
 Schuyler, 227 U. S. 601, 57 L. Ed. 
 662, 33 Sup. Ct. 277, 43 L. R. A. 
 (N. S.) 901; Adams Exp. Co. v. 
 Croninger, 226 U. S. 491, 57 L. 
 Ed. 314, 33 Sup. Ct. 148, 44 L. R. 
 A. (N. S.) 257; Southern R. Co. 
 V. Burlington Lumber Co.. 225 U. 
 S. 99, 56 L. Ed. 1001. 32 Sup. Ct. 
 657; Standard Stock Food Co. v. 
 Wright. 225 U. S. 540, 56 L. Ed. 
 
 1197, 32 Sup. Ct. 784; Savage v. 
 Jones, 225 U. S. 501, 56 L. Ed. 
 1182, 32 Sup. Ct. 715; Missouri 
 R. Co. V. Castle, 224 U. S. 541, 56 
 L. Ed. 875, 32 Sup. Ct. 606; Mon- 
 dou V. New York, N. H. & H. R. 
 Co., 223 U. S. 1, 56 L. Ed. 327, 
 32 Sup. Ct. 169; 1 N. C. C. A. 875. 
 38 L. R. A. (N. S.) 44; Southern 
 R. Co. V. Reid, 222 U. S. 424, 5G 
 L. Ed. 257, 32 Sup. Ct. 140; 
 Northern Pac. R. Co. v. State ex 
 rel. Atkinson, 222 U. S. 370, 56 
 L. Ed. 237, 32 Sup. Ct. 160; Bal- 
 timore & O. R. Co. V. Interstate 
 Commerce Commission, 221 U. S. 
 612, 55 L. Ed. 878. 31 Sup. Ct. 621; 
 Southern R. Co. v. United States, 
 222 U. S. 20, 56 L. Ed. 72, 32 Sup. 
 Ct. 2; Chicago, R. I. & P. R. Co. 
 V. State, 219 U. S. 453, 55 L. Ed. 
 290. 31 Sup. Ct. 275: Chicago, I. 
 & L. R. Co. V. United States, 219 
 IT. S. 486, 55 L. Ed. 305, 31 Sup. 
 Ct. 272; Chiles v. Chesapeake & 
 O. R. Co., 218 U. S. 71, 54 L. Ed. 
 936, 30 Sup. Ct. 667, 20 Ann. Cas.
 
 40 
 
 Control Over Common Carriers 
 
 [§ 11 
 
 The third class includes matters limited to the 
 internal commerce of the states over which the states 
 have exclusive power. State legislation covering such 
 subject matters is valid even though it may affect 
 interstate commerce indirectly or incidentally. The 
 national government has no power to deal with the 
 internal concerns of the states. The states may, free 
 from federal control, legislate as to intrastate commerce, 
 provide local imi^rovements, create and regulate local 
 facilities and adopt protective measures of a reason- 
 able character in the interest of the health, safety, 
 morals and the welfare of their people although inter- 
 state commerce may thereby be incidentally or indirect- 
 ly involved.^ 
 
 980; St. Louis Southwestern R. 
 Co. V. State, 217 U. S. 136, 54 L. 
 Ed. 698, 30 Sup. Ct. 476, 29 L. R. 
 A. (N. S.) 802; Standard Oil Co. 
 of Kentucky v. State ex rel. Cates, 
 217 U. S. 413, 54 L. Ed. 817, 30 
 Sup. Ct. 543; Davis v. Cleveland, 
 C, C. & St. L. R. Co., 217 U. S. 
 157, 54 L. Ed. 708, 30 Sup. Ct. 463, 
 27 L. R. A. (N. S.) 823, 18 Ann. 
 Cas. 907; Missouri Pac. Ry. Co. v. 
 Larabee Flour Mills Co., 211 U. 
 S. 612, 53 L. Ed. 352, 29 Sup. Ct. 
 214; Employers' Liability Cases, 
 207 U. S. 463, 52 L. Ed. 297, 28 
 Sup. Ct. 141; Martin v. Pittsburg 
 & L. E. R. Co., 203 U. S. 284, 51 
 L. Ed. 184, 27 Sup. Ct. 100, 8 Ann. 
 Cas. 87; Pennsylvania R. Co. v. 
 Hughes, 191 U. S. 477, 48 L. Ed. 
 268, 24 Sup. Ct. 132; Lake Shore 
 & M. S. Ry. Co. v. State, 173 U. S. 
 285, 43 L. Ed. 702, 19 Sup. Ct. 465; 
 Missouri, K. & T. R. Co. v. Haber, 
 169 U. S. 613, 42 L. Ed. 878, 18 
 Sup. Ct. 488; Chicago, M. & St. 
 P. Ry. Co. V. Solan, 169 U. S. 133, 
 42 L. Ed. 688, 18 Sup. Ct. 289; 
 Hennington v. State, 163 U. S. 299, 
 41 L. Ed. 166, 16 Sup. Ct. 108G; 
 Pearsall v. Great Northern Ry. Co., 
 
 161 U. S. 646, 40 L. Ed. 836, 16 Sup. 
 Ct. 705; Louisville & N. R. Co. v. 
 State, 161 U. S. 677, 40 L. Ed. 
 849, 16 Sup. Ct. 714; Plumley v. 
 Com., 155 U. S. 461, 39 L. Ed. 223, 
 15 Sup. Ct. 154; Johnson v. Chica- 
 go & P. Elevator Co., 119 U. S. 
 388, 30 L. Ed. 447, 7 Sup. Ct. 254; 
 Turner v. State, 107 U. S. 38, 27 
 L. Ed. 370, 2 Sup. Ct. 44. 
 
 3. Houston, E. & W. T. R. Co. 
 v. United States, 234 U. S. 342, 58 
 L. Ed. 1341, 34 Sup. Ct. 833; 
 Simpson v. Shepard, 230 U. S. 
 352, 57 L. Ed. 1511, 33 Sup. Ct. 
 729, 48 L. R. A. (N. S.) 1151, Ann. 
 Cas. 1916A 18; Missouri Rate 
 Cases, 230 U. S. 474, 57 L. Ed. 
 1571, 33 Sup. Ct. 975; Oklahoma 
 V. Atchison, T. & S. F. R. Co., 220 
 U. S. 277, 55 L. Ed. 465, 31 Sup. 
 Ct. 434; Northern Pac. R. Co. v. 
 State ex rel. McCue, 216 U. S. 
 579, 54 L. Ed. 624, 30 Sup. Ct. 423; 
 Minneapolis & St. L. R. Co. v. 
 Minnesota, 186 U. S. 257, 46 L. 
 Ed. 1151, 22 Sup. Ct. 900; Louis- 
 ville & N. R. Co. V. Eubank, 184 
 U. S. 27, 46 L. Ed. 416, 22 Sup. 
 Ct. 277; Louisville & N. R. Co. v. 
 Com., 183 U. S. 503, 46 L. Ed. 298,
 
 V2] 
 
 State and Federal Powers. 
 
 41 
 
 § 12. Foregoing Doctrines Illustrated and Applied 
 to Divers Phases of Interstate Carriage and Trans- 
 portation. The business of an interstate carrier and 
 the manifold parts and phases of interstate transpor- 
 tation are such that some of them fall within the first 
 class mentioned in the foregoing paragraph and others 
 are included within the second class. The line of dis- 
 tinction between the first two classes is a judicial ques- 
 tion often of much difficulty, the solution of which 
 is not to be found in any single and exact rule of 
 decision. Adjudicated illustrations applying the general 
 principles are hereinafter given. 
 
 A state has no power to levy a tax upon the gross 
 receipts of a company derived from rates and fares 
 for the transportation of persons and goods in inter- 
 state commerce;* to levy a tax upon a railroad company 
 engaged in interstate commerce equal to one per cent 
 
 22 Sup. Ct. 95; Smyth v. Ames, 
 169 U. S. 466, 42 L. Ed. 819, 18 
 Sup. Ct. 418; St. Louis & S. F. 
 Ry. Co. V. Gill, 156 U. S. 649, 39 
 L. Ed. 567, 15 Sup. Ct. 484; Dow 
 V. Beidelman, 125 U. S. 680, 31 L. 
 Ed. 841, 8 Sup. Ct. 1028; Wabash, 
 St. L. & P. Ry. Co. V. People, 118 
 U. S. 557, 30 L. Ed. 244, 7 Sup. 
 Ct. 4; Stone v. Farmers' Loan 
 & Trust Co., 116 U. S. 307, 29 L. 
 Ed. 636, 6 Sup. Ct. 334, 388, 1191; 
 Baltimore & 0. R. Co. v. State. 21 
 Wall. (U. S.) 456, 22 L. Ed. 678. 
 
 The rules stated in the text 
 were thus succinctly summarized 
 by Judge Bond in Lusk v. Atkin- 
 son, 268 Mo. 109, 186 S. W. 703: 
 "(1) As to those subjects of in- 
 terstate commerce which require 
 a general system or uniformity of 
 regulation, the power of Congress 
 is exclusive whether exercised or 
 not. This exclusive power results 
 from the mere grant in the Con- 
 stitution. (2) As to those sub- 
 
 jects which do not fall in this 
 class, but, owing to local condi- 
 tions, may be regulated by two au- 
 thorities, the states may act un- 
 til Congress does, but when Con- 
 gress acts it obliterates all state 
 legislation on the subject. In these 
 cases the power of Congress be- 
 comes exclusive only when exerted. 
 (3) The reason for this distinction 
 is that interestate commerce prop- 
 er, requiring for its protection sin- 
 gleness of regulation, if regulated 
 at all, must be regulated by that 
 authority (Congress) to which the 
 Constitution has granted the pow- 
 er. (4) As to subjects purely lo- 
 cal and whose regulation does not 
 directly or indirectly affect inter- 
 state traffic, full power to deal 
 with them is reserved to the sev- 
 eral states." 
 
 4. Philadelphia & Southern S. 
 S. Co. v. Pennsylvania, 122 U. S. 
 326, 30 L. Ed. 1200, 7 S>ip. Ct. 1118.
 
 42 
 
 CoNTBOL -Over Common Careiers 
 
 [§ 12 
 
 of its gross receipts;'^ to levy a graded charter fee upon 
 the entire capital stock of a telegraph company engaged 
 in interstate commerce as a condition of doing local 
 business in the state ;'^ to levy a tax in any form upon 
 interstate commerce by imposing it either upon the 
 business which constitutes such commerce or the privi- 
 lege of engaging in it;^ cannot prevent telegraph com- 
 panies transmitting messages from one state to another 
 from operating lines over postal routes within their 
 borders,^ or impose unreasonable restrictions upon such 
 companies;'' cannot prescribe rates for interstate rail- 
 road transportation even with respect to that portion 
 of the route within its boundaries,^'' or prescribe rates 
 
 5. Galveston, H. & S. A. Ry. 
 Co. v. State, 210 U. S. 217, 52 L. 
 Ed. 1031, 28 Sup. Ct. 638. 
 
 6. Western U. Tel. Co. v. State 
 ex rel. Coleman, 216 U. S. 1, 54 
 L. Ed. 35.5, 30 Sup. Ct. 190. 
 
 7. Kansas City, Ft. S. & M. R. 
 Co. V. Secretary of Kansas, 240 U. 
 S 227, 60 L. Ed. 617, 36 Sup. Ct. 
 261; See also St. Louis South- 
 western R. Co. V. State, 235 U. 
 S. 350, 59 L. Ed. 265, 35 Sup. Ct. 
 99; Baltic Min. Co. v. Com., 231 
 U. S. 68, 58 L. Ed. 127, 34 Sup. 
 Ct. 15; Bacon v. People, 227 U. 
 S. 504, 57 L. Ed. 615, 33 Sup. Ct. 
 299; Crenshaw v. State, 227 TT. S. 
 389, 57 L. Ed. 565, 33 Sup. Ct. 294; 
 United States Exp. Co. v. State, 
 223 U. S. 335, 56 L. Ed. 459, 32 
 Sup. Ct. 211; Meyer v. Wells, 
 Fargo & Co., 223 U. S. 298, 56 L. 
 Ed. 445, 32 Sup. Ct. 218; Pullman 
 Co. V. State ex rel. Coleman, 216 
 U. S. 56, 54 L. Ed. 378, 30 Sup. 
 St. 232; Kelly v. Rhoads, 188 U. 
 S. 1, 47 L. Ed. 359, 23 Sup. Ct. 259; 
 Brennan v. City of Titusville, 153 
 U. S. 289, 38 L. Ed. 719, 14 Sup. 
 Ct. 829; McCall v. California, 130 
 U. S. 104, 34 L. Ed. 391, 10 Sup. 
 Ct. 881; Bobbins v. Shelby County 
 
 Taxing Dist., 120 U. S. 489, 30 
 L Ed. 694, 7 Sup. Ct. 592; Case 
 of State Freight Tax, 15 Wall. (U. 
 S.) 232, 21 L. Ed. 146. 
 
 8. Western U. Tel. Co. v. At- 
 torney General of Com. of Massa- 
 chusetts, 125 U. S. 530, 31 L. Ed. 
 790, 8 Sup. Ct. 961. 
 
 9. Town of Essex v. New Eng- 
 land Tel. Co. of Massachusetts, 239 
 U. S. 313, 60 L. Ed. 301, 36 Sup. 
 Ct. 102; Western U. Tel. Co. v. 
 City of Richmond, 224 U. S. 160, 
 56 L. Ed. 710, 32 Sup. Ct. 449; 
 Western U. Tel. Co. v. Pennsyl- 
 vania R. Co., 195 U. S. 540, 49 L. 
 Ed. 312, 25 Sup. Ct. 133, 1 Ann. 
 Cas. 517; Western U. Tel. Co. v. 
 New Hope, 187 U. S. 419, 47 L. Ed. 
 240, 23 Sup. Ct. 204; Richmond v. 
 Southern Bell Telephone & Tele- 
 graph Co., 174 U. S. 761, 43 L. Ed. 
 1162, 19 Sup. Ct. 778; St. Louis v. 
 Western U. Tel. Co., 148 U. S. 92, 
 37 L. Ed. 380, 13 Sup. Ct. 485; 
 Western U. Tel. Co. v. Pendleton, 
 122 U. S. 347, 30 L. Ed. 1187, 7 
 Sup. Ct. 1126; Pensacola Tel. Co. 
 V. Western U. Tel. Co., 96 U. S. 1, 
 24 L. Ed. 708. 
 
 10. Yazoo & M. V. R. Co. v. 
 Greenwood Grocery Co., 227 U. S.
 
 § 12] 
 
 State and Federal Powers. 
 
 43 
 
 for transportation of traffic from one point to anotlier 
 in the same state but wliicli, in transit, passes through 
 the territory of another state,'' or require a railroad 
 company to stop through interstate passenger trains 
 at a station when the local service otherwise offered is 
 adequate and reasonable;'- cannot prevent or hamper a 
 foreign corporation from suing in its courts to collect 
 the purchase price of merchandise which it lawfully 
 sold in interstate commerce though it may be required 
 to conform to the prevailing modes of procedure in tlie 
 state courts;'^ cannot regulate the number of cars to 
 be operated on a street railroad between two cities in 
 different states;'* cannot apply a long and short haul 
 clause similar to Section 4 of the Interstate Commerce 
 Act, to shipments from a place outside of the state to one 
 within the stale, and a shorter haul on the same line 
 
 1. 57 L. Ed. 389, 33 Sup. Ct. 213; 
 Railroad Commission of Ohio v. 
 Worthington, 225 U. S. 101, 56 L. 
 Ed. 1004, 32 Sup. Ct. 653; Hern- 
 don V. Cliicago, R. I. & P. R. Co., 
 218 U. S. 135, 54 L. Ed. 970, 30 Sup. 
 Ct. 633; Mississippi R. R. Com- 
 mission V. Illinois Cent. R. Co., 
 203 U. S. 335, 51 L. Ed. 209, 27 
 Sup. Ct. 90; Houston & T. C. R. 
 Co. V. Mayes, 201 U. S. 321, 50 L. 
 Ed. 772, 26 Sup. Ct. 491; Cleve- 
 land, C, C. & St. L. Ry. Co. V. 
 People 177 U. S. 514, 44 L. Ed. 
 868, 20 Sup. Ct. 722; Covington & 
 C. Bridge Co. v. Com., 154 U. S. 
 204, 38 L. Ed. 962, 14 Sup. Ct. 
 1087; Wabash, St. L. & P. Ry. 
 Co. V. People, 118 U. S. 557, 30 
 L. Ed. 244, 7 Sup. Ct. 4. 
 
 11. Ewing V. City of Leaven- 
 worth, 226 U. S. 464, 57 L. Ed. 
 303, 33 Sup. Ct. 157; Hanley v. 
 Kansas City S. R. Co.. 187 U. S. 
 617, 47 L. Ed. 333, 23 Sup. Ct. 214; 
 Crescent Brewing Co. v. Oregon 
 Short Line R. Co., 24 Idaho 106. 
 132 Pac. 975. 
 
 12. Herndon v. Chicago, R. I. & 
 P. R. Co., 218 U. S. 135, 54 L. Ed. 
 970, 30 Sup. Ct. 633; Atlantic 
 Coast Line R. Co. v. Wharton, 207 
 U. S. 328, 52 L. Ed. 230, 28 Sup. 
 Ct. 121; Atlantic Coast Line R. 
 Co. v. North Carplina Corporation 
 Commission, 206 U. S. 1, 51 L. Ed. 
 933, 27 Sup. Ct. 585, 11 Ann. Cas. 
 398; Mississippi R. Commission 
 v. Illinois Cent. R. Co., 203 U. S. 
 335, 51 L. Ed. 209, 27 Sup. Ct. 90; 
 Lake Shore & M. S. Ry. Co. v. 
 State, 173 U. S. 285, 43 L. Ed. 702, 
 19 Sup. Ct. 405; Gladson v. State, 
 166 U. S. 427, 41 L. Ed. 1064, 17 
 Sup. Ct. 627; Illinois Cent. R. Co. 
 V. State, 163 U. S. 142, 41 L. Ed. 
 107, 16 Sup. Ct. 1096. 
 
 13. Sioux Remedy Co. v. Cope, 
 235 U. S. 197, 59 L. Ed. 193, 35 
 Sup. Ct. 57. 
 
 14. South Covington & C. St. 
 R. Co. V. City of Covington, 235 U. 
 S. 537, 59 L. Ed. 350, 35 Sup. Ct. 
 158. L. R. A. 1915F 792.
 
 44 CoN'TROL Over Common Carriers [<§ 12 
 
 in the same direction between points witiiin the state -/^ 
 cannot compel an express company doing interstate 
 business to take out a municipal license in order to 
 carry on its interstate business;" cannot regulate the 
 tolls for the conveyance of passengers on an interstate 
 railroad from one state to another;'^ cannot authorize 
 a municipal corporation to require a ferry company 
 operating between two states to take out a license and 
 pay a license fee as a condition to conducting its busi- 
 ness ;^^ cannot prescribe the rates for the transportation 
 of property by railroad between two points in the same 
 state when the property so carried is destined to a 
 foreign country ;^^ cannot compel a foreign corporation 
 to file a statement with a state board before it can carry 
 on interstate commerce in the state,^° and cannot 
 prohibit interstate trade in litigimate articles of com- 
 merce.^^ 
 
 On the other hand, in the absence of action by 
 Congress, a state may prescribe reasonable rates for 
 the transportation of traffic over the high seas between 
 ports in the same state when not connected with trans- 
 portation by rail;" may require railroad companies to 
 furnish cars within a reasonable time after demand for 
 interstate as well as for intrastate shipments;'' may 
 
 15. Louisville & N. R. Co. v. 20. Buck Stove & Range Co. v. 
 Eubank, 184 U. S. 27, 46 L. Ed. Vickers, 226 U. S. 205, 57 L. Ed. 
 416, 22 Sup. Ct. 277. 189, 33 Sup. Ct. 41. 
 
 16. Barrett v. City of New York, 21. West v. Kansas Natural Gas 
 232 U. S. 14, 58 L. Ed. 483, 34 Sup. ^o., 221 U. S. 229, 55 L. Ed. 716, 31 
 Ct. 203. Sup. ct. 564, 35 L. R. A, (N. S.) 
 
 17. Covington & C. Bridge Co. ^^93^ ^eisy v. Harden, 135 U. S. 
 v. com., 154 U. S. 204, 38 L. Ed. ^^^^ 3^ ^ ^^ ^^8, 10 Sup. Ct. 
 962 14 Sup. Ct. 1087. 681; Bowman v. Chicago & N. W. 
 
 18. City of Sault Ste. Mane v. 
 
 ±0. V. ly ui ^25 u. S. 465, 31 L. Ed. 
 
 International Transit Co., 234 U. •' ' 
 
 S. 333, 58 L. Ed. 1337, 34 Sup. Ct. '^^^' ^ ^"P- ^t. 689, 1062. 
 
 826, 52 L. R. A. (N. S.) 574. 22. Wilmington Transp. Co. v. 
 
 19. Railroad Commission of Railroad Commission of Cali- 
 Louisiana v. Texas & P. R. Co., fornia, 236 U. S. 151, 59 L. Ed. 
 229 U. S. 336, 57 L. Ed. 1215, 33 508, 35 Sup. Ct. 276. 
 
 Sup. Ct. 837; Railroad Commis- 23. Illinois Cent. R. Co. v. Mul- 
 
 sion of Ohio v. Worthington, 225 berry Hill Coal Co., 238 U. S. 275, 
 
 U. S. 101, 56 L. Ed. 1004, 32 Sup. 59 L. Ed. 1306, 35 Sup. Ct. 760. 
 Ct. 653.
 
 § 12] 
 
 Statk and Federal Powers. 
 
 45 
 
 regulate liabilities of interstate carriers for loss and 
 damage to interstate sliipnients;^* may require rail- 
 road companies to place safety appliances upon freight 
 and passenger cars within its boundaries although 
 carrying interstate traffic;" may compel carriers to 
 equip their locomotives with certain prescribed head- 
 lights;^'' may require carriers to heat their passenger 
 cars although used in transporting interstate pas- 
 sengers;"' may regulate wharfage eliarges although 
 payment is also required of those engaged in interstate 
 commerce;-^ may secure safety in the physical opera- 
 tion of railroads within its territory even though the 
 trains carry interstate traffic ;^^ may enact statutes 
 requiring certain number of emploj^es on freight trains;^" 
 may prohibit the shipment into other states of fruit un- 
 fit for consumption;" may make provisions for the 
 ventilation and fumigation of street cars on a street 
 railroad operated between two cities in different states 
 
 24. Charleston & W. C. R. Co. v. 
 Varnville Furniture Co., 237 U. S. 
 597, 59 L. Ed. 1137, 35 Sup. Ct. 715, 
 Ann. Cas. 1916D 333. 
 
 25. Southern R. Co. v. Railroad 
 Commission of Indiana, 236 U. S. 
 439, 59 L. Ed. G61, 35 Sup. Ct. 304: 
 Erie R. Co. v. People, 233 U. S. 
 671, 58 L. Ed. 1149, 34 Sup. Ct. 
 756, 52 L. R. A. (N. S.) 26p, Ann. 
 Cas. 1915D 138. 
 
 26. Atlantic Coast Line R. Co. 
 V. State, 234 U. S. 280, 58 L. Ed. 
 1312, 34 Sup. Ct. 829. 
 
 27. New York, N. H. & H. R. 
 Co. V. People, 165, U. S. 628, 41 
 L. Ed. 853, 17 Sup. Ct. 418. 
 
 28. Sands v. Manistee River Im- 
 provement Co., 123 U. S. 288, 31 
 L. Ed. 149, 8 Sup. Ct. 113; Parkers- 
 burg & O. River Transp. Co. v. 
 City of Parkersburg, 107 U. S. 691, 
 27 L. Ed. 584, 2 Sup. Ct. 732; Cin- 
 cinnati, P., B. S. & P. Packet Co. 
 V. Catlettsburg, 105 U. S. 559, 26 
 U Ed. 1169; Keokuk Northern 
 
 Line Packet Co. v. City of Keokuk, 
 Iowa, 95 U. S. 80, 24 L. Ed. 377. 
 
 29. Atlantic Coast Line R. Co. 
 v. State, 234 U. S. 280, 58 L. Ed. 
 1312, 34 Sup. Ct. 829; Missouri 
 Pac. R. Co. v. State ex rel. Taylor, 
 216 U. S. 262, 54 L. Ed. 472, 30 
 Sup. Ct. 330; Hennington v. State, 
 163 U. S. 299, 41 L. Ed. 166, 16 
 Sup. Ct. 1086; Nashville, C. & St. 
 L. Ry. Co. v. Alabama, 128 U. S. 
 96, 32 L. Ed. 352, 9 Sup. Ct. 28. 
 
 30. St. Louis, I. M. & S. R. Co. 
 V. State, 240 U. S. 518, 60 L. Ed. 
 776, 3G Sup. Ct. 443; Chicago, R. 
 I. & P. R. Co. V. State, 219 U. S. 
 453, 55 L. Ed. 290, 31 Sup. Ct. 275. 
 
 31. Sligh V. Kirkwood, 237 U. 
 S. 52, 59 L. Ed. 835, 35 Sup. Ct. 
 501; Savage v. Jones, 225 U. S. 
 501, 56 L. Ed. 1182, 32 Sup. Ct. 715; 
 New York ex rel. Silz v. Hester- 
 berg, 211 U. S. 31, 53 L. Ed. 75. 
 29 Sup. Ct. 10: Kidd v. Pearson, 
 128 U. S. 1, 32 L. Ed. 346. 9 Sup. 
 Ct. 6.
 
 46 Control Over Common Carriers [^ 12 
 
 and require safety appliances on such cars;^' may regu- 
 late the liability of railroad companies to their employes 
 for injuries, including those engaged in interstate com- 
 merce ;^^ may lawfully enact a statute providing that 
 no contract, limiting the liability of a carrier to less 
 than full loss for damage to a shipment, shall be valid 
 even as to interstate shipments;^* may fix reasonable 
 rates for ferriage not connected with railroads, from 
 its shore to the shores of another state as well as rates 
 for return tickets from its shore ;^^ may enact a statute 
 requiring common carriers to settle claims for loss and 
 damage to property transported, including interstate 
 shipments ;^^ may enforce a regulation requiring a rail- 
 road company to restore service of transferring cars 
 between the lines of another railroad and an elevator 
 in aid of intrastate and interstate commerce alike;" 
 may allow attorney's fee for the failure of a carrier 
 to pay within thirty days a bona fide claim for loss 
 or damage to property, even as to interstate shipments ;^^ 
 may regulate the hours of service of employes of inter- 
 
 32. South Covington & C. St. R. Co. v. Hughes, 191 U. S. 477, 
 R. Co. V. City of Covington, 235 48 L. Ed. 268, 24 Sup. Ct. 132; 
 U. S. 537, 59 L. Ed. 350, 35 Sup. Chicago, M. & St. P. Ry. Co. v. 
 Ct. 158, L. R. A. 1915F 792. Solan, 169 U. S. 133, 42 L. Ed. 688, 
 
 33. Toledo, St. L. & W. R. Co. 18 Sup. Ct. 289. 
 
 V Slavin, 236 U. S. 454, 59 L. Ed. 35. Port Richmond & B. P. 
 
 671, 35 Sup. Ct. 306; In re Sec- Ferry Co. v. Board Chosen Free- 
 
 ond Employers' Liability Cases, holders County of Hudson, 234 U. 
 
 223 U. S. 1, 56 L. Ed. 327, 32 Sup. S. 317, 58 L. Ed. 1330, 34 Sup. Ct. 
 
 Ct. 169, 1 N. C. C. A. 875, 38 L. 821. 
 
 R. A. (N. S.) 44; Baltimore & O. 36. Atlantic Coast Line R. Co. 
 
 R. Co. V. Interstate Commerce Com- v. Mazursky, 216 U. S. 122, 54 L. 
 
 mission, 221 U. S. 612, 55 L. Ed. Ed. 411, 30 Sup. Ct. 378. 
 
 878, 31 Sup. Ct. 621; Adair v. 37. Missouri Pac. Ry. Co. v. 
 
 United States, 208 U. S. 161, 52 L. Larabee Mills, 211 U. S. 612, 53 
 
 Ed. 436, 28 Sup. Ct. 277, 13 Ann. L. Ed. 352, 29 Sup. Ct. 214. 
 
 Cas. 764; Nashville, C. & St. L. 38. Missouri, K. & T. R. Co. v. 
 
 Ry. Co. V. Alabama, 128 U. S. 9G, Harris, 234 U. S. 412, 58 L. Ed. 
 
 32 L. Ed. 352, 9 Sup. Ct. 28; Smith 1377, 34 Sup. Ct. 790, L. R. A. 
 
 V. Alabama, 124 U. S. 465, 31 L. 1915E 942; distinguishing Atlan- 
 
 Ed. 508, 8 Sup. Ct. 564. tic Coast Line R. Co. v. Riverside 
 
 34. Chicago, R. I. & P. R. Co. Mills, 219 U. S. 186, 55 L. Ed. 167, 
 V. Cramer, 232 U. S. 490, 58 L. Ed. 31 Sup. Ct. 164, 31 L. R. A. (N. 
 697, 34 Sup. Ct. 383; Pennsylvania S.) 7.
 
 § 12] State and Federal Powers. 47 
 
 state carriers within its boundaries, although some are 
 engaged in interstate commerce;"'-' may authorize the 
 collection of inspection fees for the purpose of determin- 
 ing the weight, condition, quality and quantity of mer- 
 chandise to be sold within or without a state, if the 
 amounts collected are not excessive and are in proper 
 proportion to the service rendered and inspected ;^° may 
 require interstate railroads owning terminal yards to 
 interchange cars containing intrastate traffic with other 
 carriers;*^ may legislate with respect to pilotage;*^ may 
 improve harbors and construct dams and bridges across 
 navigable rivers within its limits;*^ may prevent the 
 spread of disease by the enforcement of quarantine 
 regulations although interstate carriers are involved;" 
 may prohibit the consolidation of a domestic railroad 
 corporation w^ith a competing line although both are 
 interstate carriers;'*^ may tax articles moving in inter- 
 state commerce when stopped in transit for a business 
 purpose and thereby securing the protection of the 
 state,**^ and may compel interstate carriers to stop 
 
 39. Erie R. Co. v. People, 233 44. Asbell v. State, 209 U. S. 
 U. S. 671, 58 L. Ed. 1149, 34 Sup. 251, 52 L. Ed. 778, 28 Sup. Ct. 485, 
 Ct. 756, 52 L. R. A. (N. S.) 266, 14 Ann. Cas. 1101; Compagnie 
 Ann. Cas. 1915D 138. Francaise De Navigation a Vapour 
 
 40. D. E. Foote & Co. v. Stan- v. Louisiana State Board of 
 ley, 232 U. S. 494, 58 L. Ed. 698, 34 Health, 186 U. S. 380, 46 L. Ed. 
 Sup. Ct. 377. 1209, 22 Sup. Ct. 811; Louisiana v. 
 
 41. Grand Trunk R. Co. v. Mich- State, 176 U. S. 1, 44 L. Ed. 347, 20 
 igan R. R. Commission, 231 U. S. Sup. Ct. 251; Missouri, K. & T. 
 457, 58 L. Ed. 310, 34 Sup. Ct. 152. Ry. Co. v. Haber, 169 U. S. 613, 42 
 
 42. Anderson v. Pacific Coast L. Ed. 878, 18 Sup. Ct. 488. 
 
 S. S. Co., 225 U. S. 187, 56 L. Ed. ^'^- Northern Securities v. Unit- 
 
 1047, 32 Sup. Ct. 626. ^d States, 193 U. S. 197, 48 L. Ed. 
 
 43. Cummings v. Chicago, 188 '^'^' "^ ^"P- ^^- ^^^' Louisville & 
 U. S. 410, 47 L. Ed. 525, 23 Sup. ^- f " Sf" ^- ^'^''' ^'^ U. S. 677, 
 
 40 L. Ed. 849, 16 Sup. Ct. 714; 
 
 Pearsall v. Great Northern Ry. 
 
 Co., 161 U. S. 646, 40 L. Ed. 838. 
 Ed. 959, 5 Sup. Ct. 423; Pound v. jg g^p qj ^q^ 
 
 Turck. 95 U. S. 459. 24 L. Ed. 525; 46. Susquehanna Coal Co. v. 
 
 Gilman v. Philadelphia. 3 Wall. City of South Amboy, 228 V. S. 
 (U. S.) 713, 18 L. Ed. 96. JG65, 57 L. Ed. 1015. 33 Sup. Ct. 712. 
 
 Ct. 472; Cardwell v. American 
 Bridge Co., 113 U. S. 205, 28 L.
 
 48 Control Over Common Carriers [^ 12 
 
 their interstate trains if the service otherwise given 
 is inadequate for local needs."' 
 
 § 13. Federal Laws and Regulations Encroaching 
 upon Powers of the States over their Internal Affairs, 
 Invalid. The power of regulation conferred on Congress 
 by the commerce clause, is limited to commerce with 
 foreign nations, among the several states and with the 
 Indian tribes. When, therefore. Congress undertakes 
 to enact a statute which can only be valid as a regula- 
 tion of commerce, it must be limited to the subject 
 matters included within the commerce clause. If it 
 is not so limited, it is in excess of the powers of Con- 
 gress; for it is well-settled that as to all their internal 
 affairs, the states retain their police powers, which they, 
 as sovereign nations, possessed prior to the adoption 
 of the national Constitution except such as were granted 
 to the nation.*^ 
 
 If a national statute establishes a regulation appli- 
 cable to all trade, or to commerce at all points, or at- 
 tempts to govern commerce wholly between citizens of 
 the same state, it is an exercise of a power not confided 
 to Congress."' For example. Congress has no power to 
 prohibit the sale of a particular commodity or to prohi- 
 
 47 Chicago, B. & Q. R. Co. v. 58 L. Ed. 107, 34 Sup. Ct. 1; Ex 
 Railroad Commission of Wiscon- Parte Webb, 225 U. S. 663, 56 
 sin 237 U. S. 220, 59 L. Ed. 926, L. Ed. 1248, 32 Sup. Ct. 769; Em- 
 35 Sup Ct 560 ployers' Liability Cases, 207 U. S. 
 
 48 Covington & C. Bridge Co. 463, 52 L. Ed. 297, 28 Sup. Ct. 141; 
 V Com., 154 U. S. 204, 38 L. Ed. Illinois Cent. R. Co. v. McKen- 
 962 14 Sup. Ct. 1087; Patterson v. dree, 203 U. S. 514, 51 L. Ed. 298, 
 Com 97 U S 501 24 L. Ed. 1115; 27 Sup. Ct. 153; James v. Bowman, 
 United States v. Shauver, 214 Fed. 190 U. S. 127, 47 L. Ed. 979, 23 Sup. 
 154- United States v. Boyer, 85 Ct. 678; Baldwin v. Franks, 120 
 Pg^' 425 U. S. 678, 30 L. Ed. 766, 7 Sup. 
 
 49 United States v. Barnow, Ct. 656, 763; Civil Rights Cases, 
 239 U S. 74, 60 L. Ed. 155, 36 Sup. 109 U. S. 3, 27 L. Ed. 835, 3 Sup. 
 Ct 19- Southern Ry. Co. v. Rail- Ct. 18; United States v. Harris, 
 road Commission of Indiana, 236 106 U. S. 629, 27 L. Ed. 290, 1 Sup. 
 U S 439 59 L. Ed. 661, 35 Sup. Ct. 601; United States v. Fox, 95 
 Ct 304; 'Illinois Cent. R. Co. v. U. S. 670, 24 L. Ed. 538; United 
 De Fuentes, 236 U. S. 157, 59 L. States v. Reese, 92 U. S. 214, 23 L. 
 Ed 517 35 Sup. Ct. 275; United Ed. 563; Karem v. United Stales, 
 States V. Sandoval, 231 U. S. 28, 57 C. C. A. 486, 121 Fed. 250.
 
 § 13] 
 
 State ani> Fkdkkal P(j\vej{s. 
 
 49 
 
 bit trade within the limits of a state ;^° nor may Congress 
 require a license for tlie carrying on of the internal 
 commerce of a state.'' A congressional enactment pre- 
 scribing the liability of an interstate carrier to those 
 of its employes who are engaged wholly in intrastate 
 commerce, or in work having no substantial connection 
 with or real relation to interstate commerce, is beyond 
 the power of the federal government.'^^ A regulation 
 prescribed by the Secretary of Agriculture under a feder- 
 al statute authorizing him to prevent the spread of con- 
 tagious and infectious diseases among livestock'^'* ap- 
 plying to intrastate commerce, is invalid/^ A federal 
 statute, the provisions of which in effect entitled negroes 
 to the equal enjoyment of all accommodations in hotels, 
 public conveyances, theatres and other places of public 
 amusement granted to white persons,^^ was void, be- 
 cause in excess of the power conferred upon Congress 
 under the commerce clause and an encroachment upon 
 the powers reserved to the states respectively.^^ 
 
 50. United States v. Dewitt, 9 
 Wall. (U. S.) 41, 19 L. Ed. 593, in 
 which the court said: "That 
 Congress has power to regulate 
 commerce with foreign nations 
 and among the several States, and 
 with the Indian tribes, the Consti- 
 tution expressly declares. But 
 this express grant of power to reg- 
 ulate commerce among the States 
 has always been understood as 
 limited by its terms; and as a vir- 
 tual denial of any power to inter- 
 fere with the internal trade and 
 business of the separate States; 
 except, indeed, as a necessary and 
 proper means for carrying into 
 execution some other power ex- 
 pressly granted or vested." 
 
 51. License Cases, 5 How. (U. 
 S.) 504, 12 L. Ed. 256; Liconse 
 Tax Cases, 5 Wall. (U. S.) 462. 18 
 L. Ed. 497. 
 
 52. Employers' Liability Cases, 
 207 U. S. 46.3, 28 Sup. Ct. 141, 52 
 
 L. Ed. 297, in which Mr. Justice 
 White said: "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 employes, 
 without qualification or restric- 
 tion as to the business in which 
 the carriers or their employes 
 may be engaged at the time of 
 the injury, of necessity includes 
 subjects wholly outside of the 
 power of Congress to regulate 
 commerce." 
 
 53. 32 Stat, at L. 791, Chap. 
 349. 
 
 54. Illinois Cent. R. Co. v. Mc- 
 Kendree, 203 U. S. 514, 51 L. Ed. 
 298, 27 Sup. Ct. 153. 
 
 55. Act of March 1. 1875, 18 
 Stat, at L. 33, Chap. 114. 
 
 56. Butts v. Merchants' & Min- 
 ers' Transp. Co., 230 U. S. 126. 57 
 L. Ed. 1422, 33 Sup. Ct. 964; Civil 
 
 1 Control rnrrlpfB 4
 
 50 
 
 Oo:ntt:{Ol Ovke Common Cabeiers 
 
 [§ 14 
 
 § 14. Federal Regulations to be Valid Must Have 
 Real or Substantial Connection with Interstate Com- 
 merce. The power of Congress under the commerce 
 clause to regulate interstate commerce is not without 
 other limitations. If a national law passed pursuant to 
 the constitutional grant is not, in a real and substantial 
 sense, a regulation of commerce, it is in excess of the 
 constitutional power of Congress.^' All rules prescribed 
 for the conduct of interstate commerce, in order to be 
 within the competency of Congress under its power to 
 regulate commerce among the states, must have some 
 real or substantial relation to or connection with the 
 commerce regulated ;^'^ but when a particular subject 
 matter is within the legislative power of Congress to 
 regulate, the extent of the regulation depends upon the 
 nature and character of the subject and what is appro- 
 priate to its regulation." Congress, as an incident to 
 its power to regulate commerce, may adopt not only 
 
 Rights Cases, 109 U. S. 3, 27 L. 
 Ed. 835, 3 Sup. Ct. 18. 
 
 57. Wilson v. New, 243 U. S 
 332, 61 L. Ed. 755, 37 Sup. Ct. 298. 
 
 58. Greenleaf-Johnson Lumber 
 Co. V. Garrison, 237 U. S. 251, 59 
 L. Ed. 939, 35 Sup. Ct. 551; Erie 
 R. Co. V. Williams, 233 U. S. 685, 
 58 L. Ed. 1155, 34 Sup. Ct. 761, 
 51 L. R. A. (N. S.) 1097; McDer- 
 mott V. State, 228 U. S. 115, 57 L. 
 Ed. 754, 33 Sup. Ct. 431, 47 L. R. 
 A. (N. S.) 984, Ann. Cas. 1915A 39; 
 Hipolite Egg Co. v. United State.=«, 
 220 U. S. 45, 55 L. Ed. 364, 31 Sup. 
 Ct. 364; Adair v. United States. 
 208 U. S. 161, 13 Ann. Cas. 764, 52 
 L. Ed. 436, 28 Sup. Ct. 277; In 
 re Debs, 158 U. S. 564, 39 L. Ed. 
 1092, 15 Sup. Ct. 900; M'Culloch 
 V. Maryland, 4 "Wheat (U. S.) 316, 
 4 L. Ed. 579. 
 
 59. Caminetti v. United States, 
 242 U. S. 470, 61 L. Ed. 442, 37 
 Sup. Ct. 192, L. R. A. 1915F 502, 
 Ann. Cas. 1917B 1168; Clark Dis- 
 
 tilling Co. V. Western Maryland 
 R. Co., 242 U. S. 311, 61 L. Ed. 
 
 326, 37 Sup. Ct. 180, L. R. A. 
 1917B 1218, Ann. Cas. 1917B 845; 
 In re Second Employers' Liabil- 
 ity Cases, 223 U. S. 1, 56 L. Ed. 
 
 327, 32 Sup. Ct. 169, 1 N. C. C. A. 
 875, 38 L. R. A. (N. S.) 44; Hoke 
 V. United States, 227 U. S. 308, 
 57 L. Ed. 523, 33 Sup. Ct. 281, 43 
 L. R. A. (N. S.) 906, Ann. Cas. 
 1913E 905; Chicago, B. & Q. R. 
 Co. V. McGuire, 219 U. S. 549, 55 
 L. Ed. 328, 31 Sup. Ct. 259; At- 
 lantic Coast Line R. Co. v. River- 
 side Mills, 219 U. S. 186, 55 L. Ed. 
 167, 31 Sup. Ct. 164, 31 L. R. A. 
 (N. S.) 7; McLean v. State, 211 
 U. S. 539, 53 L. Ed. 315, 29 Sup. 
 Ct. 206; Champion v. Ames, 188 
 U. S. 321, 47 L. Ed. 492, 23 Sup. 
 Ct. 321; Interstate Commerce 
 Commission v. Brimson, 154 U. S. 
 447, 38 L. Ed. 1047, 14 Sup. Ct. 
 1125.
 
 § 14J State and Fedkral Powers. 51 
 
 means necessary but convenient to its exercise includ- 
 ing means having tlie quality of police regulations."" 
 For example, allliougli the power to regulate commerce 
 includes the power to prescribe the rules by which such 
 commerce must be governed,"^ and a large discretion 
 must necessarily be given to Congress to select the 
 means to be employed in such regulation,"- there is no 
 substantial or real connection between a railroad em- 
 ploye's membership in a labor organization and the 
 carrying on of interstate commerce, and hence, a federal 
 statute prohibiting an interstate carrier from dis- 
 charging an employe because of his membership in a 
 labor organization, is invalid."^ 
 
 On the other hand, a federal statute limiting the 
 hours of service of employes engaged in interstate com- 
 merce is valid for the reason that the length of hours 
 of service has a direct relation to the efficiency of the 
 human agencies engaged in interstate commerce."* And 
 so a statute requiring safety appliances on cars of rail- 
 roads engaged in interstate commerce is valid because 
 it tends to secure the safety of employes and travelers 
 moving from one state to another."^ Similarly, a federal 
 
 60. Caminetti v. United States, Sup. Ct. 158; Missouri, K. & T. 
 242 U. S. 470, 61 L. Ed. 442, 37 Sup. Ry. Co. v. Haber, 169 U. S. 613, 12 
 Ct. 192, L. R. A. 1915F 502, Ann. L. Ed. 878, 18 Sup. Ct. 488; In 
 Cas. 1917B 1168; Wilson v. Unit- re Debs, 158 U. S. 564, 39 U Ed. 
 ed States, 232 U. S. 563, 58 L. Ed. 1092, 15 Sup. Ct. 900; United 
 728, 34 Sup. Ct. 347; Champion States v. E. C. Knight Co., 156 U. 
 V. Ames, 188 U. S. 321, 47 L. Ed. S. 1, 39 L. Ed. 325, 15 Sup. Ct. 249; 
 492, 23 Sup. Ct. 321; Gloucester In re Rahrer, 140 U. S. 545, 35 L. 
 Ferry Co. v. State, 114 U. S. 196. Ed. 572, 11 Sup. Ct. 865; Brown 
 29 L. Ed. 158, 5 Sup. Ct. 826. v Maryland, 12 Wheat (U. S.) 419, 
 
 61. Northern Securities Co. v. 6 L. Ed. 378. 
 
 United States, 193 U. S. 197, 48 63. Adair v. United States, 208 
 
 L. Ed. 679, 24 Sup. Ct. 436; Wes- U. S. 161, 52 L. Ed. 436, 28 Sup. 
 
 tern U. Tel. Co. v. Pendleton, 122 Ct. 277, 13 Ann. Cas. 764. 
 
 U. S. 347, 30 L. Ed. 1187, 7 Sup. 64. Baltimore & 0. R. Co. v. 
 
 Ct. 1126; County of Mobile V. Kim- Interstate Commerce Commission, 
 
 ball, 102 U. S. 691. 26 L. Ed. 238; 221 U. S. 612, 55 L. Ed. 878. 31 
 
 Almy V. California, 24 How. (U. Sup. Ct. 621. 
 
 S.) 169, 16 L. Ed. 644. 65. Texas & P. R. Co. v. Rigsby, 
 
 62. Johnson v. Southern Pac. 241 U. S. 33, 60 L. Ed. 874, 36 Sup. 
 Co., 19G U. S. 1, 49 L. Ed. 363, 25 Ct. 482; Southern R. Co. v. Unit-
 
 52 Control Over Common Carriers [§ 14 
 
 statute fixing a temporary wage Tegulation between 
 employers and employes engaged in interstate commerce 
 is valid when the interstate commerce of the country 
 was threatened with interruption through a strike be- 
 cause of the failure of the employers and employes to 
 agree upon a scale of wages.*^*^ In upholding the valid- 
 ity of the Act of Congress, known as the Adamson 
 law, which declared that eight hours shall, in all con- 
 tracts for labor service, be deemed a days work and 
 the measure or standard of a days work for the pur- 
 pose of reckoning the compensation for services of em- 
 ployes employed in interstate commerce, Chief Justice 
 White, in the cited case, said: "In the presence of 
 this vast body of acknowledged powers there would 
 seem to be no ground for disputing the power which 
 was exercised in the act which is before us so as to 
 prescribe by law for the absence of a standard of wages, 
 caused by the failure to exercise the private right as 
 a result of the dispute between the parties, — that is, 
 to exert the legislative will for the purpose of settling 
 tlie dispute, and bind both parties to the duty of ac- 
 ceptance and compliance, to the end that no individual 
 dispute or difference might bring ruin to the vast in- 
 terests concerned in the movement of interstate com- 
 merce, for the express purpose of protecting and preserv- 
 ing which the plenary legislative authority granted 
 to Congress was reposed. This result is further demon- 
 strated, as we have suggested, by considering how com- 
 pletely the purpose intended to be accomplished by 
 the regulations which have been adopted in the past 
 would be rendered unavailing or their enactment inex- 
 plicable if the power was not possessed to meet a situa- 
 tion like the one with which the statute dealt. What 
 would be the value of the right to a reasonable rate 
 if all movement in interstate commerce could be stopped 
 as a result of a mere dispute between the parties or 
 their failure to exert a primary private right concern- 
 ed states, 222 U. S. 20, 56 L. Ed. 66. Wilson v. New, 243 U. S. 
 72, 32 Sup. Ct. 2. 332, 61 L. Ed. 755, 37 Sup. Ct. 298.
 
 § 14J Statk and Feuhkai. Powers. 53 
 
 ing a matter of interstate commerce? Again, what 
 purpose would be subserved by all the regulations 
 established to secure the enjoyment by the public of 
 an efficient and reasonable service if there was no power 
 in government to prevent all service from being des- 
 troyed? Further yet, what benefits would flow to 
 society by recognizing the right, because of the public 
 interest, to regulate the relation of employer and em- 
 ploye and of the employes among themselves, and 
 to give to the latter peculiar and special rights safe- 
 guarding their persons, protecting them in case of ac- 
 cid^mt, and giving efficient remedies for that purpose, 
 if there was no power to remedy a situation created 
 by a dispute between employers and employes as to 
 rate of wages, which, if not remedied, would leave the 
 public helpless, the whole people ruined, and all the 
 homes of the land submitted to a danger of the most 
 serious character? And finally, to what derision would 
 it not reduce the proposition that government had power 
 to enforce the duty of operation if that power did not 
 extend to doing that which was essential to prevent 
 operation from being completely stopped by filling the 
 interreg-num created by an absence of a conventional 
 standard of wages, because of a dispute on that subject 
 between the employers and employes, by a legislative 
 standard binding on employers and employes for such 
 a time as might be deemed by the legislature reason- 
 ably adequate to enable normal conditions to come about 
 as the result of agreements as to wages between the 
 parties? We are of opinion that the reasons stated 
 conclusively establish that, from the point of view of 
 inherent power, the act which is before us was clear- 
 ly within the legislative power of Congress to adopt, 
 and that, in substance and effect, it amounted to an 
 exertion of its authority under the circumstances dis- 
 closed to compulsorily arbitrate the dispute between 
 the parties by establishing as to the subject matter 
 of that dispute a legislative standard of wages oper- 
 ative and binding as a matter of law upon the parties, 
 a power none the less efficaciously exerted because
 
 54 GoKTEOL Over Common Caeeieks [§ 14 
 
 exercised by direct legislative act instead of by the 
 enactment of other and appropriate means providing 
 for the bringing about of such result. If it be conceded 
 that the power to enact the statute was in effect the 
 exercise of the right to fix wages where, by reason of 
 the dispute, there had been a failure to fix by agree- 
 ment, it would simply serve to show the nature and 
 character of the regulation essential to protect the public 
 right and safeguard the movement of interstate com- 
 merce, not involving any denial of the authority to adopt 
 it." 
 
 § 15. When Congressional Power may be Validly 
 Exercised over Intrastate Subject Matters. Ordinarily 
 the power of Congress covers only interstate commerce 
 and an attempted regulation of intrastate commerce 
 is invalid;" but, to this rule, there is a latter-day ex- 
 ception which was first recognized and adopted by the 
 Supreme Court in 1911,°^ in holding that the Safety 
 Appliance Act could be validly extended so as to in- 
 clude cars used exclusively in intrastate commerce, and 
 further ampliiied and explained in 1914'^'' when the 
 Supreme Court further held that the Interstate Com- 
 merce Commission could control intrastate rates when 
 necessary to prevent discrimination against interstate 
 rates.^° 
 
 The principle elucidated in these decisions is that 
 whenever there exists such an interblending and inter- 
 dependency between interstate and intrastate commerce 
 that the freedom, well being, or safety of the former 
 depends upon the latter, Congress, or an administrative 
 body delegated with national authority, may regulate 
 that intrastate commerce in so far as it is necessary 
 
 67. Section 13, supra. 70. Section 200, infra. See also 
 
 68. Southern R. Co. v. United Illinois C. R. Co. v. Public Utilities 
 States, 222 U. S. 20, 56 L. Ed. 72, Commission, 245 U. S. 493, 62 L. 
 32 Sup. Ct. 2. Ed. , 38 Sup. Ct. 170; Amer- 
 
 69. Houston, E. & W. T. R. Co. lean Express Company v. Cald- 
 V. United States, 234 U. S. 342, Well, 244 U. S. 617, 61 L. Ed. 1352, 
 58 L. Ed. 1341, 34 Sup. Ct. 833. 37 Sup. Ct. 656.
 
 § 16] State and Fedeil^l Powers. 55 
 
 to preserve the freedom, well bein^, or safety of the 
 commerce within the exclusive control of the federal 
 government. For example, cars containing interstate 
 and intrastate traffic are hanled over the same line 
 of railroad in the same trains and whatever hani])ers 
 the movement of one will affect the movement of the 
 other. Hence, there is snch interdependence between 
 cars in moving intrastate traffic and those used in 
 moving interstate traffic that Congress may properly 
 legislate and regulate safety appliances on all of 
 them as long as they are used on highways of inter- 
 state commerce. '^^ 
 
 § 16. When Congress Legislates upon a Subject 
 Matter of Commerce, State Laws Covering Same Field 
 are Thereby Superseded. The national Constitution 
 prescribes that the laws of the United States made 
 pursuant to the provisions of the Constitution shall 
 be the supreme law of the land and the judges in every 
 state shall be bound thereby, anything in the Constitu- 
 tion or laws of any state to the contrary notwithstand- 
 ing.''- When Congress enacts a statute in pursuance 
 of its power to regulate interstate commerce, laws and 
 regulations of the states, covering the same subject 
 matter, become inoperative in so far as the}^ affect inter- 
 state commerce." All laws of the states, therefore, 
 
 71. Texas & P. R. Co. v. Rigsby, constitutional grant of authority 
 241 U. S. 33, 60 L. Ed. 874, 36 over that subject." 
 Sup. Ct. 482, in which the court 72. Article 6 of the Constitution 
 
 said: "We are therefore brought ot the United States; McCrary v. 
 to the conclusion that the right United States, 195 U. S. 27. 49 L. 
 of private action by an employe ^^^ '^^^ 24 Sup. Ct. 769. 1 Ann. Cas. 
 
 561; Northern Securities Co. v. 
 United States, 193 U. S. 197, 48 
 L. Ed. 679, 24 Sup. Ct. 436; Alissou- 
 
 ri K. & T. Ry. Co. v. Haber. 169 U. 
 feet in a safety appliance required g g^g^ ^^ j^ ^^ g^g ^g g^^p ^^ 
 
 by the act of Congress to be made ^gg 
 
 secure, has so intimate a relation 73 gavage v. Jones, 225 U. S. 
 
 to the operation of the Act as a 501, 56 L. Ed. 1182, 32 Sup. Ct. 
 
 regulation of commerce between 715; Southern R. Co. v. Reid, 222 
 
 the States that It is within the U. S. 424, 53 L. Ed. 257, 32 Sup. Ct 
 
 injured while engaged in duties 
 unconnected with interstate com- 
 merce, but injured through a de-
 
 56 
 
 Control Over Common Carriers 
 
 [§ 16 
 
 regulating the duties and liabilities of interstate car- 
 riers in so far as they attempt to cover the same field 
 occupied by federal laws governing them, are super- 
 seded.^* ''The grant of power to Congress in the Con- 
 stitution to regulate commerce with foreign nations 
 and among the several States, it is conceded, is para- 
 
 140; Northern Pac. R. Co. V. Wash- 
 ington ex rel. Atkinson, 222 U. S. 
 370, 56 L. Ed. 237, 32 Sup. Ct. 
 160; Texas & P. R. Co. v. Abilene 
 Cotton Oil Co., 204 U. S. 426, 51 
 L. Ed. 553, 27 Sup. Ct. 350, 9 Ann. 
 Cas. 1075. 
 
 74. Atchison, T. & S. F. R. Co. 
 V. Harold, 241 U. S. 371, 60 L. Ed. 
 1050, 36 Sup. Ct. 665; Armour & 
 Co. V. State, 240 U. S. 510, 60 L. 
 Ed. 771, 36 Sup. Ct. 440, Ann. Cas. 
 1916D 548; Western U. Tel. Co. v. 
 Brown, 234 U. S. 542, 58 L. Ed. 
 1457, 34 Sup. Ct. 955, 5 N. C. C. A. 
 1024; Erie R. Co. v. New York, 
 233 U. S. 671, 58 L. Ed. 1149, 34 
 Sup. Ct. 756, 52 L. R. A. (N. S.) 
 266, Ann. Cas. 1915D 138; Erie R. 
 Co. V. Williams, 233 U. S. 685, 58 
 L. Ed. 1155, 34 Sup. Ct. 761, 51 L. 
 R. A. (N. S.) 1097; Chicago, R. 
 I. & P. R. Co. V. Cramer, 232 U. 
 S. 490. 58 L. Ed. 697, 38 Sup. Ct. 
 383; Barrett v. New York, 232 U. 
 S. 14, 58 L. Ed. 483, 34 Sup. Ct. 
 203; North Carolina R. Co. v. 
 Zachary, 232 U. S. 248, 58 L. Ed. 
 591, 34 Sup. Ct. 305, 9 N. C. C. A. 
 109, Ann. Cas. 1917C 159; Minne- 
 sota Rate Cases, 230 U. S. 352, 
 57 L. Ed. 1511, 33 Sup. Ct. 729, 48 
 L. R. A. (N. S.) 1151, Ann Cas. 
 1916A 18; United States v. Adams 
 Exp. Co., 229 U. S. 381, 57 L. Ed. 
 1237, 33 Sup. Ct. 878; Kansas City 
 S R. Co. V. Carl, 227 U. S. 639, 
 57 L. Ed. 683, 33 Sup. Ct. 391; 
 New York Cent. & H. River R. 
 Co. V. Board Chosen Freeholders 
 County of Hudson, 227 U. S. 248, 
 
 57 L. Ed. 499, 33 Sup. Ct. 269; 
 Missouri, K. & T. R. Co. v. Harri- 
 man, 227 U. S. 657, 57 L. Ed. 690, 
 33 Sup. Ct. 397; Hampton v. St. 
 Louis, I. M. & S. R. Co., 227 U. 
 S. 456, 57 L. Ed. 596, 33 Sup. Ct. 
 263 ; Yazoo & M. V, R. Co. v. Green- 
 wood Grocery Co., 227 U. S. 1, 57 
 L. Ed. 389, 33 Sup. Ct. 213; Adams 
 Ex. Co. V. Croninger, 226 U. S. 
 491, 57 L. Ed. 314, 33 Sup. Ct. 148, 
 44 L. R. A. (N. S.) 257; United 
 States V. Union Stock Yard & Tran- 
 sit Co. of Chicago, 226 U. S. 286, 
 57 L. Ed. 226, 33 Sup. Ct. 83: 
 Southern R. Co. v. Reld, 222 U S. 
 424, 56 L. Ed. 257, 32 Sup. Ct. 140; 
 Northern Pac. R. Co. v. State, 222 
 U. S. 370, 56 L. Ed. 237, 32 Sup. 
 Ct. IGO; Western U. Tel. Co. v. 
 Crovo, 220 U. S. 364, 55 L. Ed. 
 498, 31 Sup. Ct. 399; Chicago, R. 
 I. & P. R. Co. V. State, 219 U. S. 
 453, 55 L. Ed. 290, 31 Sup. Ct. 275; 
 Missouri Pac. Ry. Co. v. Larabee 
 Flour Mills Co., 211 U. S. 612, 53 
 L. Ed. 352, 29 Sup. Ct. 214; Em- 
 ployers' Liability Cases, 207 U. S. 
 463, 52 L. Ed. 297, 28 Sup. Ct. 141; 
 Reid V. Colorado, 187 U. S. 137, 47 
 L. Ed. 108, 23 Sup. Ct. 92; Mis- 
 souri, K. & T. Ry. Co. V. Haber. 
 169 U. S. 613, 42 L. Ed. 878, 18 
 Sup. Ct. 488; Gulf, C. & S. F. Ry. 
 Co. V. Hefley, 158 U. S. 98, 39 L. 
 Ed. 910, 15 Sup. Ct. 802; Western 
 U. Tel. Co. V. Compton, 114 Ark. 
 193, 169 S. W. 946; State v. Mis- 
 souri Pac. R. Co., 212 Mo. 658, 111 
 S. W. 500.
 
 § 17] State and Federal Powers. 57 
 
 nioimt over all legislative powers which, in consequence 
 of not having been granted to Congress, are reserved 
 to the States. It follows that any legislation of a 
 State, although in i)ursuance of an acknowledged 
 power reserved to it, which conflicts with the actual 
 exercise of the power of Congress over the subject of 
 commerce, must give way before the supremacy of the 
 national authority."" 
 
 § 17. Difficulty of Defining Field or Subject Mat- 
 ter Covered by Congressional Legislation. While the 
 principle that congressional action over interstate com- 
 merce renders state laws occupying the same field or 
 dealing with the same subject matter inoperative, has 
 been unquestionably established and repeatedly ap- 
 plied, the greatest difficulty in tlie practical adminis- 
 tration of the law is to determine the exact boundary 
 of the field or the extent of the subject matter covered.'" 
 If the state and the national law do not apply to the 
 same subject matter, both are valid. If they cover 
 the same field or subject matter, the state law must 
 give way. 
 
 No phase of the law of interstate commerce has 
 occasioned as many controversies as the effect of the en- 
 actment of a national statute upon similar state laws. 
 The controversies have not been as to the principle in- 
 volved, but as to its application to particular relations 
 and conditions. For instance, prior to a controlling 
 
 75. Smith v. Alabama, 124 U. Pac. R. Co. v. State ex rel. Atkin- 
 S. 465, 31 L. Ed. 508, 8 Sup. Ct. son, 222 U. S. 370, 56 L. Ed. 237, 
 564. 32 Sup. Ct. 160; Grossman v. Lur- 
 
 76. City of Sault Ste. Marie v. ^^^^ jgg U. S. 189, 48 L. Ed. 401, 24 
 International Transit Co., 234 U. g ^^ 234; Pennsylvania R. Co. 
 S 333, 58 L. Ed. 1337, 34 Sup. Ct. 
 82G, 52 L. R. A. (N. S.) 574; Port 
 Richmond & B. P. Ferry Co. v. 
 Board Chosen Freeholders County '''^^^' 1^7 U. S. 137. 47 L. Ed. 
 of Hudson, 234 U. S. 317. 58 L. 108. 23 Sup. Ct. 92; Chicago, M. 
 Ed. 1330, 34 Sup. Ct. 821; Savage & St. P. Ry. Co. v. Solan, 169 U. 
 V. Jones, 225 U. S. 501, 56 L. Ed. S. 133, 42 L. Ed. 688, 18 Sup. Ct. 
 1182, 32 Sup. Ct. 715; Northern 289. 
 
 V. Hughes, 191 U. S. 477, 48 L. Ed. 
 268, 24 Sup. Ct. 132; Reid v. Col-
 
 58 CONTEOL OVEK CoMMON CaREIERS [§ 17 
 
 decision of the United States Supreme Court," it had 
 been both affirmed'^ and denied'^ by respectable courts 
 that by the enactment of tlie Federal Employers' 
 Liability Act, all state workmen's compensation laws 
 were inapplicable to interstate emploj^es on railroads. 
 Again, notwithstanding the passage of the Safety Ap- 
 pliance Act with its numerous amendments prescribing 
 appliances on engines and cars of interstate railroads, 
 the United States Supreme Court held that a state 
 law requiring headlights on engines within a state, 
 including interstate engines, was valid and did not 
 cover the same field as the federal statute. ^° On the 
 other hand, in another case, the same court held that 
 the Safety Appliance Act covered the subject matter 
 of equipment with safety appliances of all cars on inter- 
 state railroads whether engaged in intrastate or inter- 
 state commerce, so that a state law penalizing the 
 movement of cars in intrastate commerce was invalid." 
 
 § 18. Common Law Principles as Applied in State 
 Courts Superseded as to Subject Matter Covered by 
 Federal Statutes. Whenever Congress enacts a stat- 
 ute regulating any phase of interstate commerce, the 
 national act is then supreme and exclusive in its appli- 
 cation. In construing and interpreting such statutes, 
 state courts must follow the decisions of the national 
 courts.^" In addition, all federal statutes must be con- 
 
 77. New York Cent. R. Co. v. Valley R. Co., 169 N. Y. App. Div. 
 Winfield, 244 U. S. 147, 61 L. Ed. 177, 154 N. Y. Supp. G20. 
 
 1045, 37 Sup. Ct. 546, 14 N. C. C. 80. Atlantic Coast Line R. Co. 
 
 A. 680, Ann. Cas. 1917D 1139. v. State, 234 U. S. 280, 58 L. Ed 
 
 78. Smith v. Industrial Ace. 1312, 34 Sup. Ct. 829. The effect 
 Commission of California, 26 Cal. of this decision was destroyed by 
 App. 560, 147 Pac. 600; Staley v. the amendment of March 4, 1915 
 Illinois Cent. R. Co., 268 111. 356, to the Federal Boiler Inspection 
 
 109 N. E. 342, L. R. A. 1916A 450. Act, 36 Stat, at L. 913. 
 
 79. Rounsaville v. Central R. 81. Southern R. Co. v. Railroad 
 Co., 87 N. J. L. 371, 94 Atl. 392; Commission of Indiana, 236 U. S. 
 Winfield v. New York Cent. & H. 439, 59 L. Ed. 661, 35 Sup. Ct. 304. 
 River R. Co., 216 N. Y. 284, 10 N. 82. United States. Central Ver- 
 C. C. A. 916, Ann. Cas. 1916A 817, mont R. Co. v. White, 238 U. S. 
 
 110 N. E. 614; Moore v. Lehigh 507, 59 L. Ed. 1433, 35 Sup. Ct.
 
 § 18J State and Fedeiu\l Powers. 59 
 
 strued in the light of general principles of law and com- 
 mon law rules as applied and accepted in the federal 
 courts. When, therefore, Congress legislates upon a 
 subject matter of commerce controlled by state laws 
 in the absence of national regulation, the principles 
 ,of the common law as interpreted and applied by the 
 state courts and applicable to the subject matter covered 
 are also superseded, and the new statute must be in- 
 terijreted in the light of common law rules as adopted in 
 federal tribunals.^^ 
 
 State courts often fail to recognize that when a 
 state law is superseded by congressional action over 
 the same subject matter, the common law rules of the 
 state dealing with the same subject and correlative 
 matters are also superseded; but such is now the es- 
 tablished doctrine. For example, in determining and 
 applying to concrete facts the principles of common 
 law negligence and assumption of risk in suits under 
 the Federal Employers' Liability Act, the rules of the 
 common law as interpreted in the federal courts con- 
 
 865, 9 N. C. C. A. 265, Ann. Cas. North Carolina. Dooley v. Sea- 
 
 1916B 252. board Air Line R. Co., 163 N. C. 
 
 Kentucky. Adams Ex. Co. v. 454, L. R. A. 1916E 185, 79 S. E. 
 
 Cook, 162 Ky. 592, 172 S. W. 1096; 970. 
 
 Cincinnati, N. O. & T. P. R. Co. Texas. Gulf, C. & S. F. Ry. Co. 
 
 V. Nolan, 161 Ky. 205, 10 N. C. C. v. Vasbinder, Tex. Civ. App. 
 
 A. 812, 170 S. W. 650. , 172 S. W. 763. 
 
 Missouri. Security State Bank Washington. Bolch v. Chicago, IM. 
 
 V. Simmons, 251 Mo. 2, 157 S. W. & St. P. R. Co., 90 Wash. 47, 155 
 
 585; Barber Asphalt Paving Co. Pac. 422. 
 
 V. French, 158 Mo. 534, 54 L. R. 83. Southern R. Co. v. Prescott, 
 
 A. 492, 58 S. W. 934; Haseltine 240 U. S. 632, 60 L. Ed. 836, 36 Sup. 
 V. Central Nat. Bank, 155 Mo. 66, Ct. 469; Southern Exp. Co. v. 
 56 S. W. 895; Cross v. Chicago, Byers, 240 U. S. 612, 60 L. Ed. 
 
 B. & Q. R. Co., 191 Mo. App. 202, 825, 36 Sup. Ct. 410, L. R. A. 
 177 S. W. 1127; Bailey v. Mis- 1917A 197; Adams Exp. Co. v. 
 souri Pac. R. Co., 184 Mo. App. Croninger, 226 U. S. 491, 57 L. 
 457, 171 S. W. 44. Ed. 314, 33 Sup. Ct. 148, 44 L. R. 
 
 Nebraska. Hadley v. Union A. (N. S.) 257; Missouri, K. & T. 
 Pac. R. Co., 99 Neb. 349, 156 N. R. Co. v. Harriman, 227 U. S. 657, 
 W. 765. 57 L. Ed. 690, 33 Sup. Ct. 397.
 
 60 Control Over Common Carriers [§ 18 
 
 trol in all actions, and must be followed.^* If this princi- 
 ple were not enforced and applied, the uniformity which 
 is always sought to be acquired by the passage of 
 national legislation would be destroyed by a diversity 
 of views among the state courts as to the common law 
 rule applicable. 
 
 The doctrine is well illustrated in a case decided 
 by the United States Supreme Court wherein the plain- 
 tiff attempted to recover damages for mental anguish 
 due to a negligent delay in transporting a casket for 
 his wife's funeral, being an interstate shipment. The 
 Supreme Court of North Carolina affirmed a verdict 
 for $250 for his distress, following a common law rule 
 of the state permitting a recovery in such cases for 
 mental suffering; but the national Supreme Court held 
 that the common law rules as applied in the federal 
 courts controlled, and a recovery was denied.®^ In an- 
 other case before the United States Supreme Court,^® 
 it appeared that a shipper sued a carrier for the loss 
 of goods destroyed by fire while being held by the 
 carrier as a warehouseman at the destination point, 
 the shipment having originated in another state. Under 
 the rules of the common law as interpreted in the state 
 courts, when the plaintiff had shown that his goods 
 were destroyed by fire, the burden of showing that the 
 fire was not caused by negligence, was upon the defend- 
 ant. But under the common law principles as applied 
 in the federal courts, it is the duty of a warehouse- 
 man to djeliver upon proper demand, and his failure to 
 
 84. Southern Ry. Co. v. Gray, 241 of the publication of this work, 
 
 U. S. 333, 60 L. Ed. 1030, 36 Sup.. this case was pending in the fed- 
 
 Ct. 558; Central Vermont R. Co. v. eral supreme court on writ of 
 
 White, 238 U. S. 507, 59 L. Ed certiorari. 
 
 1433, 35 Sup. Ct. 865, 9 N. C. C. A. gg Southern Exp. Co. v. Byers, 
 265, Ann. Cas. 1916B 252; Sea- 
 board Air Line R. Co. v. Horton, 
 233 U. S. 492, 58 L. Ed. 1062, 34 
 Sup. Ct. 635, 8 N. C. C. A. 834. L. 
 
 R. A. 1915C 1, Ann. Cas. 1915B 475. 86. Southern R. Co. v. Prescott, 
 
 Contra Williams v. Pryor, 272 240 U. S. 632, 60 L. Ed. 836, 36 
 
 Mo. 613, 200 S. W. 53. At the time Sup. Ct. 469. 
 
 240 U. S. 612, 60 L. Ed. 825, 36 
 Sup. Ct. 410, 2 L. R. A. 1917A 
 
 197.
 
 § 19J State and Federal Powers. 61 
 
 do so, without excuse, is regarded as making a prima 
 facie case of negligence. If, however, it appears that 
 the loss is due to fire, that fact in itself is not sufficient 
 to show negligence and the plaintiff must prove that 
 issue. The state court ai>]iliod the state rule, and in 
 reversing the judgment obtained, Mr. Justice Hughes, 
 for the court, said: "In the present case, it is un- 
 disputed that the loss was due to fire which destroyed 
 the Company's warehouse with its contents including 
 the property in question. The fire occurred in the early 
 morning when the depot and warehouse were closed. 
 The cause of the fire did not appear, and there was 
 nothing in the circumstances to indicate neglect on the 
 part of the Railway Company. The trial court denied 
 the motion for a direction of a verdict and charged 
 the jury that 'the burden of showing that there was 
 no negligence is on the defendant.' Applying the rule 
 established by the state decisions (Brunson v. Atlantic 
 Coast Line R. R., 76 So. Car. 9; Fleiscliman v. Southern 
 Railway, 76 So. Car. 237; see also Wardlaw v. S. C. R. 
 R., 11 Rich. 337), the Supreme Court of the State 
 overruled the defendant's objection and sustained the 
 judgment. 99 So. Car. 242. It has been recognized by the 
 state court, as was said in the Fleischman Case, supra, 
 that the rule it applies is a 'somewhat exceptional 
 rule' to which the court adheres 'notwithstanding the 
 great number of opposing authorities in other juris- 
 dictions.' 76 So. Car. 248. For the reasons we have 
 stated, we think that the obligation of the Railway 
 Company was not governed by the state law and that, 
 in this view, the exceptions of the plaintiff in error 
 were well taken." 
 
 § 19. Power of States to Regulate Interstate Rates 
 of Carriers Formerly Upheld by Supreme Court — the 
 Granger Cases. That a state, in the absence of nation- 
 al legislation, possessed the power to fix and determine 
 the rates and fares for the transportation of persons 
 and property on railroads from within its boundary 
 to points outside, and from other states to points with-
 
 62 
 
 CoNTEOL Over Common Caekiees 
 
 [§ 19 
 
 in its boundary, was formerly affirmed in several cases 
 by the Supreme Conrt of the United States. The exer- 
 cise of such authority, it was held, did not amount to 
 a regulation of commerce among the states, for the 
 reason that a state must be permitted to adopt such 
 rules and regulations as may be necessary for the promo- 
 tion of the general welfare of the people within its 
 jurisdiction, even though in so doing, those outside 
 might be indirectly affected. Thus, an act of the legis- 
 lature of the state of Maryland fixing a maximum 
 passenger fare of $2.50 from Baltimore, Md. to Washing- 
 ton, D. C, was held to be valid and in no sense a re- 
 striction upon intercourse and traffic between the dif- 
 ferent states." The same doctrine was reaffirmed in 
 
 87. Baltimore & 0. R. Co. v. 
 State, 21 Wall. (U. S.) 456, 22 L. 
 Ed. 678. The following excerpt 
 from the opinion in this case well 
 illustrates the subsequent radical 
 change in the views of the court 
 as to the validity of such state 
 regulations: "The question is, 
 whether such a stipulation is, or 
 is not. a violation of the Consti- 
 tution of the United States, as be- 
 ing a restriction of free intercourse 
 and traffic between the different 
 states. That the road is one of 
 the principal thoroughfares in the 
 country for interstate travel is 
 conceded, and, indeed, may be ju- 
 dicially assumed. As, however, 
 nearly all the railroads in the 
 country are, or may be, used to a 
 greater or less extent as links in 
 through transportation, this road 
 cannot in principle be regarded 
 as an exceptional one in that re- 
 spect. Commerce on land between 
 the different States is so striking- 
 ly dissimilar, in many respects, 
 from commerce on water, that 
 it is often difficult to regard them 
 in the same aspect in reference to 
 the respective constitutional 
 
 powers and duties of the State 
 and Federal governments. No 
 doubt commerce by water wag 
 principally in the minds of those 
 who framed and adopted the Con- 
 stitution, although both its lan- 
 guage and spirit embrace com- 
 merce by land as well. Maritime 
 transportation requires no artifi- 
 cial roadway. Nature has prepared 
 to hand that portion of the instru- 
 mentality employed. The naviga- 
 ble waters of the earth are recog- 
 nized public highways of trade 
 and intercourse. No franchise is 
 needed to enable the navigator to 
 use them. Again, the vehicles of 
 commerce by water being instru- 
 ments of intercommunication with 
 other nations, the regulation of 
 them is assumed by the National 
 legislature. So that State inter- 
 ference with transportation by 
 water, and especially by sea, is 
 at once clearly marked and dis- 
 tinctly discernible. But it is dif- 
 ferent with transportation by land. 
 This, when the Constituton was 
 adopted, was entirely performed on 
 common roads, and in vehicles 
 drawn by animal power. No one
 
 § 19] 
 
 State and I'l'EnKKAL Puwkhs. 
 
 G3 
 
 187G wlu'ii the Granj^er cases were decided.®* Tu lliese 
 cases the court upheld the validity of statutes of the 
 states of Iowa, Illinois, Wisconsin and Minnesota, which, 
 according to their terms, also applied to traffic passing 
 out of and coming into those states respectively. For 
 example, the statute of Wisconsin fixed the maximum 
 fares and rates to be charged by a railroad for the 
 transportation of persons and property carried within 
 the state, or taken up outside of the state and brought 
 within it, or taken up inside and carried without. In 
 
 at that day imagined that the 
 roads and bridges of the country 
 (except when the latter crossed 
 navigable streams) were not en- 
 tirely subject, both as to their 
 construction, repair, and manage- 
 ment, to State regulation and con- 
 trol. They were all made either 
 by the States or under their au- 
 thority. The power of the State 
 to impose or authorize such tolls, 
 as it saw fit, was unquestioned. 
 No one then supposed that the 
 wagons of the country, which were 
 the vehicles of this commerce, or 
 the horses by which they were 
 drawn, were subject to National 
 regulation. The movement of per- 
 sons and merchandise, so long as 
 it was as free to one person as to 
 another, to the citizens of other 
 States as to the citizens of the 
 State in which it was performed, 
 was not regarded as unconstitu- 
 tionally restricted and trammelled 
 by tolls exacted on bridges or 
 turnpikes, whether belonging to 
 the State or to private persons. 
 And when, in process of time, 
 canals were constructed, no a- 
 mount of tolls which was exacted 
 thereon by the State or the com- 
 panies that owned them, was ever 
 regarded as an infringement of 
 the Constitution. When construc- 
 ted by the State Itself, they might 
 
 be the source of revenues largely 
 exceeding the outlay without ex- 
 citing even the question of con- 
 stitutionality. So when, by the 
 improvements and discoveries of 
 mechanical science, railroads came 
 to be built and furnished with all 
 the apparatus of rapid and all- 
 absorbing transportation, no one 
 imagined that the State, if itself 
 owner of the work, might not 
 exact any amount whatever of 
 toll or fare or freight, or authorize 
 its citizens or corporations, if 
 owners, to do the same. Had the 
 State built the road in question it 
 might, to this day, unchallenged 
 and unchallengeable, have charged 
 two dollars and fifty cents for 
 carrying a passenger between 
 Baltimore and W^ashington. So 
 might the railroad company, under 
 authority from the State, if it 
 saw fit to do so. These are posi- 
 tions which must be conceded. No 
 one has ever doubted them." 
 
 88. Stone v. Wisconsin. 94 U. S. 
 181, 24 L. Ed. 102; Winona & St. 
 P. R. Co. V. Blake, 94 V. S. 180, 
 24 L. Ed. 99; Chicago, M. & St. P. 
 R. Co. V. Ackley, 94 U. S. 179, 24 
 L. Ed. 99; Peik v. Chicago & N. 
 W. Ry. Co., 94 U. S. 164, 24 L. Ed. 
 97; Chicago, B. & Q. Ry. Co. v. 
 Iowa, 94 IT. S. 155, 24 L. Ed. 94.
 
 64 CoNTROi. Over Common Carriers [^ 19 
 
 deciding tliat such statutes were not invalid under the 
 commerce clause as an attempted regulation of interstate 
 commerce, the court, in one of the cases, said: ''As to 
 the effect of the statute as a regulation of interstate 
 commerce. The law is contined to State commerce, or 
 such inter-state commerce as directly aiTects the people 
 of Wisconsin. Until Congress acts in reference to the 
 relations of this company to interstate commerce, it is 
 certainly within the power of Wisconsin to regulate 
 its fares, etc., so far as they are of domestic relations. 
 Incidentally, these may reach beyond the State. But 
 certainly, until Congress undertakes to legislate for 
 those who are without the State, Wisconsin may pro- 
 vide for those within, even though it may indirectly 
 affect those without." 
 
 § 20. State Control Over and Power to Regulate 
 Rates and Charges on Interstate Shipments Denied. 
 
 Finally the uncertainty as to the power and control 
 of the states over the rates and charges made by rail 
 carriers for the transportation of passengers and freight 
 in interstate and foreign commerce, was removed with 
 the epochal decision of the national Supreme Court on 
 October 25, 1886 in Wabash, St. L. & P. Ry. Co. v. 
 People,^^ in which the court held that a state had no 
 power to regulate fares, rates and tolls for the trans- 
 portation of freight and passengers from one state to 
 another including even that part of the journey within 
 its boundary. 
 
 In that case there came under review a statute of 
 the state of Illinois providing that if any railroad com- 
 pany within that state, should charge or receive for 
 transporting passengers or freight of the same class, 
 the same or a greater sum for any distance than it did 
 for a longer distance, it should be liable to a penalty 
 for unjust discrimination. The railroad company in 
 that case made such a discrimination in regard to goods 
 
 89. 118 U. S. 557, 30 L. Ed. 244, 
 7 Sup. Ct. 4.
 
 § 20] SiATK AM) I<'i:i)i;i;ai. Powf.hs. 65 
 
 transported over the same road from Peoria, Til., and 
 from Gilman, 111., to Now York, char^in*^ more for the 
 same class of goods can-ied from (iilnian than from 
 Peoria, the former Ix-ing eighty-six miles neaicr the 
 eity of Xew York than the latter, this difTerence being 
 in the lengtli of Ihe line in the state of Illinois. The 
 eourt held that the transi)()rtation was commerce among 
 the states, even as to that part of the voyage which lay 
 within the state of Illinois; that the regulation of such 
 commerce was confided to Congress exclusively, under 
 its power to regulate commerce between the states, 
 and that the statute in question, being intended to 
 regulate the transmission of persons or property from 
 one state to another, was not within that class of legis- 
 lation which the states may enact in the absence of 
 legislation by Congress. "Let us see precisely," said 
 the court, "what is the degree of interference with 
 transportation of property or persons from one State to 
 another which this statute proposes. A citizen of New 
 York has goods which he desires to have transported 
 by the railroad companies from that city to the in- 
 terior of tlie State of Illinois. A continuous line of 
 rail over which a car loaded with these goods can be 
 carried, and is carried habitually, connects the place of 
 shi]niient with the place of delivery. He undertakes to 
 make a contract with a person engaged in the 
 carrying business at the end of this route 
 from whence the goods are to start, and he 
 is told by the carrier, 'I am free to make a fair and 
 reasonable contract for this carriage to the line of the 
 State of Illinois, but when the car which carries these 
 goods is to cross the line of that State, pursuing at the 
 same time this continuous track, I am met by a law of 
 Illinois which forbids me to make a free contract con- 
 cerning this transportation within that State, and sub- 
 jects me to certain rules by which I am to be governed 
 as to the charges which the same railroad company in 
 Illinois may make, or has made, with reference to other 
 persons and other places of delivery.' So that while 
 that carrier might be willing to carry these goods from 
 
 1 Cuutrul L'an-lLi-a 5
 
 66 Control Over Common Carriers [§ 20 
 
 the city of New York to the city of Peoria at the rate 
 of fifteen cents per hundred pounds, lie is not permitted 
 to do so because the Illinois railroad company has 
 already charged at the rate of twenty-five cents per 
 hundred pounds for carriage to Gilnian, in Illinois, 
 which is eighty-six miles shorter than the distance to 
 Peoria. So, also, in the present case, the owner of corn, 
 the principal product of the country, desiring to trans- 
 port it from Peoria, in Illinois, to New York, finds a 
 railroad company willing to do this at the rate of fifteen 
 cents per hundred pounds for a car-load, but is com- 
 pelled to pay at the rate of twenty-five cents per hundred 
 pounds, because the railroad company has received from 
 a person residing at Oilman twenty-five cents per 
 hundred pounds for the transportation of a car-load 
 of the same class of freight over the same line of road 
 from Gilman to New York. This is the result of the 
 statute of Illinois, in its endeavor to prevent unjust 
 discrimination, as construed by the Supreme Court of 
 that State. The effect of it is, that whatever may be 
 the rate of transportation per mile charged by the rail- 
 road company from Gilman to Sheldon, a distance of 
 twenty-three miles, in which the loading and the un- 
 loading of the freight is the largest expense incurred 
 by the railroad company, the same rate per mile must 
 be charged from Peoria to the city of New York. The 
 obvious injustice of such a rule as this, which railroad 
 companies are by heavy penalties compelled to conform 
 to, in regard to commerce among the States, when ap- 
 plied to transportation which includes Illinois in a long 
 line of carriage through several States, shows the value 
 of the constitutional provision which confides the power 
 of regulating interstate commerce to the Congress of 
 the United States, whose enlarged view of the interests 
 of all the States, and of the railroads concerned, better 
 fits it to establish just and equitable rules. Of the jus- 
 tice or propriety of the principle which lies at the founda- 
 tion of the Illinois statute it is not the province of this 
 court to speak. As restricted to a transportation which 
 begins and ends within the limits of the State it may
 
 § 21 J Statk axi) Fkdkhal Powkhs. 67 
 
 be very just and o(|iiitable, and il certainly is the 
 province of tlie State legislature to determine that 
 question. But when it is attempted to apply to trans- 
 portation throu.nh an entire series of States a principle 
 of this kind, and each one of the States shall attempt 
 to establish its own rates of transportation, its own 
 methods to prevent discrimination in rates, or to permit 
 it, the deleterious influence upon the freedom of com- 
 merce among the States and upon the transit of goods 
 through those States cannot be over-estimated. That 
 this species of regulation is one which must be, if es- 
 tablished at all, of a general and national character, and 
 cannot be safely and wisely remitted to local rules and 
 local regulations, we think is clear from what has already 
 been said. And if it be a regulation of commerce, as 
 we think we have demonstrated it is, and as the Illinois 
 court concedes it to be, it must be of that national 
 character, and the regulation can only appropriately 
 exist by general rules and principles, which demand 
 that it should be done by the Congress of the United 
 States under the commerce clause of the Constitution." 
 
 § 21. Passenger Fares for Interstate Journeys 
 Prescribed by Municipal Ordinances and Accepted by 
 Carriers Invalid. AVliilo a municipal corporation may 
 grant to or witliliold from vquasi, public corporations the 
 use of its streets, it cannot thereby indirectly control or 
 regulate interstate commerce by attaching conditions 
 relating thereto to the franchises of a corporation. For 
 example, an interurban electric railroad, carrying pas- 
 sengers from St. Louis, Mo., to points in Illinois, ac- 
 cepted a franchise from the city which provided that 
 the charge for a continuous passage for an adult pas- 
 senger between any point in the city of St. Louis to 
 any point in Grant City, III., should not exceed five 
 cents. Such a provision in a city ordinance is in con- 
 flict with the Interstate Commerce Act giving the Inter- 
 state Commerce Commission the power to regulate
 
 6S CoNTKOL Over Common Carrieks [§ 21 
 
 interstate fares.^" ''Not only has a railway company," 
 said the Commission in the case cited, "a recognized 
 right to earn a fair return on the value of the property 
 which it devotes to the public service, but the interest 
 of the public demands that carriers engaged in inter- 
 state commerce, if properly constructed and wisely 
 managed, shall receive revenues which will enable them 
 to keep their property and equipment in good repair 
 and maintain their service at the highest possible point 
 of efficiency. The interest of the public in this res- 
 pect is paramount to the private rights of the parties, 
 whether obtained by contract or otherwise, and in de- 
 termining the reasonableness and the propriety of pro- 
 posed rates or fares in investigations of this character 
 the Commission can not consider its authority limited 
 or its judgment controlled by the terms of private 
 agreements which the carrier or carriers respondent 
 may have made with other parties purporting 
 to fix the measure ,of the rates in question. 
 Admitting the correctness of the city's con- 
 tention that a contract between a common carrier and 
 a municipality differs in kind from a private contract 
 between a carrier and a shipper for the establishment 
 of a preferential rate, it is nevertheless clear that both 
 kinds of contracts must be disapproved to the extent 
 that they seek by special agreement to require the main- 
 tenance of rates or fares which are unreasonable, dis- 
 criminatory, or unremunerative, or to the extent that 
 they seek to lodge in other bodies the jurisdiction over 
 interstate rates and fares which has been exj^ressly con- 
 ferred upon this Commission by federal law." 
 
 § 22. Power of States over Intrastate Commerce 
 as Broad and Exclusive as Control of Congress over 
 Interstate Commerce. Sliil)j(M:t to the limitation of the 
 Fourteenth Amendment to the national Constitution^^ and 
 
 90. St. Louis, Missouri-Illinois gia, 240 U. S. 324, 60 L. Ed. G69, 36 
 Passenger Fares, 41 I. C. C. 584. Sup. Ct. 260; O'Keefe v. United 
 
 91. Seahoard Air Line Ry. Co. States, 240 U. S. 294, 60 L. Ed. 
 V. Railroad Commission of Geor- 6.51, 36 Sup. Ct. 313; Chicago, M.
 
 22] 
 
 StATK A.M) FKDKHAr, T^OWKHK. 
 
 69 
 
 the doctrine of llic Slireveport case,"' the powers of a 
 state over all the iiitiastate hiisiness and transportation 
 services and facilities of carriers within its borders are 
 as broad and as all-inclusive as the control of Con*^ress 
 over interstate transportation and the facilities and 
 services connected therewith ;''■' for the exclusive riuhts 
 
 & St. p. R. Co. V. state, 238 U. S. 
 491, 59 L. Ed. 1423, 35 Sup. Ct. 869, 
 1. R. A. 1916A 1133; Great North- 
 ern R. Co. V. State ex rel. State 
 Railroad & Warehouse Commis- 
 sion, 238 U. S. 340, 59 L. Ed. 1337, 
 35 Sup. Ct. 753; Northern Pac. R. 
 Co. V. State ex rel. McCue, 23G 
 U. S. 585, 59 L. Ed. 735, 35 Sup. 
 Ct. 429; Florida East Coast R. Co. 
 V. United States, 234 U. S. 167, 58 
 L. Ed. 1267, 34 Sup. Ct. 867; Chi- 
 cago, M. & St. P. R. Co. V. State of 
 Iowa, 233 U. S. 334, 58 L. Ed. 98S, 
 34 Sup. Ct. 592; Washington ex rel. 
 Oregon R. & Nav. Co. v. Fairchild, 
 224 U. S. 510, 56 L. Ed. 863, 32 
 Sup. Ct. 535; Missouri Pac. R. Co. 
 V. State, 217 U. S. 196. 54 L. Ed. 
 727, 30 Sup. Ct. 461. 18 Ann. Cas. 
 989; Willcox v. Consolidated Gas 
 Co., 212 U. S. 19, 53 L. Ed. 382, 
 29 Sup. Ct. 192, 48 L. R. A. (N. S.) 
 1134, 15 Ann. Cas, 1034; Knoxville 
 V. Knoxville Water Co., 212 U. S. 
 1, 53 L. Ed. 371, 29 Sup. Ct. 14S; 
 Atlantic Coast Line R. Co. v. 
 North Carolina Corporation Com- 
 mission. 206 U. S. 1, 51 L. Ed. 933. 
 27 Sup. Ct. 585, 11 Ann. Cas. 398: 
 San Diego Land & Town Co. v. 
 Jasper, 189 U. S. 439, 47 L. Ed. 
 892, 23 Sup. Ct. 571; IMinneapolis 
 & St. L. R. Co. V. Minnesota, 186 
 IJ. S. 257, 46 L. Ed. 1151, 22 Sup. 
 Ct. 900; Wisconsin M. & P. R. Co. 
 V. Jacobson, 179 U. S. 287, 45 L. 
 Ed. 194, 21 Sup. Ct. 115; San 
 Diego Land & Town Co. v. City of 
 National City, 174 U. S. 739, 43 
 L. Ed. 1154, 19 Sup. Ct. 804; Lake 
 
 Shore & M. S. Ry. Co. v. Smith, 
 173 U. S. 684, 43 L. Ed. 858, 19 
 Sup. Ct. 565; Smyth v. Ames, 169 
 U. S. 466, 42 L. Ed. 819, 18 Sup. 
 Ct. 418; Missouri Pac. R. Co. v. 
 State, 164 U. S. 403, 41 L. Ed. 489, 
 17 Sup. Ct. 130; St. Louis & S. F. 
 Ry. Co. V. Gill, 156 U. S. 649, 39 
 L. Ed. 567, 15 Sup. Ct. 484; Chi- 
 cago, M. & St. P. Ry. Co. V. Min- 
 nesota, 134 U. S. 418, 33 L. Ed. 
 970, 10 Sup. Ct. 462, 702; Dow v. 
 Beidelman, 125 U. S. 680, 31 L. 
 Ed. 841, 8 Sup. Ct. 1028; Stone v. 
 Farmers' Loan & Trust Co., 116 
 U. S. 307, 29 L. Ed. 636, 6 Sup. 
 Ct. 334, ;^88, 1191. 
 
 92. Houston, E. & W. T. R. Co. 
 V. United States, 234 U. S. 342, 58 
 L. Ed. 1341, 34 Sup. Ct. 833. See 
 also Illinois C. R. Co. v. Public 
 Utilities Commission, 245 U. S. 493, 
 62 L. Ed. , 38 Sup. Ct. 170. 
 
 93. Michigan Cent. R. Co. v. 
 Michigan Railroad Commission. 
 236 U. S. 615, 59 L. Ed. 750. 35 Sup. 
 Ct. 422; Grand Trunk R. Co. v. 
 Michigan R. R. Commission, 231 
 U. S. 457, 58 L. Ed. 310, 34 Sup. Ct. 
 152: Southern Pac. Co. v. Camp 
 bell, 230 U. S. 537, 57 L. Ed. 1610. 
 33 Sup. Ct. 1027; Knott v. Chicago. 
 R. 6 Q. R. Co., 230 U. S. 474, 57 
 L. Ed. 1571. 33 Sup. Ct. 975; Simp- 
 son V. Shepard, 230 U. S. 352. 57 
 L. Ed. 1511, 33 Sup. Ct. 729, 48 L. 
 R. A. (N. S.) 1151, Ann. Cas. 1916 
 A 18; Oklahoma ex rel. West v. 
 Chicago, R. I. & P. R. Co., 220 
 U. S. 302. 55 L. Ed. 474; 31 Sup. 
 Ct. 442; Oklahoma v. Atchison. T.
 
 Control Over Common Carhikrs 
 
 L§ •-^•-^ 
 
 aud powers of the states over their own territories were 
 established with the beginning of our government. The 
 people of the united colonies in separating from Great 
 Britain, changed the form, but not the substance of 
 their government. As independent states, they retained, 
 for the purposes of government, all the authority and 
 
 & S. F. R. Co., 220 U. S. 277, 55 
 L. Ed. 465, 31 Sup. Ct. 234; Mis- 
 souri Pac. R. Co. V. State ex rel. 
 Taylor, 216 U. S. 262, 54 L. Ed. 
 472, 30 Sup. Ct. 330; General Oil 
 Co. V. Crain, 209 U. S. 211, 52 L. 
 Ed. 754, 28 Sup. Ct. 475; Atlan<:ic 
 Coast Line R. Co. v. North Caro- 
 lina Corporation Commission, 206 
 U. S. 1, 11 Ann. Cas. 398, 51 L. 
 Ed. 933, 27 Sup. Ct. 585; Seaboard 
 Air Line Ry. Co. v. State ex rel. 
 Ellis, 203 U. S. 261, 51 L. Ed. 175, 
 27 Sup. Ct. 109; Atlantic Coast 
 Line R. Co. v. State ex rel. Ellis, 
 203 U. S. 256, 51 L. Ed. 174, 27 
 Sup. Ct. 108; New Mexico ex rel. 
 E. J. IMcLean & Co. v. Denver & 
 R. G. R. Co., 203 U. S. 38, 51 L. 
 Ed. 78, 27 Sup. Ct. 1; Chicago, B. 
 & Q. R. Co. V. People ex rel. Drain- 
 age Com'rs. 200 U. S. 561, 50 L. 
 Ed. 596, 26 Sup. Ct. 341, 4 Ann. Cas. 
 1175; Northern Securities Co. v. 
 United States, 193 U. S. 197, 48 
 L. Ed. 679, 24 Sup. Ct. 436; Min- 
 neapolis & St. L. R. Co. V. Min- 
 nesota ex rel. Railroad & Ware- 
 house Commission, 193 U. S. 53, 48 
 L. Ed. 614, 24 Sup. Ct. 396; Min- 
 neapolis & St. L. R. Co. V. Min- 
 nesota, 186 U. S. 257, 46 L. Ed. 
 1151, 22 Sup. Ct. 900; Wisconsin, 
 M. & P. R. Co. V. .Tacobson, 179 U. 
 S. 287, 45 L. Ed. 194, 21 Sup. Ct. 
 115; Chicago, M. & St. P. Ry. Co. 
 V. Tompkins, 176 U. S. 167, 44 L. 
 Ed. 417, 20 Sup. Ct. 336; Smyth v. 
 Ames, 169 U. S. 466, 42 L. Ed. 
 819, 18 Sup. Ct. 418; Chicago, B. 
 & Q. R. Co. V. City of Chicago, 
 
 166 U. S. 226, 41 L. Ed. 979. 17 
 Sup. Ct. 581; Louisville & 
 N. R. Co. V. State, 161 U. 
 S. 677, 40 L. Ed. 849, 16 Sup. Ct. 
 714; Pearsall v. Great Northern 
 Ry. Co., 161 U. S. 646, 40 L. Ed. 
 838, 16 Sup. Ct. 705; St. Louis & 
 S. P. R. Co. v. Gill, 156 U. S. 649, 
 39 L. Ed. 567, 15 Sup. Ct. 484; 
 Reagan v. Farmers' Loan & Trust 
 Co., 154 U. S. 362, 38 L. Ed. 1014, 
 14 Sup. Ct. 1047; Chicago & G. T. 
 Ry. Co. V. Wellman, 143 U. S. 339, 
 36 L. Sd. 176, 12 Sup. Ct. 400; 
 Charlotte, C. & A. R. Co. v. Gibbes, 
 142 U. S. 386, 35 L. Ed. 1051, 12 
 Sup. Ct. 255; Chicago, M. & St. 
 P. Ry. Co. V. Minnesota, 134 U. S. 
 418, 33 L. Ed. 970, 10 Sup. Ct. 462, 
 702; Dow v. Beidelman, 125 U. S. 
 680, 31 L. Ed. 841, 8 Sup. Ct. 1028; 
 Stone V. New Orleans & N. E. R. 
 Co., 116 U. S. 352, 29 L. Ed. 651, 
 6 Sup. Ct. 349, 391; Stone v. Illi- 
 nois Cent. R. Co., 116 U. S. 347, 
 29 L. Ed. 650, 6 Sup. Ct. 348, 388, 
 1191; Stone v. Farmers' Loan & 
 Trust Co., 116 U. S. 307, 29 L. Ed. 
 636, 6 Sup. Ct. 334, 388, 1191; 
 Illinois Cent. R. Co. v. People, 108 
 U. S. 541, 27 L. Ed. 818, 2 Sup. Ct. 
 839; Ruggles v. People, 108 U. S. 
 526, 27 L. Ed. 812, 2 Sup. Ct. 832; 
 Stone v. Wisconsin, 94 U. S. 181, 
 24 L. Ed. 102: Winona & St. P. R. 
 Co. V. Blake, 94 U. S. 180, 24 L. Ed. 
 99; Chicago, M. & St. P. R. Co. v. 
 Ackley, 94 U. S. 179, 24 L. Ed. 99; 
 Peik V. Chicago & N. W. Ry. Co., 
 94 U. S. 164, 24 L. Ed. 97; Chicago. 
 B. & Q. Ry. Co. V. Iowa, 94 U. S. 
 155. 24 L. Ed. 94.
 
 § :V'\] Sta'ik AM) Fkdkhal Poweks. 71 
 
 jjicronatives of tlio Parliament of England. They con- 
 tinued to and do now possess and enjoy all of these 
 same powers, except those which have been surrendered 
 and delegated to the United States through the adoption 
 of the national Constitution."* 
 
 Under the doctrines of the common law, whenever 
 the owner of private property devotes that ])roperty 
 to any use in which the i)ublic has an interest, or clothes 
 or aifects it with a i)ul)lic function, he, in effect, grants 
 to the state and the public an interest in that use and 
 must submit to be controlled by the state for the com- 
 mon good, to the extent of the interest he has thu^ 
 created. Such is the pervading principle of state con- 
 trol early recognized by the United States Supreme 
 Court. ^^ It enables the states to regulate the business 
 of all concerns within their boundaries when their prop- 
 erty is employed in a manner which directly affects the 
 body of the people. Common carriers, therefore, from 
 the public nature of their business and the interest 
 which the })ublic lias in their operation, are subject, 
 as to all their intrastate business, to regulation and 
 control by the states exactly as interstate carriers, as 
 to their interstate traffic, are subject to the control of 
 Congress.®" 
 
 § 23. States May Regulate and Fix Reasonable 
 Rates for Intrastate Transportation. Although the 
 Interstate Commerce Commission, under the Hepburn 
 amendment of 1906, was empowered by Congress to 
 presci'ibe maximum rates for interstate and foreign 
 transportation, the states continued to possess full and 
 complete authority to prescribe reasonable rates for 
 exclusively internal traffic, that is, transportation 
 
 94r'Munn v. People, 94 U. S. 113. L. Ed. 99; Peik v. Chicago & N. W. 
 
 24 L. Ed. 77. Ry. Co., 94 U. S. 164. 24 L. Eil. 
 
 95. Stone v. Wisconsin. 94 U. S. 97; Chicago. B. & Q. Ry. Co. v. 
 
 181, 24 L. Ed. 102; Winona & St. P. Iowa, 94 U. S. 15-5, 24 L. Ed. 94. 
 R. Co. V. Blake, 94 U. S. 180, 24 96. See authorities under note 
 
 L. Ed. 99; Chicago, M. & St. P. 93, supra. 
 R. Co. V. Ackley, 94 U S. 179, 24
 
 Control Over Common Carriers 
 
 [§ 23 
 
 beginning and ending witliin their limits. The decisions 
 of the United States Supreme Court since the passage 
 of the Interstate Commerce Act and all its amendments, 
 have uniformly recognized that it was the exclusive 
 province of a state to fix intrastate rates applicable 
 throughout its territory.^' The power of a state to 
 prescribe rates for the transportation of passengers or 
 property within its boundaries is not confined to a part 
 of the state, but extends throughout the state, includ- 
 ing its cities adjacent to its boundaries as well as those 
 in the interior of the state/'^ As to interstate rates, 
 the power of Congress is exclusive, and as to intrastate 
 
 97. Chicago, M. & St. P. R. Co. v. 
 State Public Utilities Commission 
 of Illinois, 242 U. S. 333, 61 L. Ed. 
 341, 37 Sup. Ct. 173 J Louisville & 
 N. R. Co. V. Garrett, 231 U. S. 298, 
 58 L. Ed. 229, 34 Sup. Ct. 48; Port- 
 land Railway, Light & Power Co. v. 
 Railroad Commission of Oregon, 
 229 U. S. 397, 57 L. Ed. 1248, 33 
 Sup. Ct. 820; Northern Pac. R. Co. 
 V. North Dakota ex rel. McCue, 216 
 U. S. 579, 34 L. Ed. 624, 30 Sup. 
 Ct. 423; Missouri Pac. Ry. Co. v. 
 Larabee Flour Mills Co., 211 U. S. 
 612, 53 L. Ed. 352, 29 Sup. Ct. 214; 
 Alabama u, V. R. Co. v. Missis- 
 sippi R. R. Commission, 203 U. S. 
 496, 51 L. Ed. 289, 27 Sup. Ct: 163; 
 IMinneapolis & St. L. R. Co. v. Min- 
 nesota, 186 U. S. 257, 46 L. Ed. 
 1151, 22 Sup. Ct. 900; Louisville & 
 N. R. Co. V. Com., 183 U. S. 503, 46 
 L. Ed. 298, 22 Sup. Ct. 95; Smyth 
 V. Ames, 171 U. S. 361, 43 L. Ed. 
 197, 18 Sup. Ct. 888; Smyth v. 
 Ames, 169 U. S. 466, 42 L. Ei. 
 819, 18 Sup. Ct. 418; Interstate 
 Commerce Commission v. Cincin- 
 nati, N. 0. & T. P. Ry. Co., 167 
 U. S. 479, 42 L. Ed. 243, 17 Sup. Ct. 
 896; St. Louis & S. F. R. Ry. Co. 
 V. Gill, 156 U. S. 649, 39 L. Ed. 
 567, 15 Sup. Ct. 484; Reagan v. 
 Mercantile Trust Co., 154 U. S. 
 
 418, 38 L. Ed. 1030, 14 Sup. Ct. 
 1062; Reagan v. Farmers' Loan 
 & Trust Co., 154 U. S. 362, 38 L. 
 Ed. 1014, 14 Sup. Ct. 1047; Chicago, 
 M. & St. P. Ry. Co. V. Minnesota, 
 134 U. S. 418, 33 L. Ed. 970, 10 Sup. 
 Ct. 462, 702; Dow v. Beidelman, 
 125 U. S. 680, 31 L. Ed. 841, 8 Sup. 
 Ct. 1028; \Vabash, St. L. & P. Ry. 
 Co. V. People, 118 U. S. 557, 7 Sup. 
 Ct. 4, 30 L. Ed. 244; Stone v. 
 Farmers' Loan & Trust Co., 116 
 U. S. 307, 29 L. Ed. 636, 6 Sup. Ct. 
 334, 388, 1191; Stone v. Illinois 
 Cent. R. Co., 116 U. S. 347, 29 L. 
 Ed. 650, 6 Sup. Ct. 348, 388, 1191; 
 Stone V. Wisconsin, 94 U. S. 181, 
 24 L. Ed. 102; Chicago, M. & St. 
 P. R. Co. V. Ackley, 94 U. S. 179, 
 24 L. Ed. 99; Chicago, B. & Q. Ry. 
 Co. V. Iowa, 94 U. S. 155, 24 L. Ed. 
 94. 
 
 Interstate carriers may be com- 
 pelled to establish intrastate com- 
 mutation fares less than the legal- 
 ly established standard or normal 
 one-way single passenger fares. 
 Pennsylvania R. Co. v. Towers, 
 
 245 U. S. 6, 6? L. Ed. , S8 Sup. 
 
 Ct. 2. 
 
 98. Simpson v. Shepard, 230 U. 
 S. 352, 48 L. R. A. (N. S.) 1151, 
 Ann. Cas. 1916A 18, 57 L. Ed. 1511, 
 33 Sup. Ct. 729.
 
 § 2:5 1 
 
 Statk and FKi)i:i{Ar> Powers. 
 
 73 
 
 rates, tlie i)ower of tlio stales is cxelusiNc. Willi in 
 their respective domains, each lias full and complete 
 authority, the only limitation on the power of the state 
 is that the rates fixed for intrastate transportation must 
 not deprive the carrier of just compensation for llic 
 services rendered,"'-* and an intrastate i-ate must not 
 result in unjust discrimination against an interstate 
 rate arisini>- out of tlie close and intimate relationship 
 of the two rates. ^ 
 
 The limitation upon national power over intra- 
 state rates was recognized by Congress in the passage 
 of the Interstate Commerce Act and its amendments 
 by the proviso to Section 1 which declares that the 
 Interstate Commerce Act shall not apply to the trans- 
 portation of passengers or property, or to the receiving, 
 delivering, storage, or handling of property wholly 
 within one state and not shipped to or from a foreign 
 country from or to any state or territory, or to the 
 transmission of messages by telephone, telegrapli, or 
 cable wholly within one state and not transmitted to 
 or from a foreign country from or to anv state or 
 
 99. Louisville & N. H. Co. v. 
 Garrett, 231 U. S. 298, 58 L. Ed. 
 229, 34 Sup. Ct. 48; Chesapeake & 
 0. R. Co. V. Conley, 230 U. S. 5i:;. 
 57 L. Ed. 1597, 33 Sup. Ct. 985; 
 Knott V. Chicago, B. & Q. R. Co., 
 230 U. S. 474. 57 L. Ed. 1571. 33 
 Sup. Ct. 975; Simpson v. Shepard. 
 230 U. S. 35£, 57 L. Ed. 1511, 33 
 Sup. Ct. 729, 48 L. R. A. (N. S.) 
 1151, Ann. Cas. 191GA 18; Willcox 
 V. Consolidated Gas Co., 212 U. S 
 19, 53 L. Ed. 382, 29 Sup. Ct. 192, 
 48 L. R. A. (N. S.) 1134, 15 Ann. 
 Cas. 1034; Knoxville v. Knoxville 
 Water Co., 212 U. S. 1, 53 U Ed. 
 371. 29 Sup. Ct. 148; Cotting v. 
 Godard, 183 U. S. 79. 46 L. Ed. 92. 
 22 Sup. Ct. 30; San Diego Land & 
 Town Co. V. .Jasper, 189 U. S. 43'.t. 
 47 L. Ed. 892. 23 Sui,. Ct. 571; 
 Smyth V. Ames. 169 U. S. 4G6. 42 
 
 L. Ed. 819, ^8 Sup. Ct. 418; St. 
 Louis & S. F. R. Co. V. Gill. 156 U. 
 S. 649, 39 L. Ed. 567, 15 Sup. Ct. 
 484; Reagan v. Mercantile Trust 
 Co., 154 U. S. 418, 38 L. Ed. 1030, 
 14 Sup. Ct. 1062; Reagan v. Farm- 
 ers' Loan & Trust Co., 154 U. S. 
 362, 38 L. Ed. 1014, 14 Sup. Ct. 
 1047; Chicago & G. T. Ry. Co. v. 
 Wellman. 143 U. S. 339, 36 L. Ed. 
 176. 12 Sup. Ct. 400; Chicago, M. 
 & St. P. Ry. Co. V. Minnesota, 134 
 U. S. 418, 33 L. Ed. 970. 10 Sup. 
 Ct. 462. 702: Stone v. Farmers' 
 Loan & Trust Co.. 116 U. S. 307. 
 29 L. Ed. 336. 6 Sup. Ct. 334, 388, 
 1191. 
 
 1. Houston E. & W. T. R. Co. v. 
 United States, 234 U. S. 342, 58 
 L. Ed. 1341, 34 Sup. Ct. 833; Ore- 
 gon R. &. Nav. Co. V. Campbell. 230 
 V. S. 525, 57 L. Ed. 1004, 33 Sup. 
 Ct. 1026.
 
 74 Control Over Common Carriers [^ 23 
 
 territory. "The question we liave now before ns," 
 said ]\rr. Justice Hughes in the Minnesota Rate eases" 
 "essentially, is whether after the passage of the Inter- 
 state Commerce Act, and its amendment, the State 
 continued to possess the state-wide authority which 
 it formerly enjoyed to prescribe reasonable rates for 
 its exclusiye internal traffic. That, as it plainly appears, 
 was the nature of the action taken by Minnesota, and 
 llie attack, howeyer phrased, upon the rates liere in- 
 yolyed as an interference with interstate commerce, 
 is in substance a denial of that authority. Having 
 regard to the terms of the Federal statute, the familiar 
 range of state action at the time it was enacted, the 
 continued exercise of state authority in the same man- 
 ner and to the same extent after its enactment, and the 
 decisions of this court recognizing and upholding this 
 autliority, we find no foundation for the pro])osition 
 that the Act to Regulate Commerce contemplated inter- 
 ference thei-ewith. Congress did not undertake to say 
 that the intrastate rates of interstate carriers should 
 be reasonable or to invest its administrative agency 
 with authority to determine their reasonableness. Neither 
 by the original act nor by its amendment, did Con- 
 gress seek to establish a unified control over inter- 
 state and intrastate rates; it did not set up a standard 
 for intrastate rates, or ])rescribe, or authorize the Com- 
 mission to ]irescribe, either maximum or minimum rates 
 for intrastate traffic. It cannot be supposed that (/on- 
 gress sought to accomplish by indirection that which 
 it expressly disclaimed, or atteinpted to override the 
 accustomed authority of the States without the provi- 
 sion of a substitute. On the contrary, the fixing of 
 reasonable rates for intrastate transportatioji was left 
 where it had been found; that is, with the States and 
 the agencies created by the States to deal with that 
 subject. Missouri Pacific Ry. Co. v. Larabee Mills, 
 211 U. S. 612, 620, 621." 
 
 2. 230 U. S. 352, 57 I.. Ed. 1511, S.) 1151, Ann. Cas. 1916A 18. 
 33 Sup. Ct. 729, 48 I.. R. A. (N.
 
 § 24] S'lATK A\i) F'ederal Powers. 75 
 
 § 24. Statutes of States Regulating Delivery of 
 Cars for Interstate Shipment Inoperative. Since the 
 enactment of the Hepburn amendment of 1906 to the 
 Interstate Commerce Act, state laws regulating the 
 furnisliing and deliveiy of cars for interstate ship- 
 ments, are inoperative.^ Tliis amendment specifically 
 defines "transportation" under federal control as in- 
 cluding cars and other vehicles for interstate move- 
 ments, and declares it to be the duty of the carrier to 
 furnish such cars upon reasonable request. Obviously, 
 therefore, the subject-matter of furnishing cars for 
 interstate shipments is fully covered by the national 
 statute. Applying this principle, the Supreme Court 
 held that a Minnesota reciprocal demurrage act which 
 required railroads to furnish cars upon request, within 
 seventy-two hours at stations on a line and within 
 forty-eight hours at terminal points, was inapplicable 
 to interstate shipments.* 
 
 A statute of the state of North Carolina required 
 common carriers to forward freight by routes selected by 
 the shipper under penalty of forfeiting fifty dollars a day 
 to the shipper for each day of refusal to receive such 
 freight and all damages actually sustained. The Su- 
 preme Court held that the statute was inoperative as 
 to all interstate shipments for the reason that Con- 
 gress, by the passage of the Interstate Commerce Act, 
 had taken possession of and had legislated upon the 
 
 3. Illinois Cent. R. Co. v. I^ouis- v. Wright, 225 U. S. 540, 5G L. Ed. 
 
 iana R. R. Commission, 236 U. S. 1197, 32 Sup. Ct. 784; Railroad 
 
 157, 59 L. Ed. 517, 35 Sup. Ct. 275; Commission of Ohio v. Worthing- 
 
 St. Louis, I. M. & S. R. Co. v. ^oq £25 U. S. 101, 56 L. Ed. 1004, 32 
 
 Edwards, 227 U. S. 265, 57 L. Ed. g^p ^^ 553. Southern R. Co. v. 
 
 506, 33 Sup. Ct. 262; Yazoo & M. j^^.^_ 222 U. S. 424, 56 L. Ed. 257. 
 V. R. Co. V. Greenwood Grocery 
 
 Co.. 227 U. S. 1. 57 L. Ed. 389. 3S ^^ Sup. Ct. 140. 
 Sup. Ct. 213; Chicago. R. I. & P. R 
 
 4. Chicago. R. I. & P. R. Co. 
 
 Co. V. Hardwick Farmers Elevator Hardwick Farmers' Elevator Co 
 
 Co.. 226 U. S. 426. 57 L. Ed. 284. 226 U. S. 426. 57 L. Ed. 284. 33 
 
 33 Sup. Ct. 174. 46 L. R. A. ( N. Sup. Ct. 174. 46 L. R. A. (N. S.) 
 
 S.) 203; Standard Stock Food Co. 203.
 
 76 
 
 Control Ovek Common Caerieks 
 
 [§ 24 
 
 same subject-matter.^ An Arkansas statute prescribing 
 
 5. Southern R. Co. v. Reid, 222 
 U. S. 424, 56 L. Ed. 257, 32 Sup. 
 Ct. 140. Said the Court: "The 
 particular act which was held to 
 violate the statute was refusiL.g 
 the tender of goods for shipment 
 from Charlotte, North Carolina, to 
 Davis, West Virginia, that is, a 
 tender for interstate shipment, 
 and a demand coincidentally for 
 a bill of lading covering the ship- 
 ment explicitly stating the origin 
 of the shipment at Charlotte and 
 its destination at Davis. The Su- 
 preme Court of the State decided, 
 as we have seen, that the statute 
 deals with a common law duty 
 simply, one which attaches before 
 freight enters into interstate com- 
 merce, and hence concluded as fol- 
 lows: 'The statutory enforcement 
 under penalty of the common law 
 duty to accept freight 'whenever 
 tendered' is not within the scope 
 or terms of any act of Congress. 
 It is neither an interference with 
 nor a burden upon interstate com- 
 merce.' We are unable to agree 
 with the conclusion. It would de- 
 stroy absolutely Federal control 
 until the freight was in the posses- 
 sion of the carrier, and is direct- 
 ly contradictory of the provision 
 of the Interstate Commerce Act 
 which we have quoted. See, in 
 this connection, Houston & Texas 
 Cent. R. R. Co. v. Mayes. 201 U. 
 S. 321. In the term 'transporta- 
 tion,' we nave seen, Congress has 
 included 'all services in connec- 
 tion with the receipt ... of 
 property transported.' And this 
 certainly imposes the obligation to 
 receive the property as well as to 
 carry it, one of the obligations the 
 carrier must perform 'upon rea- 
 sonable reiuest therefor.' Other 
 provisions of the same import and 
 direction might be qucted. Con- 
 
 ditions put on the receipt of arti- 
 cles at the railroad station may 
 be conditions upon the traffic, and 
 necessarily are within the regu- 
 lating power of Congress. Their 
 inducement and aim may be to 
 secure a prompter performance of 
 duty by the carrier, and so far ben- 
 eficient. But that is not the ques- 
 tion. The question is, where is 
 the control, in the State or Con- 
 gress, and has Congress acted? 
 That the control is in Congress 
 we have seen; that it has acted 
 is demonstrated by the provisions 
 of the Interstate Commerce Act 
 to which we have referred. As we 
 have seen, schedules of rates, 
 whether the road be single or 
 forms with another a 'through 
 route,' must be established, filed 
 and published, designating the 
 places. They cannot be changed 
 without permission of the Inter- 
 state Commerce Commission, and 
 no carrier is permitted to engage 
 or participate in the transporta- 
 tion of passengers or property un- 
 less the rates for the same have 
 been so filed and published. Crim- 
 inal punishments are imposed for 
 violations of these requirements, 
 and civil redress of injuries re- 
 ceived by shippers is given through 
 the Interstate Commerce Commis- 
 sion. See Robinson v. B. & O. R. 
 R. Co. (appears in next number). 
 By these provisions Congress has 
 taken possession of the field of 
 regulation, with the purpose, 
 which we have already pointed out. 
 to keep under the eye and control 
 of the Commission the rates 
 charged and the action of the rail- 
 road in regard to them, to secure 
 their reasonableness and to secure 
 their impartial application. The 
 statute of North Carolina conflicts 
 with these requirements. What
 
 § 24] S'lAli; AND h'KDEIUI. I'oWKRS. 77 
 
 that a carrier sliould ])ay a jx'r diem })('iialty to a shipper 
 for a failure to notify a eonsiguoe of tiie arrival of a 
 shipment at destination, was held to be invalid as to 
 interstate shiimients for the reason that Congress by 
 the enactment of tlie Plei)l)urn Act liad legislated ui)on 
 the same subject matter, the term '* transportation" 
 in the federal act covering all services in connection 
 with the do]i\-ery of proiterty transported.'"' 
 
 § 25. States may Compel Switch Connections with 
 Private Side Tracks for Intrastate Business. The juris- 
 diction conferred upon the Interstate Commerce Com- 
 mission by the Hepburn Act of 1906 as amended in 
 1910/ to compel a switch connection between the line 
 of an interstate railroad and a private siding of a ship- 
 per or a lateral branch line of railroad under the 
 conditions therein prescribed, applies exclusively to 
 shippers tendering interstate traffic for transportation. 
 The authority so given the national Commission could 
 not and does not defeat the jurisdiction of a state to 
 compel such switch connections, when the traffic ten- 
 dered is of an intrastate character. Under the limited 
 power granted by the commerce clause of the Consti- 
 tution, Congress possesses no authority to legislate or 
 to regulate' the transportation and movement of intra- 
 state traffic. 
 
 The power of the states to require facilities for the 
 movement of intrastate freight is as broad and as 
 exclusive as the national jurisdiction over interstate 
 facilities. A state commission may, therefore, compel 
 even an interstate carrier to make a switch connection 
 with a private track or an industrial plant when reason- 
 ably necessary for the purpose of transporting freight 
 to other points in the same state. ^ In the case cited, 
 
 they forbid the carrier to do the Grocery Co., 227 U. S. 1 57 L. 
 
 statute requires him to do, and Ed. 389, 33 Sup. Ct. 213. 
 
 punishes disobedience by succes- 7. Section 70, infra, 
 
 sive daily penalties." 8. Chicago, R. I. & P. Ry. Co. 
 
 6. St. Louis I. M. & S. Ry. Co. v. State, Okla. , 157 Pac. 
 
 V. Edwards, 227 U. S. 265, 57 L. 1039. But carriers cannot be com- 
 
 Ed. 506, 33 Sup. Ct. 262. See also pelled to construct spur tracks to 
 
 Yazoo & ]\T. V. R. Co. v. Greenwood private industries at their own ex-
 
 78 CoNTEOL Over Common Gareiers [§ 25 
 
 the court sustained an order of the Corporation Com- 
 mission, and said: ''The evidence justified the Com- 
 mission in finding that there was sufficient business of 
 an intrastate character to require the construction of 
 such side track by the plaintiff, and the jurisdiction 
 of the Corporation Commission to require switch con- 
 nections to be made is not affected by the fact that 
 a portion of the business tendered to the railroad 
 company would be of an interstate nature. If such were 
 the case, the state authorities would be without juris- 
 diction in any matter where interstate commerce might 
 incidentally be affected, and the Commission would 
 be without authority to require the erection of a depot, 
 freight house, or a platform, or to require a switch 
 connection with a private side track or spur, or to re- 
 quire rates and charges for purely intrastate matters. 
 The cases in this court sustaining orders of this char- 
 acter are too numerous to cite. In fact, it is hardly 
 possible to conceive of any order which might be made 
 by the Commission affecting a railroad operating an 
 interstate line of railroad in which interstate commerce 
 would not in some way be affected.'" 
 
 § 26. State Statutes Prescribing Rates Specified in 
 Bill of Lading Void as to Interstate but Valid as to In- 
 trastate Shipments. Before the exercise of federal con- 
 trol over rates and fares for interstate transportation, 
 state laws prescribing that a rate or charge specified 
 
 pense. Missouri Pac. R. Co. v. Mich. 230, 144 N. W. 69G; State 
 
 Nebraska, 217 U. S. 196, 54 L. Ed. v. Chicago, M. & St. P. R. Co., 115 
 
 727, 30 Sup. Ct. 461, 18 Ann. Cas. Minn. 51, 131 N. W. 859; Cox v. 
 
 989; Missouri Pac. R. Co. v. State, Pennsylvania R. Co., 240 Pa. 27, 
 
 164 U. S. 403, 41 L. Ed. 489, 17 gy Atl. 581; State v. Southern R. 
 
 Sup. Ct. 130; Mclnnis v. New Or- q^^ 153 ^ C. 559, 69 S. E. 621; 
 
 leans & N. E. R. Co., 109 Miss. 482, g^^^^ ^^ ^^^ Chicago, M. & P. S. 
 
 L. R. A. 1915E 682, 68 So. 481; St. ^ ^^ ^ Public Service Commis- 
 
 Louis & S. F. R. Co. V. Zalondek, ^.^^ ^^ ^^^^ 529, Ann. Cas. 
 
 28 Okla. 746. 115 Pac. 867; St^ ^^^^^ ^^^ ^^^ ^^^^. ^nion 
 
 Louis & S. F. R. Co. V. State, 27 Commission 
 
 Okla. 424, 112 Pac. 980. uune^u. _,.... ^.„ .„q 
 
 9. See also Michigan R. R. Com- of Wisconsin, 144 Wis. 523, 129 
 
 mission v. Detroit & M. R. Co., 178 N. W. 605.
 
 § 27] SiATK AM) Fedkkal Powers 79 
 
 in a hill of ladin^^ issued hy a ('arri(?r was l)iiidiii^^ n])Oii 
 it, were valid and eiit'oiceabie aithou^ii the shipment 
 thereunder was interstate in character. But the Inter- 
 state Commerce Act, under tlie ])rovisions of Section 6, 
 makes a rate or charge publislied and filed with tlie 
 ( ommission conclusive ui)on all parties, and as binding 
 as if fixed l)y statute. If a difference or a discrepancy 
 exists between llie published rate and that specified in 
 the bill of lading, the former controls. As the congres- 
 sional law, therefore, deals with and regulates the same 
 subject matter, the state law must give way and be- 
 comes inoperative as to all shipments under federal 
 control.''^ The efficacy of the state law, however, over 
 all intrastate shipments, is not affected by the substi- 
 luied rule in interstate commerce transactions. 
 
 § 27. State Laws and Decisions Governing Lia- 
 bility for Loss and Damage to Property Superseded 
 by Carmack Amendment. Trior to the passage of the 
 Carmack amendment to the Act to Regulate Commerce 
 making the initial carrier accepting i)ro]Kn-ty for ship- 
 ment liable for any loss and damage thereto on the 
 line of a connecting carrier, liability for loss and damage 
 to property on interstate as well as intrastate shipments 
 was subject to state regulations. Some states permitted 
 an exemi^tion by contract from a part of the carrier's 
 common law liability; others allowed no exception. 
 These differences in the a]iplicable laws created in- 
 (Miualities and a constant diversity of legislation and 
 judicial rulings with res])ect to interstate transporta- 
 tion.'' But each stale, as it had the right to do, exer- 
 
 10. Gulf. C. & S. F. Ry. Co. V. " 'Some states allowed carriers to 
 Hefiey, 158 U. S. 98, 39 L. Ed. exempt themselves from all or a 
 910, 15 Sup. Ct. 802; Yorke Fur- part of the common law liability, 
 niture Co. v. Southern R. Co., 162 by rule, regulation or contract: 
 N. C. 138, 78 S. E. 67. others did not: the Federal courts 
 
 11. The situation prior to the sitting in the various states were 
 enactment of the Carmack amend- following the local rule, a carrier 
 ment was well described in South- being held liable in one court when 
 ern Pac. Co. v. Crenshaw, 5 Ga. under the same state of facts he 
 App 675. 63 S. E. 865, as follows: would be exempt from liability In 
 
 79
 
 80 
 
 Control Over Common Carriers 
 
 [§ 27 
 
 cised the power inherent in its territorial jurisdiction 
 in the absence of a regulation by Congress. In the 
 passage of the Carmack amendment, Congress plainly 
 manifested its intention to exercise its conceded control 
 over the subject matter of all loss and damage to inter- 
 state shipments. x\ll state laws and regulations, and 
 the rulings of state courts, were thereby annulled and 
 superseded as to all shipments from one state to 
 another. ^^ 
 
 another; hence this branch of in- 
 terstate commerce was being sub- 
 jected to such a diversity of leg- 
 islative and judicial holding that 
 it was practically impossible for a 
 shipper engaged in a business that 
 extended beyond the confines of 
 his own state, or for a carrier 
 whose lines were extensive, • to 
 know without considerable inves- 
 tigation and trouble, and even then 
 oftentimes with but little certain- 
 ty, what would be the carrier's ac- 
 tual responsibility as to goods de- 
 livered to it for transportation 
 from one state to another. The 
 Congressional action has made an 
 end to this diversity; for the na- 
 tional law is paramount and super- 
 sedes all State laws as to the rights 
 anc' liabilities and exemptions cre- 
 ated by such transaction. This 
 was doubtless the purpose of the 
 law; and this purpose will be 
 effectual, and not impaired or de- 
 stroyed, by the State court's obey- 
 ing and enforcing the provisions 
 of the Federal statute where ap- 
 plicable to the fact in such cases 
 as shall come before them.' That 
 the legislation supersedes all the 
 regulations and policies of a par 
 ticular State upon the same sub- 
 ject results from its general char- 
 acter. It embraces the subject of 
 the liability of the carrier under 
 a bill of lading which he must is- 
 
 sue and limits his power to exempt 
 himself by rule, regulation or con- 
 tract. Almost every detail of the 
 subject is covered so completely 
 that there can be no rational doubt 
 but that Congress intended to take 
 possession of the subject and su- 
 persede all State regulation with 
 reference to it. Only the silence 
 of Congress authorized the exercise 
 of the police power of the State 
 upon the subject of such contracts. 
 But when Congress acted in such a 
 way as to manifest a purpose to 
 exercise its conceded authority, the 
 regulating power of the State 
 ceased to exist. (Northern Pacific 
 Ry. V. State of Washington, 222 
 U. S. 370; Southern Railway v. 
 Reid, 222 U. S. 424; Mondou v. 
 Railroad, 3 U. S. l.)" 
 
 12. United States. New York, P. 
 &. N. R. Co. V. Peninsula Produce 
 Exch. of Maryland, 240 U. S. 34, 
 60 L. Ed. 511, 36 Sup. Ct. 230, L. 
 R. A. 1917A 193; Charleston & W. 
 C. R. Co. V. Varnville Furniture 
 Co., 237 U. S. 597. 59 L. Ed. 1137, 
 35 Sup. Ct. 715, Ann. Cas. 1916D 
 333; Pierce Co. v. Wells, Fargo & 
 Co., 236 U. S. 278, 59 L. Ed. 576, 
 35 Sup. Ct. 351; Atchison, T. & S. 
 F. R. Co. V. Robinson. 233 U. S. 
 173. 58 L. Ed. 901, 34 Sup. Ct. 556; 
 Chicago, R. I. & P. R. Co. v. 
 Cramer, 232 U. S. 490. 58 U Ed. 
 697. 34 Sun. Ct. 383; Norfolk &
 
 § i^HJ 
 
 S'lA'l K AM) I^'j;|)KI;AL I'OWEHS 
 
 81 
 
 § 28. State Statute Authorizing- Issuance of Trans- 
 portation in Payment for Advertising Invalid. A 
 statute of the state authorizing a doniestie eorpora- 
 
 W. K. Co. V. Dixie Tobacco Co.. 
 228 U. S. 593, 57 L. Ed. 980, 33 Sup. 
 Ct. f)09; Missouri K. & T. R. Co. 
 V. Harriman, 227 U. S. 657, 57 L. 
 Ed. 690, Sn Sup. Ct. 397; Kansas 
 City Southern R. Co. v. Carl, 227 
 U. S. 639, 57 L. Ed. G83, 33 Sup. 
 Ct. 391; Adams Elxp. Co. v. Cron- 
 inger, 226 U. S. 491, 57 L. Ed. 314, 
 33 Sup. Ct. 148, 44 L. R. A. (N. 
 S.) 257; Chicago, St. P., M. & 
 
 0. R. Co. V. Latta, 226 U. S. 519, 
 57 L. Ed. 328, 33 Sup. Ct. 155; Chi- 
 cago, B. & Q. R. Co. V. Miner, 226 
 U. S. 513, 57 L. Ed. 323, 33 Sup. 
 Ct. 155; Galveston, H. & S. A. R. 
 Co. V. Wallace, 223 U. S. 481, 56 
 L. Ed. 516, 32 Sup. Ct. 205; At- 
 lantic Coast Line R. Co. v. River- 
 side Mills, 219 U. S. 186, 55 L. Ed. 
 167, 31 Sup. Ct. 164, 31 L. R. A. 
 (N. S.) 7: Hudson v. Chicago, St. 
 P.. M. & 0. Ry. Co., 226 Fed. 38. 
 
 Arkansa3, Kansas City & M. R. 
 Co. V. Oakley, 115 Ark. 20, 170 S. 
 W. 565. 
 
 Florida. Hall v. Florida East 
 Coast R. Co., 65 Fla. Ill, 61 So. 
 197; Fornel v. Florida East Coast 
 R. Co., 65 Fla. 102, 61 So. 194. 
 
 Georgia. Atlantic Coast Line R. 
 Co. V. Thomasville Live Stock Co.. 
 13 Ga. App. 102, 78 S. E. 1019. 
 
 Illinois. Gamble-Robinson Com- 
 mission Co. V. Union Pac. R. 
 Co., 262 111. 400, Ann. Cas. 1915B 
 89. 104 N. E. 666. 
 
 Iowa. McMillan v. Chicago, R. 
 
 1. & P. R. Co.. 147 Iowa. 596, 124 
 N. W. 1096. 
 
 Kentucky. Armstrong v. Illinois 
 Cent. R. Co.. 162 Ky. 539, 172 S. 
 W. 947: Adams Exp. Co. v. Cook, 
 162 Ky. 592, 172 S. W. 1096. 
 
 Minnesota. Ford v. Chicago, H. 
 1. & P. R. Co., 123 Minn. 87, 143 
 N. W. 249. 
 
 Mississippi. Southern R. Co. v. 
 North State Cotton Co., 107 Miss. 
 71, 64 So. 965; St. Louis & S. F. 
 P. Co. V. Woodruff Mills, 105 Miss. 
 214, 62 So. 171. 
 
 Missouri. Donavan v. Wells, 
 Fargo & Co., 265 Mo. 291, 177 S. 
 W. 839; Thomas Bros. v. St. Louis 
 & S. F. R. Co., 188 Mo. App. 22, 
 173 S. W. 96; Dunlap v. Chicago 
 & A. R. Co., 187 Mo. App. 201, 172 
 S. W. 1178; Morrison Grain Co. v. 
 Missouri Pac. R. Co., 182 Mo. App. 
 339, 170 S. W. 404; McElvain v. 
 St. Louis & S. F. R. Co.. 176 Mo. 
 App. 379, 158 S. W. 464. 
 
 New Jersey. Spada v. Pennsyl- 
 vania R. Co., 86 N. .1. L. 187, 92 
 Atl. 379. 
 
 New York. Lynch v. New York 
 Cent. & H. River R. Co., 89 N. Y. 
 Misc. 472, 153 N. Y. Supp. 633. 
 
 North Carolina. Morphis v. 
 Southern Exp. Co., 167 N. C. 139, 
 S3 S. E. 1; McConnell v. New York 
 Cent. & H. River R. Co., 163 N. C. 
 504, 79 S. E. 974; Herring v. At- 
 lantic Coast Line R. Co., 160 N. 
 C. 252, 76 S. E. 527: Pace Mule 
 Co. V. Seaboard Air Line R. Co.. 
 160 N. C. 215. 76 S. E. 513. 
 
 Oklahomii. Ft. Smith & W. R. 
 Co. V. Awbrey & Semple, 39 Okla. 
 270. 134 Pac. 1117; Missouri. K. 
 & T. R. Co. V. Walston, 37 Okla. 
 517, 13.1 Pac. 42. 
 
 South Carolina. St tikes v. South- 
 ern Exp. Co., 96 S. C. 383, 80 S. E. 
 612. 
 
 Washington. Coovert v. Spo- 
 kane. P. & S. H. Co.. Rf Wa.^h. ST. 
 141 Pac. 324. 
 
 1 Control r.-irriors
 
 82 CdNTKOT. ()v?:rt Common Carriers [§ 27 
 
 tion engaged as a common carrier to issue transporta- 
 tion in payment for printing and advertising is invalid 
 as to all interstate Iransportalion for the reason that 
 Congress has assumed jurisdiction of the same sub- 
 ject matter by the enactment of the Interstate Commerce 
 Act and the amendments of 11)06. Such a statute is 
 invalid even as to that portion of an interstate journey 
 which is within the bounds of a single state." "No state 
 enactment can be of any avail when the subject of such 
 transactions has been covered by an act of Congress 
 acting within the limits of its constitutional powers. 
 Tt has long been settled that when an 'act of the legis- 
 lature of a State prescribes a regulation of the subject 
 repugnant to and inconsistent with the regulation 
 of Congress, the state law must give way, and this 
 without regard to the source of power whence the state 
 legislature derived its enactment.' Sinnot v. Davenport, 
 22 How. 227, 243; M., K. & T. Railway v. Haber, 169 
 U. S. 6ia, 686; Reid v. Colorado, 187 U. S. 137. This 
 results. Chief Justice Marshall said in Gibbons v. Ogden, 
 9 Wheat. 1, as well from the nature of the Government 
 as from the words of the Constitution."'* 
 
 § 29. States May Require Operation of Trains 
 Between Intrastate Points on Interstate Lines — Limita- 
 tions and Exceptions. Neither the commerce clause nor 
 h'gishitioii by Congress thereunder precludes a state 
 from requiring interstate carriers to afford adequate 
 passenger train service between points within its bound- 
 aries.^' For railroads, from the ])ublic nature of the 
 business carried on by them, and Ihc int(>rest Avhich 
 llic public has in their operation, are sul)ject, as to 
 
 13. New York C. & H. River 15. Missouri Pac. R. Co. v. State 
 R. Co. V. Gray, 239 U. S. 583, 60 ox rel. Taylor, 216 U. S. 262. 54 L 
 L. Ed. 451, 36 Sup. Ct. 176; South- Ed. 472, 30 Sup. Ct. 330; Prentis 
 ern Pac. Terminal Co. v. Inter- v. Atlantic Coast Line Co., 211 U. 
 state Commerce Commission, 219 S. 210, 53 L. Ed. 150, 29 Sup. Ct. 
 U. S. 498, 55 L. Ed. 310, 31 Sup. 67; Atlantic Coast Line R. Co. v. 
 Ct. 279. Wharton, 207 U. S. 328, 52 L. Ed. 
 
 14. Chicago, I. & L. R. Co. v. 230, 28 Sup. Ct. 121; Atlantic Coast 
 United States, 219 U. S. 480, 55 L. Line R. Co. v. North Carolina Cor- 
 Ed. 305, 31 Sup. Ct. 272. poration Commission, 206 U. S. 1,
 
 •§ 29] State and Feuekal Powers 83 
 
 their state business, to state regulation, which may 
 be exercised either directly by legislative authority or 
 by administrative bodies endowed with the power to 
 that end.*" But this power of regulation, if it were exer- 
 cised by a state in such an arbitrary oi- unreasonabh' 
 manner as to take the property of the carrier \vi11i 
 out compensation, is void under the Fourteenth Amend- 
 ment.'" Applying the foregoing ])rinci])les, an order 
 of a state commission requiring an interstate carrier 
 to operate a passenger train over a branch line from 
 a point within the state to the state line, was not so 
 arbitrary and unreasonable, under the facts, as to be 
 invalid under the Fourteenth Amendment, nor was it 
 an undue burden uj^on interstate commerce even though 
 there weie no station facilities at the state line." And 
 likewise an order of a public service commission 
 requiring a carrier to operate two passenger trains 
 daily each way on a line theretofore used for freight 
 traffic, only, is valid ;*^ but an order of the Mississippi 
 Railroad Commission recjuiring the operation of certain 
 passenger trains each way daily on the lino of an inter- 
 
 51 L. Ed. 933, 27 Sup. Ct. 585. 11 510, 56 L. Ed. 86:'.. 32 Sup. Ct. 535; 
 
 Ann. Cas. 398; Henningtou v. Cleveland, C, C. & St. L. Ry. Co. 
 
 State, 163 U. S. 299, 41 L. Ed. 166, v. People, 177 U. S. 514, 44 L. Ed. 
 
 16 Sup. Ct. 1086; Delaware, L. & 868, 20 Sup. Ct. 722; Lake Shore 
 
 W. R. Co. V. Van Santwood. 216 & M. S. Ry. Co. v. State ex rel. 
 
 Fed. 252. Lawrence, 173 U. S. 285, 43 L. Ed. 
 
 16. Chesapeake & 0. R. Co. v. 702. 19 Sup. Ct. 465. 
 Public Service Commission of 17. Mississippi R. R. Commis- 
 
 West Virginia, 242 U. S. 603, 61 L sion v. Mobile & O. R. Co., 244 U. 
 
 Ed. 520, 37 Sup. Ct. 234; Chicago, S. 388, 61 L. Ed. 1216, 37 Sup. Ct. 
 
 M. & St. P. R. Co. v. State, 238 602; Missouri Pac. R. Co. v. Tuck- 
 
 U. S 491. 59 L. Ed. 1423, 35 Sup. er, 230 U. S. 340, 57 L. Ed. 1507, 
 
 Ct. 869, L. R. A. 1916A 1133; Chi- 33 Sup. Ct. 961; Missouri Pac. R. 
 
 cago, B. & Q. R. Co. v. Railroad Co. v State. 217 U. S. 196. 54 L. 
 
 Commission of Wisconsin. 237 U. Ed. 727, 30 Sup. Ct. 461. 18 Ann. 
 
 S. 220. 59 L. Ed. 926, 35 Sup. Ct Cas. 989. 
 
 560; Northern Pac. R. Co. v. State 18. Missouri Pac. R. Co. v. 
 
 ex rel. McCue, 236 U. S. 585, 59 L. State ex rel. Taylor, 216 U. S. 262. 
 
 Ed. 735, 35 Sup. Ct. 429; Louis- 54 L. Ed. 472. 30 Sup. Ct. 330. 
 ville & N. R. Co. v. Garrett. 231 U. 19. Chesapeake & O. R. Co. v. 
 
 S. 298, 58 L. Ed. 229. 34 Sup. Ct. Public Service Commission of 
 
 48; Washington ex rel. Oregon R. West Virginia. 242 IT. S. 603. 61 
 
 & Nav. Co. v. Fairchild. 224 U. S. L. Ed. 520. 37 Sup. Ct. 234.
 
 8-i CoNTHOL Over Common Cakeieks [■§ 29 
 
 state carrier between two points in Mississippi was, 
 under the facts, held to deprive the carrier of its prop- 
 erty without compensation in violation of the Four- 
 teenth Amendment. -° 
 
 It is the primal duty of a carrier to furnish adequate 
 facilities to the public and that duty may be compelled, 
 although, by doing so, some pecuniary loss from render- 
 ing such service may result, and an' order requiring a 
 carrier to restore a connection at a siding with the train 
 of another carrier which involved the operation of 
 another train at a loss, was held to be valid and not 
 in conflict with the Fourteenth amendment.^^ In so 
 far as the Fourteenth amendment is involved, the 
 powers of the state over carriers in this connection 
 were well summarized by the Supreme Court in the 
 following language:'-- "A state may regulate the con- 
 duct of railways within its borders, either directly 
 or through a body charged with the duty and invested 
 with powers requisite to accomplish such regulation. 
 Mississippi R. R. Commission vs. Illinois Central R. R. 
 Co., 203 U. S. 335; Prentis vs. Atlantic Coast Line R. R. 
 Co., 211 U. S. 210; Louisville & Nashville R. R. Com- 
 pany vs. Garrett, 231 U. S. 298. Under this power of 
 regulation a state may require carriers to provide 
 reasonable and adequate facilities to serve not only the 
 local necessities, but the local convenience of the com- 
 munities to which they are directly tributary. Lake 
 Shore, etc., R. R. Co. vs. Ohio, 173 U. S. 514;"^ Atlantic 
 Coast Line R. R. Co. vs. North Carolina Corporation 
 Commission, 206 U. S. 1; Mo. Pac. Ry. Co. vs. Kansas, 
 216 U. S. 262; Chicago, etc., R. R.'Co. vs. Railroad 
 Commission of Wisconsin, 237 U. S. 220; and such regula- 
 tion may extend in a proper case to requiring the run- 
 
 20. Misslssir4)i R- R- Commis- 9:33, 27 Sup. Ct. 585, 11 Ann. Cas. 
 
 sion V. Mobile & 0. R. Co.. 244 U. 398. 
 
 S. 388, 61 L. Ed. 1210, 37 Sup. Ct. ^2. Mississippi R. R. Commis- 
 602. 
 
 21. Atlantic Coast Line R. Co. 
 V. North Carolina Corporation 
 Commission, 206 U. S. 1, 51 L. Ed. 
 
 sion V. Mobile & O. R. Co., 244 U. 
 S. 388; 61 L. Ed. 1216, 37 Sup. Ct. 
 602.
 
 § 29] State and Federal Powers ^5 
 
 ning- of trains in addition lo tliose provided by the 
 carrier, even where tliis may involve some pecuniary 
 loss, Atlantic Coast Line R. R. vs. North Carolina Cor- 
 poration Commission, sui)ra; and Mo. Pac. Ry. C'o. vs. 
 Kansas, 21G U. S. 262. But, Avhile the scope of this 
 power of regulation over carriers is very great and com- 
 prehensive, tlio property which is invested in tiie 
 railways of the country is nevertheless under tlie pro- 
 tection of the fundamental guaranties of the (Consti- 
 tution and is entitled to as full protection of tlio law as 
 any other private property devoted to a jniblic use, 
 and it cannot be taken from its owners without just com- 
 pensation or without due process of law. Wisconsin 
 etc., R. R. Co. vs. Jacobson, 179 U. S. 287; Atlantic 
 Coast Line R. R. Co. vs. North Carolina corporation 
 Commission, 206 IT. S. 1; North Pacific R. R. Co. vs. 
 North Dakota, 236 U. S. 585; Chicago, etc., R. R. Co. vs. 
 Wisconsin, 238 U. S. 4i)L This power of regulation if 
 it is exercised in sucli an arbitrary or nnreasonable 
 manner as to prevent the company from obtaining a 
 fair return upon the property invested in the public 
 service passes beyond lawful bounds, is in effect a tak- 
 ing of private property without compensation, and is 
 void, because repugnant to the equal protection 
 clause of the Fourteenth Amendment to the Consti- 
 tution of the United States. Atlantic Coast Line R. R. 
 Co. vs. North Carolina Corporation Commission, 206 U. 
 S. 1; Missouri Pac. Ry. Co. vs. Nebraska, 217 U. S. 196; 
 Missouri, etc., R. R. Co. vs. Tucker, 230 U. S. 340; North- 
 ern Paciiic R. R. Co. vs. North Dakota, 236 U. S. 585. 
 Whether a statute enacted by the legislature of a state 
 or an order passed by a railroad commission exceeds the 
 bounds which the law thus sets to such authority is 
 a question of law arising on the facts of each case 
 (Mississippi Railroad Commission vs. Illinois Central R. 
 R. Co., supra), and the appropriate remedy for determin- 
 ing that question is a bill in equity such as was filed 
 in this case to enjoin its enforcement."
 
 86 
 
 Control Over Common Carriers 
 
 [§ 30 
 
 § 30. State and Municipal Regulations Prescribing 
 Speed, Signals and Stoppage of Interstate Trains. The 
 power to regulate the speed or signals of interstate, 
 trains, and to require passenger trains carrying inter- 
 state travelers to stop at stations, belongs to those sub- 
 ject matters of interstate commerce wliich may be con- 
 trolled by the states in the absence of legislation by 
 Congress.-'^ But the states, even without national regula- 
 tion, cannot subject interstate transportation to un- 
 reasonable regulations.-* Until Congress occupies the 
 field, municipal corporations maj^ regulate the speed of 
 interstate trains within their limits, and ordinances 
 passed for that purpose are not invalid as interfering 
 witii interstate commerce unless thev constitute an un- 
 
 23. Section 11, supra; Lasater 
 V. St. Louis, I. M. & S. R. Co., 177 
 Mo. App. 534, 160 S. W. 818. 
 
 A state law and an order of a 
 state commission tliereunder re- 
 quiring four passenger trains each 
 way, if so many are run daily, to 
 stop at all county seat stations, is 
 net an undue burden upon inter- 
 state commerce. Gulf, C. & S. F. 
 R. Co. V. State, 24G U. S. 58, 62 L. 
 Ed. , 38 Sup. Ct. 236. 
 
 24. Southern Ry. Co. v. King. 
 217 U. S. 524, 54 L. Ed. 868, 30 
 Sup. Ct. 594; Lusk v. Town of 
 Dora, 224 Fed. 650. In Southern 
 Ry. Co. V. King, supra, the Court 
 said: "Applying the general rule 
 to be deduced from these cases to 
 such regulations as are under con- 
 sideration here, it is evident that 
 the constitutionality of such stat- 
 utes will depend upon their ef- 
 fect upon interstate commerce. It 
 is consistent with the former de- 
 cisions of this court and with a 
 proper interpretation of constitu- 
 tional rights, at least in the ab- 
 sence of Congressional action upon 
 the same subject-matter, for the 
 
 State to regulate, the manner in 
 which interstate trains shall ap- 
 proach dangerous crossings, the 
 signals which shall be given, and 
 the control of the train which shall 
 be required under such circum- 
 stances. Crossings may be so sit- 
 uated in reference to cuts or curves 
 as to render them highly danger- 
 ous to those using the public high- 
 ways. They may be in or near 
 towns or cities, so that to approach 
 them at a high rate of speed would 
 be attended with great danger to 
 life or limb. On the other hand, 
 highway crossings may be so nu- 
 merous and so near together that 
 to require interstate train3 to 
 slacken speed indiscriminately at 
 all such crossings would be prac- 
 tically destructive of the success- 
 ful operation of such passenger 
 trains. Statutes which require the 
 ;jpeed of such trains to be checked 
 at all crossings so situated might 
 not only be a regulation, but also 
 a direct burden upon interstate 
 commerce, and therefore beyond 
 the power of the State to enact."
 
 § 30] 
 
 State and Fkdkkal Powers 
 
 87 
 
 reasoiialjlo burden u)»(>n intcrslalc (•oiniiicrce.''' A state 
 statute requiring' railroads to convey livestock at siieli 
 a rate of speed that the time consumed from the initial 
 to the delivering point shall not exceed one hour foi- 
 each eighteen miles traveled, is valid.'"" 
 
 The power of a state to recpiire interstate trains 
 to stop at stations to discharge and receive passengers 
 is, sul)ject to the limitations (a) that the law or regula- 
 tion must not be an unreasonable burden upon interstate 
 commerce and (b) that the passenger service otherwise 
 afforded is not reasonably adequate in tli(> light of all 
 the surrounding facts and circumstances.'' The adjudi- 
 cations of the national Supreme Court furnish many 
 illustrations of the application of these principles to 
 concrete cases.-* A statute of the state of Wisconsin 
 
 25. Erb V. Morasch, 177 U. S. 
 584, 44 L. Ed. 897, 20 Sup. Ct. 
 819; Lusk V. Town of Dora, 224 
 Fed. 650. 
 
 An order of a state railroad 
 commission requiring passenger 
 trains within the state to start 
 from their point of origin and 
 from stations on the line in ac- 
 cordance with advertised schedule, 
 with an allowance of not exceed- 
 ing thirty minutes at junction 
 points to make connections with 
 other trains, was invalid under the 
 commerce clause, being an undue 
 burden upon interstate commerce. 
 Missouri. K. & T. R. Co. v. State, 
 
 245 U. S. 484, r,2. U Ed. , ?.8 
 
 Sup. Ct. 212. 
 
 26. Chicago. B. & Q. R. Co. v. 
 Kyle. 228 U. S. 85, 57 T.. Ed. 741, 
 3-^ Sup. Ct. 440: Chicago. B. & Q. 
 R. Co. V. Cram, 228 U. S. 70, 57 L. 
 Ed. 734, 33 Sup. Ct. 437. 
 
 27. Missouri, K. & T. Ry. Co. v. 
 Town of Witcher, 25 Okla. 586, 106 
 Pac. 852; Gulf, C. & S. F. Ry. 
 
 Co. V. State. Tex. Civ. App. 
 
 , 169 S. W. R85: State ox rel. 
 
 Great Northern R. v. Railroad 
 Commission of Washington, GO 
 Wash. 218, 110 Pac. 1075. 
 
 28. Gulf C. & S. F. R. Co. v. 
 State, 246 U. S. 58, 62 L. Ed. 
 
 . 38 Sup. Ct. 236; Chicago, B. 
 
 & Q. R. Co. v. Railroad Commis- 
 sion of Wisconsin, 237 U. S. 220, 
 59 L. Ed. 926. 35 Sup. Ct. 560; 
 Herndon v. Chicago, R. I. & P. 
 R. Co.. 218 U. S. 135, 54 L. Ed. 970, 
 30 Sup.- Ct. 633: Atlantic Coast 
 Line R. Co. v. Wharton. 207 V. S. 
 328. 52 L. Ed. 230, 28 Sup. Ct. 
 121: Atlantic Coast Line R. Co. 
 
 V North Carolina Corporation 
 Commission, 206 U. S. 1, 51 L. Ed. 
 933, 27 Sup. Ct. 585, 11 Ann. Cas. 
 398: ^lississippi R. R. Commis- 
 sion v. Illinois Cent. R. Co., 203 T^. 
 S. .135, 51 L. Ed. 209. 27 Sup. Ct. 
 90; Lake Shore & .M. S. Ry. Co. 
 
 V State ex rel. Lawrence, 173 U. 
 S. 285. 43 L. Ed. 702. 19 Sup. C^ 
 4G5: Gladson v. State, 166 U. S. 
 427, 41 L. Ed. 1064. 17 Sup. Ct. 
 627: Illinois Cent. R. Co. v. State. 
 163 U. S. 142, 41 L. Ed. 107, 16 Sup 
 Ct. 1096.
 
 88 CoNTHOT. Over Common Carriees [§ 30 
 
 prescribed that every railroad corporation running four 
 or more passenger trains through a village daily should 
 stop at least two of them to receive and discharge pas- 
 sengers. In deciding that this statute was invalid as 
 being an unlawful burden upon interstate commerce, the 
 court said:-'' "The statute includes, necessarily, the 
 Supreme Court held, interstate passenger trains and 
 clearh^ excludes accommodation freight trains; and, 
 so viewing it, the Su})reme Court pronounced it a proper 
 exercise of the power of the State. In reviewing the 
 decision we may start with certain principles as es- 
 tablished: (1) It is competent for a State to require 
 adequate local facilities, even to the stoppage of inter- 
 state trains or the re-arrangement of their schedules. 
 (2) Such facilities existing — that is, the local conditions 
 being adequately met — the obligation of the railroad 
 is performed, and the stoppage of interstate trains be- 
 comes an improper and illegal interference with inter- 
 state commerce. (3) And this, whether the interference 
 be directly by the legislature or b}^ its command through 
 the orders of an administrative body. (4) The fact of 
 local facilities this court may determine, such fact 
 being necessarily involved in the determination of the 
 Federal question whether an order concerning an inter- 
 state train does or does not directly regulate interstate 
 commerce, by imposing an arbitrary requirement.* * * 
 These, then, are the factors, and we do not put out of 
 view the difficulties which infest the case, but, consider- 
 ing them all and the deference due to state legislation, 
 we are constrained to hold tlie Wisconsin statute 
 invalid." 
 
 § 31. Georgia "Blow-Post" Law Invalid, Being 
 a Direct Burden upon Interstate Commerce. Applying 
 the principles stated in the foregoing paragraph, a 
 law of the state of Georgia requiring every locomotive 
 engineer to blow the whistle and to check and keeii 
 
 29. Chicago, B. & Q. R. Co. v. sin, 237 U. S. 220, 59 L. Ed. 926, 
 Railroad Commission of Wiscon- 35 Sup. Ct. 560.
 
 <5« '51 ] State and Federal Powers 89 
 
 checking tlie speed of liis train four hundred yards from 
 each grade crossing so as to stop the train in time to 
 prevent injury sliould any person or thing be crossing 
 the track, was held to l)e invalid for the reason that 
 it was an unreasonable regulation of or ])urden upon 
 interstate commerce and, therefore, in viohition of the 
 commerce clause.'"' '''IMie Company," said the court, 
 "set out the a])]>1icable sections of tlie law and alleged 
 that its ti'ain was running in interstate commerce be- 
 tween tlie states, and especially between Georgia and 
 South Carolina. That between the cit^y of Atlanta, 
 Georgia, and the Savannah river, a distance of 128 
 miles, w^here the same is the boundary line of Georgia, 
 there are 124 points where the line of the railroad 
 crosses public roads of the- different counties of the 
 • state, established pursuant to law, and that all of such 
 crossings are at grades. That in order to comply witli 
 the law the speed of a train would have to be so slack- 
 ened that tliere would be practically a full stop at each 
 of the road crossings; that the time required for such 
 l)uri)ose would depend upon various conditions, which 
 might or might not exist at the time and at the cross- 
 ings; among others, the state of the weather and the 
 percentage of grade; but it would not be less than three 
 minutes for a train composed of an engine and three 
 cars, and for a train of a greater number of cars the 
 time would be greater, — for an average freight train, 
 not less than five minutes. That the train alleged to 
 have caused the death of the deceased was composed 
 of an engine, a mail car, and two coaches, and that 
 if the Blow-Post Law had been complied with on the 
 day in question at least three minutes would have been 
 consumed at each crossing, — more than six hours be- 
 tween Atlanta and the Savannah river. That the run- 
 ning time between those points according to the adoi^ted 
 schedule was four hours and thirty minutes. That 
 if the law had been complied with the time consumed 
 
 30. Seaboard Air Line Ry. Co. Ed. IIGO, 37 Sup. Ct. 640. L. R. 
 V. Blaokwell, 244 U. S. 310, 61 L. A. 1917F 1184.
 
 90 Control Over Common Carriers [§ 31 
 
 between tliose points would liave been more than ten 
 and oue-lialf hours. That for freight trains the time 
 consumed would be more than sixteen hours, the maxi- 
 mum speed of such trains on the company's road being 
 20 miles an hour. That the crossings are the usual and 
 ordinary grade crossings and there are no conditions 
 which make any one of them peculiarly dangerous 
 other than such danger as may result from the crossing 
 of a public road by a railroad track at grade. That 
 between the city of Atlanta and the Savannah river 
 the line of the company's railroad crosses the tracks 
 of two other railroads, and that under the laws of the 
 state a train is required to come to a full stop 50 feet 
 from the crossing, and that the time so consumed would 
 increase the time required to operate between the points 
 referred to. * * * The facts so specified, and which 
 it was decided would give illegal operation to the 
 statute, are alleged in the present case, and assuming 
 them to be true, — and we must so assume, — compel the 
 conclusion that the statute is a direct burden upon inter- 
 state commerce, and, being such, is unlawful." 
 
 § 32. States May Compel Carriers to Make and 
 Maintain Track Connections for Interchange of Traffic. 
 
 Railroads constitute public highways of a most im- 
 portant character, and the states have, therefore, the 
 power to regulate in a reasonable and proper manner, 
 the conduct and business of railroad corporations in 
 so far as they relate to intrastate traffic. ^^ This power 
 is, however, subject to the Fourteenth Amendment to 
 the Constitution of the United States which prohibits 
 the taking of property without due process of law;^^ 
 
 31. Great Northern R. Co. v. United States v. Joint-Traffic Ass'n, 
 
 State ex rel. State Railroad & 171 U. S. 505, 43 L. Ed. 259, 19 
 
 Warehouse Commission, 238 U. S. Sup. Ct. 25; Cherokee Nation v. 
 
 340, 59 L. Ed. 1337, 35 Suu. Ct. 753; Southern Kansas Ry. Co., 135 U. 
 
 Wadley Southern R. Co. v. State, S. 641, 34 L. Ed. 295, 10 Sup. Ct. 
 
 235 U. S. 651, 59 L. Ed. 405, 35 965. 
 
 Sup. Ct. 214; Lake Shore & M. 32. Florida East Coast R. Co. 
 
 S. Ry. Co. V. State, 173 U. S. 285, v. United States, 234 U. S. 167, 38 
 
 43 L. Ed. 702, 19 Sup. Ct. 465; L. Ed. 1267, 34 Sup. Ct. 867; Grand
 
 § 32 J State and Fkokhal Powkhs 91 
 
 but ill so far as the oommerce clause of tlie Constitution 
 is concerned and tlie autliority delegated to the Inter- 
 state Commerce Commission by Congress under that 
 clause, the states still have the power to require rail- 
 road companies to make track connections where; tin; 
 established facts show i)ublic necessity therefor, just 
 regard being given to advantages which will probably 
 result to one side and necessary expenses to be incurred 
 on the other. •^•' 
 
 Congress has not taken over the whole subject of 
 terminals, switches and sidings so that all powers of 
 the state relating thereto are void.'* Even when con- 
 sidered with respect to interstate traffic as well as intra- 
 state traffic, an order of an administrative body of the 
 state recpiiring a track connection between two carriers 
 is not void.'"^ But in any event, such connections 
 may be compeHed for the benefit of intrastate traffic.""' 
 In the Jacobson case, the court said: "Plaintiff in 
 error urges that transporting cattle from Minnesota 
 to Iowa constitutes interstate commerce, and that 
 neither the State of Minnesota nor its railroad commis- 
 sion has the right to in any manner interfere with or 
 regulate such commerce. The judgment in this case, 
 however, neither regulates nor interferes with that com- 
 merce, nor does t1iat ])art of the statute u])()U which 
 
 Trunk R. Co. of Canada v. Michi- A. .S89, 70 Ann. St. Rep. 358, 74 N. 
 
 gan R. R. Commission, 231 U. S. W. 893. affirmed in 179 U. S. 287, 
 
 457, 58 L. Ed. 310, 34 Sup. Ct. 152; 45 L. Ed. 194, 21 Sup. Ct. 115. 
 
 Interstate Commerce Commission 34 Grand Trunk R. Co. of Can- 
 
 V. Louisville & N. R. Co., 227 U. ^j^ v. ]\Iichigan R. R. Commission, 
 
 S. 510, 56 L. Ed. 863, 32 Sup. Ct. 331 U. S. 457, 58 L. Ed. 310, 34 
 
 185; Washington ex rel. Oregon g ^^ ^^^ 
 
 R. & Nav. Co. V. Fairchild, 224 U. 35 g^aboard Air Line Ry. Co. 
 
 S. 510. 56 L. Ed. 563, 32 Sup. Ct. ^, j^^^^,^^^ Commission of Georgia. 
 
 535; Central Stock Yards Co. v. ,40 u. S. 324. 60 L. Ed. 669, 36 
 Louisville & N. R. Co.. 192 U. S. 
 508, 48 L. Ed. 565, 24 Sup. Ct. 339: 
 Minneapolis & St. L. R. Co. v. 
 
 Minnesota. 186 U. S. 257, 46 L. ^5 Sup. Ct. 214. 
 
 Ed. 1151. 22 Sup. Ct. 900. 36. Wisconsin, M. & P. R. Co. 
 
 33. Jacobson v. Wisconsin. M. v. Jacobson, 179 U. S. 287, 45 L. 
 
 & P. R. Co., 71 Minn. 519. 40 L. R. Ed. 194, 21 Sup. Ct. 115. 
 
 Sup. Ct. 260; Wadley S. R. Co. v. 
 State, 235 U. S. 651, 59 L. Ed. 405.
 
 92 Control Over Common Carriers [§ 32 
 
 the judgment is founded. Whether any other portion 
 of the statute does regulate such commerce is beside 
 the question, and it is not necessary to here decide. 
 To provide at the place of intersection of these two 
 railroads, at Hanley Falls, ample facilities by track 
 connections for transferring any and all cars used in 
 the regular business of the respective lines of road 
 from the lines or tracks of one of said companies to 
 those of the other, and to provide at such place of 
 intersection equal and reasonable facilities for the inter- 
 change of cars and traffic between their respective lines, 
 and for the receiving, forwarding and delivering of 
 property and cars to and from their respective lines, 
 as provided for by this judgment, would plainly afford 
 facilities to interstate commerce, if there were any, and 
 would in nowise regulate such commerce within the 
 meaning of the Constitution. That is all that has been 
 done by the judgment under review. A State may 
 furnish such facilities or direct them to be furnished 
 by persons or corporations within its limits without 
 violating the Federal Constitution. But the Supreme 
 Court of the State, in the opinion delivered therein, 
 said that there was ample evidence in the case of a 
 necessity for such track connection resulting from the 
 benefit which would accrue to exclusively state com- 
 merce when considered alone, to justify the ordering 
 of the connection in question." 
 
 § 33. Validity of State Laws Providing for "Full 
 Crews" on Interstate Trains. Under the grant of pow- 
 er to it by the commerce clause. Congress may take en- 
 tire charge of the equipment and management of inter- 
 state trains, but it has not done so in respect to the 
 number of employes to whom may be committed the 
 actual management of cars or trains containing inter- 
 state traffic. Until, therefore. Congress establishes 
 regulations on that subject, the states may enact such 
 laws covering the subject matter that are reasonable
 
 § 33J 
 
 State and Federal Powers 
 
 93 
 
 and not an undue burden upon interstate commerce." 
 A state law requiring tliree brakemen on every freigbt 
 train consisting of more tlian twenty-five cars is, there- 
 fore, valid even as to trains containing interstate traf- 
 fic.^'* Similarly a subscMjuent statute of the same state, 
 providing that no railroad company owning yards or 
 terminals in cities where cars were switched across 
 l)ublic crossings, should operate or switch cars with less 
 than six employes, was sustained by the national Su- 
 preme Court as a proper exercise of the police power 
 
 37. Reid v. Colorado, 187 U. S. 
 137, 47 L. Ed. 108, 23 Sup. Ct. 92; 
 Missouri, K. & T. Ry. Co. v. Haber, 
 169 U. S. 613, 42 L. Ed. 878, 18 
 Sup. Ct. 488; Chicago, M. & St. P. 
 Ry. Co. V. Solan, 169 U. S. 133, 42 
 L. Ed. 688, 18 Sup. Ct. 289; New 
 York, N. H. & H. R. Co. v. People, 
 165 U. S. 628, 41 L. Ed. 853, 17 
 Sup. Ct. 418; Western U. Tel. Co. 
 V. James, 162 U. S. 650, 40 L. Ed. 
 1105, 16 Sup. Ct. 934; Gulf, C. & 
 S. F. Ry. Co. V. Hefley, 158 U. S. 
 
 98, 39 L. Ed. 910, 15 Sup. Ct. 802; 
 Nashville, C. & St. L. Ry. Co. v. 
 Alabama, 128 U. S. 96, 32 L. Ed. 
 352, 9 Sup. Ct. 28; Smith v. Ala- 
 bama, 124 U. S. 465, 31 L. Ed. 508. 
 8 Sup. Ct. 564; County of Mobile 
 V. Kimball, 102 U. S. 691, 26 L. Ed. 
 238; Sherlock v. Ailing, 93 U. S. 
 
 99, 23 L. Ed. 819. 
 
 38. Chicago, R. I. & P. R. Co. v 
 State. 219 U. S. 453, 55 L. Ed. 290, 
 31 Sup. Ct. 275, in which the court 
 said: "It is not too much to say 
 that the State was under an obli- 
 gation to establish such regula- 
 tions as were necess?ry or reason- 
 able for the safety of all engaged 
 in business or domiciled within 
 its limits. Beyond doubt, passen- 
 gers on Interstate carriers while 
 within Arkansas are as fully en- 
 titled to the benefits of valid local 
 laws enacted for the public safety 
 
 as are citizens of the State. Local 
 statutes directed to such an end 
 have their source in the power of 
 the State, never surrendered, of 
 caring for the public safety of all 
 within its jurisdiction; and the 
 validity under the Constitution of 
 the United States of such statutes 
 is not to be questioned in a Fed- 
 eral court unless they are clearly 
 inconsistent with some power 
 granted to the General Govern- 
 ment or with some right secured 
 by that in.strument or unless they 
 are purely arbitrary ii. their na- 
 ture. The statute here involved 
 is not in any proper sense a regu- 
 lation of interstate commerce nor 
 does it deny the equal protection 
 of the laws. Upon its face, it muit 
 be taken as not directed against 
 interstate commerce, but as having 
 been enacted in aid, not in obstruc- 
 tion, of such commerce and for 
 the protection of those engaged in 
 such commerce. Under the evi- 
 dence, there is admittedly some 
 room for controversy at to wheth- 
 er the statute is or was neces- 
 sary; but it cannot be said that 
 it is so unreasonable as to justify 
 the court in adjudging that it is 
 merely an arbitrary exercise of 
 power and not germane to the 
 objects which evidently the stnf:" 
 legislature had in view."
 
 94 Control Over Common Carriers [§ 33 
 
 of the state and not an interference or burden upon 
 interstate commerce. ^^ 
 
 § 34. State Regulations or Charges for Transporta- 
 tion by Water. Tlie judicial power of the courts of 
 tlio United States extends to all cases of admiralty 
 and maritime transportation.*" Under this clause of 
 the Constitution, the jurisdiction of the federal govern- 
 ment extends to transportation over navigable waters 
 of the United States and upon the high seas even be- 
 tween two points or places in the same state." ''Great 
 mischief would inevitably result from any rule denying 
 admiralty jurisdiction in all cases where the place of 
 the departure of the vessel and the place of her destina- 
 tion are both within the same state, when no part of • 
 the voyage is upon the high seas, for every navigator 
 knows that in many such cases nearly the whole voyage 
 is out of the limits of a state. "*^ The Interstate Com- 
 merce Act does not apply to carriers by water unless oper- 
 ating under a common control, management or arrange- 
 ment for a continuous shipment with a carrier by rail.*^ 
 
 In the absence of legislation by Congress upon the 
 same subject matter, a state may regulate the charges 
 of water carriers for transportation of passengers and 
 property even over the high seas between two ports 
 in the same state when the water carrier operates 
 independently of a carrier by rail;" for the subject mat- 
 
 .39. St. Louis, 1. M. & S. Ry. Co. gress creating the United States 
 
 V. State, 240 U. S. 518, 60 L. Ed. Shipping Board, approved Sept. 7, 
 
 776, 36 Sup. Ct. 443. 1916, 39 Stat, at L. 728, Congress 
 
 40. Section 2, Article 3 of the seems to have exercised its con- 
 Constitution, trol over the charges of water car- 
 
 41. The Belfast, 7 Wall. (U. S.) riers for transportation over the 
 624, 19 L. Ed. 266. high seas between two ports in the 
 
 42. Cowden v. Pacific Coast S. same state; for a common carrier 
 S. Co., 94 Cal. 470, 18 L. R. A. 221, by water in interstate commerce 
 28 Am. St. Rep. 142, 29 Pac. 873. is therein defined as a common car- 
 
 43. Section 92, infra. rier engaged in the transportation 
 
 44. Wilmington Transp. Co. v. by water of passengers or property 
 Railroad Commission of Call- on the high seas or the great lakes 
 fornia, 236 U. S. 151, 59 L. Ed. 508, or on regular routes from port 
 35 Sup. 276. By the act of Con- to port between one state, terri-
 
 § ?A] Sta'I'k anu I^'kdkual P(j\vkks yO 
 
 ter is of a local nature admitting of diversity of treat- 
 'ment according- to local necessities of each state until 
 Cont^ress exercises its control by legislation. A state 
 may also regulate the rates for ferriage from its shore 
 to the shore of another state when the ferry is being 
 o))erated witliout any comnion arrangement with a rail 
 carrier.'' "Considering the conditions of interstate 
 railroad transi)ortation," said the court in the last case 
 cited, "which might extend not only from one State 
 to another but through a series of States, or across the 
 Continent, and the conse(iueuces which would ensu(^ if 
 each State should undertake to fix rates for such por- 
 tions of continuous interstate hauls as might be with- 
 in its territory, the conclusion was reached that 'this 
 species of regulation' was one 'which must l)e, if es- 
 tablished at all, of a general and national character' 
 and could not be 'safely and wisely remitted to local 
 rules.' But, in the case of ferries, we liave a subject 
 of a different character. We dismiss from considera- 
 tion those ferries which are operated in connection witli 
 railroads, and cases, if any, where the ferriage is part 
 of a longer and continuous transportation. Ferries, 
 such as are involved in the present case are simply 
 means of transit from shore to shore. These have al- 
 ways been regarded as instruments of local convenience 
 which, for the proper protection of the i)ul)lic, are sub- 
 ject to local regulation; and where the ferry is conducted 
 over a boundary stream, each jurisdiction with resi^ect 
 to the ferriage from its shore has exercised this protec- 
 tive power. There are a multitude of such ferries through- 
 out the country and, apart from certain rules as to naviga- 
 tion, they have not engaged the attention of Congress. 
 
 tory, district, or possession of tho commerce shall establish, observe 
 
 United States and any other state, and enforce just and reasonable 
 
 territory, district, or possession of rates, fares, charges, etc. 
 
 the United States, or between 45. Port Richmond & b. P. Ferry 
 
 places in the same territory, dis- Co. v. Board Chosen Freeholders 
 
 trict or possession. Section 18 of County of Hudson. 234 U. S. 317. 58 
 
 the act provides that every com- L. Ed. U?,0, 34 Sup. Ct. 821. 
 mon carrier by water in interstate
 
 96 CoxTKOL Oyer Common Carkiees [§34 
 
 We also put on one side the question of prohibitory or 
 discriminatory requirements, or burdensome exactions 
 imposed by tlie State, which may be said to interfere 
 with the guaranteed freedom of interstate intercourse 
 or with constitutional rights of property. The present 
 question is simply one of reasonable charges. It is 
 argued tliat the mere fact that interstate transporta- 
 tion is involved is sufficient to defeat the local regula- 
 tion of rates because, it is said, that it amounts to a 
 regulation of interstate commerce. But this would not 
 be deemed a sufficient ground for invalidating the local 
 action without considering the nature of the regulation 
 and the special subject to whi^h it relates. Quarantine 
 and pilotage regulations may be said to be quite as 
 direct in their operation, but they are not obnoxious 
 when not in conflict with Federal rules. The funda- 
 mental test, to which we have referred, must be applied; 
 and the question is whether, with regard to rates, there 
 is any inherent necessity for a single regulatory power 
 over these numerous ferries across boundary streams; 
 whether, in view of the character of the subject and the 
 variety of regulation required, it is one which demands 
 the exclusion of local authority. Upon this question, 
 we can entertain no doubt. It is true that in the case 
 of a given ferry between two States there might be a 
 difference in the charge for ferriage from one side as 
 compared with that for ferriage from the other. But 
 this does not alter the aspect of the subject. The ques- 
 tion is still one with respect to a ferry which necessarily 
 implies transportation for a short distance, almost in- 
 variably between two points only, and unrelated to 
 other transportation. It thus presents a situation es- 
 sentially local requiring regulation according to local 
 conditions. It has never been supposed that because 
 of the absence of Federal action the public interest 
 was unprotected from extortion and that in order to 
 secure reasonable charges in a myriad of such different 
 local instances, exhibiting an endless variety of circum- 
 stances, it would be necessary for Congress to act directly 
 or to establish for that purpose a Federal agency.
 
 <^ 35] State and Fkdekal Powers 97 
 
 The matter is inuiniiiatcd l)y the consideration of. tliis 
 .alternative for the point of tlie contention is tliat, there 
 being- no Federal I'eguhition, tlie ferry rates are to be 
 deemed free from all control. The jHactical ad\antages 
 of having the matter dealt witli by the States are obvi- 
 ous and are illustrated by the practice of one hundred 
 and twenty-five years. And in view of the character 
 of the subject, we find no sound ol),jection to its con- 
 tinuance. If Congress at any time undertakes to regu- 
 late such rates, its action will of course control." 
 
 § 35. Statutory Enactments of States requiring 
 Facilities and Appliances on Interstate Trains. The 
 grant to CongTess of the power to regulate commerce 
 with "foreign nations and among the several states, 
 did not, of itself and without legislation by Congress, 
 impair the authority of the states to establish such 
 reasonable regulations as were appropriate for the pro- 
 tection of the health, the lives and the safety of their 
 people even though interstate commerce was incidental- 
 ly afi'ected thereby.**^ Applying these principles, a 
 statute of the state of New York forbidding steam rail- 
 roads to heat passenger cars with a stove or furnace 
 kept inside of the car, was held to be a proper exercise 
 
 46. Grossman v. Lurman, 192 Smith v. Alabama, 124 U. S. 465, 
 
 U. S. 189, 48 L. Ed. 401 24 Sup. 31 L. Ed. 508, 8 Sup. Ct. 564; 
 
 Ct. 234; Austin v. State, 179 U. S. Ouachita Packet Co. v. Aiken. 121 
 
 343, 45 L. Ed. 224, 21 Sup. Ct. 132; U. S. 444, 30 L. Ed. 976, 7 Sup. 
 
 Baltimore & O. S. W. Ry. Co. v. Ct. 907; Huse v. Glover, 119 U. 
 
 Voigt, 176 U. S. 498, 44 L. Ed. 560, S 543, 30 L. Ed. 487, 7 Sup. Ct. 
 
 20 Sup. Ct. 385; Chicago, M. & St. 313; Morgan's Louisiana & T. R. 
 
 P. Ry. Co. V. Solan, 169 U. S. 133, & S. S. Co. v. Louisiana Board of 
 
 42 L. Ed. 688, 18 Sup. Ct. 289; Health, 118 U. S. 455, 30 L. Ed. 
 
 Western U. Tel. Co. v. James, 162 237, 6 Sup. Ct. 1114; Gloucester 
 
 U. S. 650, 40 L. Ed. 1105, 16 Sup. Ferry Co. v. State, 114 U. S. 196, 
 
 Ct. 934; Louisville & N. R. Co. 30 L. Ed. 158, 5 Sup. Ct. 826; Coun. 
 
 V. State, 161 U. S. 677, 40 L. Ed. ty of Mobile v. Kimball, 102 U. 
 
 849, 16 Sup. Ct. 714; Plumley v. S. 091, 26 L. Ed. 238; Sherlock 
 
 Com., 155 U. S. 461, 39 L. Ed. 223. v. Ailing 93 U. S. 99. 23 L. Ed. 
 
 15 Sup. Ct. 154; Nashville, C. & 819: Chicago & N. AV. R. Co. v. 
 
 St. L. Ry. Co. V. Alabama. 128 U. Fuller. 17 Wall. (U. S.) 560, 21 
 
 S. 96, 32 L. Ed. 352, 9 Sup. Ct. 28; L. Ed. 710. 
 
 I Cmitiol L'!iriU>r3 7
 
 98 Control Over Common Carriers [^ 35 
 
 of tbe police power of the state and valid as to both 
 intrastate and interstate trains in the absence of nation- 
 al legislation dealing with the same subject matter/^ 
 
 A Georgia statute requiring headlights of a certain 
 character on all engines of trains within the states, was 
 declared valid as to engines used in interstate commerce 
 for the reason that Congress had not, at that time, 
 passed any law covering the same field/^ A statute 
 of the state of Indiana prescribing that railroad cars 
 should be equipped with certain grab irons and hand- 
 holds, was invalid as to all cars on interstate railroads 
 because Congress, by the enactment of the Federal 
 Safety Appliance Act and the amendments thereto, 
 had assumed control over the same subject, and the 
 state law was therefore inoperative/^ A state law 
 making it unlawful to run any freight train on Sunday 
 was declared to be valid even as to interstate trains 
 on the ground that, although in a limited degree af- 
 fecting interstate commerce, it was an ordinary police 
 regulation of the state designed to secure the well- 
 being, and to promote the general welfare of the people.^" 
 
 § 36. Power of States over Interstate Employers 
 and Employes in Absence of Federal Legislation. The 
 constitutional grant to Congress to regulate interstate 
 and foreign commerce is divisible into two classes, 
 tirst, those subject matters of commerce which are of 
 such a nature that, if regulated, they must be regulated 
 by one uniform rule throughout the country, and second, 
 those subject matters which are of such a nature that 
 they do not require uniformity of regulation and may, 
 therefore, be controlled by the states according to 
 their respective local needs. The power of Congress 
 over the first class is exclusive and the state may not 
 
 47. New York, N. H. & H. R. 49. Southern R. Co. v. Railroad 
 Co. V. People, 165 U. S. 628, 41 L. Commission of Indiana, 23G U. S. 
 Ed. 853, 17 Sup. Ct. 418. ^g^^ 59 ^ Ed. CGI, 35 Sup. Ct. 304. 
 
 48. Atlantic Coast Line R. Co. 
 
 50. Hennington v. State, 163 U. 
 . 291 
 Chapter LIII, infra. 1086. 
 
 V. State, 234 U. S. 280, 58 L. Ed. 
 
 1312, 34 Sup. Ct. 829. But see S. 299, 41 L. Ed. 166, 16 Sup. Ct.
 
 § o()J S'JAIK AND b^KDVAlAL i'uWHKS 99 
 
 lo^'islato concoiiiinii: ii. Tlioso subjocls wliich fall un- 
 der the second class may be regnlaiod liy state laws 
 in the absence of conj^ressional action.' 
 
 ''{'he relationship of master and servant while en- 
 gaged in interstate commerce, falls within the second 
 class." Hence, the states, in the absence of legislation 
 by Congress covering the same subject matter, have 
 full power to detei'inine the lial)ility of em))loyers to 
 their employes although engaged in interstate com- 
 merce." For example, a state law regulating the hours 
 of employment on railroads and including within its 
 scope interstate employes, was valid prior to the enact- 
 ment of the federal Hours of Service Act.^* A state 
 law requiring every locomotive engineer to secure a 
 license was held to be valid although some of them 
 were employed in interstate commerce because Con- 
 gress had not legislated upon the same subject matter.^^ 
 The statute of a state requiring all railway locomotive 
 engineers within the state to be examined as to their 
 capacity to distinguish and discriminate between colors, 
 including those engaged in interstate commerce, was 
 a valid exercise of the police powers of the state in the 
 absence of legislation by Congress covering the same 
 field."'*' But a statute of the state of Texas declaring 
 it to be a misdemeanor for a person to serve as a con- 
 ductor on a freight train without having had two years' 
 
 ")!. Section 12. supra. 138; Missouri Pac. R. Co. v. Cas- 
 
 52. Texas & P. R. Co. v. Rigs- tie, 224 U. S. 541, 56 L. Ed. 875, 
 by, 241 U. S. 33, 60 L. Ed. 874, 36 32 Sup. Ct. 606; Chicago, R. I. & 
 Sup. Ct. 482; Mondou v. New P. R. Co. v. State, 219 U. S. 453, 
 York, N. H. & H. R. Co., 22:^ U. S. 55 L. Ed. 290, 31 Sup. Ct. 275. 
 
 1. 56 L. Ed. 327, 32 Sup. Ct. 169, 54. Northern Pac. R. Co. v. 
 
 1 N. C. C. A. 875, 38 L. R. A. (N. State ex rel. Atkinson, 222 U. S. 
 
 S.) 44; Northern Pac. R. Co. v. 370, 56 L. Ed. 237, 32 Sup. Ct. 160; 
 
 State ex rel. Atkinson, 222 U. S. Slate v. Missouri Pac. R. Co., 212 
 
 370. 56 L. Ed. 237, 32 Sup. Ct. IfiO. Mo. 658, 111 S. W. 500. 
 
 53. St. Louis, I. M. & S. R. Co. 55. Smith v. Alabama, 124 U. 
 V. State. 240 U. S. 518, 60 L. Ed. S. 405, 31 L. Ed. 508, 8 Sup. Ct. 
 776, 36 Sup. Ct. 443: Erie R. Co. 564. 
 
 V. New York, 233 U. S. 671, 58 L. 56. Nashville, C. & St. L. Ry. 
 
 Ed. 1149, 34 Sup. Ct. 756, 52 L. R. Co. v. Alabama. 128 U. S. 96. 32 
 A. (N. S.) 266, Ann. Cas. 1015n I.. Ed. 352. 9 Sup. Ct. 28.
 
 too CoNTKOL Over C'ommon I'akeiers [^ 36 
 
 previous experience as a brakeman, was declared to be 
 invalid because in violation of the Fourteenth Amend- 
 ment to the federal Constitution." However, the power 
 of the state under the commerce clause in that case 
 was not involved. An enactment of the legislature 
 of the state of Arkansas providing for "full crews" 
 on trains, including those used in moving interstate 
 traffic, was held not to be a violation of the commerce 
 clause as Congress had not acted upon the same sub- 
 ject matter.^^ 
 
 § 37. Interstate Messages by Telegraph Prior to 
 Amendment of 1910 to Act to Regulate Commerce. Be- 
 fore the amendment of 1910 to the Interstate Commerce 
 Act including telegraph, telephone and cable companies, 
 many state statutes governing the duties of telegraph 
 companies as to interstate messages, were held to be 
 valid. ^° In a leading case, the Western U. Tel. Co. v. 
 James,^" a Georgia act, imposing a penalty for a failure 
 to exercise due diligence in the delivery of a telegram, 
 was held not to be an interference with interstate com- 
 merce even as to messages sent from points without 
 the state to points within the state of Georgia, for the 
 reason that no attempt was made to enforce the provi- 
 sion of the statute beyond the limits of the state. Like- 
 wise a state statute requiring prompt delivery of mes- 
 sages and permitting a recovery for all damages due 
 to negligence in transmission or delivery, was held to 
 be valid as to messages sent from a point in that state 
 
 57. Smith v. State, 233 U. S. Western U. Tel. Co. v. James, 90 
 63C. 58 L. Ed. 1129, 34 Sup. Ct. Ga. 254, 16 S. E. 83; Postal Tel. 
 681, L. R. A. 1915r) 677, Ann. Cas. Cable Co. v. Umstadter, 103 Va. 
 1915D 420. 742, 2 Ann. Cas., 511, 50 S. E. 259; 
 
 58. Chicago, R. I. & P. R- Co. v. ^^estern U. Tel. Co. v. PoweU. 94 
 State, 219 U. S. 453, 55 L. Ed. 290, ^^ 368, 26 S. E. 828; Western 
 31 Sup. Ct. 275. The same con- ^ ^^^ ^^ ^ ^^.^^^^^ ,^ ^^ ^^^^ 
 elusion was reached in the later ^^ ^^^^^^^ ^ ^^^ ^^ 
 caseofSt^Louis.I.M^&S.R.Co. ^^ ^^ ^^^ ^^ 
 V. State, 240 U. S. 518. 60 L. Ed. •' ' „ „„„ 
 
 776, 36 sup. Ct. 443. ^^P- ^lO. 18 S. E. 280. 
 
 59. Western U. lei. Co. v. 60. 162 U. S. 650, 40 L. Ed. 
 Bates, 93 Ga. 352, 20 S. E. 639; 1105, 16 Sup. Ct. 934.
 
 § '57 I State and F^'ederal Powers 101 
 
 to points in another state."' In a later case, the nation- 
 al Siii»r('mo Conrt held that a statute of the state of 
 Virginia exacting a penalty for the failure to deliver 
 a message, was valid as to a telegram sent from a city 
 in that state to New York, where it appeared that the 
 negligence in transmission occurred in Virginia;'''^ but 
 the court indicated that such a statute was valid as 
 to interstate messages only in the absence of legislation 
 by Congress. 
 
 On the other hand the national Supreme Court 
 held that a statute of Indiana requiring the transmis- 
 sion and delivery of messages was invalid as to a de- 
 livery in Iowa of a message sent from the state of 
 Indiana.®^ Again, a statute of South Carolina permit- 
 ting damages for mental anguish arising from the fail- 
 ure of a telegraph company to deliver a message, was 
 declared to be invalid under the commerce clause as 
 to a telegram sent from a city in South Carolina to 
 AVashington, D. C, the act being jjlainly, it was held, 
 an attempt to regulate interstate commerce." A mes- 
 sage sent from a point in Virginia to a person on board 
 a government vessel lying in the Norfolk Navy Yard, 
 and which was not delivered on account of negligence 
 of the telegraph company, did not create a penal act 
 within the provisions of the statute of A^irginia, as the 
 state law, it was held, could have no extra-territorial 
 force, the Norfolk Navy Yard being under the exclusive 
 control of Congress.*^^ It is difficult to see the reason 
 for the distinctions made in some of these cases, but 
 in all of them the court expressly or impliedly recog- 
 nized the rule that state laws as to interstate messages 
 would be invalid if Congress should legislate concerning 
 
 61. Western U. Tel. Co. v. Com- dleton, 122 U. S. 347, 30 L. Ed. 
 mercial Mining Co., 218 U. S. 40G, 1187, 7 Sup. Ct. 1126. 
 
 54 L. Ed. 1088. 31 Sup. Ct. 59, 36 64. Western U. Tel. Co. v. 
 
 L. R. A. (N. S.) 220, 21 Ann. Brown, 234 U. S. 542, 58 L. Ed. 
 
 Cas. 815. 1457, 34 Sup. Ct. 955, 5 N. C. C. 
 
 62. Western U. Tel. Co. v. Cro- A. 1024. 
 
 vo, 220 U. S. 364, 55 L. Ed. 498, 65. W^estern V. Tel. Co. v. 
 
 31 Sup. Ct. 399. Chiles, 214 U. S. 274, 53 L. Ed. 
 
 63. Western U. Tel. Co. v. Pen- 994, 29 Sup. Ct. 613.
 
 102 CoNTEOL Over Common (*arkiers [§ 37 
 
 the same subject matter. In the enactment of the amend- 
 ment including these companies as carriers under the 
 Interstate Commerce Act, Congress exercised its poten- 
 tial power' over them and such statutes of the state are 
 now, so far as interstate messages are concerned, in- 
 valid/'^' In the Virginia cases, cited, it was held that 
 by the passage of the Interstate Commerce Act as 
 amended in 1910, Congress had occupied the field of 
 liability of telegraph companies as to interstate mes- 
 sages so that state statutes providing penalties for fail- 
 ure to transport messages with diligence were applicable 
 only to intrastate business. 
 
 § 38. State Laws Regulating Interstate and For- 
 eign Messages of Telegraph, Telephone, and Cable 
 Companies, Invalid. Since the inclusion by the amend- 
 ment of 1910 to the Interstate Commerce Act of tele- 
 graph, telephone and cable companies, whether wire 
 or wireless, engaged in sending messages from one 
 state to another and to foreign countries, all state laws 
 regulating the receipt and delivery of interstate and 
 foreign telegrams and telephone messages are void, 
 for the reason that Congress has occupied the entire 
 field and has taken complete control of the regulation 
 of such companies as to all messages and telegrams 
 capable of being included under national control. The 
 power of the states to legislate with reference to the 
 same subject matter, has been suspended.®^ A state 
 law, therefore, prescribing that any provision in a con- 
 
 66. Western U. Tel. Co. v. 67. Western U. Tel. Co. v. Hold- 
 
 Ccmpton, 114 Ark. 193, 169 S. W. er, 117 Ark. 210, 174 S. W. 552; 
 
 946; Western U. Tel. Co. v. First Western U. Tel. Co. v. Simpson, 
 
 National Bank of Berryville, 116 117 Ark. 156, 174 S. W. 232; West- 
 
 Va. 1009, 33 S. E. 424; Western' orn U. Tel. Co. v. .Johnston, 115 
 
 U. Tel. Co. V. Bilisoly, 116 Va. Ark. 564, 171 S. W. 859; Western 
 
 56£, 82 S. E. 91; Norfolk Truck- U. Tel. Co. v. Comptou, 114, Ark. 
 
 ers' Exch. v. Norfolk Southern R. 193, 169 S. W. 946; Western U. 
 
 Co., 116 Va. 466, 82 S. E. 92. Con- Tel. Co. v. First National Bank of 
 
 tra: Bailey v. Western U. Tel. Berryville, 116 Va. 1009, 83 S. E. 
 
 Co., Tex. Civ. App. , 171 424; Western U. Tel. Co. v. 
 
 S. W. g:29. Bilisoly, 116 Va. 562, 82 S. E. 91.
 
 § 38] 
 
 ►State and h'KDKHAi. Powers 
 
 lua 
 
 tract stiinilating for notice or (Icniaiid other tliaii .<ach 
 as may 1k' provided l)y law as a condition precedent 
 to establish any claim or demand, siiali be void, does 
 not control as to an interstate telegram which was sent 
 pursuant to a contract with a telegraph comi)any pro- 
 viding, among other things, that the company shall 
 not be liable for damages in any case when the claim 
 was not presented in writing within sixty days after 
 the message was filed with the company. Whether such 
 a regulation as to interstate messages is void or valid 
 is a question solely for the Interstate Commerce Com- 
 mission to determine/'^ 
 
 68. Gardner v. Western U. Tel. 
 Co., 145 C. C. A. 399; 231 Fed. 
 405. Judge Garland, in this case, 
 said: "We have e.xamintd the cases 
 cited by plaintiff and find them to 
 be cases which arose prior to the 
 amendment of the Interstate Com- 
 merce Law of June 18, 1910, or 
 they are cases in which state legis- 
 lation only indirectly burdened in- 
 terstate commerce. Since tlie 
 amendement above referred to we 
 find no conflict in the authorities 
 in cases where the facts are sim- 
 ilar to the one at bar. Congress 
 has taken possession of the field 
 of interstate commerce by tele- 
 graph and it results that the 
 power of the states to legislate 
 with refe ence thereto has been 
 suspended. The great necessity 
 that commerce between the states 
 should be free from such inter- 
 ference applies in a marked degree 
 to interstate commerce by tele- 
 graph. If the regulation which 
 is pleaded in bar in this suit 
 should be held valid in Kansas, 
 and void lU Oklahoma, and the 
 illustration may be extended to 
 all the states of the Union, then 
 the power of the United States 
 to regulate commerce between 
 
 the states in relation to telegraph- 
 ic business would not only be 
 directly interfered with, but de- 
 stroyed. We think that the stip- 
 ulation in the record that ]\Ir. 
 Lingafelt if present would testi- 
 fy to the facts therein stated 
 shows that the Company has doae 
 all that can be required of it in 
 regard to the filing of its schedule 
 of rates, regulations, and practices. 
 We are therefore of the opinion 
 that Congress having taken pos- 
 session of the field of interstate 
 commerce by telegraph, the pro- 
 vision of the Constitution of Okla- 
 homa relied upon has become 
 inoperative for the purpose of 
 striking down the regulation in 
 question. Whether the regulation 
 is a reasonable one or not is in 
 our judgment a question for the 
 Interstate Commerce Commission 
 (0 determine. IMitchel. Coal & 
 Coke Co. V. Pa. R. Co., 230 U. S. 
 247. 33 Sup. Ct. 916, 57 L. Ed. 1472; 
 Chicago & Alton Ry. Co. v. Kirby. 
 225 U. S. 155, 32 Sup. Ct. G48, 56 
 [.. Ed. 1033, Ann. Cas. 1914A. 501; 
 Tex. & Pac. Ry. Co. v. Abilene 
 Cotton Oil Co.. 204 U. S. 426, 27 
 Sup. Ct. 350. 51 L. Ed. 553, 9 Ann. 
 Cas 1075.'
 
 104 CoNTEOL Over Common Caeriers [§ 39 
 
 § 39. States May Not Regulate "Ticker Service" 
 of Interstate Telegraph Companies. As the regulations 
 and control of telegraph messages from one state to 
 another, has been placed under the jurisdiction of the 
 Interstate Commerce Commission, the sending of market 
 quotations from a city in one state to a city in an- 
 other, constitutes interstate commerce within its control. 
 Furthermore, the distribution by a telegraph company, 
 after receiving messages from another state containing 
 such quotations, by what is known as the "ticker serv- 
 ice" to their patrons in the same city, it has been held, 
 cons^titutes interstate commerce, and is not, therefore, 
 subject to regulation by the states.**^ "It is enough that 
 in our opinion," said Mr. Justice Holmes, for the court, 
 in the case last cited, "the transmission of the quota- 
 tions did not lose its character of interstate commerce 
 until it was completed in the brokers' offices and that 
 interference with it was of a kind not permitted to the 
 States. The supposed analogy that has prevailed is that 
 of a receiver of a package breaking bulk and selling 
 at will in retail trade. But it appears to us misleading. 
 We also think it unimi3ortant that the contracts between 
 the Exchange and the Telegraph Companies emphasize 
 the element of quasi-s&le for a lump sum and leave it 
 to the interest of the Telegraph Companies to find sub- 
 scribers. Neither that nor the intervention of an oper- 
 ator, or of another company, are in the least degree con- 
 clusive. Unlike the case of breaking bulk for subse- 
 quently determined retail sales, in these the ultimate 
 recipients are determined before the message starts and 
 have been accepted as the contemplated recipients by 
 the Exchange. It does not matter if they have no con- 
 tract with the Exchange, directly. It does not matter 
 that if the Telegraph Companies did not deliver to any 
 given one the Exchange could not complain. If the nor- 
 mal, contemplated and followed course is a transmission 
 as continuous and rapid as science can make it from 
 Exchange to broker's office it does not matter what are 
 
 69. Western U. Tel. Co. v. Fos- 38 Sup. St. 438, decided May 20, 
 ter, U. S. , 62 L. Ed. , 1918.
 
 § .'I!* I Sta'ik AM) Kkdkkat. Powkhs 105 
 
 tlio stages or how little they are f-eeiu-ed by covenant or 
 bond. Thus lumber inirchased in Texas for the purpose 
 of filling- foreign orders was held to be carried in inter- 
 state commerce, although no contract prevented the pur- 
 chaser from giving it a different destination. Texas & 
 New Orleans R. R. Co. v. Sabine Tram. Co., 227 U. S. 
 ni, 126, .3.1 Sup. Ct. 229, 57 L. Ed. 442. JVactice, in- 
 tent and the typical course, not title or niceties of form, 
 were recognized as determining the character, and other 
 cases to the same effect were cited. The principle was 
 reaffirmed in Railroad Commission of Louisiana v. Texas 
 & Pacific Ry. Co., 229 U. S. 3.S6, .33 Sup. Ct. 837, 57 L. 
 Ed. 1215; and is too well settled to need to be further 
 sustained. Western Oil Refining Co. v. Lipscomb, 224 
 U. S. 346, .349, 37 Sup. Ct. 623, 61 L. Ed. 1181. See 
 Swift & Co. V. United States, 196 U. S. 375, 398, 399, 
 25 Sup. Ct. 276, 49 L. Ed. 518. It is admitted that the 
 transmission from New York to Massachusetts by the 
 Telegraph Company was interstate commerce. If so it 
 continued such until it I'eached 'the point where the 
 parties originally intended that the movement should 
 finally end.' Illinois Central R. R. Co. v. Louisiana R. 
 R. Commission, 236 U. S. 157, 163, 35 Sup. Ct. 275, 59 
 L. Ed. 517. If the transmission of the quotations is 
 interstate commerce the order in question cannot be 
 sustained. It is not like the requirement of some in- 
 cidental convenience that can be afforded without seri- 
 ously impeding the interstate work. It is an attempt 
 to affect in its very vitals the character of a business 
 generally withdrawn from state control — to change the 
 criteria by which customers are to be determined and so 
 to change the business. It is suggested that the State 
 gets the power from its power over the streets which it 
 is necessary for the telegraph to cross. But if we as- 
 sume that the plaintiffs in error under their present 
 charters could be excluded from the streets, the con- 
 sequence would not follow. Acts generally lawful may 
 become unlawful when done to accomplish an unlawful 
 end, United States v. Reading Co., 226 U. S. 324, 357, 
 33 Su)). Ct. 90, 57 L. Ed. 243, and a constitutional i^ower
 
 106 CnxTKOT. Over Common (^AHHiKPis [§ 39 
 
 cannot be used by way of condition to attain an un- 
 constitutional result. Western Union Telegraph Co. v. 
 Kansas, 216 U. S. 1, 30 Sup. Ct. 190, 54 L. Ed. 355; Pull- 
 man Co. V. Kansas, 216 U. S. 56, 30 Sup. Ct. 232, 54 L. 
 Ed. 378; Sioux Remedy Co. v. Cope, 235 U. S. 197, 203, 
 35 Sup. Ct. 57, 59 L. Ed. 193. The regulation in ques- 
 tion is quite as great an interference as a tax of the 
 kind that repeated decisions have held void. It cannot 
 be justified under that somewhat ambiguous term of 
 police powers. Western Union Telegraph Co. v. Pend- 
 leton, 122 U. S. 347, 359, 7 Sup. Ct. 1126, 30 L. Ed. 1187; 
 Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. 681, 34 L. 
 Ed. 128; Savage v. Jones, 225 U. S. 501, 520, 32 Sup. 
 Ct. 715, 56 L. Ed. 1182; Western Union Telegraph Co. v. 
 Brown, 234 U. S. 542, 547, 34 Sup. Ct. 955, 58 L. Ed. 1457. 
 Without going into further reasons we are of opinion 
 that the decree of the Supreme Judicial Court must be 
 reversed." 
 
 § 40. State and Municipal Regulations of the Inter- 
 state Business of Express Companies. Neither the 
 states nor municipalities have the power to require that 
 a license be obtained as a condition precedent to carry- 
 ing on interstate commerce for the exercise of the re- 
 serve police power of the states to the extent of im- 
 posing a direct burden upon that commerce, is invalid. '^° 
 Besides Congress has exercised its authority and has 
 provided its own scheme of regulation over express 
 companies doing interstate business by the enactment 
 of the Hepburn Amendment to the Interstate Com- 
 merce Act.'^^ Under this amendment, express companies 
 are under the exclusive control of Congress and the 
 Interstate Commerce Commission as to all their inter- 
 state shipments. A municipal ordinance, therefore, re- 
 quiring a license of all express companies, a bond for 
 each vehicle license conditioned for tlie safe and prompt 
 delivery of all express packages and requiring all vehic- 
 
 70. Crutcher v. Kentucky, 141 71. Barrett v. City of New York, 
 
 U. S. 47, 35 L. Ed. 649, 11 Sup. 232 U. S. 14, 58 L. Ed. 483, 34 Sup. 
 Ct. 851. Ct. 203.
 
 § 41] State axd Fkdkkal Powkhs 107 
 
 Ics of siicli cairicrs io Ix' innikccl witli official numbers, 
 was lield to be invalid as applied to the interstate busi- 
 ness of exi)i-ess eom])anies and the wagons and driveis 
 enii)l()yed hy Ihcni in such coninierce.'" For the same 
 reason a state statute eoni])elling- express companies 
 to deliver interstate packages at the residences and 
 l)laces of business was held to l)e void."' 
 
 § 41. Valid Municipal Regulations of Drivers on 
 Streets Carrying- Interstate Traffic. Municipal corpora- 
 tions may ado])t and enfoiee regulations to insure care- 
 ful driving over city streets; but when provisions of 
 this nature affect the movement of interstate traffic, 
 as for instance, the drivers of express wagons contain- 
 ing interstate shipments, they must be reasonable and 
 must not arbitrarily restrict facilities of interstate com- 
 merce.'* 
 
 72. Barrett v. City of New York, also In re Express Rates, Prac- 
 232 U. S. 14, 58 L. Ed. 483. 34 Sup. tices, Accounts and Revenues, 24 
 Ct. 203. I C. C. 380. 
 
 73. State ex rel. v. Adams Exp. 74. Barrett v. City of New 
 Co., 171 Ind. 138, 19 L. R. A. (N. York, 232 U. S. 14, 58 L. Ed. 483, 
 S.) 93, 85 N. E. 337, 966. See 34 Sup. Ct. 203.
 
 CHAPTER III. 
 
 Federal and State Control of Carriers During Times 
 
 OF War. 
 
 Sec. 42. Powers of Congress over Carriers during times of Peace and 
 War Distinguished. 
 
 Sec. 43. President Empowered to Assume Control of Transportation 
 Systems in Time of War. 
 
 Sec. 44. Proclamation Assuming Control of Railroads Under Forego- 
 ing Provisions. 
 
 Sec. 45. National Statute Providing for Federal Control and Compen- 
 sation of Carriers During the Period of War with Germany. 
 
 Sec. 46. Purpose of Congress in Enacting the Act Providing for Fed- 
 eral Control During War. 
 
 Sec. 47. Effect of National Statute Providing for Federal Control up- 
 on other Laws, Federal and State. 
 
 Sec. 48. President Authorized to Initiate Rates and Charges for Trans 
 portation During Period of Federal Control. 
 
 Sec. 49. Actions at Law or Suits in Equity may be Brought by and 
 Against Carriers under Federal Control. 
 
 Sec. 50. Penalty for Violations of the Provisions of the Federal Con- 
 trol Act. 
 
 Sec. 51. When Federal Control of Transportation System Under the 
 Statute shall Terminate. 
 
 § 42. Powers of Congress over Carriers During 
 Times of Peace and War Distinguished. During- times 
 of peace, the federal government possesses no control 
 over carriers operating within the boundaries of the 
 several states except such as is granted to Congress 
 under the commerce clause. The national legislative 
 body has, therefore, no power to regulate or control 
 carriers engaged exclusively in intrastate commerce or 
 the intrastate business of interstate carriers.^ The 
 federal government cannot take over, regulate or con- 
 trol carriers engaged solely in moving intrastate com- 
 merce during times of peace without an amendment 
 to the national Constitution. But in times of war, no 
 such limitations upon the powers of Congress exist; 
 for the Constitution i)rovides that Congress may de- 
 
 1. Chapter 2. 
 
 (108)
 
 § 44] FEr)r-:nAi, ()i>khation During War 109 
 
 elan* war and ciincl ;ill laws wliicli sliall be necessary 
 and pi'opor to cany on tlie war. The power to declare 
 war carries with it as an incident thereto and insepar- 
 a])Ie tlierefrom llie li^lil to prosecute the war by all 
 the means known to and recognized by civilized na- 
 tions." If, therefore, the control or regulation of car- 
 riers, whether intrastate or interstate, is necessary or 
 proper for carrying on a war, the federal government, 
 through Congress, may own, operate or regulate them 
 witliout regard to the limitations of tlie commerce 
 clause. 
 
 § 43. President Empowered to Assume Control 
 of Transportation Systems in Time of War. By an 
 act of Congress approved August 29, 191G, the Presi- 
 dent was empowered in time of war, through the Secre- 
 tary of War, to take possession, and assume control of 
 any system or systems of transportation, or any part 
 thereof, and to utilize the same, to the exclusion, as 
 far as may be necessary, of all other traffic thereon, 
 for the transfer or transportation of troojis, war mate- 
 rial, and equipment, or for such other purposes connect- 
 ed with emergency as may be needful or desirable.^ 
 
 § 44. Proclamation Assuming Control of Rail- 
 roads under Foregoing Provision. Pursuant to the 
 power given the President by the Act of August 29 
 
 2. Norwich & W. R. Co. v. over the railroads for war pur- 
 .lohnson, 15 Wall. (U. S.) 195, 21 poses and that no authority was 
 L. Ed. 178; Dooley v. Smith. i:5 granted therein for the raUroais 
 Wall. (U. S.) 604, 20 L. Ed. 547; ^^ ^^ ^p^^^^^^j ^^ ^ ^.^^^^^^ ^^^ 
 Legal Tender Cases, 11. Wall (U. ^^^j ^^ railroads or by the Secre- 
 S.) 457, 20 L. Ed. 287; Tyler v. 
 Defrees, 11 WaU. (U. S.) 331, 
 20 L. Ed. 161; Miller v. United 
 States, 11 Wall. (U. S.) 268. 20 when decided (.March 2, 1918) was 
 L. Ed. 135; United States v. Alex- destroyed by the Federal Control 
 ander, 2 Wall. (U. S.) 404, 17 L. Act approved March 21, 1918; for 
 Ed. 915; Prize Cases, 2 Black (U. section 8 of the latter provides 
 S.) 635 17 L. Ed. 459. ^^^^ ^^^ President may execute any 
 
 3. In Muir v. Louisville & N. of the powers therein and thereto- 
 R. Co., 247 Fed. 888, the court fore granted him with relation to 
 held that by the passage of this federal control through such agen- 
 act Congress intended for the War cles as he may determine. See 
 Department and no other to tako sec. 45 and appendix D, infra. 
 
 tary of the Treasury. The effect 
 of this decision, even if correct
 
 110 Control Over Common Carriers [§ 44 
 
 1916, President Wilson, on December 28, 1917, took 
 possession of and assumed control of all railroad systems 
 of transportation within the boundaries of the United 
 States. The proclamation is as follows: ''Whereas 
 the Congress of the United States, in the exercise of 
 the constitutional authority vested in them, by joint 
 resolution of the Senate and House of Representatives 
 bearing date April 6, 1917, resolved: 'That the state 
 of war between the United States and the Imperial 
 German Government which has thus been thrust upon 
 the United States is hereby formally declared; and 
 that the President be, and he is hereb}^ authorized 
 and directed to employ the entire naval and military 
 forces of the United States and the resources of the 
 Government to carry on war against the Imperial Ger- 
 man Government; and to bring the conflict to a suc- 
 cessful termination all of the resources of the country 
 are hereby pledged by the Congress of the United 
 States.' And by joint resolution bearing date of De- 
 cember 7, 1917, resolved: 'That a state of war is here- 
 by declared to exist between the United States of 
 America and the Imperial and Royal Austro-Hun- 
 garian Government; and that the President be, and he 
 is hereby, authorized and directed to employ the entire 
 naval and military forces of the United States and the 
 resources of the Government to carry on war against 
 the Imperial and Royal Austro-Hungarian Govern- 
 ment; and to bring the conflict to a successful termina- 
 tion all the resources of the country are hereby pledged 
 by the Congress of the United States.' And whereas 
 it is provided by section 1 of the act approved August 
 29, 1916, entitled 'An act making appropriations for 
 the support of the Army for the fiscal year ending- 
 June 30, 1917, and for other purposes,' as follows: 'The 
 President in time of war is empowered, through the 
 Secretary of the War, to take possession and assume 
 control of any system or systems of transportation, or 
 any part thereof, and to utilize the same, to the ex- 
 clusion, as far as may be necessary, of all other traffic 
 thereon, for the transfer or transportation of troops,
 
 § 44] Fedkijal Opehation I)uhin«, Wau 111 
 
 war material, and 0(|nii)iii('iit, or for siicli other pur- 
 poses coiineetcd with the enier^enoy as may be needful 
 or desirable.' And whereas it has now Ijeeonie neces- 
 sary in tlie national defense to take possession and 
 assume control of certain systems of trans] )ort at ion 
 and to utilize the same, to tlic exclusion, as fai- as may 
 be necessary, of other than war traffic thereon, for the 
 trans]iortation of troops, war material, and e(|ui]»nient 
 therefor, and for other needful and desira])le inir])0scs 
 connected with the prosecution of the war: Now, there- 
 fore, I, AVoodrow Wilson, President of the United States, 
 under and by virtue of the powers vested in me by the 
 foregoing resolutions and statute, and l)y virtue of all 
 other powers thereto me enabling, do hereby, through 
 Newton D. Baker, Secretary of War, take possession 
 and assume control at 12 o'clock noon on the 28th day 
 of December, 1917, of each and every system of trans- 
 portation and the appurtenances thereof located wholly 
 or in part within the boundaries of the continental 
 United States and consisting of railroads and owned 
 or controlled systems of coastwise and inland trans- 
 portation engaged in general transportation, whether 
 operated by steam or by electric power, including also 
 terminals, terminal companies, and terminal associa- 
 tions, sleeping and parlor cars, private cars and private 
 car lines, elevators, w^arehouses, telegraph and tele- 
 phone lines, and all other equipment and appurtenances 
 commonly used upon or operated as a part of such rail 
 or combined rail-and-water systems of transportation; 
 to tlie end tliat such systems of transportation be uti- 
 lized for the transfer and transportation of troops, 
 war material, and ecpiipment, to the exclusion so far 
 as may be necessary of all other traflic thereon; and 
 that so far as such exclusive use be not necessary or 
 desirable such systems of transportation be operated 
 and utilized in the performance of such other services 
 as the national interest may require and of the usual 
 and ordinary business and duties of common carriers. 
 It is hereby directed that the possession, control, opera- 
 tion, and utilization of sucli ti-ausportation systems,
 
 112 CoNTHOL Over Common Cakeiees [§ "•-^ 
 
 hereby by me imdertaken, shall be exercised by and 
 through William G. McAdoo, who is hereby appointed 
 and designated Director General of Railroads. Said 
 director may perform the duties imposed npon him, 
 so long and to such extent as he shall determine, 
 through the boards of directors, receivers^ officers, and 
 employees of said systems of transportation. Until 
 and except so far as said director shall from time to 
 time by general or special orders otherwise provide, 
 the boards of directors, receivers, officers, and employees 
 of the various transportation systems shall continue the 
 operation thereof in the usual and ordinary course of 
 the business of common carriers, in the names of their 
 respective companies. Until and except so far as 
 said director shall from time to time otherwise by 
 general or special orders determine, such systems of 
 transportation shall remain subject to all existing stat- 
 utes and orders of the Interstate Commerce Commission 
 and to all statutes and orders of regulating commissions 
 of the various States in which said systems or any 
 part thereof may be situated. But any order, general 
 or special, hereafter made by said director shall have 
 paramount authority and be obeyed as such. Noth- 
 ing herein shall be construed as now affecting the pos- 
 session, operation, and control of street electric pas- 
 senger railways, including railways commonly called 
 interurbans, whether such railways be or be not owned 
 or controlled by such railroad companies or systems. 
 By subsequent order and proclamation, if and when 
 it shall be found necessary or desirable, possession, 
 control, or operation may be taken of all or any part of 
 such street railway systems, including subways and 
 tunnels; and by subsequent order and proclamation 
 possession, control, and operation in whole or in part 
 may also be relinquished to the owners thereof of any 
 part of the railroad systems or rail and water systems, 
 possession and control of whicli are hereby assumed. 
 The director shall, as soon as may be after having as- 
 sumed such possession and control, enter upon negotia- 
 tions with the several companies looking to agreements
 
 <§. 44] FeUKIUL OPKIiATION JJURING WaK 113 
 
 for just and reasonable compensation for tlie possession, 
 use, and control of their respective properties on the 
 basis of an annual guaranteed compensation above 
 accruing depreciation and the maintenance of llicii- 
 ]iroperties equivalenl, as nearly as may be, to the ax'ci'a.ijc 
 of llie net opcialin^' income iliei-eof for the tliree-yeai' 
 ])eiiod ending June 'M), 11)17, Hie resulls of such negotia- 
 tions to be reported to me foi- such action as may be 
 appropriate and lawful. But nothing herein contained, 
 expressed, or implied, or hereafter done or suffered 
 hereunder, shall be deemed in any way to impair the 
 rights of the stockholders, bondholders, creditors, and 
 other persons having interests in said systems of trans- 
 portation or in the profits thereof to receive just and 
 adequate co7)i]iensation for the use and control and 
 operation of their property hereby assumed. Regulai- 
 dividends hitherto declared and maturing interest 
 upon bonds, debentures, and other ol)ligations may 
 be paid in due course; and such regular dividends and 
 interest may continue to be paid until and unless the 
 said director shall from time to time otherwise by 
 general or special orders determine; and, subject to 
 the approval of the director, the various carriers may 
 agree upon and arrange for the renewal and extension 
 of maturing obligations. Except with the prior written 
 assent of said director, no attachment by mesne pro- 
 cess or on execution shall be levied on or against any 
 of the property used by any of said transportation 
 systems in the conduct of their business as common 
 carriers; but suits may be brought by and against said 
 carriers and judgments rendered as hitherto until and 
 except so far as said director may, by general or special 
 orders, otherwise determine. From and after 12 o'clock 
 on said 28th day of December, 1917, all transporta- 
 tion systems included in this order and i^roclamation 
 shall conclusively be deemed within the possession and 
 control of said director without further act or notice. 
 But for the purpose of accounting said possession and 
 control shall dale fioni li' o'clock midnight on Decem- 
 
 1 (ViMtri'l CanicrR s
 
 114 Control Over Common Cahkiers [§ 44 
 
 ber 31, 1917. In witness whereof I have hereunto set 
 my hand and caused the seal of the United States to 
 be affixed. Done by the President, through Newton 
 D. Baker, Secretary of War, in the District of Columbia, 
 this 26th day of December, in the year of our Ijord 
 one thousand nine liundred and seventeen, and of the 
 independence of the United States the one hundred and 
 forty-second." 
 
 § 45. National Statute Providing for Federal Con- 
 trol and Compensation of Carriers During the Period 
 of War v/ith Germany. Following the President's 
 proclamation by which he took possession of and as- 
 sumed control of all systems of transportation within 
 the boundaries of the United States, Congress enacted 
 a statute known as the Federal Control Act which 
 was approved by the President on March 21, 1918.* 
 The leading object in the enactment of this statute 
 was to provide the means and method of compensating 
 the carriers for the use of their property during the 
 period of federal control which, by the provisions 
 of the Act, is limited to and during the period of the 
 war and for a reasonable time thereafter, not to exceed 
 one year and nine months following the date of the 
 ratification of the Treaty of Peace. 
 
 The first section of the statute provides that the 
 President, having in time of war taken over the posses- 
 sion, use, control and operation of certain railroads and 
 systems of transportation, is authorized to agree with 
 and to guarantee to every carrier making operating- 
 returns to the Interstate Commerce Commission, that 
 during the period of federal control, it shall receive as 
 just compensation an annual sum, payable from time 
 to time in reasona])le installments, not exceeding a 
 sum ec|uivalout as nearly as may be to its average 
 
 4. For full copy of Act pro- of orders of Director General un- 
 
 viding for federal control of car- der Federal Control Act, see Ap- 
 
 riers durins; period of the war, see pendix Q, infra, 
 appendix D, infra. For copies
 
 § 46] Federal Opekatiox During War 115 
 
 animal I'ailway operating iiicomc foi- tlio tliroe years 
 ending Juno oOtli, 1917. 'I'lx' lirst section also con- 
 tains fnrtlier jirovisions authorizing the .President to 
 insert certain stipulations in the agreements witli the 
 carriers. Section 2 prescribes tliat if no agreement 
 is made witli the carrier, the President may nevertlie- 
 less compensate any carrier wliile under federal control. 
 Under tlie provisions of section .3 all claims for just 
 compensation not adjusted as jn'ovidcd in section 1 shall, 
 on the api)lication of the President or of any carrier, be 
 submitted to a board consisting of three referees to 
 be appointed by the Interstate Commerce Commission 
 with a proviso for an ajipeal to the Court of Claims. 
 Section 5 prohibits any carrier while under federal con- 
 trol from declaring or paying any dividend in excess 
 of its regular rate of dividends during the three years 
 eluding June .30th, 1917, without the jirior approval of 
 the President. 
 
 Under the provisions of section 6 the sum of 
 $500,000,000 is appropriated for the use of the President 
 as a revolving fund for the purpose of paying the ex- 
 penses of federal control. For the purpose of providing 
 funds -requisite for maturing obligations or for legal and 
 proper expenditures, or for reorganizing railroads 
 in receivership, section 7 provides that the carriers may 
 during the period of federal control issue such bonds, 
 notes, equipment trust certificates, stock, and other 
 forms of securities as the President may first approve. 
 Section 8 provides that the President may execute any 
 of the powers granted him with relation to federal 
 control through such agencies as he may determine 
 and may fix the reasonable compensation for the ])or- 
 foi'inance of services in connection therewith. 
 
 § 46. Purpose of Congress in Enacting the Act 
 Providing for Federal Control During War. The 
 purpose of Congress in enacting the act providing for 
 federal control of transportation systems during the 
 war with Germanv was thus stated bv the Senate
 
 116 CoNTTjoL Over Common Carriers [§ 46 
 
 Committee on Interstate Commerce in its report sub- 
 mitting tlie bill:'' "The Committee on Interstate Com- 
 merce, to whom was referred the bill (S. 3752) to pro- 
 vide for the operation of transportation systems while 
 under Federal control, for the just compensation of 
 their owners, and for other purposes, have considered 
 the same and report thereon with the recommendation 
 that the bill do pass without amendment. On August 
 29, 1916, Congress enacted the following: 'The Presi- 
 dent in time of war is empowered through the Secre- 
 tary of War to take possession and assume control 
 of any system or systems of transportation or any 
 part thereof, and to utilize the same to the exclusion, as 
 far as may be necessary, of all other traffic thereon 
 for the transfer or transportation of troops, war material, 
 and equipment, or for such other purposes connected 
 with the emergency as may be needful or desirable.,' 
 Under this statute and by virtue of all other power 
 enabling him, the President, on December 28, 1917, took 
 possession and control of the railroad systems of con- 
 tinental United States and the owned or controlled 
 systems of coastwise or inland water transportation. 
 He appointed Hon. William G. McAdoo Director General 
 of Railroads. Since December 28 he has been operating 
 those systems of transportation for war and national 
 purposes. There was no provision in the act of August 
 29, 1916, for determining the just compensation due as 
 a constitutional right to the owners of the properties 
 thus taken over for public purposes. It therefore 
 became necessary to provide the proper legislation to 
 meet the two very important needs; first, the proper 
 judicial machinery for determining the amount of just 
 compensation thus accruing; secondly, to give to the 
 President the authority to offer the owners of the prop- 
 erty thus taken just and reasonable terms for com- 
 pensation which, if accepted, will determine finally 
 and completely all rights as between the Government 
 
 5. Report 246, Part 1, 65th Congress, 2d Session.
 
 § 46] FEDKHAf- Operation' DrMuxf; War 117 
 
 and I lie owiicis, lliiis ax'oidiii.i;" I lie dolays incident to 
 lili.i;ation and ^ivini;- slrenntli and siability to the 
 security market and icnderin^' assistance to our future 
 war financing. Tlie President, in his proclamation, 
 instructed tlie Director General to enter upon negotia- 
 tions with the several companies looking to an agree- 
 ment for just and reasona])le compensation for the 
 possession, use, and control of their respective prop- 
 erties on the basis of an annual guaranteed compen- 
 sation above acci'uing dejnociation and the mainte- 
 nance of their properiies, equivalent, as nearly as may be, 
 to the average of the net railway o]ierating income 
 thereof for the three-year period ending June 30, 1917. 
 Your committee were of opinion that this is the time 
 for war emergency legislation and not the time to settle 
 the many controversial and vexed questions concerning 
 our future transportation policy. With these prelimi- 
 nary observations your committee submits a brief ex- 
 ])lanation of the various sections of the bill: Section 
 1 authorizes the President to agree with the carriers 
 whose property has been taken over that during the 
 period of Federal control each carrier may receive as 
 just compensation — in lieu of all rights arising under 
 due process of law — an annual sum not exceeding its 
 average annual railway operating income for the three 
 years ended June 30, 1917, plus a return at a rate to 
 be fixed by the President upon the cost of additional 
 facilities made during the last six months of 1917, the 
 amount of such net earnings and the cost of such addi- 
 tional facilities to be determined by the Interstate 
 Commerce Commission and certified to the President. 
 This is in substance the President's suggestion. The 
 certification of the commission is to be taken as con- 
 clusive for the purpose of such agreement. Any operat- 
 ing income in excess of such standard return is to be 
 paid into the Treasury of the United States and i)laced 
 in the revolving fund provided by section 6 of this act. 
 About 75 great operating railroads do over 90 per cent 
 of the railroad business. It is believed by your com- 
 mittee that most of these great railroad carriers will
 
 lis Control Over Common Carriers ' [^ ^^ 
 
 accept these terms as a just and fair iiioasiire of their 
 constitutional rights. Section 1 fnrtlior provides tliat 
 ordinary taxes, National and State, shall, as now, be 
 paid out of operating revenue; but war taxes accruing 
 under the act of October 3, 1917, are to be paid by the 
 companies out of their own funds, or charged against 
 the standard return. In other words, the holders of 
 railroad securities are by section 1 (like holders of other 
 securities) to b'^ar their own just portion of the war bur- 
 den. Section 1 also requires that each agreement 
 the maintenance and depreciation of the property and 
 shall contain adequate and appropriate provisions for 
 the creation of any reserves or reserve funds found 
 necessary in connection therewith; so that the properties 
 may at the end of Federal control be returned to tlie 
 owners in a condition substantially equivalent to their 
 condition when taken over by the Government; and 
 that proper adjustments both in the standard return 
 and in the terms of final settlement may be made. Thus 
 even-handed justice will be worked out as between 
 each company and the Federal Government. If the 
 right of all the railroads making returns to the Inter- 
 state Commerce Comission are fixed under the provisions 
 of this section, the Government will guarantee approx- 
 imately^ $945,000,000 a year. Since the preparation of 
 this summary, however, the committee has amended 
 section 1 by inserting a provision authorizing a return, 
 at such reasonable rate as the President may determine, 
 upon the cost of additional transportation facilities made 
 during the last six months of 1917. This addition, of 
 perhaps ten to fifteen millions, is made in the interest 
 of equality, it a])pearing that two hundred to two hun- 
 dred and fifty millions of additional capital has, during 
 the last half of 1917 been i^ut into transportation facili- 
 ties by a comparatively few of the carriers taken under 
 Federal control. There has, of course, been much 
 discussion as to the fairness and justice of the proposed 
 amount of the standard return. It should not be over- 
 looked that the gist of the question is. What would 
 these companies be likely to receive from the courts
 
 §4(11 Fkdkij.m, ( )i'Ki{ATi(tN Druixd Wak ni) 
 
 as just PoiniHMisation? The amount of just coinpensation 
 is not a lo,i?islativo ([uostion — it is a judicial (juestion. 
 ( Moiiongalicia Navi.gation Co. v, II. 8., 148 U. S., 312). 
 Jt follows, in tlio opinion of your ('oramittoe, lliat nnifli 
 of llie evidonr'o and discussion concern in.*;- tli<' so-called 
 surplus is in-ele\aiil. It is ])lainly in the ])ul)lic Inter- 
 cast — and indeed a war need — tinit the President l»e 
 autliorized to offer to settle with the owners of these 
 pro])erties on a basis approximately ecpiivalent to that 
 whi(^h sonnd-thinkini>: men would advise the owners they 
 would be likely to receive by court decision. The 
 rii>-hts of such owners must be tested by present con- 
 ditions — not by some theory of capitalization never 
 made operative under Federal or State law or generally 
 followed by the courts. Questions of value are always 
 diflicult questions. It is highly probable, if not certain, 
 if the whole question were remitted to the courts, they 
 would take as tbe basis for determining just compensa- 
 tion, the actual net earnings for a reasonable period. 
 During the last three years new investment in proper- 
 ties now under Federal control has been at the rate 
 of approximately three hundred and seventy-five millions 
 a year. The year ended June 30, 1915, was one of 
 the poorest in recent railroad history. The other two 
 years have been prosperous years. The average of the 
 three years therefore reflects neither poverty nor riches. 
 The purchasing power of the dollar accruing to the 
 stockholder, as well as to the wage earner, has de- 
 creased. Dividends in industrial com])anies have largely 
 increased. The rate of return upon Government bonds, 
 l)oth abroad and in the United States, has largely in- 
 creased. The percentage of return npon the value of 
 the railroad property taken under Federal control can 
 not be accurately stated; for until the Federal valuation, 
 now in process, is completed, no one knows the value 
 of that property. The book value may be taken for 
 certain comparative purposes, as of some significance; it 
 must not be regarded as accurate. The proposed standard 
 return, figured upon the book value of all the companies 
 will give a return not far from 5.32 per cent. Compar-
 
 120 Control Over Common Carriers [§ 46 
 
 ins; tliis return to that which accrues to the pur- 
 chaser of Government bonds, it seems large; but Gov- 
 ernment bonds run for a period of 25 to 30 years. The 
 proposed guarantee to the owners of railroad securities 
 may run for (^iily a few months. The Government 
 is ju-actieally a tenant at wilh After the most careful 
 consideration your committee are of the opinion that 
 the owners of these properties would not be imlikely to 
 to receive an award from a court at least equal to the 
 proposed offer; that it is therefore the duty of Congress 
 to authorize the President to make such offers as will 
 prevent patriotic and fair-minded American citizens 
 from resorting to litigation, in time of war, in order 
 to determine their rights against their Government. 
 The standard return thus provided for will, if accepted 
 by the various operating companies, be disposed of sub- 
 stantially as hitherto; that is, for the payment of their 
 fixed charges (and war taxes which remain a burden up- 
 on the standard return), for dividends, and if any balance 
 remains, for so-called surplus. The fixed charges ordi- 
 narily fall into interest on bonds and other debt obliga- 
 tions, and leased line rentals, generally in the form of 
 interest and dividends on outstanding bonds and stock 
 or leased companies. These rentals are not, as is some- 
 times thought, properly a part of operating expenses. 
 They are really disbursements for the use of capital; 
 for it makes no practical difference whether the operat- 
 ing company is consolidated with the leased companies 
 and pays interest and dividends upon its own bonds 
 and stock issued in payment for the subsidiary com- 
 panies, property, or whether it pays interest and divi- 
 dends upon the stock and bonds of the leased companies. 
 In either event the disbursement is a disbursement on 
 capital account and not on operating accoimt. The 
 foregoing makes it clear that the railroads accepting 
 the suggested terms will be fully able to make all their 
 usual disbursements to their security holders. In effect, 
 this regular income is guaranteed by the Government 
 to the security holders during the period of Federal 
 Control. The stabilizing, confidence-producing effect
 
 <§. 46] FeDKUAL Ol'KHATlON Dl'HINC WaK 121 
 
 of such guaranty will, as your coiiiinittee bolicve, be 
 of great assi-staiico in future war fiiianeiiig. Tlie terms 
 above indicated will i^robably be found just and fairly 
 applicable to the security holders of most of the rail- 
 roads of the country. But there are certain undevel- 
 oped and reorganizing roads whose operating income 
 for three years will not fairly test their right to just com- 
 pensation. Some special provision to meet the just 
 demands of these companies seems requisite. Section 
 1, accordingly, provides in the last paragraph thereof 
 that, when the President finds tliat the condition of 
 nondividend paying carriers is becau.se of nonoperation, 
 receivership, or other undeveloped or abnormal con- 
 dition such as to make the basis of earnings provided 
 for the other carriers "plainly inequital)le," as a fair 
 measure of just compensation, then the President may 
 make with such carrier such agreement as under the 
 circumstances of the particular case he shall find just. 
 Section 2 i3rovides in case the agreement provided 
 for in section 1 is not made, the President is 
 authorized to pay not exceeding 90 per cent, 
 of the estimated amount of just compensation. This, 
 in the opinion of your committee, would tend to stabilize 
 conditions for the security holders of the newer strug- 
 gling companies, whose rights may not be easy of speedy 
 ascertainment. Section 2 does not require the President 
 to make any payment at all to such owners, thereby 
 avoiding the danger of offering a premium to unreason- 
 able and greedy litigants. Section 3 provides easily avail- 
 able facilities safeguarding the constitutional rights 
 of owners to have their just compensation determined 
 by due process of law. It also furnishes another oppor- 
 tunity for settlement of eases which may not be satis- 
 factorily disposed of by agreements in accordance with 
 the standard return, or under the special power of sec- 
 tion ]. Section 3 provides that the Interstate Commerce 
 Commission shall, on the application of the President, 
 or of any carrier, appoint boards of referees, the com- 
 mission and its forces being made not ineligible as such 
 referees. These referees are armed with the usual pow-
 
 122 CoNTR(n. OvKE Common (^arriees [§ 4G 
 
 ers of judicial tribunals — to summon witnesses, re- 
 quire the production of books, etc., and may bold bear- 
 ings in Wasbington and elsewbere, as convenience may 
 serve. Tbey may consolidate and classify cases. Tbese 
 boards are to give full bearings, consider all pertinent 
 facts, and report tbeir lindings to tbe President in a 
 form convenient and available for tbe making of such 
 agreements as are authorized by section 1. Tbe Presi- 
 dent and sucb company may tben make an agreement 
 for compensation not in excess of tbat reported by tbe 
 referees. Failing sucb agreement, either tbe United 
 States or tbe company may tile a petition in the Court 
 of Claims; and in tbe proceedings in this court sucb 
 report is prima facie evidence of tbe amount of just 
 compensation and of any facts reported. It is tbe confi- 
 dent opinion of your committee tbat section 3 not only 
 effectually guards tbe constitutional rights of all owners 
 but that tbe proceedings before the referees will be 
 found so complete and satisfactory tbat few, if any, 
 cases will ever reach the Court of Claims. Section 4 pro- 
 vides tbat tbe agreed or ascertained just compensation 
 may be increased during Federal control by an amount 
 reckoned at a reasonable rate per centum to be fixed 
 by tbe President upon the cost of additions made while 
 the Government is in possession. Manifestly an in- 
 crease in tbe property used requires a corresponding 
 increase in tbe compensation for the use. No increase 
 is allowed for additions paid for out of surplus during 
 the period of Federal control. Whether a denial of 
 any return upon surplus earnings invested in additional 
 facilities will result in throwing an unnecessary burden 
 of financing upon tbe Federal Government and in tbe 
 accumulation of a dead sur])lus will require careful 
 consideration by the Senate. Tbe main purpose of sec- 
 tion 5 is to give stability to our Rnancial conditions. 
 From tbe standard return the railroad companies may 
 without permission pay tbeir regular dividends. Con- 
 ceivably it may be desirable that some of the prosper- 
 ous carriers should be permitted somewhat to increase 
 their regular dividends; if so, tbe Pi'esident's prior ap-
 
 § 4()1 Kedkhal Oi'KiiA'JKKN i)L:j:iN(; Wak 1--5 
 
 proval must bo ol)taiiU'd. NondividciKl payors or irrog- 
 iilar dividend payors, wliose standard or asoortained 
 return warrants dividends, may with the President's 
 l)erniisKion be put in tlie dividend-paying class at sueli 
 rate as the President may determine. Tliis section 
 goes upon the theory that during the war tlie railroad- 
 security holders ought to receive certain, regular and 
 moderate dividends; but that extra, unexpected divi- 
 dends — a common source of speculation and numipula- 
 tion — should ;iot be permitted. Section G is a very 
 important section. It provides for a revolving fund 
 to be made up from an initial appropriation of $500,000,- 
 000, together with any excess earnings of any of the 
 carriers. This fund is to be available to the President 
 for the purpose of paying the expenses of the Federal 
 control, sui)plying any deficit in the just compensation 
 accruing to any carrier, and to provide for rolling 
 stock and terminals, to be used and accounted for as 
 the President may direct, and to be disposed of as 
 Congress may hereafter by law provide. This contem- 
 plates that engines, cars, and perhaps terminals, will 
 be purchased or constructed by and will belong to the 
 United States. This rolling stock will be used where- 
 over war and national needs demand — precisely as 
 the Pullman and other private car lines are now used 
 on the lines of the various carriers as the needs of 
 industry or the demands of the seasons require. The 
 ultimate disposition of this rolling stock must await 
 l)ost-war legislation. This section contemplates that 
 such rolling stock, although owned by the United States, 
 will be used on the lines of the various railroads and 
 the use charged for upon the books of the companies, 
 so that at the expiration of Federal control the book- 
 keeping of each railroad company will reflect, as hither- 
 to, the traffic whi(^h has moved over each road and the 
 cost of operation. The section further provides that 
 the President may, on or in connection with the jirop- 
 erty of any carrier, make or order any company to 
 mako additions desirable either for war purposes or 
 in the public interest. Doubtless it will be necessary
 
 1-4 Control Over Common Carriers [§ 46 
 
 in conneotion wilh Army camps and shipboards to 
 make substantial extensions of railroad and other car- 
 rier property. Your committee believes that such ad- 
 ditions and extensions should become and remain the 
 property of the separate carriers; that there should be 
 no confusion of title as to real estate, tracks, and other 
 fixed property between any railroad company and the 
 United States. As it is possible that some such ad- 
 ditional facilities thus made to the property of various 
 carriers will in times of peace be found worth less than 
 the cost thereof, this section provides that claims for 
 loss or damage accruing from such compelled invest- 
 ment shall be settled either by agreement between the 
 carrier and the President, or, failing such agreement, 
 shall be ascertained by due process of law, as provided 
 in section 3. As some of the companies may not have 
 the requisite funds to pay for such extensions and ad- 
 ditions, the President is authorized from the revolving 
 fund to advance all or any part of such cost, these ad- 
 vances to bear interest at rates and to be payable on 
 such terms as the President may determine, so that 
 the United States may ultimately be fully reimbursed 
 for such advances. Section 6 also provides that the 
 President may, from the revolving fund expend such 
 sums as he deems necessary or desirable for the utiliza- 
 tion or operation of canals and for the purchase, con- 
 struction, utilization, and operation of boats and other 
 water carriages on the inland and coastwise waterways. 
 It is believed by your committee that much relief may 
 be afforded the rail carriers by a further development 
 of the watercarriers and of facilities on these natural 
 water highways. Section 7 provides for financing the 
 maturities of carriers during the period of Federal con- 
 trol. It authorizes the President to j:)urchase for the 
 United States, at prices not exceeding par, any securi- 
 ties issued by the railroads, roads approved by him as 
 consistent with the public interest. Such securities 
 may be sold without loss to the Treasury whenever 
 the President deems it desirable, the proceeds of such 
 sale to go back into the revolving fund. The estimates
 
 § 4(i I Fkdkkal OpKitAiioN hnuNMi Waii 125 
 
 of tlio iiiMtin'itics for llic iicxl i'onr vcmi's aro as follows: 
 
 1918 .....! $l82,60r),52S 
 
 1919 188,213,0ryj 
 
 1920 186,52(),25:5 
 
 1921 440,905,5-J8 
 
 Section 8 jji-ovidcs in general terms that the President 
 may execute his powers with relation to the Federal 
 control throngh such agencies as he may determine and 
 fix the reasonable compensation for services rendered 
 in connection therewith, using the personnel and facili- 
 ties of the Interstate Commerce Commission and all 
 other governmental bodies. Section 9 is simply to the 
 effect that nothing contained in this act shall be deemed 
 to restrict the powers heretofore given to the President 
 to take possession and assume control of any and all 
 systems of transportation. It also provides that this 
 act shall apply to any carriers to which Federal con- 
 trol may be hereafter extended. Section 10 provides 
 that so far as not inconsistent with Federal control, 
 each of the carriers shall remain subject to all laws and 
 liabilities whether arising under statutes or at common 
 law. It also provides that the President may, when- 
 ever in his opinion the public interest so requires, 
 initiate rates by filing the same with the Interstate 
 Commei'ce Commission, sucli rates to be fair, reasonable, 
 and just, and that upon complaint tlie rates thus initi- 
 ated by him may be reviewed by the Interstate Com- 
 merce Commission. In such review the Interstate Com- 
 merce Commission may consider all the facts and cir- 
 cumstances existing at the time of the making of the 
 rate. After full hearing, the commission may make 
 such findings and orders as are authorized by the act 
 to regulate commerce as amended. Your committee 
 were of opinion that the commercial organizations of 
 the country should be disturbed as little as the emergen- 
 cy would allow, and that every safeguard would be 
 thrown around the great productive activities of the 
 countr}^ everything possible to inspire confidence in 
 their being i)rotecte(l from unnecessary embarrassment. 
 Section 11 provides penalties for violation of this act
 
 126 Control Over Common Carriers [§ 46 
 
 or orders of the President made tlierennder. Section 
 12 lias been inserted at the request of the Department 
 of Justice and is intended to provide for continuintj^ 
 the life and stalKs (jno of cases pending under the anti- 
 trust and interstate commerce acts. It requires no com- 
 ment. Section 13 provides that the Federal control 
 shall continue not to exceed 18 months after the dec- 
 laration of peace. It is possible that certain conditions 
 may arise from Federal control which will need adjust- 
 ment before the properites are returned to their owners, 
 and a reasonable period should intervene in which these 
 conditions may be met and adjusted. It may be that 
 the nation will be imwilling to return to the conditions 
 obtaining before the assumption of Federal control. 
 Legislation may be demanded radically changing the 
 relation of the Government to the railroads from that 
 now existing in the interstate commerce act as amended. 
 These problems will require time for careful and de- 
 liberate consideration. Therefore your committee has 
 suggested a period of 18 months, and they believe it 
 will be found adequate for that purpose. In section 
 1.3 there is also a provision to the eifect that the Pres- 
 ident may, prior to July 1 next, relinquish control of 
 such transportation system as he may deem not needful 
 or desirable, and may, thereafter, on agreement, relin- 
 quish all or any part of any system of transportation. 
 Your committee also recommends that at any time after 
 July 1, 1918, the President may agree with the owners 
 of all or any part of any system of transportation 
 when in the opinion of the President furtlier Federal 
 control of the same is unnecessary, to relinquish such 
 control to the owners. The section also contains a gener- 
 al provision that the president may relinquish all rail- 
 roads at any time when he shall deem such action need- 
 ful or desirable. Your committee have adhered to the 
 set purpose to limit this legislation to war emergency 
 purposes, and to avoid all contentions and controversial 
 questions. We believe that the bill will accomplish 
 these results. It follows closely the President's recom- 
 mendations. It has in its main provisions and i)urpose
 
 § 471 
 
 Fef»i:i;ai. ( )im:i{.\ti()\ Dri'.ixc War 
 
 127 
 
 received general ajiproxal aii<i cuinpaiativ**!}' little 
 ci'iticisii]." 
 
 § 47. Effect of National Statute Providing- for 
 Federal Control Upon Other Laws, Federal and State. 
 It is proscribed in Section lU ui' the Act piosidiiig for 
 federal control of carriers during the period of the war, 
 that the carriers while under federal control shall be 
 subject to all laws and liabilities as common carriers, 
 whether arising under state or federal laws or at common 
 law, except in so far as may be inconsistent with the pro- 
 visions of the Federal Control Act or any other Act aj)- 
 plicable to such federal control, or with any order of 
 the President. 
 
 The phrase ''or with any order of the President" 
 seems to imply that the President may, by order, set 
 aside other laws, federal or state, affecting carriers un- 
 der federal control." For exam])le, the Director General 
 
 G. Such seems to have been the 
 view of Senator Townsend, one of 
 the members of the conference 
 committee on the Act while pend- 
 ing in the Senate. In discussing 
 tlie provisions of section 10 In the 
 Senate, he said: "The words, 'or 
 with any order of the President' 
 were imputed into the bill and 
 they had no object known to the 
 committee. They were not neces- 
 sary for the purposes of the para- 
 graph. It is clear to anyone who 
 will read the bill that the origi- 
 nal provision was intended simply 
 to fix the status of claimants 
 against the railroads after they 
 were taken over by the Federal 
 Government. It was thought that 
 perhaps a new situation would 
 arise by such taking over, and 
 that, therefore, the same laws ahd 
 procedure which had obtained 
 prior to Federal control relative 
 to claims and suits should be spe- 
 cifically mentioned as applying to 
 
 conditions afterwards. No law- 
 yer would have difficulty in dis- 
 covering what the paragraph 
 meant. But it was thought by the 
 Director General, or by some one 
 outside of the committee, that it 
 was wise to insert the words, 'or 
 with any order of the President,' 
 meaning by that that State and 
 Federal laws could be set aside by 
 the President's order, and that 
 not necessarily for war purposes. 
 There could be no possible reason 
 for inserting this language so far 
 as the effective control of the rail- 
 roads is concerned. That specific 
 power has not been granted the 
 President up to the present time 
 and yet the Director General has 
 been operating the roads for three 
 months and no complaint of lack 
 of power has been mentioned. The 
 author of this provision probably 
 had in mind what purpose it might 
 serve, but it will not be one nec- 
 essary to tile operation of the roads
 
 128 Control Over Common Carriers [§ 47 
 
 of railroads, pursuant to tliis and other provisions of 
 the Federal Control Act, issued two general orders^ di- 
 recting that all suits against carriers while under federal 
 control must be brought in the county or district where 
 the plaintiff resided at the time the cause of action ac- 
 crued, or in the county or district where the cause of 
 action arose. Section 10 also provides that actions 
 at law or suits in equity may be brought by and against 
 carriers and judgments rendered as provided by the law 
 when the Federal Control Act became effective. 
 
 § 48. President Authorized to Initiate Rates and 
 Charges for Transportation During Period of Federal 
 Control. Section 10 of the Act provides that during 
 the period of federal control, whenever, in his opinion, 
 the public interest requires, the President may initiate 
 rates, fares, charges, classifications, regulations, and 
 j)ractices by filing the same with the Interstate Com- 
 merce Commission, which rates, fares, charges, classifica- 
 tions, regulations and practices shall not be suspended 
 by the Commission pending final determination. 
 
 The statute further provides that such rates, fares, 
 charges, classifications, regulations and practices shall 
 
 for war purposes. Until the Sena- original proponents of the provi- 
 tor from Arkansas (Mr. Robinson) sicn had in mind; but knowing, as 
 so forcefully and effectually dis- I do know, what has come from 
 cussed this provision in the Sen- legislation heretofore enacted by 
 ate, I had not known that anyone Congress — namely, the food and 
 believed that with it left out the fuel control bill — I thought it was 
 President would be unable to very unwise to incorporate arbi- 
 operate the railroads successfully. trary power in this measure unless 
 I am confident the Senator is mis- there was some definite reason for 
 taken, for I repeat that they have doing so and some war emergency 
 been operated without difficulty was to be served. This matter was 
 for three months without this law, debated on the floor of the Senate; 
 and if it were never enacted no but my contention was not agreed 
 embarrassment would result to to by the Senate, and so I had to 
 Government control. I still Insist adhere to the action of the Senate 
 that these objectionable words in the conference committee; but 
 have no legitimate place in this all I had to do was to remain si- 
 paragraph. The House of Repre- lent." 
 
 sentatives left them out. * * * 7. General Orders No. 18 and 
 
 I do not know exactly what the 18a Appendix Q, infra.
 
 <§ 49] Fkdkkai. Oi'KUAiiox DuHi.Nd War 129 
 
 be reasonable and just and shall take effect at such 
 time and U])()n such notice as he may direct; but the 
 Interstate Commerce Commission shall, upon complaint, 
 enter upon a hearing concerning the justness and 
 reasonableness of so much of any order of the President 
 as establishes or changes any rate, fare, charge, classifi- 
 cation, regulation, oi- practice of any carrier under feder- 
 al control, and may consider all the facts and circum- 
 stances existing at the time of the making of the same. 
 In determining any question concerning any such rates, 
 fares, charges, classiiications, regulations, or ])ractices, 
 or changes therein, the Interstate Commerce Commission 
 shall give due consideration to the fact that the trans- 
 portation systems are being operated under a unified 
 and coordinated national control and not in competition. 
 After a full hearing the Commission may make such 
 findings and orders as are authorized by the Act to 
 Regulate Commerce as amended, and said lindings and 
 orders shall be enforced as provided in said Act. 
 
 A proviso to Section 10 prescribes that when the 
 President shall find and certify to the Interstate Com- 
 merce Commission that in order to defray the expenses 
 of federal control and operation fairly chargeable to 
 railway operating expenses, and also to pay railway 
 tax accruals other than war taxes, net rents for joint 
 facilities and equij^ment, and comijensation to the 
 carriers, operating as a unit, it is necessary to increase 
 the railway operating revenues, the Interstate Com- 
 merce Commission in determining the justness and 
 reasonableness of any rate, fare, charge, classification, 
 regulation or practice, shall take into consideration 
 said finding and certificate by the President, together 
 with such recommendations as he may make. 
 
 § 49. Actions at Law or Suits in Equity may be 
 Brought by and Against Carriers Under Federal Con- 
 trol. The Federal Control Act declares that actions 
 at law or suits in equity may be brought by and against 
 carriers subject thereto, and that judgments may be 
 rendered as now provided by law. In any action at 
 
 1 Coutrol Curriers 9
 
 130 Control Over Common Carriers [§ 49 
 
 law or suit in equity against tlie carrier, no defense 
 shall be made thereto upon the grounds that the carrier 
 is an instrumentality or agency of the federal govern- 
 ment; nor sliall any such carrier bo ontitk'd to have 
 transferred to a federal court any action instituted 
 by or against it, which action was not so transferable 
 yiviov to the federal control of such carriers. Any action 
 wliicli has been so transferred because of such federal 
 control or of any Act of Congress or official order or 
 proclamation relating thereto, shall upon motion of 
 either party be retransf erred to the court in which it 
 was originally instituted. No process, mesne or final, 
 shall be levied against any property under such federal 
 control. The foregoing provisions constitute a part of 
 K^ection 10 of the Act. 
 
 In construing the foregoing provisions, the Court 
 of Appeals of Kentucky said:** "Obviously, the effect of 
 the foregoing provisions of the statute is to entirely 
 suspend the right of issuing and levying executions, 
 attachments, or other like process against the property 
 of common carriers under federal control, during the 
 continuance of such control; but it does not prevent a 
 litigant from bringing his action against the latter in 
 any court of competent jurisdiction, or such court from 
 granting him such relief in the form of a judgment or 
 otherwise, short of the coercive payment or satisfaction 
 of such judgment by the levy of an execution or other 
 like process upon or against any property of the car- 
 rier, as the litigant might, but for the passage of the act, 
 under the laws of the state of his residence, have been 
 entitled to. In other words, he ma}', notwithstanding 
 the act, bring his action and obtain judgment against 
 the carrier; but he cannot enforce against the latter the 
 satisfaction of the judgment, when obtained, by execu- 
 tion or similar process. The object of the act of Con- 
 gress and of the President's proclamation referred to is 
 to prevent, except as allowed by the director general 
 of the railroad under the control of the government, 
 
 8. Louisville & N. R. Co. v. Steel, Ky. , 202 S. W. 878.
 
 '^ 4!) J Federal Opekation During War 131 
 
 the seizure or sale of its property, wliicli, if allowed, 
 would interfere with the ^government's use of such prop- 
 erty as required in its efforts to bring the war to a 
 successful issue. It is true, as argued by counsel for 
 appellant, that in construing section 764, Civil Code 
 Practice, which provides that, upon the affirmance of a 
 judgment for the jjayment of money which has been 
 superseded, 10 per cent, damages on the amount super- 
 seded shall be awarded against the appellant, this court 
 has held that damages on the affirmance of a judgment 
 superseded will not be given except where the judgment 
 is one that might be enforced by execution or similar 
 process. Worsham v. Lancaster, 104 Ky. 813, 48 S. W. 
 410, 20 Ky. Law Rep. 969; Bell's Trustee v. City of 
 Lexington, 124 Ky. 463, 99 S. W. 344, 30 Ky. Law. Rep. 
 609. But this fact will not confer upon this court the 
 right to withhold the 10 per cent, damages because en- 
 forcement of the judgment therefore by execution or 
 similar process against the property of the carrier is 
 suspended by the act of Congress. The right of the 
 appellee, upon the affirmance of the judgment appealed 
 from to the 10 per cent, damages, is no more prohibited 
 by the act of Congress than was his right to recover the 
 judgment in the court below. While section 12 of the 
 act declares that moneys and other property derived 
 from the operation of the carriers during federal con- 
 trol are hereby declared to be the property of the United 
 States, it also ]n'ovides for its disbursement in the same 
 manner as indicated by the Interstate Commerce Com- 
 mission's classification of accounts in force December 
 27, 1917. The fact, however, that whatever a])pellee 
 receives from appellant upon' his judgment may be paid, 
 according to such classification of accounts, out of 
 moneys derived by the federal government from the 
 operation of appellant's railroad, cannot militate against 
 his right to have his demand against a]>pellant ascer- 
 tained and determined by the judgment of a court of 
 competent jurisdiction. In this case his claim for the 
 damages sued for has been fixed by the judgment ren- 
 dered in the lower court and affirmed by this court; and 
 as his right to the 10 per cent, damages claimed upon
 
 132 Control Over Common Carriers [§ 49 
 
 the amount of the jiidg'ment superseded legally results 
 from its affirmance, he is clearly entitled to have judg- 
 ment therefor, although its satisfaction, by reason of 
 the prohibitive provisions of the act of Congress, can- 
 not, be now enforced by execution or other coercive 
 process against the property of the carrier. In addition 
 to what has been said, there is yet another reason for 
 granting the relief now asked by appellee. There is 
 nothing in any provision of the act of Congress which 
 in any way interferes with his right to proceed against 
 the surety in the supersedeas bond for the amount of 
 his judgment recovered against appellant in the lower 
 court or the 10 per cent, damages thereon awarded by 
 this court, and, as by the terms of that bond the surety 
 is also liable for the 10 per cent, damages resulting from 
 the affirmance of the judgment in this court, the award- 
 ing of such damages by this court will be and is neces- 
 sary in order to fix and determine the liability of such 
 surety therefor." 
 
 § 50. Penalty for Violations of the Provisions of 
 the Federal Control Act. Section 11 of the Federal 
 Control Act provides that every person or corporation 
 whether carrier or shipper, or any receiver, trustee, 
 lessee, agent, or person acting for or employed by a 
 carrier or shipper, or other person, who shall knowingly 
 violate or fail to observe any of the provisions of the 
 Act, or shall knowingly interfere with or impede the 
 possession, use, operation, or control of any railroad 
 property, railroad, or transportation system hitherto 
 or hereafter taken over by the President, or shall know- 
 ingly violate any of the provisions of any order or 
 regulation made in pursuance of the Act, shall be 
 guilty of a misdemeanor, and shall, upon conviction, 
 be punished by a fine, of not more than $5,000, or, if 
 a person, by imprisonment for not more than two 
 years, or both. 
 
 Each independent transaction constituting a viola- 
 tion of, or a failure to observe, any of the provisions 
 of the Act, or any order entered in pursuance there-
 
 § 51 J Fedkhal Opkijaijox JJu'Hixii War 133 
 
 of, will eonstitiito a separate offense. For the taking 
 or conversion to its own use or tlie embezzlement of 
 money or property derived from or used in connection 
 with the possession, use or operation of any railroad 
 system, the criminal statutes of the United States, as 
 well as the criminal statutes of the various states wliere 
 applicable, shall apply to all officers, agents, and em- 
 ployees engaged in said railroad and transportation 
 service, while the same is under federal control, to the 
 same extent as to persons employed in the regular ser- 
 vice of the United States. . 
 
 § 51. When Federal Control of Transportation 
 Systems Under the Statute Shall Terminate. Section 
 16 of the Act declares that its provisions are emergency 
 legislation enacted to meet conditions growing out of 
 the war, and nothing therein is to be construed as ex- 
 pressing or prejudicing the future policy of the federal 
 government concerning the ownership, control, or regula- 
 tion of carriers or the method or basis of the capitaliza- 
 tion thereof. 
 
 It is further provided in Section 14 of the x\ct that 
 the federal control of railroads and transportation 
 systems therein provided, shall continue for and during 
 the period of the war and for a reasonable time there- 
 after, which shall not exceed one year and nine months 
 next following the date of the proclamation by the 
 President of the exchange of ratifications of the Treaty 
 of Peace. But the President may, prior to July 1st, 
 1918, relinquish control of all or any part of any rail- 
 road or system of transportation, further federal control 
 of which the President shall deem not needful or de- 
 sirable. 
 
 The President may at any time during the period 
 of federal control agree with the owners thereof to 
 relinquish all or any part of any railroad or system of 
 transportation, and he may relinquish all railroads and 
 systems of transportation under federal control at any 
 time he shall deem such action needful or desirable.
 
 PART TWO 
 
 DUTIES AND LIABILITIES OF COM- 
 
 MON CARRIERS TO SHIPPERS 
 
 UNDER ALL FEDERAL 
 
 INTERSTATE LAWS 
 
 THE ACT TO REGULATE COMMERCE AND 
 SUPPLEMENTARY LEGISLATION. 
 
 CARMACK AND CUMMINS AMENDMENTS. 
 
 FEDERAL BILL OF LADING LAW. 
 
 (135)
 
 CHAPTER IV 
 
 The Act to Regulate Commerce as Originally 
 
 Enacted — Its Genesis, Purpose, General 
 
 Scope and Validity. 
 
 Sec. 52. Brief Historical Review of Federal Control over Carriers and 
 Scope Thereof. 
 
 Sec. 53. Causes Leading to Enactment of the Act to Regulate Com 
 merce. 
 
 Sec. 54. Principles of the Common Law Inadequate to Curb Evils of 
 Railroad Operation. 
 
 Sec. 55. Futile Attempts of the States to Regulate Charges for Inter- 
 state Transportation. 
 
 Sec. 56. Effect of the Decision in Wabash St. L. & P. Ry. Co. v. Illinoi.5 
 
 Sec. 57. Power of Congress to Regulate the Duties of Carriers of In- 
 terstate TraflTir. 
 
 Sec. 58. First Step Towards Federal Regulation of Interstate Tran<5. 
 portation by Rail — The Cullom Committee. 
 
 Sec. 59. Report of CoUum Committee to Congress and Bill Recom 
 mended on January 18, 1886. 
 
 Sec. 60. Fundamental Requirements of the Act to Regulate Commerce 
 as Originally Enacted in 1887. 
 
 Sec. 61. Purpose of Congress in Enacting Original Act to Regulate 
 Interstate Commerce. 
 
 Sec. 62. How the Interstate Commerce Act should be Construed and 
 Interpreted. 
 
 Sec. 63. Commission not Authorized Under Original Act of 1887 to 
 Prescribe Rates for Transportation. 
 
 § 52. Brief Historical Review of Federal Control 
 over Carriers and Scope Thereof. More than thirty 
 years have passed since the Act to Regulate Commerce 
 was enacted. During t«hat period the control and regula- 
 tion of all the interstate traffic of common carriers by 
 railroad have passed from the domain of the common law 
 and the dubious powers of state statutory enactments 
 to the federal government. The rights of shippers of 
 interstate freight, and the liabilities of railroad, express, 
 sleeping car, pipe line, telegraph, telephone and cable 
 companies as to all their interstate tralBc, are now gov- 
 erned by the federal statutes and applicable common 
 
 (137)
 
 138 Duties to Interstate Shippers. [^ 52 
 
 law principles as interpreted and applied in the federal 
 courts/ 
 
 Commencing with the regulation of rates and 
 charges and discriminations in all forms, the federal 
 authority has been extended from time to time until 
 now nearly every phase of interstate transportation 
 by railroad and transmission of messages by telegraph, 
 telephone and cable, is governed by the federal laws 
 and federal decisions. As to all interstate and foreign 
 shipments by the carriers subject to the Act, the law 
 of liability has been changed so that the rights, duties 
 and liabilities relating thereto can no longer be found 
 and ascertained in state statutes and state decisions 
 construing the common law. State courts have often 
 been slow to grasp this silent evolution of the law of 
 interstate carriers, as the number of decisions by the 
 United States Supreme Court overturning the opinions 
 of the state courts will disclose. But with whatever 
 regret we may view the passing of the diversified con- 
 trol of states over interstate carriers, it is now well re- 
 cognized and thoroughly established that the rights of 
 shippers of interstate freight and the liabilities of inter- 
 state carriers relating thereto, are governed by one uni- 
 form law throughout the nation, and as interpreted by 
 the controlling decisions of the highest tribunal — the 
 United States Supreme Court. 
 
 In this part of the treatise, an endeavoi" will be 
 made to review the beginning of federal control over 
 
 1. Cincinnati, N. O. & T. P. Ry. Ct. 406; Cleveland, C, C. & St. 
 
 Co. V. Rankin, 241 U. S. 319, 60 L. R." Co. v. Dettlebach, 239 U. S. 
 
 L. Ed. 1022, 36 Sup. Ct. 555, L. R. 588, 60 L. Ed. 453, 36 Sup. Ct. 
 
 A. 1917A 265; Southern R. 177; Central Vermont R. Co. v. 
 
 Co. V. Gray, 241 U. S. 333, 60 L. white, 238 U. S. 507, 59 L. Ed. 
 
 Ed. 1030, 36 Sup. Ct. 558; South- ^^33^ 35 ^^^ ^^ ^^^^ ^ ^ ^ ^ 
 
 em Exp. Co. V. Byers, 240 U S. ^ ^^^ ^^^ ^^^g^ 252; 
 
 612, 60 L. Ed. 825, 36 Sup. Ct. 410, ^ » • t • u n« ^ u^^ 
 
 ' „.„. ..^-, c- ..u r> Seaboard Air Line R. Co. v. Hor- 
 
 L R A. 1917A 197; Southern R. _, ^^„„ 
 
 Co. V. Preacott, 240 U. S. 632, bO ' n n k 
 
 L Ed 836, 36 Sup Ct. 469; Great 34 Sup. Ct. 635, 8 N. C. C. A. 
 
 Northern R. Co. v. Wiles. 240 834, L. R. A. 1915C i, Ann. Caa. 
 
 TT. S. 444, 60 L. Ed. 732, 36 Sup. 1915B 475.
 
 § 53] Genesis and Scope of Act. 139 
 
 carriers by railroad; its expansion and development by 
 amendments; the carriers and character of shipments 
 subject to the Interstate Commerce Act; the duties 
 placed upon interstate carriers under the provisions 
 of the statute and its amendments; the rights of ship- 
 pers under each of the substantive provisions of the act; 
 the nature, power and jurisdiction of the Interstate 
 Commerce Commission; the liabilities of initial carriers 
 for loss and damage on the lines of connecting carriers, 
 and the jurisdiction and power of the courts in enforcing 
 the provisions of the Interstate Commerce Act. 
 
 § 53. Causes Leading to Enactment of the Act to 
 Regulate Commerce. During the two decades foUow- 
 |ing the Civil War the railroads of the country became 
 the principal instrumentalities for the movement of 
 commerce from one state to another and to ports of 
 vtransshipment for export to foreign countries. Profiting 
 by the generous laws of the states, and municipal aid 
 given in the early days of railroad construction, the 
 carriers extended their lines with wonderful rapidity 
 and soon acquired a monopoly of the business of the 
 transportation of freight and passengers. Free from 
 federal control and in a large measure immune from the 
 statutory regulations of the state, the evils of monopo- 
 lies soon began to show themselves. 
 
 The carriers scarcely recognized that they occupied 
 a position of public trust and that their rail highways 
 were quasi public in character. They continued to oper- 
 ate their lines as tiiough they were strictly private 
 enterprises with no duties or obligations whatever to- 
 wards the public, except, possibly, to carry the freight 
 of all offered for shipment. Rebates and concessions 
 were granted, sometimes secretly and often openly to 
 large and powerful shippers, a practice which lead 
 often to the ruin and bankruptcy of small shippers 
 not enjoying like favors. Discriminations between 
 localities and communities prevailed, and rates to 
 favored communities much lower than to other locali- 
 ties entitled to like treatment, were established and
 
 140 
 
 Duties to Interstate Shippers. 
 
 [§ 53 
 
 maintained. The carriers had the unrestricted power 
 to build up one city and to destroy another by granting 
 lower freight rates to the former. Both shippers and 
 localities were helpless under this regime of unfetter- 
 ed control. With a disregard of the elementary duties 
 of common carriers that now seems amazing, the car- 
 riers continued in the 70 's and 80 's to violate nearly 
 every tenet of the common law as to their obligations 
 and duties. Different rates to shippers under like condi- 
 tions were collected; pools and combinations with each 
 other leading to the oppression of entire communities 
 were effected and enforced; gross inequalities between 
 cities and communities entitled to like treatment were 
 practiced and fixed rates for all under like conditions 
 depended upon the whims of traffic managers. Rail- 
 roads were operated solely with a view of benefiting 
 stockholders and with little regard for the obligations 
 due to treat all shippers alike and without discrimina- 
 tion.^ 
 
 2. In its first annual report, 
 the Interstate Commerce Com- 
 mission, commenting upon con- 
 ditions of railway traffic in this 
 country prior to the adoption of 
 the Interstate Commerce Act, 
 said: "The system of making 
 special arrangements with ship- 
 pers was in many parts of the 
 country not confined to large 
 manufacturers and dealers, but 
 was extended from person to 
 person under the pressure of al- 
 leged business necessity, or be- 
 cause of personal inopportunity 
 or favoritism, and even in some 
 cases from a desire to relieve 
 individuals from the consequen- 
 ces of previous unfair concessions 
 to rivals in business. The re- 
 sult was that shipments of im- 
 portance were commonly made 
 under special bargains entered 
 into for the occasion, or to stand 
 until revoked, of which the ship- 
 
 per and representative of the 
 road were the only parties hav- 
 ing knowledge. These arrange- 
 ments took the form of special 
 rates, rebates and drawbacks, 
 underbilling, reduced classifica- 
 tion, or whatever might be adap- 
 ted to keep the transaction from 
 the public; but the public very 
 well understood that private ar- 
 rangements were to be had if 
 the proper motives v.ere pre- 
 sented. The memorandum book 
 carried in the pocket of the gen- 
 eral freight agent often contained 
 the only record of the rates made 
 to the different patrons of the 
 road, and it was in his power to 
 place a man or a community un- 
 der an immense obligation by 
 conceding a special rate on one 
 day, and to nullify the effect 
 of it the next day by doing even 
 better by a competitor. The sys- 
 tem, if it can be called such, in-
 
 <^ 54] 
 
 Genesis and Scope of Act 
 
 141 
 
 § 54. Principles of the Common Law Inadequate 
 to Curb Evils of Railroad Operation. Prior to the en- 
 actment of the Inte^^^tate Conunerce Act, the principles 
 of the common law controlled the respective rights 
 and liabilities of carriers and shippers of interstate 
 traflic;''' )jul tlicse duties only i('(|uii('(l that tiie carriei-s 
 
 volved a great measure of sec- 
 recy, and its necessary conditions 
 were such as to pre.'ent effec- 
 tive efforts to break it down, 
 though the willingness to make 
 the effort was not wanting among 
 intelligent shippers. It was of 
 the ^ast importance to the ship- 
 per that he be on good terms with 
 those who made the rates he 
 must pay; to contend against 
 them was sometimes regarded as 
 a species of presumption which 
 was best dealt with by increasing 
 burdens; and the shipper was 
 cautious about incurring the risk. 
 Nevertheless it was a common 
 observation, even among those 
 who might hope for special fav- 
 ors, that a system of rates, open 
 to all and fair as between local- 
 ities, would be far preferable to 
 a system of special contracts, in- 
 to which so large a personal ele- 
 ment entertained or was com- 
 monly supposed to enter. Per- 
 manence of rates w'as also seen 
 to be of very high importance to 
 every man engaged in business 
 enterprises, since without it 
 business contracts were lottery 
 ventures. It was also perceived 
 that the absolute sum of money 
 charges exacted for transporta- 
 tion, if not clearly beyond the 
 bounds of reason, was of inferior 
 importance in compaiison with 
 the obtaining of rates that should 
 be open, equal, relatively just as 
 between places, and as steady as 
 in the nature of things was prac- 
 ticable." 
 
 3. Western U. Tel. Co. v. ("all 
 Pub. Co., 181 U. S. 92, 45 L. Ed. 
 765, 21 Sup. Ct. 561; Texas & P. 
 R. Co. V. Interstate Commerce 
 Commission, 162 U. S. 197, 40 L. 
 Ed. 940, 16 Sup. Ct. 666; Inter- 
 state Commerce Commission v. 
 Baltimore & 0. R. Co., 145 U. S. 
 263, 36 L. Ed. 699, 12 Sup. Ct. 
 b44. In Western U. Tel. Co. v. 
 Call Pub. Co., supra, the Court 
 said: "Common carriers, whether 
 engaged in interstate commerce 
 or in that wholly within the 
 State, are performing a public 
 service. They are endowed by 
 the State with some of its sover- 
 eign powers, such as the right of 
 eminent domain, and so endowed 
 by reason of the public service 
 they render. As a consequence 
 of this, all individuals have equal 
 rights both in respect to serv- 
 ice and charges. Of course, such 
 equality of right does not pre- 
 vent differences in the modes and 
 kinds of service and different 
 charges based thereon. There is 
 no cast iron line of uniformity 
 which prevents a charge from be- 
 ing above or below a particular 
 sum, or requires that the service 
 shall be exactly along the same 
 lines. But that principle of 
 equality does forbid any differ- 
 ence in charge which is not based 
 upon difference in service, and 
 even when based upon difference 
 of service, must have come reas- 
 onable relation to the amount of 
 difference, and cannot bo so great 
 as to produce an unju.st discrim-
 
 142 
 
 Duties to Interstate Shippers. 
 
 54 
 
 carry for all persons who applied in the order in which 
 the goods were delivered at the station, that the charge 
 for transportation should be reasonable and that the 
 same charge should be made to all persons for like 
 services.* The common law, however, did not require 
 the publication or filing of rates and prohibit departures 
 therefrom. It did not prohibit a greater compensation 
 for the transportation of passengers or property for a 
 shorter than for a longer distance over the same line or 
 route in the same direction. The pooling of freights 
 of different railroads or agreements dividing the net 
 profits were not illegal. 
 
 In addition, the common law remedies for a viola- 
 tion of the duties of a carrier were entirely inadequate. 
 If a shipper were charged an unreasonable sum for the 
 transportation of his property, it is true he had a right 
 to recover by suit the difference between a reasonable 
 
 illation. To affirm that a condi- 
 tion of things exists under which 
 common carriers anywhere in the 
 country, engaged in any form 
 of transportation, are relieved 
 from the burdens of these obliga- 
 tions, is a proposition which, to 
 say the least, is startling. And 
 yet, as we have seen, that is 
 precisely the contention of the 
 telegraph company. It contends 
 that there is no Federa. common 
 law, and that such has been the 
 ruling of this court; there was 
 no Federal statute law at the 
 time applicable to this case, and 
 as the matter is interstate com- 
 merce, wholly removed from 
 state jurisdiction, the conclusion 
 is reached that there is no con- 
 trolling law, and the question of 
 rates is left entirely tc the judg- 
 ment or whim of the telegraph 
 company. * * * There is no 
 body of Federal common law 
 separate and distinct from the 
 common law existing in the sev- 
 eral States in tht sense that there 
 
 is a body of statute law enacted 
 by Congress separate and distinct 
 from the body of statute law en- 
 acted by the several States. But 
 it is an entirely different thing 
 to hold that there is no common 
 law in force generally throughout 
 the United States, and that the 
 countless multitude of interstate 
 commercial transactions are sub- 
 ject to no rules and burdened by 
 no restrictions other than those 
 expressed in the statute of Con- 
 gress." 
 
 4. Interstate Commerce Com- 
 mission V. Cincinnati, N. O. & 
 T. P. Ry. Co., 167 U. S. 479, 42 
 L. Ed. 243, 17 Sup. Ct. 896; 
 United States ex rel. Morris v. 
 Delaware, L. & W. R. Co., 40 Fed. 
 101; Hand/ v. Cleveland & M. R. 
 Co., 31 Fed. 689; Burlington, C. 
 R. & N. Ry. Co. V. Northwestern 
 Fuel Co., 31 Fed. G52; Menacho v. 
 Ward, 27 Fed. 529; John Hays 
 & Co. v. Pennsylvania Co., 12 Fed. 
 309.
 
 § 54] 
 
 Genesis and Scope of xVct. 
 
 143 
 
 sum and the unreasonable rate cliarged, l)ut a recovery 
 did not prevent a repetition of the same charge for a 
 subsequent transportation. 'I'lie expense and cost of 
 litigating the roasonal)leness of a rate for each ship- 
 ment compared with the advantages gained to the 
 shipper, rendered litigation almost prohibitive, and the 
 practical result, under the common law, was that the 
 requirement of a reasonable rate was not such as to 
 deter the carriers from continuing to make and collect 
 unlawful rates and charges/ That the remedies at 
 common law were inadequate was also the conclusion 
 of the CuUom Committee after a country-wide investiga- 
 
 5. In its first annual report, 
 the Interstate Commerce Com- 
 mission said: "The common law 
 still remained operative, but 
 there were many reasons why it 
 was inadequate for the purposes 
 of complete regulation. One 
 very obvious reason was that the 
 new method of land transporta- 
 tion was wholly unknown to the 
 common lav/, and was so differ- 
 ent from those under which com- 
 mon law^ rules had grown up, that 
 doubts and differences of opinion 
 as to the extent to v hich those 
 rules could be made applicable 
 were inevitable. A highway of 
 which the ownership is in pri- 
 vate citizens or corporations who 
 permit no other vehicles but their 
 own to run upon it bears obvious- 
 ly but faint resemblarce to the 
 common highway upon which 
 every man may walk or ride or 
 drive his wagon or carriage. It 
 we undertake to apply to the one 
 the rules which have grown up 
 in relation to the other, there 
 must necessarily be a consider- 
 able period in which the State 
 law will, in many important par- 
 ticulars, be uncertain and while 
 that contini.es to be the case, 
 
 those who have the power to act 
 and must necessarily act by rule 
 and according to some estab- 
 lished system, will for all prac- 
 tical purposes make the law, be 
 cause the rule and the system 
 will be of their establishment. 
 Such, to a considerable extent 
 was the fact regarding, the busi- 
 ness of transportatii g persons 
 and property by rail. Those who 
 controlled the railroads not only 
 made rules for the government 
 of their own corporate affairs, 
 but very largely also they de- 
 termined at pleasure what should 
 be the terms of their contract re- 
 lations with others, and others 
 have acquiesced, though often 
 times unwillingly, because they 
 could not with confidence affirm 
 that the law would not compel it. 
 and a test of the question would 
 be difficult and expensive. The 
 carriers of the country were thus 
 enabled to determine in great 
 measure what rules should gov- 
 ern the transportation of per- 
 sons and property; rules which 
 intimately concerned the com- 
 mercial, industrial, and social 
 life of the people."
 
 14J: Duties to Inteestate Shippees. [^ 54 
 
 tion.° That Committee, in its report to Congress, said: 
 "If it is fomid that the common law and the courts do 
 not, in fact, alTord to the shipper an effective remedy 
 for his grievances, we have no need to inquire to what 
 extent grievances may exist. The complicated nature 
 of the countless transactions incident to the business of 
 transportation make it inevitable that disagreements 
 should arise between the parties in interest, and it is 
 neither just nor proper that disputed questions material- 
 ly affecting the business operations of a shipper should 
 be left to the final determination of those representing 
 an opposing financial interest. When such disagree- 
 ments occur the shipper and the carrier are alike en- 
 titled to a fair and impartial determination of the 
 matters at issue, and by all the principles governing 
 judicial proceedings the most fair-minded railroad of- 
 ficials is disqualified by his personal interest in the 
 result from giving such a determination. If, however, 
 there existed an impartial tribunal to which the shipper 
 could readily appeal, he would find less occasion for 
 appealing from the decision of the carrier, and dif- 
 ferences between shipper and carrier would be more 
 likely to be adjusted amicably without such an appeal. 
 The simple fact that the shipper is now obliged to 
 submit to the adjudication of his complaint by the other 
 party in interest, the party by whom he supposes him- 
 self to have been aggrieved, is in itself sufficient to 
 demonstrate the necessity of such legislation as will 
 secure to the shipper that impartial hearing of his com- 
 plaints to w^hich he is entitled by all the recognized 
 principles of justice and equity. Evidence is not want- 
 ing to prove that the remedy at common law is im- 
 practicable and of little advantage to the ordinary ship- 
 per. It has been found so by the people of the States 
 in dealing with their local traffic, and, as has been 
 shown, their recognition of the fact has been authorita- 
 tively recorded in nearly every State in the Union by 
 statutory enactments, and in many of them by the es- 
 
 6. Section 59, infra.
 
 § 55] Gknksis and Scope of Act. 145 
 
 tabliHlimcut of commissions, in the effort to provide for 
 the shipper tliat prompt and effective remedy wliicli 
 it has been found by experience that recourse to tlie 
 common law has failed to afford. The reasons for this 
 failure apply with even greater force to the more com- 
 plicated transactions of interstate commerce than to 
 State traffic, because the former involved more perplex- 
 ing questions and are affected by a greater diversity 
 of varying conditions. The legislation of the States, 
 the reports of the State commissions, the records of the 
 courts, the evidence of shippers, and, in short, the whole 
 current of testimony, is to the same effect; and the fact 
 stated is also admitted by some of the highest rail- 
 road authorities." 
 
 § 55. Futile Attempts of the States to Regulate 
 Charges for Interstate Transportation. Tjong before 
 Congress awoke to the necessit}' of legislativ(^ enact- 
 ment to prevent the continuous wrongs of carriers 
 towards shippers, many of the states attempted to 
 supply the defects of the common law by statutory 
 enactments. In some states the legislative assemblies 
 attempted to pass statutes fixing rates even on ship- 
 ments to other states, while in others administrative 
 bodies, commonly known as railroad commissioners, 
 were created with more or less control over the rates 
 and charges of the carriers; but with the conflicting 
 rules and regulations of each state, and the dou1)t as 
 to the extent of the authority of the states over inter- 
 state carriers, little was accomplished to curb the evils 
 then existing in the railroad transportation of the 
 country.^ ''In the exercise of their undoubted right 
 to regulate, the States have been hampered by their 
 inability to apply their regulations to interstate com- 
 merce, which comprises, in most instances, the greater 
 
 7. A summary of the laws of in Interstate Commerce Commis- 
 
 the states regulating common sion v. Cincinnati, N. O. & T. P. 
 
 carriers is given in the Fourth Ry. Co., 167 U. S. 479, 42 L. Ed. 
 
 Annual Report of the Interstate 243, 17 Sup. Ct. 896. 
 Commerce Commission, and also 
 
 1 Control CanlPrs 10
 
 146 Duties to Interstate Shippers. [*§> 55 
 
 portion of tlie business transacted within tlieir borders 
 by railroads. The essence of the effective regulation of 
 business transactions is equality and uniformity, and 
 this is impossible as to two transactions alike in every 
 other respect when one reaches across a State line and 
 the other does not. In the controversies that naturally 
 arose over these questions in different States, as the 
 records of the courts demonstrate, the railroad com- 
 panies have not hesitated at every opportunity to insist 
 upon and take advantage of the exclusive power of 
 Congress to regulate interstate commerce. And, on the 
 other hand, the records of Congress show that they 
 have been equally swift to maintain and to deprecate 
 interference with the rights of the States whenever na- 
 tional regulation has been proposed. With its authority 
 restricted to less than half of the business operations 
 of the transportation companies subject to its juris- 
 diction, the obstacles encountered by a State in the exer- 
 cise of a satisfactory supervision over the railroads 
 engaged in business within its borders and in the ad- 
 ministration of equal justice to all its citizens who 
 might use them are apparent. When these difficulties, 
 witli all the op|)ortunities they present for evasion of 
 the State's authority, are understood, it is not a matter 
 of wonder that the various State commissions should 
 fail to accomplish all tliat has been expected of them, 
 bui it is rather a matter of surprise that they should 
 have succeeded in bringing about the beneficial results 
 which are acknowledged as a result of their labors."^ 
 
 § 56. Effect of the Decision in Wabash, St L. & 
 P. Ry. Co. V. Illinois. An increased demand for feder- 
 al regulation of interstate carriers followed the decision 
 of the United States Supreme Court in the Wabash 
 case^ holding that the powers of a state were limited 
 to the regulation of rates and charges for freight 
 
 8. Report of Cullom Commit- v. People, 118 U. S. .557, 30 L. Ed. 
 tee. section 59, infra. 244. 7 Sup. Ct. 4. 
 
 9. Wabash, St. L. & P. Ry. Co.
 
 § 57] Genksis and Scope of Act. 147 
 
 transportation beginning and ending within its limits. 
 The growing practice of charging unreasonable rates 
 and discriminating between shippers and localities re- 
 ceived a new impetus when the carriers found themselves 
 free from the danger of penalties prescribed by state 
 laws. The urgent reciuirement of governiiiental control 
 and regulation was now ])lainly evident, for the abuses 
 of railroad operation, under the decision in tlie AVabash 
 case, could not be curbed by state control and regula- 
 tion. 
 
 § 57. Power of Congress to Regulate the Duties 
 of Carriers of Interstate Traffic. The Constitution 
 delegates to Congress the power "to regulate commerce 
 with foreign nations, among the several states and 
 with the Indian Tribes." Long before the Act to 
 Regulate Commerce was passed, this provision of the 
 Constitution had been judically construed and inter- 
 preted by the Supreme Court as authorizing the widest 
 latitude to Congress in prescribing the rules by which 
 commerce might be transported from one state to another 
 or to foreign countries.. This power, it was lield,^° 
 was complete in itself, might be exercised to its utmost 
 extent and acknowledge no limitation, and was vested 
 in Congress as absolutely as it would be in a single 
 government. The authority of Congress, under this 
 clause of the Constitution, extends to every part of 
 interstate commerce and to every instrumentality 
 and agency by which it is carried on.^^ 
 
 In so far as their interstate traffic is concerned, rail- 
 roads are but agencies used in its transportation from 
 one state to another. Unreasonable rates, practices, 
 charges and classifications, and unjust discriminations 
 and preferences in any form between shippers of inter- 
 state freight are, therefore, burdens upon interstate com- 
 merce which Congress may regulate or prohibit. So clear- 
 ly were the provisions of the original Act to Regulate 
 
 10. Gibbons v. Ogden, 9 Wheat. 230 U. S. 352. 57 L. Ed. 1511. 33 
 (U. S.) 1, C L. Ed. 23. Sup. Ct. 729. 48 L. R. A. (N. S.) 
 
 11. The Minnesota Kate Cases, 1151, Ann. Cas. 1916A IS.
 
 148 Duties to Interstate Shippers. [§57 
 
 Commerce considered to be witliin the domain of the 
 power given to Congress to regulate commerce among the 
 states, that no serious attempt was made to have it de- 
 clared invalid. In holding that the means therein adopted 
 by Congress to protect interstate commerce from un- 
 necessary burdens were a matter of legislative discretion, 
 the Supreme Court said:^- "Interpreting the Interstate 
 Commerce Act as applicable, and as intended to apply, 
 only to matters involved in the regulation of commerce, 
 and which Congress may rightfully subject to investiga- 
 tion by a commission established for the purpose of 
 enforcing that act, we are unable to say that its pro- 
 visions are not appropriate and plainly adapted to the 
 protection of interstate commerce from burdens that 
 are or may be, directly and indirectly, imposed upon 
 it by means of unjust and unreasonable discriminations, 
 charges, and preferences. Congress is not limited in 
 its employment of means to those that are absolutely 
 essential to the accomplishment of objects within the 
 scope of the powers granted to it. It is a settled prin- 
 ciple of constitutional law that 'the government which 
 has a right to do an act, and has imposed on it the duty 
 of performing that act, must, according to the dictates 
 of reason, be allowed to select the means; and those 
 who contend that it may not select any appropriate 
 means, that one particular mode of aifecting the object 
 is excepted, take upon themselves the burden of estab- 
 lishing that exception.' 4 Wheat. 316, 409. The test 
 of the power of Congress is not the judgment of the 
 courts that particular means are not the best that could 
 have been employed to affect the end contemplated by 
 the legislative department. The judiciary can only 
 inquire whether the means devised in the execution 
 of a power granted are forbidden by the Constitution. 
 It cannot go beyond that inquiry without entrenching 
 upon the domain of another department of the govern- 
 ment. That it may not do with safety to our institu- 
 
 12. Interstate Commerce Com- mission v. Brimson, 154 U. S. 447, 
 
 38 L. Ed. 1047, 14 Sup. Ct. 1125.
 
 § 58] Genesis and Scope of Act. 149 
 
 tious. Sinking Fund Cases, 99 U. S. 700, 718. An 
 adjudication that Congress could not establish an ad- 
 ministrative body with authority to investigate the sub- 
 ject of interstate commerce and with power to call 
 witnesses before it, and to require the production of 
 books, documents, and papers relating to that subject, 
 would go far towards defeating the object for which 
 the people of the United States placed commerce among 
 the States under national control. All must recognize 
 the fact that the full information necessary as a basis 
 of intelligent legislation by Congress from time to time 
 upon the subject of interstate commerce cannot be ob- 
 tained, nor can the rules established for the regulation 
 of such commerce be efficiently enforced, otherwise 
 than through the instrumentality of an administrative 
 body, representing the whole country, always watch- 
 ful of the general interests, and charged with the duty 
 not only of obtaining the required information, but 
 of compelling by all lawful methods obedience to such 
 rules." 
 
 § 58. First Step Towards Federal Regulation of 
 Interstate Transportation by Rail — The Cullom Com- 
 mittee. The United States Senate, on March 17, 1885, 
 adopted a resolution authorizing the President to appoint 
 a select committee of live senators to investigate and 
 report upon the subject of the regulation of transporta- 
 tion by railroad and water routes in connection or in 
 competition with railroads, of freight and passengers 
 between the several states, with authority to sit during 
 the recess of Congress, and with power to summon 
 witnesses and to make a thorough investigation and to 
 report to the Senate. Pursuant to this resolution, 
 President Cleveland on March 21, 1885 appointed Sena- 
 tors Cullom, Miller, Piatt, Gorman and Harris, and this 
 body was thereafter known and referred to as the Cullom 
 Committee. A country-wide investigation followed. 
 
 The committee held hearings in various towns and 
 cities all over the Ignited States with a view of determin- 
 ing and recomnuMiding to Congress the best measures
 
 150 Duties to Interstate Shippers. [§ 58 
 
 for correcting the then evils of railroad transportation. 
 Preliminary to the investigation, the committee issued 
 and published a circular calling for certain informa- 
 tion that would be of practical value to Congress in 
 framing legislation for the regulation of commerce 
 between the several states. These inquiries called for 
 information as to the best method of preventing extor- 
 tion and unjust discriminations by corporations en- 
 gaged in interstate commerce, whether publicity of rates 
 should be required by law, the advisability of estab- 
 lishing a system of maximum and minimum rates, 
 whether rebates and drawbacks should be regulated by 
 law or entirely prohibited, whether a lower propor- 
 tionate rate should be charged for a long than for a 
 short haul, the advisability of requiring carriers to adopt 
 a uniform sj'stem of accounts, and to make annual re- 
 ports to the Government, and in what manner national 
 legislation for the regulation of interstate traffic should 
 be best enforced. The testimony before the committee 
 was preserved and printed as a part of its report." 
 
 § 59. Report of CuUom Committee to Congress and 
 Bill Recommended on January 18, 1886. The Cullom 
 Committee as a result of its investigation introduced 
 in Congress a bill for the regulation of interstate car- 
 riers by rail. This measure, with minor amendments, 
 became a law on February 4, 1887. It was popularly 
 known as the Cullom Act but was officially designated 
 as the Act to Regulate Commerce." "This measure," said 
 the Committee in introducing the bill,^^ "is not offered 
 as a panacea for all the evils growing out of the manage- 
 ment of the transportation system of which the people 
 have for years complained, and for which they are 
 disposed to seek a legislative cure. Indeed, as we have 
 already said, 'That a problem of such magnitude, impor- 
 tance, and intricacy can be summarily solved by any 
 master-stroke of legislative wisdom is beyond the bounds 
 
 13. Senate Report No. 46, Part 15. Senate Report No. 4G, Part 
 2, Ist Session, 49th Congress. 1, 1st Session, 49th Congress. 
 
 14. Appendix A, infra.
 
 § 59J Genesis and Scope oe Act. 151 
 
 of reasonable belief. ' Xeillier is it siinijly a tenative 
 measure iiileiided to jtave tiie way for additional legis- 
 lation. Its practical application, if it should become a 
 law, may demonstrate that some of its features are in- 
 expedient, or unjust to the corporate carriers of the coun- 
 try, or prejudicial to the public interests. While there 
 have naturally been differences of opinion among the 
 members of the committee as to certain of the less imi)ort- 
 ant features and provisions of the bill in its entirety, and 
 in its general scope, purposes, and methods, it rep- 
 resents the substantially unanimous judgment of the 
 committee as to the regulations which are believed 
 to be expedient and necessary for the government and 
 control of the carriers engaged in interstate traffic. The 
 provisions of the bill are based upon the theory that 
 the paramount evil chargeable againsi ihc operation 
 of the transportation system of the United States as 
 now conducted is unjust discrimination between persons, 
 places, commodities, or i)articular descriptions of. traffic. 
 The underlying purpose and aim of the measure is 
 the prevention of these discriminations, both by declar- 
 ing them unlawful and adding to the remedies now avail- 
 able for securing redress and enforcing punishment, 
 and also by requiring the greatest practicable degree of 
 publicity as to the rates, financial operations, and 
 methods of management of the carriers." 
 
 The committee also submitted an exhaustive and 
 elaborate report, now known as the Cullom report, 
 which contained a review of the growth and extent of 
 the railroad systems of the United States; the magni- 
 tude of the railway service; the internal commerce of 
 the United States as illustrated in the traffic of the 
 trunk lines, both east and west bound: the relation of 
 commerce to agriculture; the power of Congress to 
 regulate commerce, together with a synopsis of the 
 decisions of the United States courts on the subject; the 
 legal status of common carriers and the obligations 
 imposed uj^on them by reason of their publi<> nature 
 nnd the exercise of public functions; the difficulties 
 of effective state regulations; the evils of railroad
 
 152 Duties to Interstate Shippeks. [§ 59 
 
 operation as exemplified by an irresponsible manage- 
 ment and fictitious capitalization; the various methods 
 of railroad regulation including the work of the Eng- 
 lish commission; a summary of the provisions of state 
 statutes then in effect for the regulation of railroads; 
 the comparative volume of state and interstate traffic; 
 the relation between water routes and railroads with 
 a plea for their complete emancipation;^" the necessity 
 of national legislation for the regulation of interstate 
 commerce; the causes of complaints against the rail- 
 road system; the principles upon which railroad rates 
 should be established and the limitations upon discrimi- 
 nations; the advisability of the publicity of rates by 
 posting as a means of preventing unjust discriminations, 
 and the necessity for the establishment of a national 
 commission for the enforcement of the prop(Tsed legis- 
 lation. 
 
 § 60. Fundamental Requirements of the Act to 
 Regulate Commerce as Originally Enacted in 1887. 
 The original Act to Regulate Commerce consisted of two 
 parts — substantive and procedural. The former placed 
 certain duties upon railroads engaged in the transporta- 
 tion of interstate and foreign traffic, while the latter 
 provided the means and methods by which those duties 
 might be effectually enforced and observed. The 
 leading and prominent features of the act are herein 
 briefly reviewed. Section 1 of the Act provided that 
 the statute was applicable to all common carriers 
 engaged in transportation wholly by railroad or partly 
 by water and partly by railroad under a common con- 
 trol or management, from one state to another or from 
 any place in the United States to a foreign country, 
 and further prescribed that all charges made by such 
 carriers for transportation services must be reasonable 
 and just. Sections 2 and 3 prescribed that the same 
 charges must be made for a like and contemporaneous 
 
 16. This proposal was not a- Panama Canal Act in 19.12. 
 dopted until the passage of the
 
 § 60] Genesis and Scope of Act. 153 
 
 service and prohibited any undue or unreasonable pref- 
 erence between persons, localities or kinds of traffic. 
 Section 4 prohibited carriers from charging more for 
 transportation for a shorter than for a longer distance 
 over the same line in the same direction under substanti- 
 ally similar circumstances and conditions. 
 
 All contracts and combinations for tlie pooling of 
 freights of competing railroads, or dividing the earnings 
 between them, were declared unlawful by Section 5. 
 Section 6 required all carriers subject to the act to 
 print and keep open for public inspection all their tariffs 
 for the transportation of persons and property, and 
 provided that no advance in rates could be made without 
 ten days' public notice, but a reduction in rates might 
 be made to take effect at once, the notice of the same 
 to be immediately and publicly given. Copies of all 
 tariffs were required to be filed with the Interstate 
 Commerce Commission as well as all contracts or agree- 
 ments between carriers in relation to traffic affected by 
 the Act. Notices of all changes in the tariffs were also 
 required to be filed. Section 7 prohibited any combina- 
 tion or device which would prevent the carriage of 
 freight from being continuous from the place of ship- 
 ment to the place of destination. Section 8 provided 
 that any common carrier violating any of the pro- 
 visions of the Act should be liable to any person in- 
 jured thereby to the full amount of his damages, together 
 with a reasonable attorney's fee. Sections 9 to 24 
 inclusive related largely to matters of procedure and 
 the enforcement of the substantive provisions of the Act. 
 For example, by Section 11, the Interstate Commerce 
 Commission was created and established to be composed 
 of five members to be appointed by the President with 
 the advice and consent of the senate, for a tenn of six 
 years. Sections 12, 13 and 14 gave certain powers to 
 the Interstate Commerce Commission. The foregoing 
 is by no means a complete resume of the provisions of 
 the original Act, but gives the reader a general survey 
 of the field and subject matter covered by the statute.
 
 154 Duties to Interstate Shippers. L§ ^1 
 
 § 61. Purpose of Congress in Enacting Original 
 Act to Regulate Interstate Commerce. The leading 
 purpose of Congress in the enactment of the original 
 Act to Eegulate Commerce in 1887 was to establish 
 and impose upon railroads engaged in interstate com- 
 merce the duty of making their charges for trans- 
 portation services rendered, reasonable and just, and to 
 prohibit unjust discriminations, preferences, partiality 
 and inequality between persons, traffic and localities 
 similarly situated. ^^ One of the means employed by 
 Congress to secure these results was the placing upon all 
 carriers subject to the statute the duty to establish and 
 publish schedules of rates which should have a imiform 
 application to all and which should not be departed 
 from so long as the established schedule remained un- 
 altered in the manner provided by the law.^* 
 
 The building up of one locality at the expense 
 of another by rates favoring the former, was one of 
 the evils which Congress sought to destroy.'' "The 
 principal objects of the Interstate Commerce Act," 
 said the United States Supreme Court in another case,-" 
 "were to secure just and reasonable charges for trans- 
 
 17. United States v. Union tl5 Fed. 903; Interstate Commerce 
 
 Stock Yard & Transit Co. of Chi- Commission v. Baltimore & O. K. 
 
 cago, 22ti U. S. 286, 57 L. Ed. 226, Co., 43 Fed. 37. 
 33 Sup. Ct. 83; Chicago & A. R. 18. Texas & P. R. Co. v. Abi- 
 
 Co. V. Kirby, 225 U. S. 155, 56 lenc Cotton Oil Co., 204 U. S. 
 
 L. Ed. 1033, 32 Sup. Ct. 648, Ann. 426, 51 L. Ed. 553, 27 Sup. Ct. 
 
 Cas. 1914A 501; Interstate Com- 350, 9 Ann. Cas. 1075; Interstate 
 
 merce Commission v. Chicago, R. Commerce Commission v. Cincin- 
 
 I. & P. R. Co., 218 U. S. 88, 54 nati, N. O. & T. P. Ry. Co., 167 
 
 L. Ed. 946, 30 Sup. Ct. 651; New U. S. 479, 42 L. Ed. 243, 17 Sup 
 
 York, N. H. & H. R. Co. v. Inter- Ct. 896; Cincinnati, N. O. & T. P. 
 
 state Commerce Commission, 200 R. Co. v. Interstate Commerc*^ 
 
 U. S. 361, 50 L. Ed. 515, 26 Sup. Commission, 162 U. S. 184, 40 L. 
 
 Ct. 272; Interstate Commerce Ed. 935, 16 Sup. Ct. 700. 
 Commission v. Baltimore & 0. R 19. Board of Trade of Harap- 
 
 Co., 145 U. S. 263, 36 L, Ed. 699, ton, Florida v. NashviUe, C. & St. 
 
 12 Sup. Ct. 844; Kinnavey v. Ter L. Ry. Co., 8 I. C. C. 503. 
 minal R. R. Ass'n. of St. Louis, 20. Interstate Commerce Com- 
 
 81 Fed. 802; United States v. mission v. Baltimore & 0. R. Co.. 
 
 Hanley, fl Fed. 672; United 145 U. S. 263, 36 L. Ed. 699, 12 
 
 States V. Missouri Pac. Ry. Co., Sup. Ct. 844.
 
 § 62] Genesis axo Scope of Act. 155 
 
 ])ortatioii; (o prohibit unjust dij^crimiiialioiis in tiie 
 rendition of like services under similar circumstances 
 and conditions; to pre\ent undue or unreasonable pref- 
 erences to persons, cori)()rations or localities; to in- 
 hibit greater compensation for a shorter than for a 
 longer distance over the same line; and to abolish 
 combinations for the pooling of freights. It was not 
 designed, however, to prevent competition between 
 different roads, or to interfere with the customary 
 arrangements made by railway companies for reduced 
 fares in consideration of increased mileage, where such 
 reduction did not operate as an unjust discrimination 
 against other persons travelling over the road."-^ 
 
 § 62. How the Interstate Commerce Act should 
 be Construed and Interpreted. As the great purpose 
 of the original act was to secure equality of rates to 
 all and favoritism to none by requiring the publication 
 of tariffs and prohibiting departures therefrom, and by 
 forbidding rebates, unjust preferences and all other 
 forms of undue discriminations, the statute is, there- 
 fore, remedial and should receive an interpretation by 
 the Commission and the courts which reasonably accom- 
 plishes the public purpose which it was enacted to sub- 
 serve." But interstate commerce is one of the most 
 important subjects of national legislation, and the courts 
 will, in the interpretation of the statute, attribute to 
 Congress an intention to promote and facilitate, not to 
 hamper or destroy the movement of commerce from one 
 state to another.^'' The statute should be liberally con- 
 strued in favor of commerce among the states." 
 
 21. See also Southern R. Co. v. M. & St. P. Ry. Co., 81 Fed. 545; 
 Reid, 222 U. S. 424, 56 L. Ed. 257, Kentucky & I. Bridge Co. v. Loui3- 
 32 Sup. Ct. 140: Armour Pack- yille & N. R. Co., 37 Fed. 567. 2 
 ing Co. V. United States, 209 U. S. l R A 289 
 
 56. 52 L. Ed. 681, 28 Sup. Ct. 428. \.^' r^^^^^ & V. R Co. v In- 
 
 22. New York. N. H. & H. R 
 
 terstate Commerce Commission. 
 162 U. S. 197, 40 L. Ed. 940, 16 
 Sup. Ct. J66. 
 
 Co. V. Interstate Commerce Com- 
 mission, 200 U. S. 361, 50 L. Ed. 
 515, 26 Sup. Ct. 272; Interstate 
 Commerce Commission v. East 24. Kentucky & T. Bridge Co. 
 
 Tennessee V. & G. Ry. Co., 85 v. Louisville & N. R. Co.. 37 Fed. 
 Fed. 107; Van Patten v. Chicago, 567, 2 L. R. A. 289.
 
 156 Duties to Interstate Shippees. [§62 
 
 The intent of Congress must be gatliered from tlie 
 entire statute and not from detached portions thereof, 
 and the evil sought to be remedied by the Act should 
 always be kept in mind."'' Subject to the jDrovisions 
 prohibiting unreasonable rates, practices, classifications 
 and charges, and unjust discriminations between traffic, 
 individuals and localities, the statute should not be con- 
 strued as to deprive the coiiimon carriers of their right 
 under the common law to manage their properties upon 
 the same principles adopted in other trades and pursuits. 
 In other words, the statute regulates carriers in their 
 public, but not in their private, capacity.-'^ In construing 
 the Act, the courts are required to take into considera- 
 tion not only the interests of shippers in large cities, 
 but also the carriers themselves and the consumers 
 in other localities.^' 
 
 § 63. Commission not Authorized Under Original 
 Act of 1887 to Prescribe Rates for Transportation. As 
 
 the original iVct provided in Section 1 that all charges 
 must be reasonable and just, and that all unjust and un- 
 reasonable rates and charges shall be deemed unlawful, 
 and further provided in Section 12 that the Interstate 
 Commerce Commission was authorized to enforce the 
 provisions of the Act, the Commission, for many years 
 after its creation, assumed the authority and power to 
 prescribe rates which should be charged by interstate 
 common carriers in the future in addition to its con- 
 ceded authority to inquire whether rates which had 
 been charged and collected were reasonable — the former 
 
 25. Van Patten v. Chicago, M. mission v. Baltimore & O. R. Co., 
 & St. P. Ry. Co., 81 Fed. 545. 43 Fed. 37. 
 
 26. Interstate Commerce Com- 27. Interstate Commerce Com- 
 mission V. Chicago Great Western mission v. Alabama Midland R. 
 R. Co., 209 U. S. 108, 52 L. Ed. ^o., 168 U. S. 144, 42 L. Ed. 414, 
 705, 28 Sup. Ct. 493; Interstate ^^ g^^^ ^^_ ^g. ^^^^^ ^ p_ ^^ ^^^ 
 
 V. Interstate Commerce Commis- 
 
 Commerce Commission v. Ala- 
 bama Midland R. Co.. 168 U. S. . h.o rr ^ .n., .« t t. , n.r^ 
 144 42 L. Ed. 414, 18 Sup. Ct. 45; «'«^' 1^2 U. S. 197, 40 L. Ed. 940. 
 Interstate Commerce Commission 16 Sup. Ct. 666; Interstate Com- 
 V. Louisville & N. R. Co., 73 Fed. merce Commission v. Louisville & 
 409; Interstate Commerce Com- N. R. Co., 73 Fed. 409.
 
 § G'S] Genesis and Scope of Act. 157 
 
 being a legislative act, and the latter a judicial act.^" 
 Upon a complaint oi" tlie Chicago and Cincinnati 
 freight bureaus against a number of railway companies 
 that the rates on several classes of freight from said 
 cities respectively, to the City of Atlanta, Ga., and 
 other places south of the Ohio River, were unreason- 
 ably high, the Commission, after a hearing, decided that 
 the rates complained of were unreasonable and unjust 
 and in violation of the Act. The Commission thereupon 
 ordered the carriers to cease and desist from charging 
 more than the rates therein prescribed by the Com- 
 mission.-'' The Commission petitioned the court to re- 
 quire the carriers to obey the order after they had re- 
 fused to reduce the rates in conformity therewith. The 
 Circuit Court of Appeals certified the case to the United 
 States Supreme Court, and that court held that Con- 
 gress had not, in the Act to Regulate Commerce, con- 
 ferred upon the Commission the legislative j^ower of 
 prescribing rates, either maximum, minimum, or absol- 
 ute, and, therefore, the Commission did not have any 
 power to fix and prescribe rates which should control in 
 the future. ^° From the date of this decision. May 24, 
 1897, until the Hepburn amendment of 1906 became ef- 
 fective, the Commission did not attempt, and had no 
 power, to prescribe just and reasonable rates or charges 
 to be thereafter collected as the maximum by the car- 
 riers. 
 
 28. St. Louis & S. F. Ry. Co. v. Freight Bureau v. Louisville, N. 
 Gill, 156 U. S. 649, 39 L. Ed. 5r,7. A. & C. R. Co., 6 L C. C. 195. 
 
 15 Sup. Ct. 484; Reagan v. Farm- 30. Interstate Commerce Com- 
 ers' Loan & Trust Co., 154 U. S. mission v. Cincinnati, N. 0. & T. 
 362, 38 L. Ed. 1014, 14 Sup. Ct. P. Ry. Co., 167 U. S. 479. 42 L. Ed. 
 1047; Chicago, M. & St. P. Ry. 243, 17 Sup. Ct. 896. See also 
 Co. V. Minnesota, 134 U. S. 418. Cincinnati, N. 0. & T. P. R. Co. 
 33 L. Ed. 970, 10 Sup. Ct. 462, 702. v. Interstate Commerce Commis- 
 
 29. Freight Bureau of Cincin- sion, 162 U. S. 184. 40 L. Ed. 935. 
 nati V. Cincinnati, N. 0. & T. P. 16 Sup. Ct. 700, known as the So- 
 Ry. Co.. 6 I. C. C. 195; Chicago cial Circle Case.
 
 CHAPTER V 
 
 Chronological Review of Leading Amendments 
 TO Statute. 
 
 Sec. 64. Scope of the Chapter. 
 
 Sec. 65. Amendments of 1889 and 1891 to the Interstate Commerce 
 Act. 
 
 Sec. 66. Invalid Provision of Section 12 Remedied by Passage of Com- 
 pulsory Testimony Act of 1893. 
 
 Sec. fi7. Provisions Prohibiting Rebates and Discriminations Strength- 
 ened by Passage of Elkins Act of 1903. 
 
 Sec. 68. Scope of Act and Powers of Commission Greatly Extended 
 Through Amendments Incorporated by Hepburn Act of 
 1906. 
 
 Sec. 09. Initial Carrier Liable for Loss and Damage on Lines of Con- 
 necting Carrier — Carmack Amendment. 
 
 Sec. 70. Commission Empowered to Order Switch Connection with 
 Private Side Tracks and Lateral Branch Lines. 
 
 Sec. 71. Carriers Prohibited from Owning or Having an Interest in 
 Freight Transported — the Commodity Clause. 
 
 Sec. 72. Amendments Authorizing Commission to Prescribe Through 
 Routes and Joint Rates. 
 
 Sec. 73. Commission Authorized to Determine Allowances to Ship- 
 pers for Services Rendered in Connection with Transpor- 
 tation. 
 
 Sec. 74. Amendment of 1906 Prohibiting the Issuance and Giving of 
 Free Passes — Persons Excepted. 
 
 Sec. 7.5. Forms of All Accounts, Records and Memoranda Kept by 
 Interstate Carriers Placed under .Turisdiction of Com- 
 mission. 
 
 Sec. 76. Amendments and Additions to the Statute by the Mann-El- 
 kins Act of 1910. 
 
 Sec. 77. Fraudulent Claims for Loss and Damage by Shippers Against 
 Carriers Penalized. 
 
 Sec. 78. Power Conferred upon Commission by 1910 Amendment to 
 Suspend Proposed Changes in Rates. 
 
 Sec. 79. The 1910 Amendment to the Long and Short Haul Provision. 
 
 Sec. 80. Statutory Duty of Carriers to Route Interstate Freight as 
 Directed by Shippers. 
 
 Sec. 81. Carriers and Their Agents Prohibited from Giving Informa- 
 tion Relating to Business of Interstate Shippers. 
 
 Sec. 82. Extension of Jurisdiction of Commissian over Water Carriers 
 by Panama Canal Act of 1912. 
 
 Sec. 83. Act of 1913 Requiring Commission to Ascertain Valuation of 
 Property Owned or Used by all Interstate Carriers. 
 
 Sec. 84. Amendment of 1917 Penalizing Persons for Obstructing Move 
 ment of Interstate Commerce During War. 
 
 (158)
 
 § 05] Amendments to Commerce Act. 159 
 
 Sec. 85. President Authorized During War to Direct Movement of 
 Commodities Essential to National Defense. 
 
 § 64. Scope of the Chapter. Sincf! the eiiaetinent 
 of tlio original Act to Regulate Coiiiiiierce in 1S87, the 
 statute has been frequently amended. The general 
 tendency of these amendments has been to greatly ex- 
 tend the scope of the original statute and to increase 
 the powers of the Interstate Commerce Commission. 
 In addition, many defects were found in the enforcement 
 of the Act and most of these have been remedied by 
 amendatory legislation. Under the original Act, the 
 Interstate Commerce Commission was primarily an 
 investigating body with but few powers over the car- 
 riers. At the present time it has a vast and extensive 
 control over the interstate traffic not only of common 
 carriers by railroad, but also pipe line, express, sleep- 
 ing car, telegraph, telephone and cable companies. 
 
 In examining the decisions of both the federal and 
 state courts construing the provisions of the Interstate 
 Commerce Act, the dates, and the nature of the im- 
 portant amendments passed from time to time during 
 the three decades of the existence of the Commission, 
 should be considered; for frequently amendments have 
 been adopted to correct defects found by the courts in 
 the Act or to give powers and authority to the Com- 
 mission w^iich the courts had held it did not possess. 
 In this chapter the author will briefly review, in chrono- 
 logical order, the important amendments to the Act 
 commencing with the first in 1889 to. the last amendments 
 previous to the date of the publication of this work. 
 
 § 65. Amendments of 1889 and 1891 to the Inter- 
 state Commerce Act. The first amendments to the Inter- 
 state Commerce Act, passed on March 2, 1889, consisted 
 of changes in or additions to sections G, 10, 12, 14, 16, 
 17, 18, 21, and 22, and also a new paragraph now 
 designated as Section 23 of the Act. Some of these 
 amendments introduced no radical changes in the stat- 
 ute but others added provisions which tend to render 
 the enforcement of the act more effective. The new
 
 160 Duties to Interstate Shippers. [^ 65 
 
 section added by tlie 1889 amendment provided that 
 if any carrier refused to carry any interstate traffic for 
 any shipper at the same rates or npon the same condi- 
 tions and terms given other shippers for like traffic 
 under similar conditions, or refused to furnish cars or 
 other vehicles for transportation, the shipper so dis- 
 criminated against might apply to the courts for a writ 
 of mandamus to compel the carrier to move and trans- 
 port such traffic or to furnish such facilities without 
 a preliminary investigation by the Commission. 
 
 An amendment to Section 6 provided, in addition 
 to the fine prescribed by the original Act, imprison- 
 ment for officers or agents of carriers found guilty of 
 any unlawful discrimination in rates, fares or charges 
 for the transportation of passengers or property. Sec- 
 tion 6 was further amended by the insertion of a penal 
 provision which prohibited, under a penalty of imi)rison- 
 ment or a fine, or both, any person or any agent of a 
 corporation from obtaining transportation at less than 
 the regular established rate by false billing, classifi- 
 cation, weighing, report of weight or any other device 
 or means with or without the consent of the carrier, 
 or who, by the payment of money or otherwise, induced 
 a carrier or its agents to discriminate unjustly in his 
 favor as against other shippers in the transportation 
 of propert}^, or aided or abetted a common carrier in 
 any such unlawful discrimination. 
 
 A further provision with a like penalty prohibited 
 the carriers subject to the Act, or their officers and 
 agents, from granting or permitting the transportation 
 of property at less than the scheduled and established 
 rate, by any false billing, classification, weighing or 
 other means or devices. Under the original Act, re- 
 ductions in rates or fares were permitted to be made 
 without any previous public notice, the only require- 
 ment being that whenever the reduction was made, 
 notice of the same was immediately to be given. 
 One of the amendments of 1889 required three days' 
 previous notice of any reduction in any published rates, 
 fares or charges. Another amendment to Section 6
 
 § 65] Amendments to CoMMEhci-; Act. IGl 
 
 ])roviclod that no advanco should be made in Joint rates, 
 Tales or charges except after ten days notice to the 
 Commission, and no reductions were permitted in sucli 
 joint rates excei)t after three days notice to the Com- 
 mission. Tlie carriers were also prohibited from collect- 
 ing a greater or less compensation for the transporta- 
 tion of property between any points as to which a 
 joint rate or fare was named thereon than was specifi- 
 ed in the schedule filed with the Commission. 
 
 An amendment to Section 12 required all district 
 attorneys of the United States to whom the Commission 
 might apply, to institute in the proper court and to 
 prosecute all necessary proceedings for the enforce- 
 ment of the provisions of the Interstate Commerce Act. 
 An amendment to Section 14 prescribed that the Com- 
 mission might provide for the publication of its reports 
 and decisions and that such authorized publications 
 should be competent evidence of the reports and deci- 
 sions of the Commission therein contained in all the 
 courts of the United States and of the several states with- 
 out any further i^roof or authentication thereof. Under 
 the original Act the authority of the Commission to 
 employ assistants and fix their compensation was sub- 
 ject to the approval of the Secretary of Interior, and 
 the annual report of the Commission was required to 
 be made to the Secretary of Interior. Both of these 
 provisions as to the Secretary of Interior were elimina- 
 ted from the Act by the amendment of 1889. 
 
 Section 22 of the original Act was further amend- 
 ed by a provision that nothing in the statute should be 
 construed to prevent the free carriage of destitute and 
 homeless persons transported by charitable societies, 
 and the necessary agents employed in such transporta- 
 tion, or to give reduced rates to municipal governments 
 for the transportation of indigent persons, or to in- 
 mates of the National Homes or State Homes for Dis- 
 abled Volunteer Soldiers and of Soldiers' and Sailors' 
 Orphan Homes, including those about to enter and 
 those returning homo after discharge. Section 12 was 
 further amended in 1891 l)y a provision authorizing the 
 
 1 Cuutiol Curiiers 11
 
 162 Duties to Interstate Shippers. [§ 65 
 
 Commission to require witnesses to attend and the pro- 
 duction of documentary evidence at any place in the 
 United States at any designated place of hearing, and 
 in case of a disobedience to a subpoena, the Commission, 
 or any party to a proceeding before the Commission, 
 were permitted to invoke the aid of the courts of the 
 United States in requiring the attendance of the wit- 
 nesses and the production of books. The amendment 
 further provided that the testimony of any witness in 
 any proceeding or investigation pending before the 
 Commission might be taken by deposition at any time 
 after a cause or proceeding was at issue on petition and 
 answer. 
 
 § 66. Invalid Provision of Section 12 Remedied 
 by Passage of Compulsory Testimony Act of 1893. 
 The provision in the third paragraph of Section 12 of 
 the original Act that no person could be excused from 
 testifying before the Interstate Commerce Commission 
 as to any violation of the Act because such testimony 
 might tend to incriminate him, was, in 1892, held to 
 be invalid on the ground that it was in violation of the 
 Fifth Amendment of the Constitution providing that 
 no person should be compelled in a criminal case to be 
 a witness against himself.^ The Supreme Court, in 
 the case cited, held that the clause "but such evidence 
 or testimony shall not be used against such person on 
 the trial of any criminal proceeding" was not broad 
 enough to afford absolute immunity from all future 
 prosecutions. 
 
 To remedy this defect, Congress passed the statute 
 known as the Compulsory Testimony Act of February 
 11, 1893, which is as follows: "That no person shall 
 be excused from attending and testifying or from pro- 
 ducing books, papers, tariifs, contracts, agreements and 
 documents before the Interstate Commerce Commission, 
 or in obedience to tlie subpoena of the Commission, 
 
 1. Couiiselman v. Hitchcock, 142 U. S. 547, 35 L. Ed. 1110, 12 
 
 Sup. Ct. 195.
 
 § ()6] Amendments to Commerce Act. 163 
 
 whether .sucli su])i)0('iia ho signed or issued hy one or 
 more Commissioners, or in any cause or proceeding, 
 criminal or otherwise, hased upon or growing out of 
 any alleged violation of the Act of Congress, entitled 
 'An Act to Regulate Commerce,' approved February 
 foui'th, eighteen hundred and eighty-seven, or of any 
 amendment thereof on the ground or for the reason 
 that the testimony or evidence, documentary or other- 
 wise, required of him, may tend to criminate him or 
 subject him to a penalty or forfeiture. But no person 
 shall be prosecuted or subjected to any penalty or 
 forfeiture for or on account of any transaction, matter 
 or thing, concerning which he may testify, or produce 
 evidence, documentary or otherwise, before said Com- 
 mission, or in obedience to its subpoena, or the sub- 
 poena of either of them, or in any such case or proceed- 
 ing; Provided, That no person so testifying shall be 
 exempt from prosecution and punishment for perjury 
 committed in so testifying. Any person who shall neg- 
 lect or refuse to attend and testify, or to answer any 
 lawful inquiry, or to produce books, papers, tariffs, 
 contracts, agreements and documents, if in his power 
 to do so, in obedience to the subpoena or lawful require- 
 ment of the Commission shall be guilty of an offense and 
 upon conviction thereof by a court of competent juris- 
 diction shall be punished by fine not less than one 
 hundred dollars nor more than five thousand dollars, 
 or by imprisonment for not more than one year or by 
 both such fine and imprisonment."^ The act of 1893 
 was held to be valid and not a violation of the P'ifth 
 Amendment of the Constitution.^ 
 
 The statute was amended in 1906 by the addition 
 of a provision which declared that the immunity there- 
 in granted should extend only to a natural person, who 
 in obedience to a subpoena, gives testimony under oath 
 
 2. 27 Stat, at L. 443. ."^91. 40 L. Ed. 810. IC Sup. Ct. 
 
 3. Brown v. Walker, 161 U. S. 644.
 
 164 Duties to Interstate Shippebs. [§ GG 
 
 or produces evidence, documentary or otherwise, under 
 oath/ 
 
 § 67. Provisions Prohibiting Rebates and Discrimi- 
 nations Strengthened by Passage of Elkins Act of 1903. 
 
 The federal statute commonly known as the Elkins Act, 
 approved February 19, 1903, although passed in the 
 form of an indei3endent measure, was in fact an amend- 
 ment, and the first imjDortant amendment to the Act 
 to Regulate Commerce since 1889. This Act corrected 
 serious defects in the original law and greatly aided 
 the attainment of some of the purposes for which the 
 original Act was enacted. Its scope and effect will 
 be readily understood when the two main objects of 
 the original Act are kept in mind, that is, to secure 
 the publication of just and reasonable tariff rates free 
 from discriminations and to compel carriers to observe 
 the tariifs so filed without variation or exception. The 
 Elkins Act made a railway corporation, itself engaged 
 in the business of a common carrier, liable to prosecu- 
 tion in all cases where only its officers and agents were 
 liable under the former law. This change in the statute 
 made the principal guilty as well as the agent, and 
 corrected a defect which had always been a source of 
 embarras.sment in former prosecutions because the 
 statute theretofore gave immunity to the principal and 
 beneficiary of a guilty transaction. However, the penal- 
 ty of imprisonment for a violation of the Act was 
 abolished. As the corporation could not be imprisoned, 
 Congress deemed it expedient that no greater punish- 
 ment be visited upon the offending officer or agent 
 than ux)on the corporation itself.^ 
 
 The most important change in the Act to Regulate 
 Commerce which the Elkins Act atfected was the provi- 
 sion which declared that the published rate should 
 conclusively be deemed to be the legal rate and the 
 
 4. 34 Stat, at L. 798. ditional penalty of three times the 
 
 5. The penalty of imprison- amount of money received or a3- 
 ment was restored by the Hepburn cepted as a rebate to be forfeited 
 Amendment of 1906, with an ad- to the United States.
 
 § 67 
 
 Amkndmlnis to Commerce Act, 
 
 16.5 
 
 standard of lawfulness. Any departiuc tlici-ffioin was 
 doclared to be a inisdonicanor." Tlie resnit of this 
 feature of the statute was to make the shii)j)er liable 
 whenever the carrier was liable, and either oi- both 
 miiifht be convicted by sini])ly ))rovinf2: ^hat the rato 
 charg-ed was not covered by the tariff ap])licabl(' to the 
 transaction.^ The statute further provided that the 
 act or omis.sion of any officer or agent of a common 
 carrier acting within the scope of his em])loyment 
 should be deemed to be the act or omission of the car- 
 rier itself as well as that of the agent. Anothei- ]n-o- 
 vision conferred jurisdiction upon the circuit courts 
 of the United States to restrain departures from ])ub- 
 lished rates on file or any discrimination forbidden 
 by law by writ of injunction or other ai)pi-o])riato 
 
 R. New York Cent, f H. River 
 R. Co. V. United States, 212 U. S. 
 500, 53 L. Ed. 624. 29 Sup. Ct. 
 309; Chicago & A. R. Co. v. Unit- 
 ed States, 212 U. S. 563, 53 L. Ed. 
 653, 29 Sup. Ct. 689; Armour Pack- 
 ing Co. V. United States, 209 U. 
 S. 56, 52 L. Ed. 681, 28 Sup. Ct. 
 428. 
 
 7. The difficulties in enforcing 
 the provisions of the Interstate 
 Commerce Act prohibiting dis- 
 criminations, prior to the passage 
 of the Elkins Act. were well stated 
 by the Interstate Commerce Com- 
 mission in its 17th Annual Report, 
 as follows: "As the former law 
 was construed by the courts, it 
 was not sufficient to show that a 
 secret and preferential rate had 
 been allowed in a particular case; 
 there had to be further proof of 
 the payment of schedule charges, 
 or at least higher charges than 
 those in question, by some other 
 person on like and contemporane- 
 ous shipments. That is, it was 
 necessary to prove discrimination 
 In fact as between shippers entitled 
 to the same rates by reason of re- 
 
 ceiving the same service. The 
 practical result of this construc- 
 tion was to render successful pros- 
 ecutions extremely difficult, if not 
 impossible, because the required 
 evidence could rarely be secured, 
 and this was particularly the case 
 when there was an extensive de- 
 moralization of rates and conse- 
 quently the most urgent occasion 
 for the use of criminal -remedies. 
 Under such circumstances it fre- 
 quently happened that all shippers 
 received substantially the sam(< 
 rates, however much less than the 
 published tariff, and thus there 
 was no actual discrimination. 
 This aggravating defect appears to 
 have been wholly cured, as the 
 new law (the Elkins Act) in most 
 explicit terms makes the published 
 tariff the standard of lawfulness, 
 as respects criminal misconduct, 
 and any departure therefrom is 
 declared to be a misdemeanor. It 
 is sufficient now, in order to make 
 out a case of criminal wrongdoing, 
 to show that a lower or different 
 rate from that named ir the tariff 
 has been accorded."
 
 166 Duties to Interstate Shippers. [§ 67 
 
 process. The writ or process thus authorized is en- 
 forceable against parties interested in the traffic as 
 well as against the carrier. 
 
 § 68. Scope of Act and Powers of Commission 
 Greatly Extended Through Amendments Incorporated 
 by Hepburn Act of 1906. Material changes in and ad- 
 ditions to the Act to Regulate Commerce were made by 
 the Hepburn amendment of 1906. The scope of the act 
 and the powers of the Interstate Commerce Commission 
 thereunder were greatly extended. The membership of 
 the commission was increased from five to seven and 
 their salaries from $7500 to $10,000 a year. Express* 
 and sleeping car companies,'' engaged in interstate 
 commerce, and persons transporting oil by pipe lines'*' 
 were made subject to the provisions of the statute. 
 The Commission was authorized to establish through 
 routes and joint rates with the terms and conditions 
 under which such through routes should be operated. 
 The i^unishment of imprisonment for certain violations 
 of the Act, repealed by the Elkins Act of 1903, was 
 restored. No increase or reduction of rates, either 
 joint or separate, was permitted except after thirty 
 days notice, the former Act requiring only ten days 
 notice of an increase and three days notice of a de- 
 crease. 
 
 The Commission was given the power to determine 
 the maximum amount to be paid a shipper for any 
 service rendered in connection with the transportation 
 of property or any instrumentality used therein. The 
 effect of a decision of the Supreme Court construing 
 the original Act in holding that the Commission was 
 not authorized to prescribe rates for the future,^^ was 
 destroyed b}^ an amendment providing that the Commis- 
 sion was authorized and empowered to determine and 
 prescribe what should be just and reasonable rates or 
 
 S. Section 109, infra. mission v. Cincinnati, N. O. & T. 
 
 9. Section 110, infra. P. Ry. Co., 167 U. S. 479. 42 L. Ed. 
 
 10. Section 106. infra. 24.3, 17 Sup. Ct. 896. See section 
 
 11. Interstate Commerce Com- 63, supra.
 
 <§. 68] Amendments to Commerce Act. 167 
 
 charges to be tliereafter observed as the maximum to 
 be charged, aud wliat regulation or practice in respect 
 to sucli transportation was just, fair and reasonable 
 to be thereafter followed. The term "railroad" defined 
 in the original Act as including all bridges and fei-ries 
 used in connection with any railroad, and also all the 
 road in use by any corporation operating a railroad, 
 whether owned or operated under a contract, agree- 
 ment or lease, was further extended and defined so as 
 to include ''all switches, spurs, tracks, and terminal 
 facilities of every kind used or necessary in the trans- 
 l)ortation of the persons or property designated herein, 
 and also all freight depots, yards, and grounds used 
 or necessary in the transportation or delivery of any 
 of said ijroperty. " 
 
 The term "transportation," defined in the original 
 Act as including all instrumentalities of shipment or 
 carriage, was amended so as to include all cars and 
 other vehicles and all instruments of shipment or car- 
 riage, irrespective of ownership or of any contract, ex- 
 press or implied, for the use thereof, and all service in 
 connection with the receij)t, delivery, elevation, trans- 
 fer in transit, ventilation, refrigeration, icing, storage, 
 and handling of property transported. Other important 
 amendments introduced by the Hepburn Act are briefly 
 reviewed in the following paragraphs.^" 
 
 12. The causes for the enact- stances, a railroad and a mere 
 
 ment of the Hepburn Act were switch owned by a shipper; 
 
 given in the report of the Con- through arrangements whereby 
 
 gressional Committee, as follows: excessive mileage was given to 
 
 "It has been believed by a large the shipper of products who owned 
 
 portion of the shippers that rail- his own cars; through the use of 
 
 way rates were in many instances refrigerator cars; through the 
 
 too high, and that favoritism permission given to Independent 
 
 through rebates and other forms corporations to render some serv- 
 
 of discrimination were indulged ice incident to the shipment, as 
 
 in by various methods by the car- the furnishing of ice in the bunk- 
 
 riers. The ingenuity of some of ers of the car; by what is known 
 
 the carriers and shippers has re- as the 'midnight tariff,' a method 
 
 suited in avoiding the provisions involving an arrangement with a 
 
 of that Act through the use of shipper to assemble his freights, 
 
 joint tariffs, involving, in some in- have them ready for shipment at
 
 1G8 Duties to Intekstate Shippers. [§ 69 
 
 § 69, Initial Carrier Liable for Loss and Damage 
 on Lines of Connecting Carrier — Carmack Amendment. 
 
 At eommoii law, a carrier acceptiiiij; a shipment for 
 transportation to a destination point ou a connecting 
 line could limit its liability for loss or damage not oc- 
 curring on its own portion of the route, that is, on its 
 own line. Such a provision in a bill of lading was 
 not a contract for exemption from a carrier's liability 
 as such, but merely a declaration on the part of the 
 carrier that it did not assume the obligation of a carrier 
 beyond its own line. An initial caiiier, therefore, might 
 exempt itself from liability for loss or damage through 
 the fault of a connecting carrier." 
 
 The hardships placed upon shippers by such provi- 
 sions in contracts of shipment were well stated by the 
 Supreme Court in the following language;'' "As a result 
 the shipi^er could look only to the initial carrier for 
 recompense for loss, damage or delay occurring on its 
 part of the route. If such primary carrier was able 
 to show a delivery to the rails of the next succeeding 
 carrier, although the packages might and usually did 
 continue the journey in the same car in which they 
 had been originally loaded, the shipper must fail in 
 his suit. He might, it is true, then bring his action 
 
 a particular date, whereupon the riers had in good faitli accepted 
 carrier would give the necessary exit.ting statutes and obeyed them 
 three days' notice of a reduction there would have been no necessity 
 in the rate. Competing carriers for increasing the powers of the 
 and shippers would know nothing Commission or the enactment of 
 about this arrangement. The new coercive measures." 
 freight would be shipped at the 13. Southern Pac. Co. v. Inter- 
 new lower rate, and then there state Commerce Commission, 200 
 would be a restoration of the old u. S. 5:^6, 50 L. Ed. 585, 26 Sup. 
 rate. The law of to-day would be ^^ 33Q. ^yrick v. Michigan Cent, 
 fairly satisfactory to all shippers ^ ^^ ^^^ ^ g ^q^, 27 L. Ed. 
 if the spirit of fairness required ,,^,^ ^ ^^^ ^^ ^^5; Ogdensburg 
 
 & L. C. R. Co. v. Pratt, 22 Wall. 
 
 by it had controlled the conduct 
 
 of the carriers, and the necessity 
 
 for the proposed legislation is the ^^^- ^'^ ^^S, 22 L. Ed. 827. 
 
 result of and is made necessary 1^. Atlantic Coast Line R. Co. 
 
 by the misconduct of parties who v. Riverside Mills, 219 U. S. 186. 
 
 are now most clamorous againit 55 L. Ed. 167, 31 Sup. Ct. 164, 31 
 
 additional restraint. If the car- L. R. A. (N. S.) 7.
 
 "^ 69] Amendments to Commerce Act. 169 
 
 against tlir carrior so shown to have next received Ihc 
 shipment. But here, in turn he might be met by i)roor 
 of safe delivery to a third separate carrier. In sliort, 
 as the shipper was not himself in possession of tlie 
 information as to when and where his property had 
 been lost or damaged and had no access to the records 
 of the connecting carriers who in turn had participated 
 in some part of the transportation, he was compelled 
 in many instances to make such settlement as should 
 be proposed. This burdensome situation of the shipping- 
 public in reference to interstate shipments over routes 
 including separate lines of carriers was the matter 
 which Congress undertoolc to regulate." 
 
 To remedy the situation thus described confionting 
 interstate shippers, Congress, in 1906, amended Section 
 20 of the Act by recpiiring all common carriers engaged 
 in interstate conmierce to issue a receipt or a bill of 
 lading for ])ro])erty received, and making I he initial 
 carrier liable to the lawful holder of the bill of lading 
 for any loss, damage or injury to the property caused 
 by it or by any common carrier to which such property 
 might be delivered or over whose lines the property 
 might pass in transportation, with the right, however, 
 reserved to the initial carrier to recover from the de- 
 faulting connecting carrier any sum it might be required 
 to pay. 
 
 This jU'ovision is known as the Carmack Amend- 
 ment,''' and by its passage, for the first time, the liabili- 
 
 15. The Carmack r.mendment mon cariier. railroad, or transpor 
 
 as originally enacted and before tation company to which such 
 
 the amendments of March 4, 1915 property may be delivered or over 
 
 and August 0, 1916, was as fol- whose line or lines such property 
 
 lows: "That any common carrier, may pass, and no contract, receipt, 
 
 railroad, or transportation com- rule, or regulation shall exempt 
 
 pany receiving property for trans- such common carrier, railroad, or 
 
 portation from a point in one State transportation company from the 
 
 to a point in another State shall liability hereby imposed: Provid- 
 
 issue a receipt or bill of lading ed. That nothing in this section 
 
 therefor and shall be liable to th-^ shall deprive any holder of such 
 
 lawful holder thereof for any loss, receipt or bill of lading of any 
 
 damage, or injury to such proper- remedy or right of action v.hicli 
 
 ty caused by it or by any com- ho has under existing law. That
 
 170 
 
 Duties to Inteestate Shippers. 
 
 [§ 69 
 
 ty of interstate carriers for loss, delay, injury or damage 
 to property became under exclusive federal control and 
 subject to applicable common law principles as inter- 
 preted and applied in tlie federal courts.^*' 
 
 the common carrier, railroad, or 
 transportation company issuing 
 such receipt or bill of lading shall 
 be entitled to recover from the 
 common carrier, railroad, or trans- 
 portation company on whose line 
 the loss, damage, or injury shall 
 have been sustained the amount 
 of such loss, damage, or injury 
 as it may be required to pay to 
 the owners of such property, as 
 may be evidenced by any receipt, 
 judgment, or transcript thereof." 
 
 The Carmack amendment as 
 modified by the first and second 
 Cummins amendments is discussed 
 in chapters XV to XVII inclusive, 
 infra. 
 
 16. United States. New York C. 
 & H. River R. Co. v. Beaham, 242 
 U. S. 148, 61 L. Ed. 210, 37 Sup. 
 Ct. 43; Chesapeake & 0. R. Co. 
 V. McLaughlin, 242 U. S. 142, 61 
 L. Ed. 207, 37 Sup. Ct. 40; Atchi- 
 son. T. & S. F. R. Co. V. Harold, 
 241 U. S. 371, 60 L. Ed. 1050, 36 
 Sup. Ct. 665; Cincinnati, N. 0. 
 & T. P. R. Co. V. Rankin, 241 U. 
 S. 319, 60 L. Ed. 1022, 36 Sup. 
 Ct. 555. L. R. A. 1917A 265; 
 Georgia, F. & A. R. Co. v. Blish 
 Milling Co., 241 U. S. 190, GO L. 
 Ed. 948. 36 Sup. Ct. 541; Northern 
 Pac. Ry. Co. v. Wall, 241 U. S. 87, 
 60 L. Ed. 905, 36 Sup. Ct. 493: 
 Southern R. Co. v. Prescott, 240 
 U. S. 632, 60 L. Ed. 836, 36 Sup. 
 Ct. 469; Southern Exp. Co. v. By- 
 ers, 240 U. S. 612, 60 L. Ed. 825, 36 
 Sup. Ct. 410, L. R. A. 1917A 197; 
 New York, P. & N. R. Co. v. Penin- 
 sula Produce Exch. of Maryland, 
 240 U. S. 34, 60 L. Ed. 511, 36 Sup. 
 Ct. 230, L. R. A. 1917A 193; Cleve- 
 
 land, C, C. & St. L. R. Co. V. Det- 
 tlebach, 239 U. S. 588, 60 L. Ed. 
 453, 36 Sup. Ct. 177; Charleston & 
 W. C. R. Co. V. Varnville Furniture 
 Co., 237 U. S. 597, 59 L. Ed. 1137, 
 35 Sup. Ct. 715, Ann. Cas. 1916D 
 333; Pierce Co. v. Wells, Fargo 
 & Co., 236 U. S. 278, 59 L. Ed. 576. 
 35 Sup. Ct. 351; Atchison, T. & 
 S. F. R. Co. v. Robinson, 233 U. 
 S. 173, 58 L. Ed. 901, 34 Sup. Ct. 
 556; Boston & M. R. Co. V. Hooker, 
 233 U. S. 97, 58 L. Ed. 868, 34 Sup. 
 Ct. 526, L. R. A. 1915B 450, Ann. 
 Cas. 1915D 593; Great Northern 
 R. Co. V. O'Connor, 232 U. S. 508, 
 58 L. Ed. 703, 34 Sup. Ct. 380, 8 
 N. C. C. A. 53; Chicago, R. I. & 
 P. R. Co. V. Cramer, 232 U. S. 490. 
 Norfolk & W. R. Co. v. Dixie To- 
 bacco Co., 226 U. S. 593, 57 L. Ed. 
 58 L. Ed. 697, 34 Sup. Ct. 383; 
 980, 33 Sup. Ct. 609; Missouri, K. 
 & T. R. Co. v. Harriman, 227 U. 
 S. 657, 57 L. Ed. 690, 33 Sup. Ct. 
 397; Kansas City Southern R. Co. 
 V. Carl, 227 U. S. 639, 57 L. Ed. 
 683, 33 Sup. Ct. 391; Wells, Fargo 
 & Co. V. Neiman-Marcus Co., 227 
 U S. 469, 57 L. Ed. 600, 33 Sup. 
 Ct. 267; Chicago, St. P., M. & 0. 
 R. Co. V. Latta, 226 U. S. 519, 57 
 L. Ed. 328, 33 Sup. Ct. 155; Chi- 
 cago, B. & Q. R. Co. V. Miller, 226 
 U. S. 513, 57 L. Ed. 323. 33 Sup. 
 Ct. 155; Adams Exp. Co. v. Cron- 
 inger, 226 U. S. 491, 57 L. Ed. 314, 
 33 Sup. Ct. 148, 44 L. R. A. (N. S.) 
 257; Galveston, H. & S. A. R. Co. 
 V. Wallace, £23 U. S. 481. 56 L. 
 Ed. 516, 32 Sup. Ct. 205; Louis- 
 ville & N. R. Co. V. Scott. 219 U. 
 S. 209, 55 L. Ed. 183, 31 Sup. Ct. 
 171; Chicago & E. I. R. Co. v.
 
 ^ 70J 
 
 Amendments to Commeiuje Act. 
 
 ]71 
 
 § 70. Commission Empowered to Order Switch 
 Connection with Private Side Tracks and Lateral 
 
 Collins Produce Co., 149 C. C. A. 
 109, 235 Fed. 857, 14 N. C. C. A. 
 917; Hudson v. Chicago, St. P., 
 M. & O. Ry. Co., 22« Fed. iiS; .J. 
 H. Halmen & Son.s v. Illinois Cent. 
 K. Co., 212 Fed. 324. 
 
 Alabama. Central of Georgia R. 
 Co. V, Patterson, 12 Ala. App. 369, 
 «8 So. 513; Atlantic Coast Line 
 R. Co. V. Ward. 4 Ala. ApiJ. 374, 58 
 So. 677; Central of Georgia R. Co. 
 V. Sims, 169 Ala. 295, 53 So. 826. 
 
 Arkansas. Kansas City & M. R. 
 Co. V. Oakley, 115 Ark. 20, 170 S. 
 W. 565; Kansas City Southern R. 
 Co. V. Mixon-McClintock Co., 107 
 Ark. 48, Ann. Cas. 1914C 1247, 154 
 S. W. 205; St. Louis & S. F. R. Co. 
 V. Heyser, 95 Ark. 412, Ann. Cas. 
 1912A 610, 130 S. W. 562; Chica 
 go, R. I. & P. R. Co. V. Miles, 92 
 Ark. 573, 123 S. W. 775, 124 S. W. 
 1043. 
 
 Colorado. Appel Suit & Cloak 
 Co. V. Piatt, 55 Colo. 45, 132 Pac. 
 71. 
 
 Florida. Fornel v. Florida East 
 Coast R. Co., 65 Fla. 102, 61 So. 
 194. 
 
 Georgia. Southern R. Co. v. 
 Waxelbauni Produce Co., 19 Ga. 
 App. 64, 90 S. E. 987; Baltimore 
 & O. R. Co. V. Montgomery & Co., 
 19 Ga. App. 29, 90 S. E. 740; 
 Southern R. Co. v. Savage, 18 Ga. 
 App. 489, 89 S. E. 634; Southern 
 E.xp. Co. V. Essig Bros., 17 Ga. App. 
 657, 87 S. E. 1090; Nashville, C. 
 & St. L. Ry. Co. V. Truitt Co., 17 
 Ga. App. 236, 86 S. E. 421; Mitch- 
 ell & Co. V. Atlantic Coast Line R. 
 Co., 15 Ga. App. 797, 84 S. E. 227; 
 Atlantic Coast Line R. Co. v. 
 Thomasville Live Stock Co., 13 Ga. 
 App. 102, 78 S. E. 1019; Cranor v. 
 Southern R. Co., 13 Ga. App. 86, 
 78 S. E. 1014; Post & Woodruff v. 
 Atlantic Coast Line R. Co., 138 Ga. 
 
 763, 76 S. E. 45; Southern Pac. 
 Co. V. Crenshaw, 5 Ga. App. 675, 
 63 S. E. 865. 
 
 Illinois. Looney v. Oregon Short 
 Line R. Co., 271 111. 538, 111 N. 
 E. 509; Michelson v. Judsou 
 Freight Forwarding Co., 268 111. 
 546, 109 N. E. 281; Gamble-Robin- 
 son Commission Co. v. Union 
 Pac. R. Co., 262 111. 400, Ann. Cas. 
 1915B 89. 104 N. E. 666; Fry v. 
 Southern Pac. Co., 247 111. 564, 93 
 N. E. 906. 
 
 Indiana. Chesapeake & 0. Ry. 
 
 Co. of Indiana v. Jordan, Ind. 
 
 App. , 114 N. E. 461; Toledo, 
 
 St. L. & W. R. Co. V. Milner, 
 
 Ind. App. , 110 N. E. 756; 
 
 Adams Exp. Co. v. Welborn, 59 
 Ind. App. 330, 108 N. E. 163, 109 
 N. E. 420; Cleveland, C. C. & St. 
 L. R. Co. V. Hayes, 181 Ind. 87, 
 102 N. E. 34, 103 N. E. 839; Wa- 
 bash R. Co. V. Priddy, 179 Ind. 
 483, 101 N. E. 724; Pittsburgh, C, 
 C. & St. L. R. Co. V. Mitchell, 175 
 Ind. 196, 91 N. E. 735, 93 N. E. 
 996. 
 
 Iowa. Cedar Rapids Fuel Co. v. 
 
 Illinois Cent. R. Co., Iowa, 
 
 , 160 N. W. 353; Baldwin & 
 
 Riggs V. Chicago, R. I. & P. R. 
 Co., 173 Iowa, 524, L. R. A. 1916D 
 335, 156 N. W. 17; Heilman & 
 Clark V. Chicago & N. W. R. Co., 
 167 Iowa, 313, 149 N. W. 436. 
 
 Kansas. Miller v. Atchison, T. 
 & S. F. R. Co., 97 Kan. 782, 156 
 Pac. 780; Ray v. Missouri, K. & T. 
 R. Co., 96 Kan. 8, L. R. A. 1916D 
 1046, 149 Pac. 397; Christl v. Mis- 
 souri Pac. R. Co., 92 Kan. 580, 141 
 N. W. 587; Southern Nursery Co. 
 V. Winfield Nursery Co., 89 Kan. 
 522, 132 Pac. 149. 
 
 Kentucky. Adams Exp. Co. v. 
 Cook. 162 Ky. 592, 172 S. W. 1096; 
 Armstrong v. Illinois Cent. R.
 
 172 
 
 Duties to Interstate Shippers. 
 
 [§ 70 
 
 Branch Lines. Under the common law a carrier was 
 
 Co., 162 Ky. 539, 172 S. W. 947; 
 Robinson /. Louisville & N. R. Co., 
 160 Ky. 235, 169 S. W. 831; Louis- 
 ville & N. R. Co. V. Miller, 156 Ky. 
 677, 50 L. R. A. (N. S.) 819, 162 
 S. W. 73. 
 
 Louisiana. Burkenroad Gold- 
 smith Co. V. Illinois Cent. R. Co., 
 138 La. 81, Ann. Cas. 1917C 935, 
 70 So. 44; National Rice Milling 
 Co. V. New Orleans & N. E. R. 
 Co., 132 La. 615, Ann. Cas. 1914D 
 1099, 61 So. 708. 
 
 Maine. Continental Paper Bag 
 
 Co. V. Maine Cent. R. Co., Me. 
 
 , 99 Atl. 259; Ross v. Maine 
 
 Cent. R. Co., 112 Me. 63, 90 Atl. 
 711. 
 
 Maryland. Baltimore, C. & A. R. 
 Co. V William Sperber & Co., 117 
 Md. 595, 84 Atl. 72. 
 
 Massachusetts. Aradalou v. 
 New York, N. H. & H. R. Co., 
 225 Mass. 235, 114 N. E. 297; Sax- 
 on Mills V. New York, N. H. & 
 H. R. Co., 214 Mass. 38;^, 101 N. 
 E. 1075. 
 
 Michigan. Harrison Granite Co. 
 V. Grand Trunk R. R. System, 175 
 Mich. 144, 141 N. W. 642; Perked 
 V. Manistee & N. E. R. Co., 175 
 Mich. 253, 141 N. W. 607. 
 
 Minnesota. Ford v. Chicago, R. 
 I. & P. R. Co., 123 Minn. 87, 143 
 N. W. 249; Dodge v. Chicago, St. 
 P., M. & 0. R. Co., Ill Minn. 123, 
 126 N. W. 627. 
 
 Mississippi. Louisville & N. R. 
 Co. V. Price, 111 Miss. 3, 71 So. 161; 
 Southern Pac. R. Co. v. A. J. 
 Lyon & Co., 107 Miss. 777, Ann. 
 Cas. 1917D 171, 66 So. 209; Ameri- 
 can Exp. Co. V. Burke & McGuire, 
 104 Miss. 275, 61 So. 312; Jones 
 V. Southern Exp. Co., 104 Miss. 
 126, 61 So. 165. 
 
 Missouri. Brockman Commis- 
 sion Co. V. Missouri Pac. R. Co., 
 195 Mo. App. 607, 188 S. W. 920; 
 
 Cudahy Packing Co. v. Atchison, 
 T. & S. F. R. Co., 193 Mo. App. 572, 
 187 S. W. 149; Donoho v. Missouri 
 Pac. R. Co., 193 Mo. App. 610, 187 
 S. W. 141; Bowles v. Quincy, 0. 
 
 & K. C. R. Co., Mo. App. 
 
 •, 187 S. W. 131; Conley v. 
 
 Chicago, B. & Q. R. Co., 192 Mo. 
 App. 534, 183 S. W. 1111; Ball v. 
 Lusk, 189 Mo. App. 297, 175 S. 
 W. 238; Bailey v. Missouri Pac. 
 R. Co., 184 Mo. App. 457, 171 S. 
 W. 44; Morrison Grain Co. v. Mis- 
 souri Pac. R. Co., 182 Mo. App. 
 339, 170 S. W. 404; Hamilton v. 
 Chicago & A. R. Co., 177 Mo. App. 
 145, 164 S. W. 248; Bledsoe v. 
 Missouri, K. & T. R. Co., 177 Mo. 
 App. 153, 164 S. W. 183; Johnson 
 Grain Co. v. Chicago, B. & Q. R. 
 Co., 177 Mo. App. 194, 164 S. W. 
 182; Sims v. Missouri Pac. R. Co , 
 177 Mo. App. 18, 163 S. W. 275; 
 Joseph V. Chicago, B. & Q. R. Co., 
 175 Mo. App. 18, 157 S. W. 837. 
 
 Nebraska. Gilinsky v. Illinois 
 Cent. R. Co., 98 Nebr. 858, 154 N. 
 W. 730. 
 
 New Hampshire. Colby v. Amer- 
 ican Exp. Co., 77 N. H. 548, 94 
 Atl. 198. 
 
 New Jersey. Olivit Bros. v. 
 Pennsylvania R. Co., 88 N. J. 
 L. 241, 96 Atl. 582; Standard 
 Combed Thread Co. \. Pennsyl- 
 vania R. Co., 88 N. J. L. 257, L. 
 R. A. 191-3C 606, 95 Atl. 1002; 
 Spada V. Pennsylvania R. Co., 86 
 N. J. L. 187, 92 Atl. 379. 
 
 New Mexico. Atchison, T. & S. 
 F. R. Co. V. Rodgers, 16 N. M. 120, 
 li:^ Pac. 805. 
 
 New York. Dodge & Dent Mfg. 
 Co. V. Pennsylvania R. Co., 175 N. 
 Y. App. Div. 823, 162 N. Y. Supp. 
 549; De Rochemont v. Boston & M. 
 R. Co., 171 N. Y. App. Div. 262, 157 
 N. Y. Supp. 17; Fitch, Cornell & 
 Co. v. Atchison, T. & S. F. R. Co.,
 
 § 70] 
 
 Amendments to Commerce Act. 
 
 173 
 
 under no obligation to construct a switch connection 
 
 170 N. Y. App. Div. 222, 155 N. Y. 
 Supp. 1079; Cheney Piano Action 
 Co. V. New York Cent. & H. River 
 R. Co., 16G N. Y. App. Div. 706, 
 152 N. Y. Supp. 285; Wien v. New 
 York Cent. & River R. Co., 1C6 N. 
 Y. App. Div. 766, 152 N. Y. Supp. 
 154; Davenport v. Chespeake & 0. 
 R. Co., 87 N. Y. Misc. 303, 149 N. 
 Y. Supp. 865; Ferrari v. New York 
 Cent. & H. River R. Co.. 162 N. Y. 
 App. Div. 6, 147 N. Y. Supp. 376; 
 Barstow v. New York, N. H. & H. 
 R. Co., 158 N. Y. App. Div. 665, 143 
 N, Y. Supp. 983; United Lead Co. 
 V. Lehigh Valley R. Co., 156 N. Y. 
 App. Div. 525, 141 N. Y. Supp. 310; 
 Shultz v. Skaneateles R. Co., 145 
 N. Y. App. Div. 906, 129 N. Y. Supp. 
 1146; Welch Lumber Co. v. Norfolk 
 & W. R. Co., 137 N. Y. App. Div. 
 248, 121 N. Y. Supp. 985; De 
 Winter & Co. v. Texas Cent. R. Co., 
 150 N. Y. App. Div. 612, 135 N. Y. 
 Supp. 893. 
 
 North Carolina. Washington 
 Horse Exch. v. Louisville & N. R. 
 Co., 171 N. C. 65. 87 S. E. 941; 
 Newborn d Co. v. Louisville & N. 
 R. Co., 170 N. C. 205, 87 S. E. 37; 
 Baldwin v. Atlantic Coast Line 
 R. Co., 170 N. C. 12, 86 S. E. 776. 
 
 North Dakota. Knapp v. Min- 
 neapolis, St. P. & S. S. M. R. Co., 
 34 N. D. 466, 159 N. W. 81; Cook 
 v. Northern Pac. R. Co., 32 N. D. 
 340, L. R. A. 1916D 345, 155 N. 
 W. 867. 
 
 Oklahoma. St. Louis & S. F. R. 
 
 Co. V. Akard, Okla , 159 
 
 Pac. 344; St. Louis & S. F. R. Co. 
 
 V. Wynn, Okla. , 156 Pac. 
 
 346; St. Louis & S. F. R. Co. v. 
 
 Wood, Okla. , 152 Pac. 
 
 848; Missouri, O. & G. Ry. Co. v. 
 
 French, Okla. , 152 Pac. 
 
 591; Chicago, R. L & P. R. Co. v. 
 Bruce, Okla. , 150 Pac. 
 
 880; St. Louis & S. F. R. Co. v. 
 Mounts, 44 Okla. 359. 144 Pac. 
 1036; Chicago, R. I. & P. R. Co. v. 
 Harrington, 44 Okla. 41, 143 Pac. 
 325; St. Louis & S. F. R. Co. v. Cox. 
 Peery & Murray, 4o Okla. 258, 138 
 Pac. 144; St. Louis & S. F. R. Co. 
 V. Zickafoose, 39 Okla. 302, 6 N. C. 
 C A. 717, 135 Pac. 400- Missouri. 
 K. & T. R. Co. V. Walston, 37 Okla. 
 517, 133 Pac. 42. 
 
 Oregon. Grice v. Oregon-Wash- 
 ington R. & Nav. Co.. 78 Or. 17, 150 
 Pac. 862, 152 Pac. 509; Zoller Hop 
 Co. V. Southern Pac. Co., 72 Or. 
 262, 143 Pac. 931. 
 
 Pennsylvania. United States 
 Horseshoe Co. v. American Exp. 
 Co., 250 Pa. 527, 95 Atl. 706; 
 Wright v. Adams Exp. Co., 230 Pa. 
 635, 79 Atl. 760. 
 
 South Carolina. Harman v. 
 Southern Ry. Co., 106 S. C. 209, 
 90 S. E. 1023; De Loach v. South- 
 ern R. Co., 106 S. C. 155, 90 S. E. 
 701; Aldrich v. Atlantic Coast 
 Line R. Co., 104 S. C. 364, 89 S. E 
 315; Pinkussohn Cigar Co. v. Clyde 
 S. S. Co., 101 S. C. 429, 85 S. E. 
 1060; Spence v. Southern Ry. Co., 
 101 S. C. 436: 85 S. E. 1058; Park v. 
 Southern Ry. Co., 78 S. C. 302, 58 
 S. E. 931. 
 
 South Dakota. Elliott v. Chi- 
 cago, M. & St. P. R. Co., 35 S. D. 57, 
 150 N. W. 777. 
 
 Tennessee Louisville & N. R. 
 Co. v. Hobbs, 136 Tenn. 512, 190 
 S. W. 461: Rather & Co. v. Nash- 
 ville, C. & St. L. R. Co., 131 Tenn. 
 289, 174 S. W. 1113; Di-ake v. Nash- 
 ville, C. & St. L. R. Co.. 125 Tena. 
 627. 148 S. W. 214. 
 Texas. Chicago, R. I. & G. Ry. 
 
 Co. V. W^haley, Tex. Civ. App. 
 
 , 190 S. W. 833; Atchison. T. 
 
 & S. F. Ry. Co. V. Smyth, Tex. 
 
 Civ. App. . 189 S. W. 70; 
 
 Kansas City, M. & O. Ry. Co. of
 
 174 Duties to Interstate Shippers. [§ 70 
 
 with a private siding." But, under paragrapli 2 of 
 section 3 of the Act, the Commission had the power 
 to order switch connections when the carrier's failure 
 to do so constituted a discrimination against a particu- 
 lar shipper.'* However, in the absence of discrimina- 
 tion, the Commission had no authority to compel a 
 switch connection, with lateral branch lines or private 
 sidings prior to the Hepburn Act of 1906 when the 
 following amendment was made to Section 1 of the 
 Act:" "Any common carrier subject to the provisions 
 of this Act, upon application of any lateral, branch 
 line of railroad, or of any shipper tendering interstate 
 traffic for transportation, shall construct, maintain, and 
 operate upon reasonable terms a switch connection 
 with any such lateral, branch line of railroad, or private 
 side track which may be constructed to connect with its 
 railroad, where such connection is reasonably practi- 
 cable and can be put in with safety and will furnish 
 sufficient business to justify the construction and main- 
 tenance of the same; and shall furnish cars for the 
 movement of such traffic to the best of its ability with- 
 
 Texas v. Corn, Tex. Civ. App. Wis. 404, 150 N. W. 508; Beat v. 
 
 ^ 186 S. W. 807; Pacific Exp. Great Northern R. Co., 159 Wi3. 
 
 Co. V. Krower, Tex. Civ. App. 429, 150 N. W. 484; Aton Piano Co. 
 
 , 163 S. W. 9; Galveston, H. y Chicago, M. & St. P. R. Co., 152 
 
 & S. A. Ry. Co. v. Sparks, Tex. ^jg ^^q ^39 j^ ^ 743 
 
 Civ. App. , 162 S. W. 943; ^^ j^^^^^ ^ Newport News & 
 
 Pacific Exp. Co. V. Ross, Tez. ^ ^ ^^ ^3 ^ ^ ^ 95_ g5 p^^ 
 
 Civ. App. , 154 S. W. 340; ^^^ 
 
 :Southern Pac. R. Co. v. W T. ^^ ^^^^^^^^ ^ Drovers' Stock- 
 
 Meadors & Co., 104 Tex. 469, 140 S. ^^^^^ ^^ ^ Louisville, 14 C. C. A. 
 
 W. 427; Houston & T. C. r^Co v. ^90, 67 Fed. 35; Red Rock Fuel Co. 
 Lewis, 103 Tex. 452, 129 S. W. 594. ' ^ ^ „ r. -1-1 t r. 
 
 Washington. Henry v. Chicago. ^- Baltimore & 0. R. Co., 11 I. C. 
 
 M. & P. 3. R. Co., 84 Wash. 633. C. 438. 
 
 -.Anr, Ao- 19. The clauses in parentheses 
 
 147 Pac. 42.0. 
 
 West Virginia. Karr v. Balti- were inserted by amendment in 
 
 more & O. R. Co., 76 W. Va. 526, 1910. See Interstate Commerce 
 
 86 S E 43 Commission v. Delaware, L. & W. 
 
 Wisconsin. Bichlmeir v. Minne- R. Co., 216 U. S. 531, 54 L. Ed. 605. 
 
 apolis. St. P. & S. S. M. R. Co., 159 30 Sup. Ct. 415.
 
 § 71] Amkndmf.xts to Commerce Act. 175 
 
 out discrimination in favor of or against any such 
 shipper. If any common carrier shall fail to install 
 and operate any such switch or connection as afore- 
 said, on ap])Iication therefor in writin^^ hy any shii)]ier 
 (or owner of such lateral, hran(;h line of railroad), such 
 shipper (or owner of such lateral, branch line of rail- 
 road) may make complaint to tiie Commission, as 
 provided in section thirteen of this Act, and the Com- 
 mission shall hear and investigate the same and shall 
 determine as to the safety and practicability thereof 
 and justification and reasonable compensation therefor, 
 and the Commission may make an order, as provided 
 in section fifteen of this Act, directing the common 
 carrier to comply with the provisions of this section in 
 accordance with such order, and such order shall be 
 enforced as hereinafter provided for the enforcement 
 of all other orders by the Commission, other tlian 
 orders for the payment of money." 
 
 Under this amendment it is the duty of an interstate 
 carrier to make connections witli a lateral branch rail- 
 road or a private side track (a) when such switch con- 
 nection is reasonably practicable, (b) can be put in with 
 safety, and (c) will furnish sufficient business to justify 
 its construction and iiiainteiiance.-"' 
 
 § 71. Carriers Prohibited from Ov^^ning or Having 
 an Interest in Freight Transported— the Commodity 
 Clause. In the enforcement of the provisions of the 
 original act prohibiting discriminations and preferences 
 by carriers against shippers, it became evident that 
 the ownership of shipping corporations by carrying 
 corporations was a source of favoritism and inequality 
 that could not be prohibited under the statute as it 
 then stood. Complete freedom from discriminations 
 among shippers, it was discovered, could be secured 
 
 20. United States v. Baltimore Co., 14 I. C. C. 611; Railway Valley 
 
 & O. S W. R. Co., 226 U. S. 14, 57 R. Co. v. Delaware, L. & W. R. Co.. 
 
 L. Ed. 104, 33 Sup. Ct. 5; Winters 14 I. C. C. 191; Barden & Swartout 
 
 Metallic Paint Co. v. Chicago, M. v. Lehigh Valley R. Co., 12 I. C. 
 
 & St. P. R. Co., 16 I. C. C. 687: C 193. 
 McCormick v. Chicago, B. & Q. R.
 
 176 Duties to Inteestate Shippers. [§ 71 
 
 only by a soparatioD of the business of transportation 
 from all other business. In the eastern coal fields 
 many of the carriers owned collieries from which they 
 mined coal and transported it in interstate commerce. 
 Rival owners of mines suffered thereby and were fre- 
 (piently forced to sell their property at a sacrifice be- 
 cause of tliis dual ownersliip and the advantages there- 
 by gained. 
 
 For many years previous to the passage of the 
 Hepburn Act of 1906, there were constant demands by 
 shippers for the enactment of a statute which would 
 divorce transportation and production by restricting 
 common carriers to a performance of their functions 
 as such, and restrain them from entering into fields 
 of mining and manufacturing, or in any other way 
 becoming competitors with those to wliom their services 
 were offered and sold. Finally, in 1906, an amendment 
 to section 1 of the Act, was adopted prohibiting a com- 
 mon carrier, subject to the statute, from transporting 
 in interstate and foreign commerce, any article or com- 
 modity manufactured, mined or produced by it or under 
 its authority, or which it owned in whole or in part, 
 or in which it had an interest direct or indirect, ex- 
 cept timber and the manufactured products thereof, 
 and articles necessary and intended to be used in tlie 
 conduct of its business as a common carrier. Tliis 
 amendment is known as the Commodity Clause and 
 is a valid exercise of the power conferred upon Congress 
 under the commerce clause of the Constitution."^ 
 
 § 72. Amendments Authorizing Commission to 
 Prescribe Through Routes and Joint Rates. At common 
 law the establishment and maintcuauco of through 
 
 21. United States v. Delaware, 274, ,58 L. Ed. 218, 34 Sup. Ct. 75: 
 
 L. & W. R. Co., 238 U. S. 516, United States v. Lehigh Valley R. 
 
 59 L. Ed. 1438, 35 Sup. Ct. 873; Co., 220 U. S. 257, 55 L. Ed. 458, 
 
 Delaware, L. & W. R. Co. v. United 31 Sup. Ct. 387; United States v. 
 
 States, 231 U. S. 363, 58 L. Ed. Delaware & H. Co., 213 U. S. 366, 
 
 269, 34 Sup. Ct. 65; United States 53 L. Ed. 836, 29 Sup. Ct. 527. 
 V Baltimore & O. R. Co., 231 U. S.
 
 § '2] 
 
 Amendmp:nts to CoMMERct; Act. 
 
 177 
 
 routes and joint rates were j^urely matters of private 
 contract between carriers." I'nder tlie orij^inal Act to 
 Regulate Commerce, it was i)iovided by the second 
 paragraph of Section :> tliat the carriers should inter- 
 change traffic with one another; l)ut the statute con- 
 tained no provision h} which the details of the inter- 
 change could be determined, and the courts held that, 
 as at common law, the carriers had the right to de- 
 termine for tliemselves what arrangements for through 
 business sliould be entered into and upon what terms. ^' 
 Prior to the Hepburn Act of ]906 the carriers sub- 
 ject to the statute were, therefore, under no legal obli- 
 gation to establish through routes or joint rates, and 
 were at liberty to withdraw from such arrangements 
 whenever they had been actually entered into. Tn its 
 annual report for the year 11)05 the Interstate Commerce 
 
 22. Southern Pac. Co. v. Inter- 
 state Commerce Commission. 200 
 U. S. 536, 50 L. Ed. 585, 26 Sup. 
 Ct. 330; Central Stock Yards Co. 
 V. Louisville & N. R. Co., 192 U. S. 
 568. 48 L. Ed. 565, 24 Sup. Ct. 339; 
 Interstate Commerce Commission 
 V Cincinnati, N. O. & T. P. Ry. Co.. 
 167 U. S. 479, 42 L. Ed. 243, 17 
 Sup. Ct. 896; Memphis & L. R. R. 
 Co. V. Southern Exp. Co., 117 U. S. 
 1. 29 L. Ed. 791, 6 Sup. Ct. 542. 
 628; Atchison, T. & S. F. R. Co. 
 V. Denver & N. 0. R. Co.. 110 U. S. 
 667, 28 L. Ed. 291, 4 Sup. Ct. 185; 
 Gulf. C. & S. Ry. Co. v. Miami S. 
 S. Co., 30 C. C. A. 142, 86 Fed. 
 407; Prescott & A. C. R. Co. v. 
 Atchison, T. & S. F. R. Co.. 73 Fed. 
 438: Little Rock & M. R. Co. v. St. 
 Louis Southwestern Ry. Co.. 11 C. 
 C A. 417, 63 Fed. 775, 26 L. R. A. 
 192; Little Rock & M. R. Co. v. St. 
 Louis, I. M. & S. Ry. Co., 59 Fed. 
 400; Patten v. Union Pac. Ry. Co.. 
 29 Fed. 590; Capehart v. Louisville 
 & N. R. Co.. 4 I. C. C. 265, 3 I. C. R. 
 268; Little Rock & M. R. Cn. v. 
 East Tennessee. V. & G. R. Co.. 
 
 1 rnntr"! rarriris 1 '_' 
 
 3 I. C. C. 1. 2 I. C. R. 54: Chicaeo 
 & A. R. Co. V. Pennsylvania R. Co., 
 I. C. C. 86, 1 I. C. R. 357. 
 
 23. In re Lennon, 166 U. S. 548, 
 41 L. Ed. 1110, 17 Sup. Ct. 658: 
 Allen & Lewis v. Oregon, R. & Nav. 
 Co., 98 Fed. 16; Gulf, Co. & S. Ry. 
 Co. v. Miami S. S. Co., 30 C. C. A. 
 142, 86 Fed. 407; Prescott & A. C. 
 R Co. V. Atchison, T. & S. F. R. 
 Co., 73 Fed. 438; St. Louis Drayage 
 Co. V. Louisville & N. R. Co.. 65 
 Fed. 39; Ex Parte Lennon, 12 C. C. 
 A. 134, 64 Fed. 320; Little Rock 
 & M. R. Co. V. St. Louis South- 
 we.stern Ry. Co., 11 C. C. A. 417. 
 63 Fed. 775. 26 L. R. A. 192; Oregon 
 Short Line & U. N. Ry. Co. v. 
 Northern Pac. R. Co., 9 C. C. A. 409. 
 61 Fed. 158: Chicago & N. W. Ry. 
 Co. V. Osborne, 3 C. C. A. 347, 52 
 Fed. 912; Oregon Short Line & U. 
 N. Ry. Co. V. Northern Pac. R. Co.. 
 51 Fed. 465; Little Rock & M. R. 
 Co. V. St. Louis, I. M. & S. Ry. Co.. 
 41 Fed. 559; Kentucky & I. Bridge 
 Co. V. Louisville & N. R. Co.. .17 
 Fed. 567. 2 L. R. A. 289.
 
 178 
 
 Duties to Interstate Shippers. 
 
 [§ 72 
 
 Commission recommended to Congress an amendment 
 authorizing it to order throngli routes and joint rates 
 and to prescribe tlie division of such rates which the 
 several carriers should receive. 
 
 Congress then in 1906 
 
 24. The reasons for the 
 proposed amendment were thus 
 stated in the report: "A con- 
 siderable part of the interstate 
 traffic transported by rail passes in 
 transit over the lines of two or 
 more independent roads. This 
 traffic is generally handled by the 
 connecting lines under some ar- 
 rangement for the transaction of 
 through business and usually up- 
 on a joint rate — that is to say, the 
 carriers which transport the 
 freight or carry the passenger 
 agree upon a rate which shall be 
 charged from the point of origin 
 to destination, and also agree on 
 the proportions in which this rate 
 shall be divided among themselves. 
 Section 3 of the act to regulate 
 commerce attempts to secure this 
 interchange of traffic by connecting 
 railways and to prevent unjust 
 discrimination by any carrier be- 
 tween its different connections. It 
 has been held, however, both by 
 the courts and by the Commission, 
 that this part of the third section 
 is not enforceable, because no 
 means are provided for determin- 
 ing the conditions upon which 
 traffic shall be interchanged and 
 the proportions of the through rate 
 which shall be received by the 
 several carriers. It follows that 
 connecting carriers are now under 
 no legal obligation to establish 
 through routes or joint rates and 
 may at their pleasure withdraw 
 from such arrangements when they 
 have been actually entered into. 
 It is evident also that if the Com- 
 mission were to pronounce a joint 
 rate unreasonable and order a re- 
 
 duction of that rate and the car- 
 riers parties to the rate should 
 thereupon either cancel all joint 
 arrangements or, as they might 
 cancel their joint rates upon the 
 commodity in question, the Com- 
 mission mght be practically power- 
 less to enforce the reduced rate. 
 When it is considered that a large 
 part of the most important rates 
 of this country are joint rates, it 
 will be seen that the railways have 
 it in their discretion by this means 
 to largely defeat the purpose of 
 the law, and that in order to pre- 
 vent this the Commission should 
 have authority to order railways 
 to continue through routes and 
 joint rates which are in effect and 
 to prescribe the divisions which 
 the several carriers shall receive 
 in the distribution of those rates 
 in case they fail to agree among 
 themselves. This is a power which 
 would seldom, if ever, be exer- 
 cised; but its existence is neces- 
 sary to prevent the occasion for its 
 exercise. It should also be noted 
 that discriminations against indi- 
 viduals and against particular 
 species of traffic can be effected by 
 the refusal of a carrier to estab- 
 lish a joint rate; and cases are 
 now pending before the Commis- 
 sion involving discriminations of 
 this character. The hearing of 
 these cases has not yet been con- 
 cluded, but if the allegations 
 .should be sustained it would seem 
 that the effective way to correct 
 the wrong would be by compelling 
 the carrier to make a joint rate 
 upon the traffic in question."
 
 ^ 72] Amendments to Commerce Act. 179 
 
 amended sections 1 and 15 of the Act by providing tliat 
 it was the duty of carriers subject to the statute to es- 
 tablish through routes and just and reasonabh^ rates 
 applicable thereto and authorizing the Commission, 
 after hearing on a complaint, to establish through routes 
 and joint rates and to fix the terms and conditions 
 under which those rates should be operated, as well as 
 to prescribe the divisions of the rates. These amend- 
 ments, however, contained a limitation upon the juris- 
 diction of the Commission which prescribed that no 
 through routes could be established where a reasonable 
 or satisfactory route already existed. The clause thus 
 limiting the authority of the Commission prevented 
 the establishment of additional through routes-"' and 
 was stricken from the statute by the amendment of 1910. 
 The statute giving such authority to the Com- 
 mission, as amended in 1910, is as follows: "The Com- 
 mission may also, after hearing, on a complaint or upon 
 its own initiative without complaint, establish through 
 routes and joint classifications, and may establish joint 
 rates as the maximum to be charged and may prescribe 
 the division of such rates as hereinbefore provided 
 and the terms and conditions under which such through 
 routes shall be operated, whenever the carriers them- 
 selves shall have refused or neglected to establish volun- 
 tarily such through routes or joint classifications or 
 joint rates; and this provision shall apply when one 
 of the connecting carriers is a water line. The Com- 
 mission shall not, however, establish any through route, 
 classification, or rate between street electric passenger 
 railways not engaged in the general business of trans- 
 porting freight in addition to their passenger and ex- 
 press business and railroads of a difTerent character, 
 nor shall the Commission have the right to establish 
 any route, classification, rate, fare, or charge when the 
 transportation is wholly by water, and any transporta- 
 
 25. Interstate Commerce Com- held that the existence of another 
 
 mission v. Delaware, L. & W. R. route might be inquired into by 
 
 Co., 216 U. S. 531, 54 L. Ed. 605, 30 the courts. 
 Sup. Ct. 415. in which the Court
 
 180 Duties to Interstate Shippers. [§72 
 
 tion by water affected by this Act shall be subject to 
 the laws and regulations applicable to transportation 
 by water. And in establishing such through route, the 
 Commission shall not require any company, without its 
 consent, to embrace in such route substantially less than 
 the entire length of its railroad and of any intermediate 
 railroad operated in conjunction and under a common 
 management or control therewith which lies between 
 the termini of such proposed through route, unless to 
 do so would make such through route unreasonably 
 long as compared with another practicable through 
 route which could otherwise be established." 
 
 § 73. Commission Authorized to Determine Al- 
 lowances to Shippers for Services Rendered in Connec- 
 tion with Transportation. Both before and since the 
 enactment of the original Act to Regulate Commerce, 
 shippers have frequently, by agreement with carriers, 
 performed a part of the transportation service for which 
 the carriers make an allowance to the shippers. This 
 practice, as such, has never been condemned by Con- 
 gress or by the Commission for there are many cases 
 in which the service can be rendered or the facility 
 furnished more advantageously to the shipper, carrier 
 and the public by the shipj^er himself ;^° but such allow- 
 ances have been the means of creating unjust discrimi- 
 nations and preferences to shippers by the payment of 
 
 26. Atchison, T. & S. F. R. Co. Grand Trunk Western R. Co., 131 
 
 V. United States, 232 U. S. 199, C. C. A. 401, 215 Fed. 93; Atchison, 
 
 58 L. Ed. 568, 34 Sup. Ct. 291; T. & S. F. Ry. Co. v. United States, 
 
 United States v. Baltimore & O. R. 204 Fed. 647; Knudsen-Ferguson 
 
 Co., 231 U. S. 274, 58 L. Ed. 218, Fruit Co. v. Chicago, St. P., M. & 
 
 34 Sup. Ct. 75; Mitchell Coal & O. R. Co., 79 C. C. A. 483, 149 Fed. 
 
 Coke Co. V. Pennsylvania R. Co., 973; Best Co. v. Atchison, T. & S. 
 
 230 U. S. 247, 57 L. Ed. 1472, 33 F. Ry. Co., 33 I. C. C. 1; Inman, 
 
 Sup. Ct. 916; Pennsylvania R. Co. Akers & Inman v. Atlantic C. L. R. 
 
 V. International Coal Min. Co., 230 Co., 32 I. C. 0. 146; Tap Line 
 
 U. S. 184, 57 L. Ed. 1446, 33 Sup. Ct. Case, 31 I. C. C. 490; Schultz- 
 
 893, Ann. Cas. 1915A 315; Union Hansen Co. v. Southern P. Co., 18 
 
 Pac. R. Co. V. Updike Grain Co., I. C. C. 234; National Wholesale 
 
 222 U. S. 215, 56 L. Ed. 171, 32 Sup. Lumber Dealers' Ass'n. v. Atlantic 
 
 Ct. 39; Cudahy Packing Co. v. C. L. R. Co., 14 I. C. C. 154.
 
 § 74] Amendments to Commerce Act. 181 
 
 extravagant ?:nms ont of all proportion to the value of 
 the service rendered. Unreasonable sums have been 
 frequently allowed when the shipper was the owner of 
 one of the faeilitics of transjjortation, or ])erf()nned 
 any part of th(; transfer service.-' Such preferences 
 sometimes took the form of an excessive division to a 
 terminal railroad owned !)>• the shipper; tlie payment 
 of an excessive elevator charge to the owner of grain, 
 or the allowance of excessive mileage on a private car 
 which conveyed the property of the owner of the car. 
 Prior to 1906, one of the evils most bitterly com- 
 plained of by shippers in this regard was the refrigera- 
 tion charges collected by companies which furnished 
 refrigerator cars to railioad companies. Following an 
 investigation by the Commission into the workings of 
 the Armour Car Lines, Congress passed as a part of 
 the Hepburn Act of 1906 a provision in the form of an 
 amendment to Section 15 of the Act which, with the 
 addition of the phrase *'on its owm initiative" after 
 the word "or," passed in 1910, is as follows: '*If the 
 owner of property trans})orted under this Act directly 
 or indirectly renders any service connected with such 
 transportation, or furnishes any instrumentality used 
 therein, the charge and allowance therefor shall be no 
 more than is just and reasonable, and the Commission 
 may, after hearing on a complaint or on its own initia- 
 tive determine what is a reasonable charge as the maxi- 
 mum to be paid by the carrier or carriers for the serv- 
 ices so rendered or for the use of the instrumentality so 
 furnished, and fix the same ))y appropriate order, which 
 order shall have tlie same force and effect and be en- 
 forced in like manner as the orders above provided 
 for under this section." 
 
 § 74. Amendment of 1906 Prohibiting the Issuance 
 and Giving of Free Passes — Persons Excepted. Section 
 22 of the original Act as amended in 1SS9 and 1895 
 
 27. United States v. Baltimore Co. v. Interstate Commerce Com- 
 & 0. R. Co., 231 U. S. 274, 58 L. Ed. mission, 219 U. S. 433. 55 L. Ed. 
 218, 34 Sup. Ct. 75; Southern Pac. 283. 31 Sup. Ct. 288.
 
 182 Duties to Interstate Shippers. [^ 74 
 
 provided that nothing in the statute should prevent 
 transportation of certain property" named therein and 
 certain persons free or for reduced rates and fares: but 
 the Act contained no express provisions prohibiting 
 the issuance and giving of free transportation to pas- 
 sengers. One of the amendments passed as a part of 
 the Hepburn Act of 1906 expressly prohibited all car- 
 riers subject to the Act from giving directly or indirect- 
 1}^ any interstate free ticket, free pass or free transporta- 
 tion to passengers except to certain employes and other 
 persons specifically mentioned in the amendment. Tliis 
 anti-pass provision was amended in 1908 by the addition 
 of a proviso defining the terms '' employes and fami- 
 lies," and in 1910 the term ''families" was further 
 extended so as to include widows during widowhood 
 and minor children during minority, of persons who 
 died while in the service of a common carrier. 
 
 Following a decision of the Supreme Court"^ hold- 
 ing that the anti-pass provision was exclusive and that 
 express companies could not issue franks to their em- 
 ployes or the emplo3^es of other carriers, this section 
 was further amended in 1910 by the insertion of a 
 proviso declaring that nothing in the Act should be 
 construed to prohibit the privilege of passes or franks, 
 or the exchange thereof with each other, for the of- 
 ficers, agents, employes and their families, of telephone, 
 telegraph and cable lines, and the officers, agents and 
 employes and their families of other carriers subject 
 to the Act. As passed in 1906 this provision excepted 
 boards of managers of soldiers' and sailors' homes from 
 the provisions prohibiting free passes, but this clause 
 was eliminated in 1908. The list of persons given in 
 this amendment who may receive free transportation, 
 is exclusive.^^ 
 
 28. American Exp. Co. v. United (N. S.) 671; American Exp. Co. v. 
 States, 212 U. S. 522, 53 L. Ed. 635, United States, 212 U. S. 522, 53 
 29 Sup. Ct. 315. L- Ed. 635, 29 Sup. Ct. 315. But 
 
 29. Louisville & N. R. Co. v. carriers may excliange passes with 
 Mottley, 219 U. S. 467, 55 L. Ed. common carriers not subject to 
 297, 31 Sup. Ct. 265, 34 L. R. A. the Act. United States v. Erie R.
 
 § 74J Amkndments to Commkrck Act. IS.*^* 
 
 With the amendniGiits herein indicated, the anti- 
 ])ass provision now reads as follows:^" *'No common 
 carrier subject to the ])rovisions of this Act shall, after 
 January first, nineteen linndred and seven, directly or 
 indirectly, issue or give any interstate free ticket, free 
 pass, or free transportation for passengers, except to 
 its employees and their families, its officers, agents, 
 surgeons, physicians, and attorneys at law: to minis- 
 ters of religion, traveling secretaries of railroad Young- 
 Men's Christian Association, inmates of hospitals and 
 charitable and eleemosynary institutions, and persons ex- 
 clusively engaged in charitable and eleemosynary work; 
 to indigent, destitute, and homeless persons, and to 
 such persons when transported by charitable societies 
 or hospitals, and the necessary agents employed in such 
 ti'ansportation; to inmates of the National Homes of 
 State Homes for Disabled Volunteer Soldiers, and of 
 Soldiers' and Sailors' Homes, including those about to 
 enter and those returning home after discharge; to 
 necessary care takers of live stock, poultry, milk, and 
 fruit; to employees on sleeping cars, express cars, and 
 to linemen of telegraph and telephone companies; to 
 railway mail service employees, post-offiice inspectors, 
 customs inspectors and immigration inspectors; to news- 
 boys on trains, baggage agents, witnesses attending 
 any legal investigation in which the common carrier 
 is interested, persons injured in wrecks and physicians 
 and nurses attending such persons: Provided, That 
 this provision shall not be construed to prohibit the 
 
 Co., 236 U. S. 259, 59 L. Ed. 567, 442, 48 L. Ed. 742, 24 Sup. Ct. 515; 
 
 35 Sup. Ct. 396. Northern Pac. R. Co. v. Adams. 
 
 30. Stipulations in free passes 192 U. S. 440, 48 L. Ed. 513, 24 
 
 given to persons entitled to receive Sup. Ct. 408; Tripp v. Michigan 
 
 them under the statute and pro- Cent. R. Co., 151 C. C. A. 385, 238 
 
 viding that the carrier shall be Fed. 449. But a caretaker of live 
 
 exempt from liability for injuries stock is a passenger for hire and a 
 
 due to negligence, are valid. stipulation exempting the carrier 
 
 Charleston & W. C. R. Co. v. from liability is invalid. Norfolk 
 
 Thompson. 234 U. S. 576, 58 L. Ed. Southern R. Co. v. Chatman, 244 
 
 1476, 34 Sup. Ct. 964: Boering v. T'. S. 27<;. fil L. Ed. ll.U. 37 Sup. 
 
 Chesapeake Beach R. Co., 193 U. S. Ct. 499, L. R. A. 1917F 1128.
 
 184 Duties to Interstate Shippers. [§ 74 
 
 interchange of passes for the officers, agents, and em- 
 ployees of common carriers, and their families; nor 
 to i3rohibit any common carrier from carrying passen- 
 gers free with the object of providing relief in cases 
 of general epidemic, pestilence, or otlier calamitous 
 visitation: And provided further. That this provision 
 shall not be construed to prohibit the privilege of pass- 
 es or franks, or the exchange thereof with each other, 
 for the officers, agents, employees, and their families 
 of such telegraph, telephone, and cable lines, and the 
 officers, agents, employees and their families of other 
 common carriers subject to the provisions of that Act: 
 Provided, further. That the term "employees" as used 
 in this paragraph shall include furloughed, ]:»ensioned, 
 and superannuated employees, persons who have become 
 disabled or infirm in the service of any such common 
 carrier, and the remains of a person killed in the em- 
 ployment of a carrier and ex-emploA^ees traveling for 
 the purpose of entering the service of any such common 
 carrier; and the term "families" as used in this para- 
 graph shall include the families of those persons named 
 in this proviso, also the families of persons killed, and 
 the widows during widowhood and minor children 
 during minority or persons who died, while in the 
 service of any such common carrier. Any common car- 
 rier violating this provision shall l)e deemed guilty of 
 a misdemeanor, and for each offense, on conviction, 
 shall pay to the United States a penalty of not less 
 than one hundred dollars nor more that two thousand 
 dollars, and any person, othoi- ihaii the persons ex- 
 cepted in this provision, who uses any such interstate 
 free ticket, free pass, or free transportation shall be 
 subject to a like penalty. Jurisdiction of offenses under 
 this provision shall be the same as that provided for 
 offenses in an Act entitled "An Act to further regiilate 
 commerce with foreign nations and among the States," 
 approved February nineteenth, nineteen hundred and 
 three, and anv amendment thereof."
 
 *^ 75 J Amendments to (.'ommkrck Act. 185 
 
 § 75. Forms of All Accounts, Records, and Mem- 
 oranda Kept by Interstate Carriers Placed under Juris- 
 diction of Commission.. Section 20 of the statute was 
 extensively amended by tlu* TTepljuiii Act of 190(5. Wliile 
 the original act required the iiling of annual reports by 
 interstate carriers with the Commission, no adeciuate 
 means were provided for the effective enforcement of 
 that duty.^^ Nor were the officers of the carriers re- 
 quired to certify under oath to the correctness of their 
 returns. 
 
 One of the amendments of 190G ])rovided that if 
 any carrier subject to the act should fail to make and 
 file its annual report within the time fixed by the Com- 
 mission, or should fail to make specific answers to any 
 question authorized by the law, within thirty days from 
 the time it was re(iuired to do so, such carrier should 
 forfeit to the United States the sum of $100 for each 
 day's violation. As further amended in 1910, this sec- 
 tion, under the same penalty, authorized the Commission 
 to re(]uire monthly, periodical or special reports con- 
 cerning any matter about which the Commission was 
 authorized to inquire. All reports were required to be 
 made out under oath. The Commission was also in 1906 
 given the authority to jirescribe the forms of all records, 
 accounts, and memoranda kept by the carriers including 
 all records of the movement of traffic as well as the re- 
 ceipts and expenditures of money. The Commission was 
 authorized to have access to all accounts, records and 
 memoranda kept by the carriers and to employ special 
 agents or examiners to inspect and^examine the same. The 
 amendment further declared it to be unlawful for any 
 carrier to keep any other accounts, records or mem- 
 oranda than those prescribed or approved by the Com- 
 mission. 
 
 A failure or refusal on the part of any carrier to 
 keep its accounts, records, and memoranda on the books 
 
 31. Knapp v. Lake Shore & M. S. R. Co., 197 U. S. 530, 49 L. Ed. 
 
 870, 25 Sup. Ct. 538.
 
 186 Duties to Interstate Shippers. [/§ 75 
 
 and in the manner prescribed by the Commission or to 
 submit such records to the inspection of tiie Commission 
 or its authorized agents, subject the carrier to a for- 
 feiture of the sum of $500 for each offense and for eacli 
 day's continuance of the oft'ense. The statute further 
 decUu'ed it to be a crime for aii}^ person to wilfully make 
 a false entry in such records or to wilfully destroy or 
 falsify any such records, or to wilfully neglect to make 
 true and correct entries therein, or to keep any other ac- 
 counts, records or memoranda than those prescribed or 
 approved by the Commission. The Commission was also 
 authorized to issue orders prescribing the length, of time 
 that all records should be preserved and to specify what 
 pajjers might, after a reasonable time, be destroyed. Any 
 examiner who divulges any fact which comes to his 
 knowledge during the course of his examination of the 
 records of the carrier, except as directed by the Commis- 
 sion or a court or judge thereof, is guilty of a felony. 
 The district courts of the United States are authorized 
 upon a failure to comply with any of the foregoing provi- 
 sions to issue a writ of mandamus requiring the carrier 
 to comply with the act.^" 
 
 The broad powers given to the Commission to secure 
 a uniform system of accounts by all carriers subject to 
 the act under the provisions of Section 20 as amended in 
 1906 and 1910 have been sustained by the national Su- 
 preme Court ;^^ but the statute as amended does not au- 
 thorize the Commission to inspect the correspondence of 
 a carrier between its various officers and agents.^* 
 
 32. This provision was passed Co., 224 U. S. 194, 56 L. Ed. 729, 
 to remedy the defect pointed out in 32 Sup. Ct. 436; Baltimore & O. R. 
 Knapp V. Lake Shore & M. S. R. Co. v. Interstate Commerce Corn- 
 Co., 197 U. S. 536, 49 L. Ed. 870, 25 mission, 221 U. S. 612, 55 L. Ed. 
 Sup. Ct. 538. 878, 31 Sup. Ct. 621. See also in 
 
 33. Kansas City S. R. Co. v. re Separation of Operating Ex- 
 United States, 231 U. S. 423, 58 L. penses, 30 I. C. C. 676. 
 
 Ed. 296, 34 Sup. Ct. 125, 52 L. R. A. 34. United States v. Louisville 
 
 (N. S.) 1; Interstate Commerce & N. R. Co., 236 U. S. 318, 59 L. Ed. 
 Commission v. Goodrich Transit 598, 35 Sup. Ct. 363.
 
 § 76 J Amendments to Commekce Act. 1!^7 
 
 § 76. Amendments and Additions to the Statute by 
 the Mann-Elkins Act of 1910. Tlie f^uljsUuitivo provi- 
 sions oi" llic Interstate Coiimierce Act were fnrtlier en- 
 larged by an act jiassed on June 18, 1910, commonly 
 known as the Mann-Elkins Law.^' Briefly this amenda- 
 tory statute corrected numerous defects in the law, con- 
 ferred upon the shipping public new rights and remedies 
 and correspondingly increased the jurisdiction and au- 
 thority of the Commission. It provided for the establish- 
 ment of a commerce court composed of five circuit judges 
 with jurisdiction formerly given to the circuit courts 
 over cases involving the enforcement of the orders of 
 the Commission, except tiiose for the payment of money. 
 This court was created for the purpose of securing 
 prompt decisions on questions of law involving inter- 
 state transportation, but the rulings of the court did not 
 seem to please the populace, and the court was abolished 
 by an act of Congress approved October 22, 1913.^*^ Tele- 
 graph, telephone, and cable companies, wire and wire- 
 less, engaged in sending messages from one state to an- 
 other and to foreign countries, were, by this amendment, 
 placed under federal control." 
 
 Carriers were also required to provide reasonable 
 facilities for operating through routes and to make rea- 
 sonable rules and regulations with respect to the ex- 
 change, interchange and return of cars used therein, and 
 for the operation of such through routes. Section 1 as 
 amended in 1910 further declared it to be the duty of all 
 carriers, subject to the Act, to establish and enforce just 
 and reasonable classifications of property for transporta- 
 tion, with reference to which rates, tariffs, regulations 
 or practices might be made, and just and reasonable 
 regulations and practices affecting classifications, rates 
 or tariffs; the issuance, form and substance of tickets, 
 receipts and bills of lading; the manner, and method of - 
 presenting, marketing, packing and delivering property 
 for transportation; the facilities for transportation; the 
 carrying of pei-sonal, sample and excess baggage, and all 
 
 .3.'i. 3<i Stat, at L. r^^O. 37. Section 108. infra. 
 
 36. 38 Stat, at L. 219.
 
 188 Duties to Interstate Shippkrs. | § 76 
 
 other matters relating to or connected with the receiving, 
 handling, transporting, storing, and delivering of 
 property subject to the provisions of the statute which 
 might be necessary or proper to secure the safe and 
 prompt receipt, handling, transportation and delivery of 
 property upon just and reasonable terms, and every un- 
 just and unreasonable classification, regulation, and 
 practice with reference to interstate and foreign com- 
 merce, was declared to be unlawful. Section 6 of the 
 Act was further amended by empowering the Commis- 
 sion to reject any schedule tendered for filing that did 
 not provide a lawful notice of its effective date. A pen- 
 alty of $250 payable to the United States, was provided 
 for the failure of any common carrier after a written 
 request, to furnish a written statement of a rate or 
 charge applicable to a described shipment between stated 
 places under schedule of tariff to which the carrier is a 
 party, provided, however, the person making such re- 
 quest suffers damage by reason of such refusal, or in 
 consequence of the misstatement of a rate either through 
 making the shipment over the line or route for which 
 the property rate is higher than the rate over another 
 available line or route, or through entering into any sale 
 or contract whereby such person obligates himself to 
 make such shipment at his own cost, A failure on the 
 part of any carrier to comply with the terms of an^^ 
 regulation of the Commission under the provisions of 
 section 6 subjected the carrier to a penalty of $500 for 
 each offense and $25 for each day's continuance of the 
 offense. 
 
 The Act as written prior to 1910 provided in Sec- 
 tion 13 that the Commission might institute any inquiry 
 on its own motion in the same manner and to the same 
 effect as though complaint had been made. This clause 
 was enlarged by giving the Commission full authority 
 and power at any time to institute an inquiry, on its 
 own motion, in any case and as to any matter or thing 
 concerning which a complaint is authorized to be made, 
 to or before the Commission by any provision of tlie 
 Act, or concerning which any question might arise under
 
 § 77] Amendments to Commerce Act. 189 
 
 any of tlio ]n-ovisions of the Act, or rolatintr to tho on- 
 forcomont of any of the provisions of the Act. Section 
 15 was amended by givin/jf a shipper the right to desig- 
 nate in writing by which of two established througli 
 I'oiilos liis pro])erty sliould l>e transported. 
 
 An amendment to Section 15 also declared it to be 
 a misdemeanor foi- any common earlier or any agent 
 thereof to knowingly disclose or permit any person otlier 
 than the shipper to be informed concerning the nature 
 and character of property transported which informa- 
 tion might be used to the detriment or prejudice of the 
 shipper or which might improperly disclose his business 
 transaction to a competitor. If a carrier does not com- 
 ply with an order of the Commission for the payment of 
 money, the com])lainant may file suit, ])ursuant to an 
 amendment passed in 11)10, in any state court of com- 
 petent jurisdiction as well as in the federal court. Other 
 amendments passed in 1910 are noted in the following 
 paragraphs. 
 
 § 77. Fraudulent Claims for Loss and Damage by 
 Shippers Against Carriers Penalized. By an amendment 
 in 11)10 to section 10 of the Act, false and fraudulent 
 claims for damages in connection with interstate shi]v 
 ments by any person, cor]>oration or company, or any 
 agent thereof, delivering proi)eity for transportation or 
 for whom any carrier shall transport pro]ierty, whereby 
 the comjiensation of the carrier shall be made less than 
 the regular rates, is declared to be a crime. 
 
 The purpose of this enactment was to stamj) out a 
 practice among some shippers of knowingly presenting 
 and obtaining damages through false and exaggerated 
 claims for loss or injury to property transported. The 
 amendment reads as follows: ''Any person, corporation, 
 or com]iany, or any agent or officer thereof, who shall 
 deliver property for transportation to any common car- 
 rier subject to the provisions of this Act, or for whom, 
 as consignor or consignee, any such carrier shall trans- 
 port property, * * * -vvho shall knowingly and wil- 
 fully, directly or indirectly, himself or by employee,
 
 190 Duties to Inteestate Shippers. [§ 77 
 
 agent, officer, or otherwise, by false statement or repre- 
 sentation as to cost, value, nature, or extent of injury, 
 or by the use of any false bill, bill of lading, receipt, 
 voucher, roll, account, claim, certificate, affidavit, or 
 deposition, knowing the same to be false, fictitious, or 
 fraudulent, or to contain any false, fictitious, or fraud- 
 ulent statement or entry, obtain or attempt to obtain any 
 allowance, refund, or payment for damage or otherwise 
 in connection with or growing out of the transportation 
 of or agreement to transport such property, whether 
 with or without the consent or connivance of the carrier, 
 whereby the compensation of such carrier for such trans- 
 portation, either before or after payment, shall in fact 
 be made less than the regular rates then established and 
 in force on the line of transportation, shall be deemed 
 guilty of fraud, which is hereby declared to be a mis- 
 demeanor, and shall, upon conviction thereof in any 
 court of the United States of competent jurisdiction 
 within the district in which such offense was wholly or 
 in part committed, be subject for each offense to a fine 
 of not exceeding five thousand dollars or imprisonment 
 in the penitentiary for a term of not exceeding two 
 years, or both, in the discretion of the court: Provided, 
 That the penalty of imprisonment shall not apply to 
 artificial persons." 
 
 § 78. Power Conferred Upon Commission by 1910 
 Amendment to Suspend Proposed Changes in Rates. Un- 
 
 (luestionably the most important and far reaching of 
 the amendments passed in 1910 is the provision added to 
 section 15 of the Act giving the Commission the power 
 to suspend schedules of rates filed with it. Authority 
 is given the Commission, either upon complaint or upon 
 its own initiative without complaint, at once and with- 
 out answers or other formal pleading by the interested 
 carrier but upon reasonable notice, to enter upon a hear- 
 ing concerning the propriety of the proposed changes 
 in any schedule filed; and pending such hearing and 
 decision, the Commission, upon filing with sucli schedule 
 and delivering to the carrier affected a statement of its
 
 § (i)| Amendments to Commerce Act. li)l 
 
 reasons, may suspend the i)rivilege of any such scliedule 
 for a period not longer tlian 120 days beyond the Hunt 
 the schedule would otherwise go into effect. If tlie 
 hearing is not concluded within the jx'iiod of suspen- 
 sion, llie Conimission nuiy extend the time of suspension 
 for a further period of six months when the proposed 
 schedule, if not acted upon, automatically goes into ef- 
 fect. After hearing, whether completed before or after 
 the schedule goes into effect, the Commission is author- 
 ized to make such order in reference to the schedule 
 as would be proper in a proceeding started after the 
 schedule had become eiTective. 
 
 The amendment further provides that at any hear- 
 ing involving a rate increased after the passage of the 
 Act of 1910, the burden of proof to show that the in- 
 creased rate or proposed increased rate is just and rea- 
 sonable, shall l)e upon the common carrier. Preference 
 over all other questions pending before it shall be given 
 by the Commission to the hearing and decision of such 
 questions. The purpose of Congress in authorizing the 
 Commission to susi)end proposed schedules resulted from 
 a recognition that adequate protection for the shipper 
 could be given only through suspension of a rate until 
 the reasonableness of the proposed change had been 
 determined. 
 
 § 79. The 1910 Amendment to the Long and Short 
 Haul Provision. Among the provisions of the statute 
 amended by the Mann-Elkins Act of 1910 was section 
 4 prohibiting carriers from charging more for a shorter 
 distance than for a longer distance over the same line 
 in the same direction under substantially similar cir- 
 cumstances and conditions. Four changes were made in 
 this section. The clause ''under substantially similar 
 circumstances and conditions" was eliminated. The ef- 
 fect of this change was to take from the carriers the 
 right previously lodged in them to decide primarily 
 whether the circumstances and conditions were so dis- 
 similar as to justify a greater charge for the shorter 
 than for the longer haul, and to transfer that lu-iniary
 
 1U2 Duties to Interstate Shippers. [§79 
 
 power to tlie Commission.^* The prohibition was also 
 amended so as to cover "routes" as well as ''lines." 
 The third change in the section was the statutory adop- 
 tion of a rule theretofore enforced by the Commission 
 prohibiting a greater cliarge for a through route than 
 the sum of the locals subject to tlie provisions of the 
 Act. 
 
 An additional section provides that whenever a car- 
 rier by railroad in competition with a water route re- 
 duces the rates to or from competitive points, such rates 
 shall not be increased thereafter without the consent of 
 the Interstate Commerce Commission and unless that 
 body finds the proposed increase rests upon other con- 
 ditions than the elimination of water competition. The 
 following is now the form of tlie fourth section: "That 
 it shall be unlawful for any common carrier subject to 
 the provisions of this Act to charge or receive any great- 
 er comiDensation in the aggregate for the transportation 
 of passengers, or of like kind of property, for a shorter 
 than for a longer distance over the same line or route in 
 the same direction, the shorter being included within the 
 longer distance, or to charge any greater compensation 
 as a through route than the aggregate of the interme- 
 diate rates subject to the provisions of this act; but this 
 shall not be construed as authorizing any common car- 
 rier within the terms of this Act to charge or receive 
 as great compensation for a shorter as for a longer dis- 
 tance: Provided, however, That upon application to 
 the Interstate Commerce Commission such common car- 
 rier may, in special cases, after investigation, be author- 
 ized by the Commission to charge less for longer than 
 for shorter distances for the transportation of passengers 
 or property"; and the Commission may from time to time 
 prescribe the extent to which such designated common 
 carrier may be relieved from the operation of this sec- 
 tion: Provided, further, That no rates or charges law- 
 
 38. United States v. Atchison, T. & S. F. R. Co.. 234 U. S. 476, 58 
 
 L. Ed. 1408, 34 Sup. Ct. 986.
 
 § 80] Amkn'dmknts to Commerck Act. 193 
 
 I'uUy existing at tlie time of the ]>assage of this amen- 
 datory Act shall be re(iuir((l to be changed by reason 
 of the provisions of this section prior to the expiration of 
 six months after the passage of this Act, nor in any 
 case where aj)plication shall have been tiled before the 
 Commission, in accordance wilh the provisions of this 
 section, niitil a detei-mination of such ai)pli<'ation by the 
 Connnission. Whenever a carrier by railroad shall be in 
 comi)etition with a water route? or routes reduces the 
 rates on the carriage of any species of freight, to or from 
 competitive points, it shall not be permitted to increase 
 such rates unless after hearing by the Interstate Com- 
 merce Commission it shall be found that such proposed 
 increase rests upon changed conditions other than tlie 
 elimination of water competition." 
 
 § 80. Statutory Duty of Carriers to Route Inter- 
 state Freight as Directed by Shippers. Another im- 
 portant amendment included in the Mann-Elkins Act of 
 1910 was an addition to section 15 of the Act to Regulate 
 Commerce which provides that in all cases where, at the 
 time of delivery of property to any common carrier by 
 railroad, for transportation subject to the provisions of 
 the act, to any point of destination, between which and 
 the point of such delivery for shipment, two or more 
 through routes and through rates shall have been estab- 
 lished as provided in the act, to which through rates 
 and through routes such carrier is a party, the person, 
 firm or corporation making such shipment, subject to 
 such reasonable exceptions and regulations as the Inter- 
 state Commerce Commission shall from time to time 
 prescribe, shall have the right to designate in writing 
 by which of such through loutes such property shall 
 be transported to destination. 
 
 This amendment further provides thai it sliali tliere- 
 upon be the duty of the initial carrier to route such 
 property and issue a through bill of lading therefor as 
 so directed, and to transport such jn-operty over its own 
 line or lines and deliver the same to a connecting line 
 or lines according to sncli through ront(\ The connect- 
 
 1 Lontrijl Carrlors 1:5
 
 19-1: Duties to Interstate Shippers. [■^ 80 
 
 ing carriers must also receive such property and trans- 
 port it over their lines and deliver the same to tlie next 
 succeeding carrier or consignee according to such routing 
 instructions in the bill of lading. A shipper is given 
 the right under this amendment to determine, when com- 
 peting lines of railroad constitute portions of a through 
 line or route, over which of said competing lines so con- 
 stituting a portion of said through line or route, his 
 freight shall be transported. 
 
 § 81. Carriers and Their Agents Prohibited from 
 Giving Information Relating to Business of Interstate 
 Shippers. One of the amendments of 1910 to section 15 
 of the Act prescribes that it shall be unlawful for any 
 common carrier subject to the provisions of the act, or 
 any officer, agent or employe of such carrier, or for any 
 other person or corporation lawfully authorized by such 
 common carrier to receive information therefrom, know- 
 ingly to disclose to or permit to be acquired by any 
 person, or corporation, other than the shipper or con- 
 signee, without the consent of such shipper or consignee, 
 any information concerning the nature, kind, quantity, 
 destination, consignee, or route of any property tendered 
 or delivered to such carrier for interstate transportation, 
 which information may be used to the detriment or 
 prejudice of such shipper or consignee, or which may 
 improperly disclose his business transactions to a com- 
 petitor. 
 
 The amendment further provides that it shall be 
 unlawful for any person or corporation to solicit or 
 knowingly receive any such information which may be 
 so used. A proviso to the amendment prescribes that 
 nothing in the act shall be construed to prevent the 
 giving of such information in response to any legal pro- 
 cess issued under the authority of any state or federal 
 court, or to any officer or agent of the government of the 
 United States, or of any state or territory, in the exercise 
 of its powers, or to any officer or other duly authorized 
 person seeking such information for the prosecution of 
 persons charged with or suspected of crime; or informa-
 
 § 83] Amkndmk.xt.s 'io Commerc?: Act. ]().") 
 
 tion given by a common canicr io another carrier or its 
 (Inly antliorizcd a.i^cnt, for the i)in-pose of adjusting? mnt- 
 nal Irafiic acconnts in tlie ordiiuiry course of business of 
 such carriers. Any person, corporation or association 
 violating any of the fore^oin^^ i^rovisions shall be deemed 
 guilty of a mi^^demeanor, and, for each offense, on con- 
 viction, is required to pay to the United States a penaltv 
 of not more than $10,000. 
 
 § 82. Extension of Jurisdiction of Commission over 
 Water Carriers by Panama Canal Act of 1912. The 
 Panama Canal Act of ]f)12 extended the scope of the 
 statute and gave additional authority to the Interstate 
 Commerce Commission over water carriers by amending 
 sections 5 and 6 of the Act to Regulate Commerce. These 
 amendments are elsewhere explained.^" 
 
 § 83. Act of 1913 Requiring Commission to Ascer- 
 tain Valuation of Property Owned or Used by all Inter- 
 state Carriers. A stupendous task was placed upon the 
 Interstate Commerce Commission by the statute known 
 as the Valuation Act of 1913.*° For the purpose of secur- 
 ing a complete and accurate inventory and valuation of 
 the property of common carriers engaged in inter- 
 state and foreign commerce, this law, passed in the form 
 of an amendment to Section 19, requires the Commission 
 to ascertain and report the value of all the property 
 owned or used by every common carrier subject to the 
 provisions of the Act. 
 
 The Commission is required to make an inventory 
 of the property of each carrier and show the value there- 
 of and to classify the physical property as nearlv as 
 practicable in conformity with the classification of ex- 
 penditures for road and equipment as prescribed by the 
 Commission. The Commission must further ascertain 
 and rejiort as to each ]nece of property owned or used 
 by each can-ier for its ]iurposes as a common carrier 
 together with tli(^ original cost to date, the cost of reju'o- 
 
 39. Sections 95, 96 and 07, infra 40. Appendix, A, infra.
 
 llHi Duties to Interstate Shippers. [§ 83 
 
 duction new, the cost of reproduction less depreciation, 
 and an analysis of the methods by which these several 
 costs are obtained with the reasons for their differences, 
 if any. 
 
 The Act further requires tlie Commission to ascer- 
 tain and rejiort separately other values, and elements of 
 value, if any, of the property of each carrier, and an 
 analysis of the methods of valuation employed and of 
 the reasons for any differences between any such values 
 and each of the foregoing cost values. The report of 
 ,the Commission must also include in detail and separ- 
 ately from improvements, the original cost of all lands, 
 rights of way and terminals owned or used for the pur- 
 poses of the common carriers, and ascertained as of the 
 time of dedication to public use, and the present value 
 of the same, and separately the original and present cost, 
 of condemnation and damages or of purchase in excess 
 of such original cost or present value. Such investiga- 
 tion and report is required also to show separately the 
 property held for purposes other than those of the com- 
 mon carrier, and the original cost and present value of 
 the same together with an analysis of the methods of 
 valuation employed. In ascertaining the original cof^t 
 of the property of each carrier, the Commission, in ad- 
 dition to such other elements as it may deem necessary, 
 is required to investigate and report upon the history 
 and organization of the present and of any previous 
 corporation operating such property; upon any increases 
 or decreases of stocks, bonds, or other securities, in any 
 reorganization; upon moneys received by any such cor- 
 poration by reason of any issues of stocks, bonds or other 
 securities; u])on the syndicating, banking, and other 
 financial arrangements under which such issues were 
 made and the expenses thereof; upon the net and gross 
 earnings of such corporation and shall report also in 
 detail upon the expenditure of all moneys and for the 
 purposes for which the same were expended. The Com- 
 mission is also required to ascertain and report the 
 amount and value of any aid, gift, grant of right of way, 
 or donation, made to any such common carrier, or to any
 
 § <S4j Amendmk.nis io Commekce Act. 197 
 
 previous corporation oijcratiii^ sucli property, or by the 
 Government of tlie United States or by any state, coun- 
 ty, munici})al government, or by individuals, associations 
 or corporations. An elal)oi-ate system of })rocedure is 
 tlien provided in tlie amendment for the ascertainment 
 of the valuation of the ))roperties of the carriers. 
 
 § 84. Amendment of 1917 Penalizing Persons for Ob- 
 structing Movement of Interstate Commerce During War. 
 An amendment to section 1 of the Act, enacted on August 
 10, 1917, declares it to be a crime for any i)erson, during 
 the war, 1o knowingly and willfully retard or obstruct 
 the orderly conduct or movement of interstate and for- 
 eign commerce.* This amendment provides; ''That on 
 and after the approval of this Act any person or persons 
 who shall, dui-ing the war in which the Tnitod States is 
 now engaged, knowingly and willl'nlly, ])y ])]iysical force 
 or intimidation, by threats of physical force, obstruct or 
 retard, or aid in obstructing or retarding, the orderly 
 conduct or movement in the United States of interstate 
 or foreign commerce, or the orderly make-up or move- 
 ment or disposition of any train, or the movement or 
 disposition of any locomotive, car, or other vehicle on 
 any railroad or elsewhere in the United States engaged 
 in interstate or foreign commerce shall be deemed guilty 
 of a misdemeanor, and for every such oiTense shall be 
 punishable by a fine of not exceeding $100 or by im- 
 ])ris()nment for not exceeding six months, or by both 
 such fine and imprisonment; and the President of the 
 United States is hereby authorized, whenever in his 
 judgment the public interest requires, to employ the 
 armed forces of the United States to prevent any such 
 o])struction or retardation of the passage of the mail, or 
 of the orderly conduct or movement of interstate or 
 foreign commerce in any ]iart of the United States, or 
 of any train,* locomotive, car, or other vehicle upon any 
 railroad or elsewhere in the United States engaged in 
 interstate or foreign commerce: Provided, That nothing 
 in this section shall be construed to repeal, modify, or 
 affect either section six or section twentv of an Act
 
 198 Duties to Interstate Shitpers. [§ 85 
 
 entitled 'An Act to supplement existing laws against 
 unlawful restraints and monopolies, and for other pnr- 
 jioses, ' approved October fifteenth, nineteen hundred and 
 fourteen." 
 
 § 85. President Authorized During War to Direct 
 Movement of Commodities Essential to National Defense. 
 The amendatory act referred to in the foregoing para- 
 graph further provides as follows: "That during the 
 continuance of the war in which the United States is 
 now engaged the President is authorized, if he finds 
 it necessary for the national defense and security, to 
 direct that such traffic or such shipments of commodi- 
 ties as, in his judgment, may be essential to the nation- 
 al defense and security shall have preference or priority 
 in transportation by any common carrier by railroad, 
 water, or otherwise. He may give these directions at 
 and for such times as he may determine, and may 
 modify, change, suspend, or annul them and for any 
 such purpose he is hereby authorized to issue orders 
 direct, or through such person or persons as he may 
 designate for the purpose or through the Interstate 
 Commerce Commission. Officials of the United States, 
 when so designated, shall receive no compensation for 
 their services rendered hereunder. Persons not in the 
 employ of the United States so designated shall receive 
 such compensation as the President may fix. Suitable 
 offices may be rented and all necessary expenses, in- 
 cluding compensation of persons so designated, shall 
 be paid as directed by the President out of funds which 
 may have been or may be provided to meet expendi- 
 tures for the national security and defense. The com- 
 mon carriers subject to the Act to regulate commerce 
 or as many of them as desire so to do are hereby au- 
 thorized without responsibility or liability on the part 
 of the United States, financial or otherwise, to establish 
 and maintain in the city of Washington during the 
 period of the war an agency empowered by such car- 
 riers as join in the arrangement to receive on behalf 
 of them all notice and service of such orders and direc-
 
 § 85] Amendments to Commerce Act. 199 
 
 tions as may be issued in accordance with this Act, and 
 service upon sucli a^-ency shall be good service as to 
 all the carriers joining in the establishment thereof. 
 And it shall be the duty of any and all the officers, 
 agents, or employees of such carriers by railroad or 
 water or otherwise to obey strictly and conform prompt- 
 ly to such orders, and failure knowingly and willfully 
 to comply therewith, or to do or perform whatever is 
 necessary to the prompt execution of such order, 
 shall render such officers, agents, or employees guilty 
 of a misdemeanor, and any such officers, agents, or em- 
 Vloyee shall, upon conviction, be fined not more than 
 $5,000, or imprisoned not moie than one year, or both, 
 in the discretion of the court. For the transportation 
 of persons or property in carrying out tlie orders and 
 directions of the President, just and reasonable rates 
 shall be fixed by the Interstate Commerce Commission; 
 and if the transportation be for the Government of the 
 United States, it shall be paid for currently or monthly 
 by the Secretary of the Treasury out of any funds not 
 otherwise appropriated. Any carrier complying with 
 any such order or direction for preference or priority 
 herein authorized shall be exempt from any and all 
 provisions in existing law imposing civil or criminal 
 pains, penalties, obligations, or liabilities upon carriers 
 by reason of giving preference or priority in compliance 
 with such order or directi(m."
 
 CHAPTER VI 
 
 Common Carriers Subject to the Interstate 
 Commerce Act. 
 
 Sec. 8G. The Statutory Provision. 
 
 Sec. 87. Who are Common Carriers Within the Meaning of the Inter- 
 state Commerce Act. 
 
 Sec. 88. Distinction Between Common Carriers and Plant Facilities 
 — Industrial Railways. 
 
 Sec. 89. All Carriers in Territories, District of Columbia and Alaska 
 Included. 
 
 Sec. 90. When Railroads Wholly Within Limits of Single State are 
 Under Federal Control — Former and Present Rule. 
 
 Sec. 91. Carriers Engaged in Transportation Between Points in 
 United States and Adjacent Foreign Countries. 
 
 Sec. 92. Carriers by Water Included as to Continuous Shipments 
 Under Common Arrangements with Carriers by Rail. 
 
 Sec. 93. Independent Ferry Companies Included as to Shipments 
 Under Common Arrangement with Rail Carriers. 
 
 Sec. 94. Common Control, Management, and Arrangement for Con- 
 tinuous Transportation, Defined and Explained. 
 
 Sec. 95. Extension of Federal Jurisdiction Over Water Carriers by 
 Panama Canal Act of 1912. 
 
 Sec. 9G. Amendment Applies to Traffic Between Two Points in United 
 States Passing Through Panama Canal "or Otherwise." 
 
 Sec. 97. Control or Ownership of Competitive Water Line by Rail 
 Carrier Subject to Approval of Commission. 
 
 Sec. 98. Policy of Congress in Adoption of That Part of Panama 
 Canal Act Forbidding Ownership of Water Lines by Rail- 
 roads. 
 
 Sec. 99. Bridges and Bridge Companies Subject to Federal Act, When. 
 
 Sec. 100. Street Railroads Crossing State Lines not Subject to Inter- 
 state Commerce Act. 
 
 Sec. 101. Electric Interurban Railroads Engaged in Interstate Com- 
 merce Controlled by Statute. 
 
 Sec. 102. Status of Terminal Railroads and Belt Lines Participating 
 in Movement of Interstate Traffic. 
 
 Sec. 103. Stock Yards Company Transferring Livestock Between its 
 Pens and Tracks of Trunk Lines, a Common Carrier. 
 
 Sec. 104. Status of Logging Roads as Interstate Carriers — the Tap 
 Line Cases. 
 
 Sec. 105. Private Car Lines not Common Carriers within Meaning 
 of Act to Regulate Commerce. 
 
 Sec. 106. Common Carriers of Oil and Other Commodities by Pipe 
 Line Included. 
 
 Sec. 107. Pipe Line Companies Transporting Solely Their Own Oil 
 Common Carriers, When. 
 
 (200)
 
 § 8(5 1 (Jaiu;i i:i;s rxDKK ( ommkhck Act. 201 
 
 Sec. 108. Assumption of National Control over Interstate and For- 
 oiftn Cable, Tclopiione and Telegraph Companies. 
 
 Sec. 109. Independent Express Companies Included by Hepburn 
 Amendment of 1906. 
 
 Sec. 110. Sleeping Car Companies Placed Under .lurisdiction of Com- 
 mission by Hepburn Act of 1906. 
 
 Sec. 111. Receivers and Purchasers Pendente Lite. 
 
 Sec. 112. Railroad Companies Incorporated in Foreign Countries and 
 Engaged in Interstate Commerce. 
 
 Sec. 113. Statute Applies to Individuals and Partnerships as Well as 
 Incorporated Companies. 
 
 § 86. The Statutory Provision. The Act to ro^ni- 
 late comuu'ice i>i('!?riil)es tliat its i)rovisions shall apply 
 to any corporation or any persons engaged in the trans- 
 j)()rtation of oil or other commodity, except natural or 
 artificial gas, by means of pipe lines, or partly by pipe 
 lines and partly by railroad, and to telegraph, telephone 
 and cable companies (whether wire or wireless) engaged 
 in sending messages from a State, Territory, or District 
 of the United States, to any other State, Territory or 
 District of the United States, or to any foreign country, 
 who shall be considered and lield to be common carriers 
 within the meaning and purpose of the Act, and to any 
 common carrier or carriers engaged in the transporta- 
 tion 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 arrange- 
 ment for a continuous carriage or shipment), from one 
 State or Territory of the United States or the District 
 of Columbia, or from one i)lace in a Territory to another 
 place in the same Territory or from any place in the 
 United States to an adjacent foreign country, or from 
 any place in the United States through a foreign coun- 
 try to any other place in the United States, and also 
 to the transportation in like manner of property shipped 
 from any place in the United States to a foreign country 
 and carried from such ])lace to a port of transshipment 
 or shipped from a foreign country to any ]ilace in the 
 United States and carried to sucli i)lace from a port of 
 entry either in the United States or an adjacent foreign 
 country. The statute further provides that the term
 
 202 
 
 Duties to Interstate Shippees. 
 
 [§ 86 
 
 "common carrier" as used in the Act, shall include 
 express companies and sleeping car companies.^ 
 
 § 87. Who are Common Carriers Within the Mean- 
 ing of the Interstate Commerce Act. The statute ap- 
 plies to any person or corporation engaged in the trans- 
 portation of persons or property solely by railroad, 
 or partly by railroad and partly by water, as a "common 
 carrier." The act does not define the term "common 
 carrier" in so far as it relates to water and rail lines. 
 Its meaning, therefore, must be ascertained by its com- 
 mon law use and application.^ Under the common law, 
 a common carrier is a person who undertakes to trans- 
 port for hire from one place to another, passengers or 
 the goods of those who choose to employ him.^ In- 
 corporation is not a prerequisite to the exercise of the 
 functions of a common carrier by rail.* 
 
 1. Section 1 of the Act to Regu- 
 late Commerce, Appendix A, infra. 
 
 2. Manufacturers Ry. Co. v. St. 
 Louis, I. M. & S. Ry. Co., 21 I. C. 
 C. 304; Crane Iron Works v. Cen- 
 tral R. of New Jersey, 17 I. C. C. 
 514; Star Grain & Lumber Co. v. 
 Atchison, T. & S. F. Ry. Co., 17 
 L C. C. 338; Solvay Process Co. v. 
 Delaware, L. & W. R. Co., 14 L C. 
 C. 246; General Elec. Co. v. New 
 York Cent. & H. River R. Co., 14 
 I. C. C. 237. 
 
 3. United States v. Union Stock 
 Yard & Transit Co. of Chicago, 226 
 U. S. 286. 57 L. Ed. 226, 33 Sup. 
 Ct. 83; Southern Pac. Terminal Co. 
 V. Interstate Commerce Commis- 
 sion, 219 U. S. 498, 55 L. Ed. 310, 
 31 Sup. Ct. 279; Nordgard v. 
 Marysville & N. R. Co., 134 C. C 
 A. 415, 218 Fed. 737; Bay v. Mer- 
 rill & Ring Lumber Co., 211 Fed. 
 717; United States v. St. Joseph 
 Stockyards Co., 181 Fed. 625; 
 Union Stockyards Co. of Omaha v. 
 United States, 94 C. C. A. 626, 169 
 Fed. 404. "To bring a person, 
 
 therefore, within the description 
 of a common carrier the following 
 characteristics must appear: 1. He 
 must be engaged in the business 
 of carrying goods for others as a 
 public employment, and must hold 
 himself out as ready to engage in 
 the transportation of goods for 
 persons generally as a business, 
 and not as a casual occupation. 
 2. He must undertake to carry 
 goods of the kind to which his 
 business is confined. 3. He must 
 undertake to carry by the meth- 
 ods by which his business is con- 
 ducted and over his establish- 
 ed road. 4. The transportation 
 must be for hire. 5. An action 
 must lie against him, if he refuses 
 without sufficient reason to carry 
 such goods for those who are will- 
 ing to comply with his terms." 
 — Hutchinson on Carriers, 3d ed. 
 Vol. 1, Sec. 48, p. 42. 
 
 4. Truckers Transfer Co. v. 
 Charleston & W. C. Ry. Co., 27 I. 
 C. C. 275; In re Wool, Hide & Pelt 
 Rates, 23 I. C. C. 151.
 
 § 88] (.'aiuukhs Under Commerc?: Act. 203 
 
 If a company holds itself out to the public as a 
 common carrier for hire and invites the public to ac- 
 cept its service, it is a common carrier notwithstand- 
 ing the fact that a considerable jxjrtion of its business 
 consists in transporlin.i^ its own proi)erty, or property 
 of an industry with which it is associated.' The extent 
 to wliich a railroad is used by the public does not 
 determine whether it is a common carrier, but it is 
 the right of the public to use its facilities and to de- 
 mand service of it that determines its status as a com- 
 mon carrier." Neither is its status as a carrier deter- 
 mined by its length.^ 
 
 The fact that freight transported by a carrier is 
 confined principally to one commodity does not deprive 
 it of its status as a common carrier, because the car- 
 rier may limit the kind and character of traffic it wishes 
 to transport.' When the status of a railroad is fixed 
 as a common carrier it owes a duty to the public at 
 large and not merely to those who have been accustomed 
 to patronize it.' No other duties may be required of a 
 person under the Act nor rights thereunder be accorded 
 unless the person is a common carrier.^" 
 
 § 88. Distinction Between Common Carriers and 
 Plant Facilities — Industrial Railways. Large industri- 
 al establisliments throughout the country, and especial- 
 ly iron and steel industries, frequently own and operate 
 ])lant railways in connection with their manufacturing 
 departments. These systems of rails and locomotive's 
 
 5. Decatur Nav. Co. V. Louisville ingham S. R. Co., 32 I. C. C 110- 
 & N. R. Co., 31 I. C. C. 281. See Crane R. Co. v. Central R. Co. of 
 also Manufacturers Ry. Co. v. Unit- New Jersey. 248 Pa 333 93 A.tl 
 ed States, U. S. . 62 L. 1076 
 
 ^"TVr fo.o"'- ""'■ '''• ^"''^'^ 7. 'second Industrial Railways 
 
 "^/•^ 1^' 1^1^- Case, 34 I. C. C. 596. 
 
 6. United states V. Butler Coun- o 17.1 ^-^ ,,-,,. 
 
 ty R. Co.. 234 U. S. 29. 58 L. Ed. , ^ iT. ""''"^ '""'"^"^ ""'■ ^• 
 
 1196, 34 Sup. Ct. 748; Tap Line ^^^'^^ ^ ^""^ ^- ^''■' ~' ^- ^- ^■ 
 
 Cases, 234 U. S. 1, 58 L. Ed. 1185, ^'^- 
 
 34 Sup. Ct. 841; Curry & Whyte ^- ^n re Mine Ratings. 25 I. C. 
 
 Co. V. Duluth & I. R. R. Co., 32 C. 286. 
 
 I. C. C. 162; In re Advances Joint 10. In :e Joint Rate Cancella- 
 
 Class & Commodity Rates v. Birm- tirn, 27 I. C. C. 353.
 
 20-1: Duties to Interstate Shippees. [§88 
 
 and cars used tlieroon in and abont these plants are 
 necessary facilities of tlie industries. The tracks are 
 used not only for the movement of cars between the 
 rails of the line carriers and the various points within 
 the plant, hut they are re(|uired also for the prompt and 
 economical movement of material between the various 
 departments of the plant. 
 
 Formerly these railways were operated as a depart- 
 ment or bureau of the industrial company, but in recent 
 years, many of them have been operated through the 
 means of an incorporated railroad owned by the industry 
 for the purpose mainly of assuming the characteristics 
 of a common carrier. When the plant tracks were 
 thus taken over by an incorporated railroad, the tracks 
 of the latter were frequently extended around the plant 
 in such a manner as to exclude the trunk lines from 
 every section of the plant except over the rails of the 
 newly incorporated industrial railroad. The result was 
 an apparent intermediate service by the industrial 
 railroad between the plant and the line carrier, on 
 the basis of which the plant railroad exacted compensa- 
 tion, not from the industry, but out of the rate of the 
 line carrier. After turning over to the subsidiary rail- 
 road company the plant track and locomotives, the 
 industrial railroad company then claimed to be a com- 
 mon carrier and entitled to a division of the rates of 
 the trunk lines. 
 
 In the first Industrial Railways Case^^ the Commis- 
 sion held that all allowances to, or divisions of rates 
 with, any of these industrial railroads were unlawful 
 because they were plant facilities and not common car- 
 riers with rights and obligations as such. But follow- 
 ing the decision of the United States Supreme Court in 
 the Tap Line Cases involving the status of short logging 
 roads,^- the Commission modified its original report 
 in conformity with the i3rinciples of that case.^^ The 
 
 11. 29 I. C. C. 212. 13. Second Industrial Railways 
 
 12, See Section 87, supra. Case, 34 I.- C. C. 596; Industrial
 
 § 89] Carriers Under Commerce Act. 205 
 
 trunk Jiiics were llicii pcniiitted to anaiige with the 
 industrial railroads wliicli were common carriers under 
 the test applied by tlie Supreme Court in the Tap Line 
 Cases, and which performed a service of transportation, 
 for a reasonable com))ensation for such service in the 
 form of switching charges or a division of tlic joint 
 thi-ough I'ates/* 
 
 § 89. All Carriers in Territories, District of 
 Columbia and Alaska Included. Tlie statute prescribes 
 that all coiiiinou carriors of jjersons or property by rail, 
 and by water and lail when used under a common 
 management, from one state or territory or the District 
 of Columbia to any other state, territory or District 
 of Columbia, or from one place to another in the same 
 territory, shall be amenable to all its provisions. The 
 constitutional limitation upon the power of Congress 
 over the states is not ai)pli('able to territories and the 
 District of Columbia, for its jurisdiction over them is 
 full and coni])lete.^'' 
 
 The national constitution provides that the Con- 
 gress shall have the power to dispose of and make all 
 needful rules and regulations respecting the territory 
 or other property belonging to the United States.^" 
 The Constitution also ijrovides that Congress shall 
 have the power to exercise legislation in all cases 
 whatsoever over such district (not exceeding ten miles 
 S(iuare) as may, by cession of particular states, and 
 
 Railways Case, 32 I. C. C. 129. Soe Industrial Railways Case, 32 I. C. 
 
 also Manufacturers Ry. Co. v. C. 129; In re Joint Rates with 
 
 United States, U. S. , 62 Birmingham S. R. Co., 32 I. C. C. 
 
 L. Ed. , 38 Sup. Ct. 383, de- 110; Manufacturers' Ry. Co. v. 
 
 cic'ed April 15, 1918. St. Louis, I. M. & S. Ry. Co., 32 
 
 14. See also Adams Stave Co. I. C. C. 100. 
 
 V. Texas, 0. & E. R. Co., 38 I. C. C. 15. El Paso & N. E. R. Co. v. 
 
 203; Mitchell Coal & Coke Co. v. Gutierrez, 215 U. S. 87, 54 L. Ed. 
 
 Pennsylvania R. Co., 38 I. C. C. 106, 30 Sup. Ct. 21; Late Corpora- 
 
 40; Chicago West Pullman v. tion of Church of Jesus Christ of 
 
 Southern R. Co., 37 I. C. C. 408; Latter-Day Saints v. United States. 
 
 East Jersey R. & T. Co. v. Central 136 U. S. 1, 34 L. Ed. 478, 10 Sup. 
 
 R. of New Jersey. 36 I. C. C. 146; Ct. 792. 
 
 Tap Line Case, 35 I. C. C. 485; IC. Article 4. Section 3.
 
 206 Duties to Interstate Shippees. [^ 89 
 
 the acceptance of Congress, become the seat of govern- 
 ment.'' The District of Columbia was acquired by the 
 national Government pursuant to the authority given 
 in this constitutional provision from the states of Vir- 
 ginia and Maryland in 1789. The jurisdiction of Con- 
 gress over the District of Columbia is exclusive. ^^ 
 
 The Interstate Commerce Commission held that 
 Alaska was not a territory within the meaning of the 
 Interstate Commerce Act and that, therefore, it had 
 no jurisdiction of the complaint of a steamship company 
 against a railroad operated in Alaska." But on writ 
 of error to the United States Supreme Court from the 
 Court of Appeals of the District of Columbia, it was 
 held that Alaska was a territory within the meaning 
 of the statute and that the authority of the Secretary 
 of Interior to revise and modify railway rates in Alaska 
 under a former statute, was repealed by the Interstate 
 Commerce Act.-° Prior to the amendment of 1906 to 
 the Interstate Commerce Act, the Commission had no 
 jurisdiction to regulate rates on shipments between 
 points wholly within a territory." 
 
 § 90. When Railroads Wholly Within Limits of 
 Single State are Under Federal Control — Former and 
 Present Rule. Prior to the Hepburn Amendment of 
 1906 a common carrier by rail whose lines were confined 
 within the limits of a single state, was not subject to 
 the provisions of the Act to Regulate Commerce or the 
 control of the Interstate Commerce Commission unless 
 it entered into a common arrangement, management or 
 control with another carrier by rail for a continuous 
 carriage or shipment from one state to another; for the 
 
 17. Article 1, Section 8. mission v. United States ex rel. 
 
 18. Howard v. Illinois Cent. R. Humboldt S. S. Co., 224 U. S. 474, 
 Co., 207 U. S. 463, 52 L. Ed. 297, 56 L. Ed. 849, 32 Sup. Ct. 556. 
 28 Sup. Ct. 141; Cohens v. Vir- See also Humboldt Steamship Co. 
 ginia, 6 Wheat (l). S., 2G4, 5 L. v White Pass & Yukon Route, 25 
 Ed. 257. I C. C. 136. 
 
 19. In re Jurisdiction in Alaska, 21. Ft. Smith & W. R. Co. v. 
 10 I. C. C. 81. Chandler Cotton Oil Co., 25 Okla. 
 
 20. Interstate Commerce Com- 82, 106 Pac. 10.
 
 § I'OJ (.'AiuaEKs Under Commercp: Act. 207 
 
 courts generally held that the phrase ''under a common 
 control, management, or arrangement," ar)])lied to rail 
 carriers whose lines were wlioily within a single state 
 as well as to water carriers. Such railroads, therefore, 
 wei-e imninne from federal control and did not l)ecome 
 subject to the statute unless they voluntarily entered 
 into some common arrangement, control or management 
 for the continuous shipment of goods or carriage of 
 passengers in interstate or foreign commerce." 
 
 But as changed by the Hepburn Amendment of 
 1906, the provisions of the Act now apply to "any com- 
 mon carrier or carriers 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 connnon control, management or arrangement 
 for a continuous carriage or shipment) from one state," 
 etc. By the insertion of the parenthesis in the passage 
 of the Hepburn Act, the phrase "common control, 
 management or arrangement" was eliminated as to 
 carriers by rail, and it now applies only to trans] )orta- 
 tion partly by railroad and partly by water. As the 
 statute now reads, the test of federal control and juris- 
 diction over railroads wholly within a single state is 
 not the common arrangement which such railroads may 
 make with other carriers for interstate transportation, 
 but their subjection to federal control is determined 
 by the character of the ti'ansportation itself. 
 
 If such carriers accept freight for shipment to 
 another state, they thereby become engaged in inter- 
 
 22. Louisville & N. R. Co. v. Seaboard Ry. Co., 82 Fed. 5fi3; 
 
 Behlmer, i75 U. S. 648, 44 L. Ed. United States ex rel. Interstate 
 
 309, 20 Sup. Ct. 209; Cincinnati. Commerce Commission v. Chicago 
 
 N. O. & T. P. R. Co. V. Interstate k. & S. R. Co., 81 Fed. 783: Inter- 
 
 Commerce Commission, 162 U. S 
 184, 40 L. Ed. 935, 16 Sup. Ct. 700; 
 United States v. Pennsylvania R. 
 
 state Commerce Commission v. 
 Beilaire, Z. & C. Ry. Co., 77 Fed. 
 
 Co., 153 Fed. 625; United States ^^^- '^^^^^ ^- ^'"'^^^i States, 52 
 
 V. Geddes. 65 C. C. A. 320, 131 Fed. ^^'^- ^'^'^' -hicago & N. W. Ry. Co. 
 
 452: Interstate Stock-Yards Co. v. "^^ Osborne. 3 C. C. A. 347, 52 Fed. 
 
 Indianapolis ITnion Ry. Co.. 99 Fed. 912: Railroad Commission of 
 
 472; United States ex rel. Inter- Georgia v. Clyde Steamship Co., 
 
 state Commerce Commission v. 4 I. C. R. 120, 5 I. C. C, 324.
 
 208 
 
 Duties to Interstate Shippers. 
 
 [§ 90 
 
 state commerce within the purview of the statute, for 
 the movement of freight from the be^'inning of trans- 
 portation to the end must be treated as an entirety. 
 Interstate transportation commences with the delivery 
 to the carrier at point of shipment and ends with de- 
 liverv by tlie carrier at point of destination.^^ The 
 
 23. Baer Bros. Mercantile Co. v. 
 Denver & R. G. R. Co., 233 U. S. 
 479, 58 L. Ed. 1055, 34 Sup. Ct. 641; 
 Railroad Commission of Louisiana 
 V. Texas & P. R. Co., 229 U. S. 
 336, 57 L. Ed. 1215, 33 Sup. Ct. 837; 
 Chicago, R. I. & P. R. Co. v. Hard- 
 wick Farmers' Elevator Co., 236 
 U. S. 426. 57 L. Ed. 284. 33 Sup. Ct. 
 174, 46 L. R. A. (N. S.) 203; 
 United States v. Union Stock Yard 
 & Transit Co. of Chicago, 226 U. 
 S. 286, 57 L. Ed. 226, 33 Sup. Ct. 
 83; Railroad Commission of Ohio 
 V. Worthington, 225 U. S. 101, 56 
 L. Ed. 1094, 32 Sup. Ct. 653; Mc- 
 Neill V. Southern R. Co., 202 U. S. 
 543, 50 L. Ed. 1142, 26 Sup. Ct. 
 722; United States v. Colorado & 
 N. W. R. Co., 85 C. C. A. 27, 157 
 Fed. 321, 15 L. R. A. (N. S.) 107, 
 13 Ann. Cas. 893. United States 
 V. Standard Oil Co. of Indiana, 
 155 Fed. 305. The change made 
 by the Hepburn amendment as to 
 railroads wholly within a single 
 state, is well and accurately stated 
 by Commissioner Prouty in Leon- 
 ard V. Kansas City Southern Ry. 
 Co., 13 I. C. C. 573, as follows: 
 "When it transpired upon that 
 hearing that the real question was 
 to concern the future and not the 
 past, the complainant asked to 
 amend its complaint so as to pray 
 for the establishment of a joint 
 through rate over the lines of the 
 Kansas City Southern and the 
 Belt "Railway upon coal from points 
 without the State of Missouri to 
 Westport. The complaint was so 
 
 amended and the case has pro- 
 ceeded as though such had been 
 the original complaint. Has this 
 Commission, then, jurisdiction to 
 establish over the Belt Railway 
 such a joint rate? Has it juris- 
 diction with respect to this coal 
 traffic to determine either the en- 
 tire through rate or the rates 
 which shall be severally applied 
 by the Kansas City Southern up- 
 to Dodson and by the Belt Railway 
 from Dodson? These questions, 
 in our opinion, must be answered 
 in the affirmative. Interstate 
 transportation is interstate com- 
 merce. That transportation be- 
 gins when property is delivered 
 to a railroad in one state for con- 
 tinuous shipment to a point in an- 
 other state, and it continues until 
 delivery at the point of destina- 
 tion. Every railroad participating 
 in that transportation is subject 
 to the provisions of the act to regu- 
 late commerce. At the outset of 
 this discussion the difference be- 
 tween the jurisdiction of the orig- 
 inal act to regulate commerce and 
 that of the so-called Hepburn 
 amendment of June 29, 1906, 
 should be carefully noted. By its 
 terms the provisions of the origin- 
 al act applied to 'any common 
 carrier or carriers 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, management, or 
 arrangment for a continuous car-
 
 § '.H). 
 
 Cakhikhs ILndkr Commekch Act. 
 
 209 
 
 interstate character of the freig'ht ('oniniciices willi Ihc 
 Olio and coiifhides \\\\h the other. 
 
 riage or shipiiifiit.' The coiiiniis- 
 slon held that the words 'under 
 a common control, management, or 
 arangement' applied only to cases 
 where the shipment was partly by 
 water and partly by railroad; but 
 the decisions and intimations of 
 the Federal courts, including the 
 Supreme Court of the United 
 States, were generally to the ef- 
 fect that these words applied to a 
 route composed wholly of rail- 
 roads as well as to one which was 
 partly by railroad and partly by 
 water. Interstate Commerce Com- 
 mission V. C. N. 0. & T. P. Ry. Co.. 
 162 U. S. 184, 40 L. Ed. 935, 5 
 Inters. Com. Rep. 391, 16 Sup. Ct. 
 Rep. 700; Parsons v. C. & N. W. 
 Ry. Co., 167 U. S. 447, 42 L. Ed. 
 231, 17 Sup. Ct. Rep. 887; Louis- 
 ville & Nashville R. R. Co. v. 
 Behlmer, 175 U. S. 648, 44 L. Ed. 
 309, 20 Sup. Ct. Rep. 209; Chicago 
 & Northwestern Ry. Co. v. Osborne, 
 4 Inters. Com. Rep. 257, 3 C. C. A., 
 347. 10 U. S. App. 430, 52 Fed. 912; 
 Tozer v. U. S. 4 Inters. Com. Rep. 
 245, 52 Fed. 917. The significance 
 of this holding is obvious. The 
 railroad located wholly within a 
 state does not transport passen- 
 gers upon its own line from a 
 point in one state to a point in 
 another state. It was not, there- 
 fore, subject to the provisions of 
 the act to regulate commerce un- 
 less, by common ownership or con- 
 trol, or by some arrangement, it 
 became part of a line which did 
 handle traffic between the states. 
 Whether a state railroad was sub- 
 ject to the act depended upon 
 ■whether it had entered into such 
 arrangements with other railroads, 
 and since the making of the ar- 
 rangement was a voluntary act 
 
 upon the part of the state rail- 
 road, that railroad could exercise 
 its election to be or not to be sub- 
 ject to Federal jurisdiction. Other- 
 wise stated, the jurisdiction of this 
 Commission was not determined by 
 the character of the transportation 
 in which the state railroad en- 
 gaged, but by the nature of the 
 arrangement under which that 
 business was handled. As changed 
 by the Hepburn amendment, the 
 provisions of the act now api)ly to 
 'any common carrier or carriers 
 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, 
 management, or arrangement for 
 a continuous carriage or ship- 
 ment) from one state or territory 
 of the United States,' etc. The 
 words 'common control, manage- 
 ment or arrangement,' now plain- 
 ly apply only to transportation 
 which is partly by railroad 
 and partly by water. With re- 
 spect, therefore, to transportation 
 entirely by rail the words in pa- 
 renthesis may be eliminated from 
 the statute. The terms of the act 
 now apply to 'any common carri3r 
 or carriers engaged in the trans- 
 portation of passengers or prop- 
 erty wholly by railroad from one 
 state or territory in the United 
 States or the District of Columbia 
 to any other state or territory of 
 the United States or the District of 
 Columbia.' Under the present act 
 the test of jurisdiction is not the 
 arrangement under which the 
 freight is handled, but rather the 
 character of the transportation it- 
 self. The plain language of the 
 act subjects any carrier which en- 
 
 1 (^oiitml Cirrlrrs It
 
 210 Duties to Interstate Shippers. [§ 90 
 
 Any carrier that assists to any extent in the move- 
 ment of such a commodity is subject to the Act, whether 
 that service is performed wholly in one city or in one 
 state or in more than one state, and whether the service 
 is carriage or switching. A carrier, therefore, with 
 a line confined wholly within a single state is subject 
 to the Act, if it accepts any shipments intended for 
 continnons passage to any point in another state or 
 foreign country. 
 
 § 91. Carriers Engaged in Transportation Between 
 Points in United States and Adjacent Foreign Countries. 
 
 Section ] provides that transportation of persons or 
 property wholly by rail, or partly by rail and partly by 
 water under a common arrangement, management or 
 control, from any place in the United States to any ad- 
 jacent foreign country, or from any place in the United 
 States through a foreign country to any other place 
 in the United States, shall be subject to all the provi- 
 sions of the statute. Thus, in an early case before the 
 Commission, it appeared that the Grand Trunk Railway 
 Company of Canada had published and filed a rate of 
 one dollar per ton on coal, coke, etc., from Buffalo and 
 other cities in the United States to certain points in 
 Canada, but quoted a special rate of seventy-five cents 
 per ton, and the traffic was carried at such a rate.^* 
 The company urged that its Canadian line and the 
 traffic carried by it from points in the United States to 
 ]toints in Canada were not under the jurisdiction of the 
 
 gages in the movement of freight only subject to the act to regulate 
 
 by rail from a point in one state commerce when performed under 
 
 to a point in another state to its some arrangement which makes 
 
 provisions. This must be so un- the carrier part of a through line 
 
 less that portion of the transpor- over which the traffic moves? Both 
 
 tation conducted entirely within upon authority and upon princi- 
 
 a state is not to be regarded as a pie the movement must be treated 
 
 part of the entire through move- as an entirety, every part of which 
 
 ment. The question really is, Is is subject to federal contiol." 
 the movement from beginning to 24. In the Matter of the Investi- 
 
 end to be treated as one en- gation of the Rates of the Grand 
 
 tirety, or can it be split up into Trunk Ry. Co. of Canada, 2 I. C. 
 
 separate movements which are R. 496.
 
 § 92] Carriers Under Commerce Act. 211 
 
 Interstate Commerce Commission, l)nt the Commission 
 held tliat the carrier was amenable to the statute as 
 to such transportation and had violated lli<' provisions 
 of the Act. 
 
 The Interstate Commerce Act does not, however, 
 apply to transportation carried entirely within the 
 boundaries of a foreign country. For example, the 
 Commission has no authority to regulate the rates for 
 transportation between points wholly in Canada;'-^ nor 
 has the Commission any jurisdiction over transporta- 
 tion wholly wuthin the country of Mexico.'-" But w^hen 
 a foreign carrier conies 'n\U> the United States to com- 
 pete for traffic, it should be content to operate ui)on tiie 
 same terms as its American competitors.-^ 
 
 § 92. Carriers by Water Included as to Continuous 
 Shipments Under Common Arrangements with Carriers 
 by Rail. Among the common carriers subject to the 
 provisions of the Interstate Commerce Act are carriers 
 engaged in the transportation of persons or property 
 partly by railroad and partly by water when both are 
 used under a common control, management, or arrange- 
 ment for a continuous carriage or shipment from one 
 state or territory to another state or territory. Car- 
 riers wholly by water are therefore exem])t fiom the 
 provisions of the Act.-* 
 
 25. FuHerton Lumber & Shingle and Egg Rates, 29 I. C. C. 45; 
 Co. V. Bellingham B. & B. C. R Arkansas Pass Channel & Dock Co. 
 Co., 25 I. C. C. 375; Humboldt v. Galveston, H. & S. A. Ry. Co., 
 Steamship Co. v. White Pass & Y. 27 I. C. C. 403; Augusta & Savan- 
 Ry. Co., 25 I. C. C. 136. nah Steamboat Co. v. Ocean Steam- 
 
 26. Eagle Pass Lumber Co. v. ship Co. of Savannah, 26 L C. C. 
 National Rys. of Mexico, 25 L C. 380; Galveston Commercial Associ- 
 C. 5. ation v. Atchison, T. & S. F. Ry. 
 
 27. In the Matter of Disturb- Co., 25 I. C. C. 216; Escanaba Busi- 
 ance in Passenger Rates by Cana- ness Men's Association v. Ann 
 dian P. R. Co., 8 I. C. R. 71. Arbor, R. Co., 24 I. C. C. 11; In 
 
 28. Interstate Commerce Com- the Matter of Transportation by 
 mission v. Goodrich Transit Co., the Chesapeake & O. Ry. Co., 21 I. 
 224 U. S. 194. 56 L. Ed. 729, 32 C. C. 207; In the Matter of Juris- 
 Sup. Ct. 436: Ex Parte Koehler, 30 diction over Water Carriers, 15 I. 
 Fed. 867; Lake-and-Rail Butter C. C. 205; Ullman v. Adams Exp.
 
 212 Duties to Interstate Shippers. [§ 92 
 
 The primary purpose of CongTess in the passage 
 of the statute was to regulate transportation by rail- 
 road. The control of carriers by water was merely 
 incidental and collateral, and they were included so that 
 the regulation of carriers by rail might be effective 
 and not be destroyed by subterfuges and contracts 
 entered into with water lines.^^ When water carriers 
 become amenable to the requirements of the statute 
 and the jurisdiction of the Interstate Commerce Com- 
 mission, they do so by choice in entering into a common 
 arrangement or control with railroad s.^° 
 
 But even when water carriers enter into or adopt 
 a common management, arrangement or control with 
 carriers by rail for continuous transportation, the 
 jurisdiction of the Interstate Commerce Commission 
 only extends to the traffic so carried under a common 
 control. As to traffic by water not transported under 
 such a common control, management, or arrangement, 
 the federal statute does not control and the Commission 
 has no power to regulate it. The jurisdiction of the 
 Interstate Commerce Commission as to both carriers by 
 water and traffic carried by them, is confined strictly 
 to those water carriers and traffic carried in a continuous 
 shipment and under a common control and management 
 with carriers hj rail.^^ For example, the Commission 
 
 Co., 14 I. C. C. 340; Cosmopolitan Butter & Egg Rates, 29 I. C. C. 45; 
 
 Shipping Co. v. Hamburg-Ameri- Augusta & Savannah Steamboat 
 
 can Packet Co., 13 I. C. C. 266. Co. v. Ocean Steamship Co. of 
 
 29. In the Matter of Jurisdiction Savannah, 26 I. C. C. 380; Ullman 
 over Water Carriers, 15 I. C. C. 205. v Adams Exp. Co., 14 I. C. C. 340; 
 
 30. Wilmington Transp. Co. v. Lykes Steamship Line v. Commer- 
 Railroad Commission of California, cial Union et al, 13 I. C. C. 310. 
 236 U. S. 151, 59 L. Ed. 508, 35 31. In the Matter of Jurisdiction 
 Sup. Ct. 270; Interstate Commis- over Water Carriers, 15 I. C. C. 
 sion v. Goodrich Transit Co., 224 205, in which the Commission 
 U. S. 194, 56 L. Ed. 729, 32 Sup. said: "As a fundamental propo- 
 Ct. 436; Mutual Transit Co. v. sition it is obvious that interstate 
 United States, 102 C. C. A. 164, commerce wholly by railroad is 
 178 Fed. 664; Camden Iron Works subject to the Act and that in- 
 V. United States, 85 C. C. A. 585, terstate commerce wholly by water 
 158 Fed. 561; United States v. is not subject to the Act. It is 
 Wood, 145 Fed. 405; Lake-and-Rail equally obvious that interstate
 
 § 92] 
 
 Careiers Under Commerce Act. 
 
 21; 
 
 has the power to com])ol eonimoTi carriers by water, 
 carrying passengers and properly in interstate commerce 
 under joint tariffs willi laihoad companies, to adoi)t 
 certain methods of accounts and bookkeeping as to 
 operating expenses and revenues, and to rejjort con- 
 cerning their corporate organization, liiiaiicial c()n(liti()n, 
 etc., to the Commission. ^^ In a comi)laint against ocean 
 carriers between xVmerican and Euroi)ean i)orts, it was 
 alleged that the defendants carried traffic on through 
 bills of lading between points in the United States and 
 European ports under a pooling agreement by which 
 the traffic was divided by agreement and each carrier 
 received a certain per cent, thus destroying competi- 
 tion. The Commission sustained a demurrer to the 
 complaint because it had no jurisdiction as to the ocean 
 carriage.^^ Ocean rates are not witliin the jurisdiction 
 
 commerce partly by railroad and 
 partly by water, under a common 
 control, management, or arrange- 
 ment for a continuous carriage or 
 shipment, is subject to the Act. 
 Does the fact that some of the 
 commerce transported by a car- 
 rier is subject to the Act ipso facto 
 render all the commerce transport- 
 ed by that carrier subject to the 
 Act? * * * Traffic wholly with- 
 in a state is not subject to the Act, 
 for the reason that Congress has 
 no authority to regulate such traf- 
 fic. Traffic wholly by water is not 
 subject to the Act, for the reason 
 that Congress did not in that 
 statute exercise its admitted au- 
 thority over interstate transporta- 
 tion by water. The Commission's 
 only duty is to execute the man- 
 date of Congress. The language 
 of the provision in question indi- 
 cates its meaning. The Act ap- 
 plies to any common carrier or 
 carriers engaged in transportation 
 partly by rail and partly by water 
 when both are used under a com- 
 mon control, management, or ar- 
 
 rangement for a continuous car- 
 riage or shipment. The use of the 
 word 'when' is significant, and its 
 natural meaning seems to be that 
 a water carrier is subject to the 
 act 'in so far as' or 'to such extent 
 as' it carriers traffic under a com- 
 mon control, management, or ar- 
 rangement with a railroad. It need 
 hardly be stated that the Act does 
 not require publication of or ad- 
 herence to rates upon purely in- 
 trastate traffic. With regard, then, 
 to the history and purpose of the 
 enactment, the language used and 
 the rules of statutory construction 
 which have been mentioned, it is 
 difficult to see how serious doubt 
 can arise that Congress did not 
 intend to regulate the charges ex- 
 acted upon the port-to-port busi- 
 ness of water carriers." 
 
 .32. Interstate Commerce Com- 
 mission V. Goodrich Transit Co.. 
 224 U. S. 194, .50 L. Ed. 729, 32 
 Sup. Ct. 430. 
 
 33. Cosmopolitan Shipping Co. 
 V. Hamburg- American Packet Co.. 
 13 I. C. C. 266.
 
 214 Duties to Interstate Shippers. [§92 
 
 of the Commission and in dealing with import and ex- 
 port rates, the ports are considered as destinations and 
 not gate\Yays.^* 
 
 § 93. Independent Ferry Companies Included as 
 to Shipments Under Common Arrangement with Rail 
 Carriers. A ferry has been defined to be a continuation 
 of a highway from one side of the water over which it 
 passes to the other, and is for transportation of pas- 
 sengers or of travelers with their teams and vehicles 
 and such other property as they may carry or have with 
 them.^^^ 
 
 The Interstate Commerce Act provides that the 
 term "railroad" shall include all ferries used or oper- 
 ated in connection with any railroad. However, the 
 ferries contemplated by this definition are those con- 
 trolled by a rail carrier as a part of its line and as owner, 
 lessee or licensee. ^^ Independent ferry companies are 
 water carriers. They are not, therefore, subject to the 
 jurisdiction of the Interstate Commerce Commission 
 under the statute unless they are engaged in the trans- 
 portation of persons or property under a common con- 
 trol, arrangement or management for a continuous ship- 
 ment with a carrier by rail." As to traffic not so trans- 
 ported under a common arrangement, ferry companies 
 are not subject to the provisions of the statute.^* 
 
 Since Congress has assumed jurisdiction over ferries 
 used by railroad companies, the states have no power to 
 fix rates of ferriage over streams which constitute the 
 
 34. Chamber of Commerce of 2 L. R. A. 289; Enterprise Transp. 
 State of New York v. New York Co. v. Pennsylvania R. Co., 12 I. 
 Cent. & H. River R. Co., 24 I. C. c. C. 326. 
 
 C. 55. 
 
 35. St. Clair County v. Inter- 
 state Sand & Car Transfer Co., 192 
 U. S. 454, 48 L. Ed. 518, 24 Sup. Ct. 
 300. 
 
 36. In re Grain from Milwaukee, i" exercising its powers under the 
 Wisconsin 33 I. C. C. 417. Panama Canal Act without regard 
 
 37. Kentucky & I. Bridge Co. v. to the question of common owner- 
 Louisville & N. R. Co., 37 Fed. 567, ship or arrangements. 
 
 38. In the Matter of Jurisdiction 
 over Water Carriers, 15 I. C. C. 
 205. They are, however, subject to 
 the jurisdiction of the Commission
 
 § <)."5J CaKRIEHS rXDKH COMMERCE AcT. 215 
 
 l)()uiidary betweon two .states, and this is true, it lias 
 been held, even as to passengers on such ferries other 
 than railroad passengers.^" But in the absence of legis- 
 lation by Congress it has been held that a state has tlie 
 l)ower to fix reasonable rates for ferriage over a stream 
 which is the boundary between two states when such 
 ferries are not operated in connection with any railroad. 
 The right of the state in sucli cases is limited to the 
 regulation of rates from its o\\^ shores to the shores 
 of another state, that is, each state may fix Ihf rates 
 for outbound .I'ourneys only.^° The court, in the case 
 last cited, held that the regulation of rates as to such 
 ferries, was not a subject matter which required a gen- 
 eral system of control or uniformity of regulation, and, 
 therefore, the power of Congress was not exclusive, 
 but that the subject matter was essentially a local one 
 r(M|uiring regulation according to local conditions. 
 
 On the other hand, neither a state nor a municipali- 
 ty, even in the absence of legislation by Congress, has 
 the jiower to com]iel ferry companies operating boats 
 between two states or between the United States and 
 Canada to obtain a license before engaging in the busi- 
 ness of operating a ferry boat. For example, an ordi- 
 nance of the City of Sault Ste. Marie, Michigan, re- 
 (]uiring all operators of ferry boats between that city 
 and the Ontario shore across St. Mary's River in Canada 
 to pay a license fee, was held to be invalid for the 
 reason that it was a tax assessed by the state for tlie 
 ])rivilege of carrying on foreign commerce which is 
 under the exclusive jurisdiction of Congress.*^ 
 
 Both of these decisions, one denying the power of 
 the state to exact a license for carrying on the Inisiness 
 of interstate or foreign ferriage, and the other affirming 
 
 39. New York Cent. & H. River V. S. 317, 58 L. Ed. 1330, 34 Sup. 
 R. Co. V. Board Chosen Freeholders Ct. 821. 
 
 County of Hudson, 227 U. S. 248, 41. City of Sault Ste. Marie v. 
 
 57 L. Ed. 499, 33 Sup. Ct. 269. International Transit Co. 234 U. S. 
 
 40. Port Richmond & B. P. 3:^3, 58 L. Ed. 1337. 34 Sup. Ct. 826, 
 Ferry Co. v. Board Chosen Free- 52 L. R. A. (N. S.) 574. 
 holders County of Hudson, 234
 
 216 Duties to Interstate Shippers. [§ 93 
 
 the power of the state to fix the rate for such ferriap^e, 
 were delivered on the same day. In another case, the 
 federal Supreme Court held tliat a tax imposed by the 
 state of Pennsylvania on a ferry company operating be- 
 tween Gloucester, New Jersey and the City of Phila- 
 delphia for the landing of passengers and freight at 
 the wharf in Philadelphia, was a direct burden upon 
 interstate commerce and, therefore, void as an inter- 
 ference with the pow^r of Congress.^- Similarly, an 
 Illinois statute requiring ferry companies operating 
 across the Missouri River from the Illinois shore to 
 the Missouri shore to take out a license, was held in- 
 valid as to the transportation of railroad cars."*^ 
 
 § 94. Common Control, Management, and Arrange- 
 ment for Continuous Transportation, Defined and Ex- 
 plained. The phrase "common control, management, or 
 arrangement for a continuous carriage or shipment" in 
 the first section of the Act, prior to the Hepburn Amend- 
 ment, covered interstate and foreign traffic carried 
 through over all-rail as well as part water and part 
 rail lines; but since the amendment of 1906, the phrase 
 is applicable solely to transportation partly by rail and 
 partly by water. 
 
 The meaning of the clause was the source of con- 
 siderable controversy in the early litigation construing 
 the Act but there is at the present time an unanimity 
 of opinion as to its meaning. So long as the rail and 
 water lines are each operated under a separate and dis- 
 tinct control, each making its own rates and billing for 
 the carriage and delivery of the goods solely to the 
 end of its own line, the act does not apply to water 
 carriers;^* but the receipt successively by the rail and 
 water carriers for transportation of traffic shipped 
 under through bills for continuous carriage over their 
 
 42. Gloucester Ferry Co. v. Penn- U. S. 454, 48 L. Ed. 518, 24 Sup. Ct. 
 sylvania, 114 U. S. 196, 29 L. Ed. 300. 
 
 158, 5 Sup. Ct. 826. 44. Ex Parte Koehler, 30 Fed, 
 
 43. St. Clair County v. Inter- 867. 
 state Sand & Car Transfer Co., 192 
 
 1
 
 § 94] 
 
 Cakiukiss Un'dku C'o.mmkkck Act 
 
 217 
 
 lines is an assent to a connnon anan/^^eiiicnt lor such 
 continuous transportation.^' Previous formal arrange- 
 ments between the water and the rail carrier is not neces- 
 sary to make such transportation under the terms of 
 the law/" for whenever the water carrier enters into the 
 carriajj-e of freight by receiving the goods on througli 
 bills of lading, it becomes a })arty to a common arrange- 
 ment under the statute.'' While through billing and 
 through rating arc the usual evidence of a common 
 arrangement under the statute, neither is essential to 
 the establishment of a common control or management.*'* 
 When goods are shipped from a point in one state 
 to a point in another and are received in transit by a 
 carrier under a conventional division of the charges, 
 such a carrier must be deemed to have subjected its 
 line to an arrangement for a continuous carriage within 
 the meaning of the Act.'*'' The arrangement need not 
 
 45. Railroad Commission of 
 Georgia v. Clyde Steamship Co., 
 4 I. C. C. 120, 5 I. C. C. 324, in 
 which Commissioner Veazey said: 
 "Traffic is either state or inter- 
 state according to its origin and 
 destination. It is shipped by the 
 consignor in the state where the 
 consignee dwells, or it is not. If 
 not, it is interstate traffic, and 
 when carried over two or more 
 lines, it is, by the fact of having 
 been received, forwarded, and de- 
 livered as one through shipment, 
 transported under a common con- 
 trol, management, or airangement, 
 as the case may be, for continu- 
 ous carriage or shipment. The 
 phrase 'common control, manage- 
 ment, or arrangement for continu- 
 ous carriage or shipment' in the 
 first section was intended to cover 
 all interstate traffic carried 
 through over all rail, or part 
 water and part rail lines. The 
 'arrangement for continous car- 
 riage or shipment' is complete 
 
 whenever the carriers have ar- 
 ranged for delivering and receiv- 
 ing through traffic to and from 
 each other and such an arrange- 
 ment is necessarily 'common.' 
 This construction of the words 
 'common arrangement' as used in 
 the first section of the law is in 
 line with our decisions in Boston 
 Fruit and Produce Exchange v. 
 New York & N. E. R. Co., 3 I. C. R. 
 493, 4 I. C. C. 644 and Mattingly 
 v. Pennsylvania Co., 2 I. C. R. 806. 
 3 I. C. C. 592 and with other rul- 
 ings of the Commission." 
 
 46. Standard Oil Co. of New 
 York v. United States, 103 C. C. A. 
 172, 179 Fed. 614. 
 
 47. LouiGville & N. R. Co. v. 
 Behlmer, 175 U. S. 648, 44 L. Ed. 
 309, 20 Sup. Ct. 209. 
 
 48. Cincinnati, N. O. & T. P. 
 R. Co. v. Interstate Commerce 
 Commission, 162 U. S. 184. 40 L. 
 Ed. 935. 16 Sup. Ct. 700. 
 
 49. Baer Brothers Mercantile 
 Co. v. Denver & R. G. R. Co., 233 
 
 LAW LIBRARY 
 
 CF 
 
 LOS ANGELES COUNTY
 
 218 
 
 Duties to Interstate Shippers. 
 
 [§ 94 
 
 be shown by a formal contract, but is manifest in the 
 successive receipt and movement of the traffic by the 
 connecting carrier under a through bill of lading for 
 continuous carriage;"' but in order to establish the com- 
 mon arrangement between a carrier by water and a 
 carrier by rail, it must be shown that the water carrier 
 made the arrangement with the other carrier and not 
 with the shipper. When a lake steamship company 
 and a rail carrier publishing proportional rates, received 
 traffic under a through bill of lading for an interstate 
 shipment and required the prepayment of freight 
 charges, a common arrangement between them is shown. ''^ 
 While some of the decisions cited in the notes were 
 construing the meaning of the term "common arrange- 
 ment" as to intrastate railroads prior to the 1906 amend- 
 ment, the principles therein adopted apply with equal 
 force in determining the applicability of the statute to 
 water carriers. If the water and rail carriers have in- 
 vited interstate traffic over their lines which is intended 
 to be continuous, have so arranged their business that 
 the continuity of the shipment shall be preserved, and 
 have combined their several lines for the reception, 
 carriage and delivery of interstate traffic, such business 
 is within the scope of the statute.^- 
 
 § 95. Extension of Federal Jurisdiction Over 
 Water Carriers by Panama Canal Act of 1912. Addi- 
 
 U. S. 479, 58 L. Ed. 1055, 34 Sup 
 Ct. 641; United States v. Pennsyl 
 vania R. Co. 153 Fed. 625; United 
 States V. Vacuum Oil Co., 153 Fed 
 598; Interstate Stock-Yards Co. v 
 Indianapolis Union Ry. Co., 99 Fed 
 472; United States ex rel. Inter 
 state Com.nerce Commission v 
 Seaboard Ry. Co., 82 Fed. 563 
 Augusta Southern R. Co. v 
 Wrightsville & T. R. Co.. 74 Fed 
 522. 
 
 50. Mutual Transit Co. v. United 
 States, 102 C. C. A. 164, 178 Fed. 
 664; Goodrich Transit Co. v. Inter- 
 
 state Commerce Comir.ission, 190 
 Fed. 943; Chicago, B. & Q. R. Co. v. 
 United States, 85 C. C. A. 194, 157 
 Fed. 830; United States v. Stand- 
 ard Oil Co. of Indiana, 155 Fed. 
 305; United States v. Camden Iron 
 Works, 150 Fed. 214; United States 
 V. Wood, 145 Fed. 405. 
 
 51. Tone Brothers v. Illinois 
 Cent. R. Co.. 26 I. C. C. 279; Flour 
 City Steamship Co. v. Lehigh Val- 
 ley R. Co., 24 I. C. C. 179. 
 
 .52. United States v. Wood, 145 
 Fed. 405.
 
 § !)5J Carhikks Undkr Commkhck Act. 219 
 
 tioiial juriisdiction over water carriers was conferred 
 iijion the Interstate Commerce Commission ))y the Pana- 
 ma Canal Act passed on August 24, 1912 as an amend- 
 ment to Section 6 of tlie Interstate Commerce Act. 
 
 This amendment i)rovides that ''wlien property 
 may be or is transported from ])oint to point in tlie 
 United States by rail and water throuf^li the Panama 
 Canal or otherwise, the transportation being by a com- 
 mon carrier or carriers, and not entirely within the 
 limits of a single State, the Interstate Commerce Com- 
 mission shall have jurisdiction of such transportation 
 and of the carriers, both by rail and by water, wliicli 
 may or do engage in the same, in the following particu- 
 lars, in addition to the jurif^diction given by the Act 
 to regulate commerce, as amended June eigliteenth, 
 nineteen hundred and ten: (a) To establish physical 
 connection between the lines of the rail carrier and the 
 dock of the water carrier by directing the rail carrier 
 to make suitable connection between its line and a 
 track or tracks which have been constructed from the 
 dock to the limits of its right of way, or by directing 
 either or both the rail and water carrier, individually 
 or in connection with one another, to construct and 
 connect with the lines of the rail carrier a spur track 
 or tracks to the dock. This provision shall only apply 
 where such connection is reasonably practicable, can 
 be made with safety to the public, and where the amount 
 of business to be handled is sufficient to justify the 
 outlay. The Commission shall have full authority to 
 determine the terms and conditions u])on which these 
 connecting tracks, when constructed, shall be operated, 
 and it may, either in the construction or the operation 
 of such tracks, determine what sum shall be paid to 
 or by either carrier. The provisions of this paragraph 
 shall extend to cases where the dock is owned by other 
 parties than the carrier involved, (b) To establish 
 through routes and maximum joint rates between and 
 over such rail and water lines, and to determine all 
 the terms and conditions under which such lines shall 
 be operated in ilie liandling of the traffic embraced.
 
 220 Duties to Interstate Shippees. [§ 95 
 
 (c) To establish maximum proportional rates by rail 
 to and from the ports to which tlie traffic is brought, 
 or from which it is taken by the water carrier, and to 
 determine to what traffic and in connection with what 
 vessels and upon what terms and conditions such rates 
 shall apply. By proportional rates are meant those 
 which differ from the corresponding local rates to and 
 from the port and which apply only to traffic which 
 has been brought to the port or is carried from the 
 port by a common carrier by water, (d) If any rail 
 carrier subject to the Act to regulate commerce enters 
 into arrangements with any water carrier operating 
 from a port in the United States to a foreign country, 
 through the Panama Canal or otherwise, for the hand- 
 ling of through business between interior points of the 
 United States and such foreign country, the Interstate 
 Commerce Commission may require such railway to 
 enter into similar arrangements with any or all other 
 lines of steamships operating from said port to the 
 same foreign country. The orders of the Interstate 
 Commerce Commission relating to this section shall only 
 be made upon formal complaint or in proceedings insti- 
 tuted by the Commission of its own motion and after 
 full hearing. The orders provided for in the two amend- 
 ments to the Act to regulate commerce enacted in this 
 section shall be served in the same manner and enforced 
 by the same penalties and proceedings as are the orders 
 of the Commission made under the provisions of sec- 
 tion fifteen of the Act to regulate commerce, as amend- 
 ed June eighteenth, nineteen hundred and ten, and they 
 may be conditioned for the payment of any sum or the 
 giving of security for the payment of any sum or the 
 discharge of any obligation which may be required 
 by the terms of said order." 
 
 § 96. Amendment Applies to Traffic Between Two 
 Points in United States Passing Through Panama 
 Canal "or Otherwise." Tlio words "or otherwise" 
 in that ])ari of tlio Panama Canal Act, which is an 
 amendment of Section 6, do not modify the phrase "by
 
 ^ OGj 
 
 Carriers Undkr Commkrck Act. 
 
 221 
 
 rail and water" but the pliiasc "1 liiou.uli tlio I'anama 
 Canal." Hence trariic nioviiii;- froiii aii\- i)()inl to an- 
 other in file United States by rail and water is subject 
 to the jirovisions of the l*anama Canal Act and the 
 powers of the Interstate Coimnission thereunder, as well 
 as traffic moving by rail and water llirough the Panama 
 Canal, without regard to aiiN connnon arrangement, 
 ownership or management between the water and rail 
 linos, which ordinarily limits the jurisdiction of the 
 Commission. It follows, therefore, that the Commission 
 is empowered under this amendment to establish through 
 routes and maximum joint rates between a rail and 
 water carrier from Augusta and Savannah, Georgia, 
 thence by water to North Atlantic ports and thence 
 by rail to interior destinations in the United States." 
 
 53. Augusta & Savannah Steam- 
 ship Co. V. Ocean Steamship Co. 
 of Savannah, 26 I. C. C. 380, in 
 which Commissioner Prouty said: 
 "But our jurisdiction does not rest 
 upon the above ground solely. 
 Since the filing of this petition by 
 the Panama Act, so called, ap- 
 proved August 24, 1912, this body 
 has been given additional jurisdic- 
 tion over water carriers. The 
 eleventh section of that act amends 
 section 6 of the Act to Regulate 
 Commerce as follows: 'When prop- 
 erty may be cr is transported from 
 point to point in the United States 
 by rail and water, through the 
 Panama Canal or otherwise, the 
 transportation being by a common 
 carrier or carriers, and not entire- 
 ly within the limits of a single 
 state, the Interstate Commerce 
 Commission shall have jurisdiction 
 of such transportation and of the 
 carriers both by rail and by water, 
 which may or do engage in the 
 same, in the following particulars, 
 in addition to the jurisdiction 
 given by the Act to Regulate Com- 
 merce, as amended June Eigh- 
 
 teenth, Nineteen Hundred and 
 Ten: * * * (b) To establish 
 through routes and maximum joint 
 rates between and over such rail 
 and water lines, and to determine 
 all the terms and conditions under 
 which such lines shall be oper- 
 ated in the handling of the traf- 
 fic embraced.' If the above amend- 
 ment applies to the traffic in ques- 
 tion, the right of the Commission 
 to establish this through route is 
 clear. The defendants contend 
 that it does not apply, for the 
 reason that this amendment re- 
 lates only to traffic which passes 
 through the Panama Canal. They 
 argue that the words 'or otherwise' 
 modify the phrase 'by rail and 
 water' and not the phrase 'through 
 the Panama Canal.' But the plain 
 everyday-reading of the Act is 
 'through the Panama Canal or 
 otherwise,' and the defendants 
 have referred us to no canon of 
 construction nor to any reason for 
 disregarding the obvious meaning 
 of these words. Indeed, a consid- 
 eration of the situation to which 
 the amendment applies would seem
 
 222 Duties to Interstate Shippeks. [^ 96 
 
 Likewise propei'tv trans})orted in interstate com- 
 merce from interior points in the United States over 
 a railroad to Pensacola, Fla., and from tliere by steam- 
 ship to Mobile, Ala., and Carabelle, Fla., is subject to 
 the jurisdiction of the Commission to fix the rates to and 
 from the port to be applied to such traffic, and the 
 Commission may determine in connection with what 
 vessels and upon what terms and conditions such rates 
 shall apply." 
 
 A responsible common carrier operating upon a 
 naviiiable river, it was held in another case," is war- 
 ranted in requesting- the Commission to compel a rail- 
 road company to join with it in establishing through 
 routes and joint rates between landings on the river 
 points on the line of the railroad company. 
 
 While railroad companies are not ordinarily re- 
 quired to make through routes and joint rates with 
 all boat lines which happen to be in a position to carry 
 freight to a railroad station, irrespective of their finan- 
 cial responsibility and equipment, yet when boat lines 
 are in fact common carriers and have met all reason- 
 able requirements of connecting railroads they should 
 be permitted to establish through routes and publish 
 joint rates."'*^ 
 
 to conclusively demonstrate that (Panama Canal Act amending See- 
 the position of the defendants is tion 6) expressly relates to domes- 
 not correct, since the words 'or tic traffic and exists whether such 
 otherwise' are pure surplusage if traffic is to or from either com- 
 read as the defendants say they petitive or non-competitive points.'' 
 should be. Traffic through the 55. Decatur Navigation Co. v. 
 Panama Canal can only move by Louisville & N. R. Co. 31 I. C. C 
 rail and water, unless it moves 281. See also Bowling Green Busi- 
 from port to port, and in that case ness Men's Protective Association 
 we have no jurisdiction. We hold, v. Evansville & Bowling Green 
 therefore, that the Commission has Packet Co., 31 I. C. C. 301; Tampa 
 jurisdiction to establish the Board of Trade v. Louisville & N. 
 through routes and the joint rates R Co., 3o L C. C. 377. 
 prayed for." 56. Truckers Transfer Co. v. 
 54. In re Wharfage Facilities at Charleston & W. C. Ry., 27 L C. C. 
 Pensacola, Florida, 27 I. C. C. 252, 275. Commission Meyer said: 
 in which the Commission said: "Any boat line legitimately acting 
 "It is to be noted that this power as a common carrier should be per-
 
 <^ 97 1 Carkikhs Undkr Commerck Act. 223 
 
 § 97. Control or Ownership of Competitive Water 
 Line by Rail Carrier Subject to Approval of Commission. 
 Ono of the provi.^ioiis of the I'auaiiia Canal Act ])as.s<*d 
 on August 24, 11)12, and added as an aniendnient to 
 Section 5 of tlie Interstate Commerce Act, prescribes 
 tliat after July 1, 1914, it sluiU be unlawful for any 
 railroad company or other common carrier subject to 
 the Act to Regulate Commerce to own, lease, operate, 
 control or have any interest whatsoever in any common 
 carrier by water operated through the Panama Canal 
 or elsewhere with which such carrier does or may com- 
 pete for traffic, or any vessel carrying freight or pas- 
 sengers upon said water route or elsewhere with which 
 such railroad or other counnon carrier does or may 
 compete for traffic, and in case of a violation of the 
 said provision, each day in which such violation con- 
 tinues shall be deemed a separate oifense. 
 
 This amendment further confei-s jurisdiction u])on 
 the Interstate Commerce Commission to determine 
 (piestions of fact as to com]:)etition, or possibility of 
 competition, and, after full hearing, the Commission 
 is given the power to extend the time during which 
 any existing specified service by water other than 
 through the Panama Canal, may continue under the 
 ownership or control of the rail carriers, provided, how- 
 ever, such service is being operated in the interest of 
 the public and is of advantage to the convenience and 
 commerce of the people, and that such extension will 
 neither exclude, prevent nor reduce competition on 
 the route by water." 
 
 mitted to file tariffs naming pro- the two boat lines involved in this 
 
 portional rates to Port Royal or case, in demanding financial secur- 
 
 other points similarly situated, to ity before entering into either 
 
 apply on traffic to be carried fnr- joint rate arrangements or accept- 
 
 ther by rail, whenever such con- ing freight under proportional 
 
 nection provides an additional serv- rates, the entire freight charges to 
 
 ice to shippers which may reason- be collected at destination." 
 
 ably be demanded. The rail car- 57. The text of this part of the 
 
 rier would be justified, in cases Panama Canal Act is as follows: 
 
 where the connection carrier does "From and after the first day of 
 
 not possess greater resources than July, nineteen hundred and four-
 
 224: 
 
 Duties to Intekstate Shippers. 
 
 [§ 98 
 
 § 98. Policy of Congress in Adoption of That 
 Part of Panama Canal Act Forbidding Ownership of 
 
 teen, it shall be unlawful for any 
 railroad company or other common 
 carrier subject to the Act to regu- 
 late commerce to own, lease, oper- 
 ate, control, or have any interest 
 whatsoever (by stock ownership 
 or otherwise, either directly, in- 
 directly, through any holding com- 
 pany or by stockholders or direc- 
 tors in common, or in any other 
 manner) in any common carrier 
 by water operated through the 
 Panama Canal or elsewhere with 
 which said railroad or other car- 
 rier aforesaid does or may com- 
 pete for traffic or any vessel carry- 
 ing freight or passengers upon 
 said water route or elsewhere 
 with which said railroad or other 
 carrier aforesaid does or may 
 compete for traffic; and in case of 
 the violation of this provision 
 each day in which such violation 
 continues shall be deemed a sep- 
 arate offense. Jurisdiction is here- 
 by conferred on the Interstate 
 Commerce Commission to deter- 
 mine questions of fact as to the 
 competition or possibility of com- 
 petition, after full hearing, on the 
 application of any railroad com- 
 pany or other carrier. Such ap- 
 plication may be filed for the pur- 
 pose of determining whether any 
 existing service is in violation of 
 this section and pray for an order 
 permitting the continuance of any 
 vessel or vessels already in oper- 
 ation, or for the purpose of asking 
 an order to install new service not 
 in conflict with the provisions of 
 this paragraph. The Commission 
 may on its own motion or the ap- 
 plication of any vessel in use by 
 any railroad or other carrier which 
 has not applied to the Commission 
 and had the question of competi- 
 
 tion or the possibility of compe- 
 tition det3rmined as herein pro- 
 vided. In all such cases the order 
 of said Commission shall be final. 
 If the Interstate Commerce Com- 
 mission shall be of the opinion that 
 any such existing specified service 
 by water other than through the 
 Panama Canal is being operated 
 in the interest of the public and 
 is of advantage to the ronveniencj 
 and commerce of the people, and 
 that such extension will neither 
 exclude, prevent, nor reduce com- 
 petition on the route by water 
 under consideration, the Interstate 
 Commerce Commission may, by 
 order, extend the time during 
 which such service by water may 
 continue to be operated beyond 
 July first, nineteen hundred and 
 fourteen. In every case of such 
 extention the rates, schedules, and 
 practices of such water carrior 
 shall be filed with the Interstate 
 Commerce Commission and shall 
 be subject to the Act to regulate 
 commerce and all amendments 
 thereto in the same manner and to 
 the same extent as is the railroad 
 or other common carrier control- 
 ling such water carrier or inter- 
 ested in any manner in its oper- 
 ation: Provided, any application 
 for extension under the terms of 
 this provision filed with the In- 
 terstate Commerce Commission 
 prior to July first, nineteen hun- 
 dred and fourteen, but for any 
 reason not heard and disposed of 
 before said date, may be considered 
 and granted thereafter. No vessel 
 permitted to engage in the coast- 
 wise or foreign trade of the United 
 States shall be permitted to enter 
 or pass through said canal if such 
 ship is owned, chartered, operated,
 
 § 98 I ('aiuuers Un'I)i:i{ Commekck Act. 225 
 
 Water Lines by Railroads. Tho amoiidment of 1912 
 to Section .") r(M|uiriiii;- a (liscoiitinuaiico of railroad 
 ownersliip and conti-ol of water lines indicates a clear 
 and unniistakal)le ])olicy on the ])ai't of C*on.<::ress to 
 sepai'ato from railroad ownership, control or influence, 
 such common carrier water lines, and such, vessels, as 
 may, when thus separated, compete with the ownin^^ 
 or controllini? companies, except where, upon investi- 
 gation, it is found by the Commission, that the service 
 by watei", other than tliroiinh the Panama Canal, is 
 beiiii;' o])erated in the intcn'est of the ))ul)lic, is of advan- 
 ta.ne to the convenience and coinmerce of th6 jx'ople, 
 and that its continuance will neither exclude, ])revent 
 noi- reduce competition on the route by water."'' 
 
 'IMie i^eneral purpose of Congress in the enactment 
 of the Panama Canal Act was to preserve, free and un- 
 fettered, the road-bed via the Panama Canal, and as 
 this phrase is qualified by the words ''or elsewhere" 
 the statute necessarily means that all the water routes 
 of the country must be restored to the same condition 
 of freedom and from any dominion that would reduce 
 their usefulness. •'^^'■' The words "may compete for traffic" 
 do not mean a vague, possible competition, but mean 
 
 or controlled by any person or known as the Sherman Antitrust 
 company which is doing business Act, and amendments thereto, or 
 in violation of the provisions of said sections of the Act of August 
 the Act of Congress approved July twenty-seventh, eighteen hundred 
 second, eighteen hundred and and ninety-four. The question of 
 ninety, entitled 'An Act to protect fact may be determined by the 
 trade and commerce against un- judgment of any court of the 
 lawful restraints and monopolies,' United States of competent juris- 
 or the provisions of sections seven- diction in any cause pending be- 
 ty-three to seventy-seven, both in- fore it to which the owners or 
 elusive, of an Act approved August operators of such ship are parties, 
 twenty-seventh, eighteen hundred Suit may be brought by any ship- 
 and ninety-four, entitled 'An Act per or by the Attorney General 
 to reduce taxation, to provide rev- of the United States." 
 enue for the Government, and for 58. In re Application Southern 
 other purposes,' or the provisions P. Co.. operation of Pacific Mail S. 
 of any other Act of Congress S. Co. 32 I. C. C. 690. 
 amending or supplementing the 59. In re Application Lake 
 said Act of July second, eighteen Tahoe Ry. & Transp. Co., owner- 
 hundred and ninety, commonly ship of boat line. 33 I. C. C. 699. 
 
 1 Coutiol CarriiTs 1.1
 
 '226 Duties to Interstate Shippers. [>§ 98 
 
 a probable, potential competition. The best practical 
 test in determining competition under the amendment 
 is whether or not there would be normal, active compe- 
 tition between the rail line and the water line if oper- 
 ated independently of each other/'" 
 
 While .the first paragraph of amendment in de- 
 scribing the carrier by water, refers to "common carrier 
 by water" it later prohibits such ownership in "any 
 vessel carrying freight or passengers." It is not, there- 
 fore, necessary that a steamer be found to be a common 
 carrier," A rail carrier does not necessarily have to 
 reach a point in order to compete with water carriers 
 that operate directlj^ to that point, but the competition 
 may be found to exist by reason of the rail carrier's 
 participation in the joint rates.'"'- Ferry companies are 
 within the terms of the Panama Canal amendment.*'^ 
 
 § 99. Bridges and Bridge Companies Subject to 
 Federal Act, When. All bridges used or operated in 
 connection with any interstate railroad, whether owned 
 or operated under a contract, agreement or lease, are, 
 under the provisions of Section 1, included within the 
 term "railroad" as used therein. In construing the 
 original act, the courts held that when a railroad com- 
 pany by contract acquired the right to operate its trains 
 over a bridge, the railroad company was regarded as the 
 common carrier in control of the bridge; but the i)ridge 
 company itself was not a common carrier subject to 
 the statute as it did not transport persons and property 
 and hold itself out as a common carrier.''* 
 
 60. In re Application Southern Pennsylvania-Ontario Transp. Co., 
 P Co., ownership of Oil Steamers, 34 I. C. C. 47. 
 
 37 I. C C 528. ^'^- I^ ^^ Application Buffalo, 
 
 61. In re Application Southern ^- ^ ^- ^^^ C^" «Peration Ontario 
 
 Car Ferry Co., 34 I. C. C. 52; In re- 
 Application Grand T. Ry. Co. of 
 Canada, operation Ontario Car 
 
 62. In re Application Southern Perry Co , 34 I C C 49 
 
 P. Co.. ownership of Oil Steamers, 64. Kentucky & I. Bridge Co. 
 
 34 I. C. C. 77; In re Application v. Louisville & N. R. Co., 37 Fed. 
 Pennsylvania Co., operation of .^67, 2 L. R. A. 289. 
 
 P. Co., ownership of Schooner 
 Pasadena, 33 I. C. C. 476.
 
 "^^ I'lM Caiuuehs L'ndkk Co.m.mekck Act. 227 
 
 WliPii, liowcvoi", ;i brid^'c r;oin|)any asi^umos tlio 
 duties of a common t-ariicr and ])ai"ti('ipates to any ex- 
 tent in the movement of interstate or foreign slii])nients, 
 tlien tlie bridge company is subject to the jurisdiction 
 of the Interstate Commerce Commission as to the rates 
 cliarged."^ Bridges across rivers connecting two states 
 or at any point on tlie line of an interstate railroad 
 are instruments of interstate commerce,"" and the states 
 have no power to regulate the rates over them even in 
 the absence of the exercise of the potential power of 
 Congress over them/"^ But the Interstate Commerce 
 Commission has no power to regulate the fares charged 
 by a street railroad over a bridge connecting two cities 
 in different states not because the bridge is not an 
 instrument of interstate commerce, but because Congress 
 has not given the power to the Commission to regulate 
 the fares of street railroads crossing state lines;"* nor 
 has the Interstate Commerce Commission jurisdiction 
 over a bridge connecting two states which is independent 
 and not connected with any railroad."'-^ 
 
 The reasonableness of tolls over bridges which are 
 instrumentalities of interstate commerce by railroad, 
 is under the jurisdiction of the Interstate Commerce 
 Commission, and it has been held that the question of 
 absorption of bridge tolls by railroads is largely a mat- 
 ter of policy controlled by the carriers; but there must 
 be no undue discriminations, and, when the circum- 
 stances are similar, a railroad com^^any cannot absorb 
 the bridge toll at one crossing, and refuse it at another.'" 
 
 65. West End Improvement 67. Greenleaf-Johnson Lumber 
 Club V. Omaha & C. B. Railway & Co. v. Garrison, 237 U. S. 251, 59 
 Bridge Co., 17 I. C. C. 239. L. Ed. 939, 35 Sup. Ct. 551. 
 
 66. South Covington & C. St. 68. Omaha & C. B. St. R. Co. 
 R. Co. V. City of Covington, 235 v. Interstate Commerce Commis- 
 U. S. 537, 59 L. Ed. 350, 35 Sup. sion, 230 U. S. 324, 57 L. Ed. 
 Ct. 158, L. R. A. 1915F 792; Kan- 1501, 33 Sup. Ct. 890, 46 L. R. A. 
 sas City Southern Ry. Co. v. Kaw (N. S.) 385. 
 
 Valley Drainage Dist., 233 U. S. 69. Kentucky & I. Bridge Co. v. 
 
 75, 58 L. Ed. 857, 34 Sup. Ct. 564; Louisville & N. R. Co.. 37 Fed. 
 
 Covington & C. Bridge Co. v. 567, 2 L. R. A. 289. 
 
 Com., 154 U. S. 204, 38 L. Ed. 962, 70. Padurah Board of Trade v. 
 
 14 Sup. Ct. 1087. Illinois Cent. R. Co., 29 I. C. C.
 
 228 Duties to Interstate Siiippees. [§ 99 
 
 A bridge company which is not a common carrier, 
 has no rolling stock or motive power, and is not used 
 in connection with any railroad, cannot be compelled 
 to grant a street railroad the right to use the bridge for 
 transporting the passenger cars of an interstate electric 
 railroad, as it is not, under such circumstances, a com- 
 mon carrier within the meaning of the act.'^ "Is the 
 bridge company," said the Commission in the case last 
 cited, "a common carrier subject to the act to regulate 
 commerce? In Kentucky & I. Bridge Co. v. L. & N. Ry. 
 Co., 37 Fed., 567, the circuit court held that: 'Where a 
 railway company, by contract with a bridge company, 
 acquires the right to use a bridge with its approaches, 
 for the engines, cars, and trains of the railway com- 
 pany, the first section of the 'act to regulate commerce' 
 regards the railway company as the owner or operator 
 of the bridge and approaches, for the time being, as to 
 all freight transported by the railway company over the 
 bridge; and as to all such traffic the railway company, 
 and not the bridge company, must be regarded as the 
 common carrier. Such a bridge company is not, either 
 in law or in fact, a common carrier of interstate traffic 
 within the scope and meaning of said section, and it can 
 not invoke the provisions of said act to compel railway 
 companies to transact business with or through such 
 bridge company. Between such a bridge company and 
 the railway carriers of the country the act establishes 
 no such reciprocal relations, duties, and obligations as 
 require the latter to form business connections with 
 the former.' In Enterprise Transportation Co. v. P. R. 
 R. Co., 12 I. C. C, 326, the Commission held that: 
 'Bridges, ferries, switches, and terminal facilities are 
 
 593; Norman Lumber Co. v. Louis- R. Co., 25 I. C. C. 27; Manufac- 
 
 ville & N. it. Co., 29 I. C. C. 565; turers & Merchants Ass'n v. 
 
 East Dubuque Supply Co. v. Illi- Aberdeen & A. R. Co., 24 I. C. C. 
 
 nois Cent. R. Co., 28 L C. C. 425; 331. 
 
 Manufacturers & Merchants Ass'n 71. Kansas City, Missouri and 
 
 of New Albany v. Aberdeen & A. Kansas City, Kansas v. Kansas 
 
 R. Co., 25 T. C. C. 116: Hafer City Viaduct & Terminal Ry. Co., 
 
 Lumber Co. v. Chicago & N. W. 24 I. C. C. 22.
 
 <§ 99] Carriers Under Commerce Act. 229 
 
 declared to be included within the term 'railroad' not 
 for the purpose of exeMi[)ting tiiem from any liability 
 to ])ublish and observe their rates when such ferries or 
 bridi^es are o])erated by their owners as common car- 
 riers, but rather to make certain that where those agen- 
 cies are employed by railroads the transportation service 
 rendered by them shall still be subject to the provisions 
 of the act to regulate commerce * * * . A rail- 
 road company may without doubt provide by contract 
 with an independent company for the construction of a 
 bridge or ferry to be used as a ])art of its line. It can 
 jierhaps extend its contract to the operation of the bridge 
 or ferry by its owner when constructed, but in such 
 case the bridge company or the ferry company is not 
 a common carrier. The railroad is the carrier and answer- 
 able to the law as such.' A common carrier is one 
 who holds himself out as ready to engage in transporta- 
 tion for hire as a public employment, and in general 
 the liability of a carrier does not attach to one who does 
 not so hold himself out. The bridge company in the 
 instant case does not hold itself out to be a common car- 
 rier or a carrier of passengers and freight. No freight 
 has ever been transported by rail across its structure and 
 the passengers which were carried over it were trans- 
 ported in the cars and by the motive power of the street 
 railway company. It has no motive power and no rolling 
 stock. Its structure is not now, although it has been 
 in the past, rented to or operated in connection with 
 any railroad. Foot passengers, vehicles, and animals 
 pass over the structure. They are interstate commerce, 
 but not such as is subject to the provisions of the act 
 to regulate commerce. The bridge company rents or 
 is willing to rent its structure, but in our view it is not 
 a common carrier subject to our act. Clearly the street 
 railway company is subject to our jurisdiction. But, 
 inasmuch as we have no power to require the bridge 
 company to obey any of the provisions of the act to 
 regulate commerce, how can we exercise jurisdiction 
 over the street railway company to the extent of re- 
 quiring it to operate over the viaduct? How could we
 
 2.">() Duties to Interstate Sihppeus. [^ 99 
 
 require the bridge coni]iany to grant to the street rail- 
 way company the right to nse the viaduct! The present 
 case is essentially different from the Omaha & Conncil 
 Bluffs case, supra, in that there the defendant was a 
 common carrier of interstate passengers. In the estab- 
 lishment of a through route the power of the Commis- 
 sion is limited by the provision that it 'shall not, how- 
 ever, establish any through route, classification, or rate 
 between street electric passenger railways not engaged 
 in the general business of transporting freight in ad- 
 dition to their passenger and express business and rail- 
 roads of a different character.' The bridge company 
 is neither a railroad, a water line, or a common carrier, 
 and we have no jurisdiction over it." 
 
 § 100. Street Railroads Crossing State Lines not 
 Subject to Interstate Commerce Act. For many years 
 the Interstate Commerce Commission held that ordinary 
 street railway companies engaged in transporting pas- 
 sengers across a state line were common carriers by 
 ''railroad" within the Act.^^ While recognizing that 
 the term "railroad" usually applied and meant ordi- 
 narily commercial railroads and not street railroads, the 
 Commission adopted the view that it was the evident 
 intention of Congress to include within the Act any and 
 all carriers engaged in interstate commerce by railroad. 
 An order was, therefore, made prohibiting a bridge 
 company operating a street railroad across the Missouri 
 River from Council Bluffs, Iowa, to Omaha, Nebraska, 
 from charging more than ten cents for a trip between 
 the two states." 
 
 Subsequently, upon a suit to annul the order, the 
 court held that the Interstate Commerce Act did not 
 
 72. Bitzer v. Washington-Vir- C. 232; Willson v. Rock Creek 
 
 ginia Ry. Co., 24 I. C. C. 255; Kan- Ry. Co. of District of Columbia, 
 
 gas City, Missouri and Kansas 7 I. C. R. 83. 
 
 City, Kansas v. Kansas City Via- 73. West End Improvement 
 
 duct & Terminal Ry. Co., 24 I. Club v. Omaha & C. B. Railway 
 
 C. C. 22; Boyle v. Great Falls & Bridge Co., 17 I. C. C. 239. 
 & Old Dominion R. Co., 20 I. C.
 
 <^ 100] Carkieks Under (.'ommerck Act. 231 
 
 apply to street railway companies, and a motion for a 
 preliminary injunction was grante'J."* Tlie case was then 
 transferred to the Commerce Court, and, on a demurrer, 
 to the bill that court held that the statute included 
 street railroads.'' On appeal of the same case to the 
 United States Supreme Court, it was finally decided that 
 the statute did not include ordinary street railroads.^" 
 The court said: "The appellants cite decisions from 
 twelve states holding that in a statute the word 'railroad' 
 does not mean 'street railroad.' The defense cite decisions 
 to the contrary from an equal number of states. The 
 present record discloses a similar disagreement in fed- 
 eral tribunals. For not only did the Commerce Court 
 and the Circuit Court differ, but it appears that the 
 members of the Conunission were divided on the sub- 
 ject when this case was decided and also when the ques- 
 tion was first raised in Willson v. Rock Creek Ry. Co., 
 7 I. C. C. 83. This conflict is not so great as at first 
 blush would appear. For all recognize that while there 
 is similarity between railroads and street railroads, there 
 is also a difference. Some courts, emphasizing the simi- 
 larity, hold that in statutes the word 'railroad' includes 
 street railroad, unless the contrary is required by the 
 context. Others, emphasizing the dissimilarity, hold that 
 'railroad' does not include street railroad unless re- 
 quired by the context, since, as tersely put by the Court 
 
 74. Omaha & C. B. St. Ry. Co. Co. v. Board of Railroad Com'rs, 
 
 V Interstate Commerce Commis- 73 Kan. 168, 61 L. R. A. 475, 84 
 
 sion, 179 Fed. 243. The Court cit- Pac. 755; Sams v. St. Louis & M. 
 
 ed the following cases: Funk v. ^ ^^^ -^^4 -^^^ 53^ ^3 g ^^ ^gg. 
 
 St. Paul City Ry. Co., 61 Minn. Thompson-Houston Elec. Co v Si*- 
 435, 29 L. R. A. 208, 52 Am. St. ^0 Or. 60, 10 L. R. A. 251, 23 
 
 Rep. 608 G3N. W. 10^9; State v. ^^ ^^ ^^ 
 
 Duluth St. Ry. Co., 76 Minn. 96, „r: ^ 1 / ^ t, ^. ^ ^ 
 
 57 L R A. 63, 78 N. W. 1032; ^^- ^maha & C. B. St. Ry. Co. 
 
 Manhattan Trust Co. v. Sioux City ""■ Interstate Commerce Commis- 
 
 Cable Ry. Co.. 68 Fed. 82; Board sion, 191 Fed. 40. 
 of Railroad Com'rs v. Market St. 76. Omaha & C. B. St. Ry. Co. 
 
 Ry. Co.. 132 Cal. 677, 64 Pac. 1065; v. Interstate Commerce Coramis- 
 
 Gyger v. Philadelphia City Pas- sion, 230 U. S. 324, 57 L. Ed. 1501. 
 
 senger Ry. Co., l:u; Pa. 96. 20 Atl. 33 Sup. Ct. 890, 46 L. R. A. (N. S.) 
 
 399; Kansas City, O. B. & E. R. 385.
 
 232 Duties to Interstate Shippers. [§ 100 
 
 of Appeals of Kentucky, 'a street railroad, in a tech- 
 nical and popular sense, is as different from an ordinary 
 railroad as a street is from a road.' Louisville & Port- 
 land E. E. Co. V. Louisville City Ey. Co., 2 Duvall, 175. 
 But all the decisions hold that the meaning of the word 
 is to be determined by construing the statute as a whole. 
 If the scope of the act is such as to show that both 
 classes of companies were within the legislative con- 
 templation, then the word 'railroad' will include street 
 railroad. On the other hand, if the act was aimed at 
 railroads proper, then street railroads are excluded 
 from the provisions of the statute. Applying this uni- 
 versally accepted rule of construing this word, it is to 
 be noted that ordinary railroads are constructed on the 
 companies' own property. The tracks extend from town 
 to town and are usually connected with other railroads, 
 which themselves are further connected with others, so 
 that freight may be shipped, without breaking bulk, 
 across the continent. Such railroads are channels of 
 interstate commerce. Street railroads, on the other 
 hand, are local, are laid in streets as aids to street traf- 
 fic, and for the use of a single community, even though 
 that community be divided by state lines, or under dif- 
 ferent municipal control. When these streets railroads 
 carry passengers across a state line they are, of course, 
 oiigaged in interstate commerce, but not the commerce 
 which Congress had in mind when legislating in 1887. 
 Street railroads transport passengers from street to 
 street, from ward to ward, from city to suburbs, but 
 the commerce to which Congress referred was that car- 
 ried on by railroads engaged in hauling passengers or 
 freight 'between States,' 'between States and Terri- 
 tories,' 'between the United States and foreign coun- 
 tries.' The act referred to railroads which were re- 
 fjuired to post their schedules — not at street corners 
 where passengers board street cars, but in 'every depot, 
 station or office where passengers or freight are received 
 for transportation.' The railroads referred to in the act 
 were not those having separate, distinct and local street 
 lines, but those of whom it was required that they
 
 § 101] Carriers Under Commerce Act. 233 
 
 sliould make .ioinl rates and reasonable facilities for 
 intercliang:e of traflic witli connecting- lines, so that 
 freight might be easily and expeditiously moved in inter- 
 state commerce. Every provision of the statute is ap- 
 plicable to railroads. Only a few of its requirements 
 are applicable to street railroads which did not do the 
 business Congress had in contemplation and hud not 
 engaged in the pooling, rebating and discrimination 
 which the statute was intended to jjrohibit. This was 
 recognized in AVillson v. Rock Creek Ry. Co., 7 I. C. C. 
 83, where, although it was held that the statute a])plied 
 to a street railroad between Washington, D. C, and a 
 point in Maryland, the Commission nevertheless said 
 (7 I. C. C. 88): 'It may be conceded that this class of 
 railroads was not specifically within the contemplation 
 of the framers of that law, for the evils which it was 
 intended to remedy would, in the nature of the case, 
 but rarely arise in the management of such roads in 
 their dealing with the public' Street railroads not 
 being guilty of the mischief sought to be corrected, the 
 remedial provisions of the statute not being applicable 
 to them, commands upon every railroad 'subject to the 
 act' being such that they could not be obeyed by street 
 railroads because of the nature of their business and 
 character and location of their tracks, it is evident that 
 the case is within that large line of authorities which 
 hold that under such a statute the word 'railroad' can- 
 not be construed to include street railroad." 
 
 § 101. Electric Interurban Railroads Engaged in 
 Interstate Commerce Controlled by Statute. Electric 
 interurban railroads are within the statute and the juris- 
 diction of the Commission thereunder when engaged in 
 interstate commerce." There is no inconsistency in 
 holding that these railroads are subject to the statute 
 and that street railroads are not, for street railroads are 
 laid in streets as aids to street traffic and usually for 
 
 77. Chicago, 0. & P. Ry. Co. v. 
 Chicago & N. W. Ry., 33 I. C. C. 
 573.
 
 2M Duties to Interstate Shippers. [§ 101 
 
 the use of a single community, even if tliat community 
 is divided by state lines or is under different municipal 
 control. But electric interurban railroads run through 
 the country from town to town and usually haul pas- 
 stMigers, freight, express and mail for long distances 
 and at high speed. '^ The statute makes no distinction 
 between "railroads" that are operated by electricity 
 and those that use steam." 
 
 § 102. Status of Terminal Railroads and Belt Lines 
 Participating in Movement of Interstate Traffic. Ter- 
 minal and belt railroads hauling traffic between the 
 termini of trunk lines and industries are common car- 
 riers within the meaning of the Act if they participate 
 to any extent in the movement of interstate or foreign 
 shipments. 
 
 The length of a railroad is entirely immaterial in 
 determining whether it is a common carrier engaged in 
 interstate commerce. In fact, the Act itself defines a 
 railroad as including all switches, tracks and terminal 
 facilities used or necessary in the transportation of per- 
 sons or property. This necessarily includes a railroad 
 confined strictly within the boundaries of a single city 
 or county. For example, a stock yards company which 
 owned terminal facilities for transporting interstate 
 shipments from trunk lines to the stock yards at Chicago 
 and its lessee which operated and hauled the cars over 
 such railroad, were both held to be common carriers 
 and amenable to all the provisions of the Interstate 
 
 78. United States v. Butler make such distinction. Both are 
 County R. Co., 234 U. S. 29. 58 subject to the Act when engaged In 
 L Ed. 1196, 34 Sup. Ct. 748; Unit- interstate transportation and are 
 ed States v. Louisiana & Pac. R. entitled to equal consideration in 
 Co., 234 U. S. 1, 58 L. Ed. 1185, 34 ^j^y controversy before us. More- 
 Sup. Ct. 741. over, progress in the science of 
 
 electricity and the rapid increase 
 
 79. Chicago & M. E. R. Co. v. 
 Illinois Cent. R. Co., 13 I. C. C. 20, 
 
 in which Commissioner Harlan '"^ "^^ ^^^^««« *«^ '^^ application 
 
 said: "The act makes no distinc- ^^^^^ ^^^ ^^^^^ practical railroau 
 
 tion between railroads that are men to think that we may be meas- 
 
 operated by electricity and those urably near its general use as the 
 
 that use steam: nor has the Com- chief motive power in transporta- 
 
 mission thought at any time to tion."
 
 § 102] 
 
 ( 'aHUIKHS rXDKR CoMMERCE AcT. 
 
 235 
 
 (^)nini(M-f'o Act.'" The fact that iicitlicr of them issued 
 through l)ills of lading- was not controlling; for it is the 
 cliaracter of the service and not the manner of hauling 
 that dctci'inines their interstate status. 
 
 Similarly a company which furnished terminal facil- 
 ities for trunk lines and a steamship system of which 
 it formed a part, was held to be a common carrier and 
 under the control of the Interstate Commerce Commis- 
 sion to the extent that the commerce handled by it was 
 interstate.*' To hold that such companies are not with- 
 in the purview of the Act would enable the railroad com- 
 panies to exempt their terminal facilities from the con- 
 trol of the Interstate Commerce Commission by organiz- 
 ing separate corporations. The states and state com- 
 missions have no power to regulate and determine the 
 terminal charges for switching service as to interstate 
 shipments.*- In the regulation of interstate and foreign 
 
 80. United States v. Union 
 Stock Yard & Transit Co. of Chi- 
 cago, 22G U. S. 286, 57 L. Ed. 226, 
 33 Sup. Ct. 83. 
 
 81. Southern Pac. Terminal Co. 
 V. Interstate Commerce Commis- 
 sion, 219 U. S. 498, 55 L. Ed. 310. 
 31 Sup. Ct. 279. See also Inter- 
 state Commerce Commission v. 
 Stickney, 215 U. S. 98, 54 L. Ed. 
 112, 30 Sup. Ct. 66; Southern R. 
 Co. V. St. Louis Hay & Grain Co., 
 214 U. S. 297, 53 L. Ed. 1004, 29 
 Sup. Ct. 678; Interstate Commerce 
 Commission v. Chicago B. & Q. 
 R. Co., 186 U. S. 320, 46 L. Ed. 
 1182, 22 Sup. Ct. 824, Judge Mc- 
 Kenna, in Southern Pac. Terminal 
 Co. V. Interstate Commerce Com- 
 mission, snjrra, said: "The termi- 
 nal company owns no cars or loco- 
 motives and issues no bill of lad- 
 ing. It owns no stock in any of 
 the railroads or corporations in 
 which the Southern Pacific owns 
 stock. It carries on a wharfage 
 business and publishes a schedule 
 of charges for such business, 
 
 which, however, is not filed with 
 the Interstate Commerce Commis- 
 sion. * * * And surely a sys- 
 tem so constituted and used as an 
 instrument of interstate commerce 
 may not escape regulation as such 
 because one of its constituents is 
 a wharfage company and its domi- 
 nating power a holding company. 
 As well said by the Interstate 
 Commerce Commission, a corpora- 
 tion such as this Terminal Com- 
 pany which has competing lines, 
 should not be permitted to defeat 
 the jurisdiction of this Commis- 
 sion by showing that it is not in 
 fact owned by any railroad com- 
 pany. The Terminal Company is 
 part and parcel of the system en- 
 gaged in the transportation of 
 commerce, and to the extent that 
 such commerce is interstate the 
 Commission has jurisdiction to 
 supervise and control it within 
 statutory limits." 
 
 82. Wilson Produce Co. v. Penn- 
 sylvania R. Co., 14 I. C. C. 170.
 
 236 
 
 Duties to Interstate Shippers. 
 
 [§ 102 
 
 shipments, terminal companies may be compelled to 
 establish through routes and joint rates. *^ 
 
 § 103. Stock Yards Company Transferring Live- 
 stock Between its Pens and Tracks of Trunk Lines, a 
 Common Carrier. The Act to Regulate Commerce, lim- 
 
 83. Pennsylvania Co. v. United 
 States, 236 U. S. 351, 59 L. Ed. 616, 
 35 Sup. Ct. 370; Manufacturers 
 Ry. Co. V. St. Louis, I. M. & S. 
 Ry. Co., 21 I. C. C. 304. "The Act 
 as amended June 29, 1906, 34 St. 
 584" said the Supreme Court in 
 the first case cited, "defines what 
 is meant by common carriers — en- 
 gaged in transportation by rail- 
 road — which are brought within 
 the control of the Act and a rail- 
 road is defined to include all 
 switches, spurs, tracks and termi- 
 nal facilities of every kind, used 
 or necessary in the transportation 
 of persons or property designated 
 in the Act, and also all freight de- 
 pots, yards and grounds used or 
 necessary in the transportation or 
 delivery of any of said property. 
 Not only does the Act define rail- 
 roads, but it specifically defines 
 what is meant by transportation, 
 which is made to include 'cars and 
 other vehicles and all instrumen- 
 talities and facilities of shipment 
 or carriage, irrespective of owner- 
 ship or of any contract, express or 
 implied, for the use thereof and 
 all services in connection with 
 the receipt, delivery, elevation, and 
 transfer in transit, ventilation, re- 
 frigeration or icing, storage, and 
 handling of property transported.' 
 It is made the duty of every car- 
 rier 'subject to the provisions of 
 this Act, to provide and furnish 
 such transportation upon reason- 
 able request therefor, and to es- 
 tablish through routes and just 
 
 and reasonable rates applicable 
 thereto'; and on June 18, 1910, c. 
 309, 36 Stat. 539, 545, it was addi- 
 tionally provided that the carrier 
 should 'provide reasonable facili- 
 ties for operating such through 
 routes and make reasonable rules 
 and regulations with respect to 
 the exchange, interchange, and re- 
 turn of cars used therein, and for 
 reasonable compensation to those 
 entitled thereto.' See United 
 States V. Union Stock Yard & Tran- 
 sit Co., 226 U. S. 286, and as to 
 the character of such commerce, 
 Illinois Central R. R. v. Railroad 
 Commission of Louisiana, decided 
 February 1, 1915, ante, p. 157 * * * 
 There can be no question that 
 when the Pennsylvania Railroad 
 used these terminal facilities in 
 connection with the receipt and 
 delivery of carload freight trans- 
 ported in interstate traffic, it was 
 subject to the provisions of the 
 Act, and it was obliged as a com- 
 mon carrier in that capacity to af- 
 ford all reasonable, proper and 
 equal facilities for the interchange 
 of traffic with connecting lines and 
 for the receiving, forwarding and 
 delivering of property to and 
 from its own lines and such con- 
 necting lines, and was obliged not 
 to discriminate in rates and 
 charges between such connecting 
 lines. By the amendments to the 
 Act, the facilities for delivering 
 freight of a terminal character 
 are brought within the terms of 
 the transportation to be regulated."
 
 § 103 
 
 Carriers Under Commerce Act. 
 
 237 
 
 itin<>- its a))i)lifation as it does to common carriers, was 
 I)ass('(l ill full \ie\v and re('()<4iiition of tlie common law 
 under wliicli the attitude and actions of tlie person, 
 whetlicr natural or artificial, determines whether lie or 
 it is in law a comiiion cai'rier.'*'' The test to be applied 
 in detcrniinini;- whether a i)erson is a common carrier 
 really is whether he holds out either expressly, or by 
 a course of conduct, that he will, so long as he has 
 room, carry for hire the goods of every person indif- 
 ferently who will bring goods to him to be carried;*^ 
 but there must be a bona fide holding out as a common 
 carrier coupled with the ability to carry for hire. 
 
 A stock yards company, holding itself out in good 
 faith to carry and transport liv^estock for hire between 
 its stock yards and points of connection with the tracks 
 of trunk lines whose tracks connect with its own, is a 
 common carrier within the purview of the statute.^" The 
 
 84. Manufacturers Ry. Co. v. 
 St. Louis, I. M. & S. Ry. Co., 28 
 I C. C. 93; Manufacturers Ry. 
 Co. V. St. Louis, L M. & S. Ry. 
 Co., 21 I. C. C. 304. 
 
 85. Liverpool & G. W. S. Co. 
 V. Phenix Ins. Co., 129 U. S. 397, 
 
 32 L. Ed. 788, 9 Sup. Ct. 469; 
 Bank of Kentucky v. Adam's Exp. 
 Co., 93 U. S. 174, 23 L. Ed. 872; 
 New York Cent. R. Co. v. Lock- 
 wood, 17 Wall. (U. S.) 357, 21 L. 
 Ed. 627; Crane Iron Works v. 
 United States, 209 Fed. 238; 
 Second Industrial Railways Case, 
 34 I. C. C. 596; In re Rates in Chi- 
 cago Switching Dist., 34 I. C. C. 
 234; Industrial Railways Case, 32 
 I. C. C. 129; Stongea Coal & Coke 
 Co. V. Louisville & N. R. Co., 23 
 I C. C. 17; General Elec. Co. v. 
 New York Cent. & H. River R. Co., 
 14 I. C. C. 2137. 
 
 86. United States v. Union 
 Stockyard and Transit Co. of Chi- 
 cago, 226 U. S. 286, 57 L. Ed. 226, 
 
 33 Sup. Ct. 83; Southern Pac. 
 Terminal Co. v. Interstate Com- 
 
 merce Commission, 219 U. S. 498, 
 55 L. Ed. 310, 31 Sup. Ct. 279; 
 Interstate Commerce Commission 
 V. Stickney, 215 U. S. 98, 54 L. Ed. 
 112, 30 Sup. Ct. 66; Central Stock- 
 yards Co. V. Louisville & N. R. 
 Co., 192 U. S. 568, 48 L. Ed. 565, 
 24 Sup. Ct. 339; Interstate Com- 
 merce Commission v. Chicago, B. 
 & Q. R. Co., 186 U. S. 320, 46 L. 
 Ed. 1182, 2? Sup. Ct. 824; Coving- 
 ton Stockyards Co. v. Keith, 139 
 U. S. 128, 35 L. Ed. 73, 11 Sup. Ct. 
 461; North Pennsylvania R. Co. 
 v Commercial Nat. Bank, 123 U. 
 S. 727, 31 L. Ed. 287, 8 Sup. Ct. 
 266; Union Stockyards Co. of 
 Omaha v. United States, 94 C. C. 
 A. 626, 169 Fed. 404, in which Mr. 
 Justice Van Deventer said: "The 
 carriage of these shipments from 
 the transfei" track to the sheds or 
 pens and vice vcisa is no less a 
 part of their transit between their 
 points or origin and destination 
 than is their carriage over any 
 other portion of the route. Trua, 
 there is a temporary stoppage of
 
 238 Duties to Interstate Shippers. [§ 103 
 
 Interstate Commerce Commission decided that a stock 
 yards company at Kansas City wliicli held itself out to 
 transport cars of livestock from the trunk lines to its 
 pens solely in order to impose a trackage charge through 
 a published tariff, and whose real purpose was to secure 
 compensation for the use of its tracks from the trunk 
 line, was not a common carrier.^' Subsequently a simi- 
 lar ruling was made as to some short lines of railroad 
 serving industries.^^ 
 
 § 104 Status of Logging Roads as Interstate Car- 
 riers. — the Tap Line Cases. The extent of the business 
 of a railroad is not the test or criterion in determining 
 its character as a common carrier, but it is the right of 
 the public to use its facilities and to demand service of 
 it. The application of this principle to small industrial 
 railroads owned by or affiliated with lumber companies in 
 the lumber districts of the country and commonly known 
 as tap lines, led the Supreme Court to set aside the decis- 
 ion and order of the Commission as to the character 
 of these companies.^^ 
 
 These logging roads, by which logs are hauled from 
 the timber to the lumber mills and the products thereof 
 from the mills to the trunk lines of the carriers, were, 
 as a rule, originally purely mill propositions, being plant 
 facilities; but many of them soon reached a point where 
 
 the loaded cars at the transfer part of the transportation of every 
 
 back, but that is merely incidental, live stock shipment which they 
 
 and does not break the continuity accept for carriage to or from 
 
 of the transit any more than does ^^at point, including such ship- 
 
 the usual transfer of such cars ^^^^^ ^^ ^^^ interstate." 
 from one carrier to another at a 
 connecting point. And it is of 
 little significance that the stock- 
 yards company does not hold it- 
 
 self out as ready or willing gener- ^8. ^Second Industrial Railways 
 
 ally to carry live stock for the ^^^^' ^* ^- ^- ^- ^^^• 
 
 public, for all the railroad com- 89. United States v. Butler 
 
 panies at South Omaha do so County R. Co., 234 U. S. 29, 58 L. 
 
 hold themselves out, and it stands Ed. 1196, 34 Sup. Ct. 748; Tap 
 
 ready and willing to conduct, and Line Cases, 234 U. S. 1, 58 L. Ed. 
 
 actually does conduct, for hire a 1185, 34 Sup. Ct. 841. 
 
 87. Atchison, T. & S. F. Ry. 
 Co. V. Kansas City Stock Yards 
 Co., 33 I. G. C. 92.
 
 § l')4i 
 
 CaHIMKKS r.NDKK COMMERCE AcT. 
 
 239 
 
 thoy cn^a^od in other })iisiTioss to a greater or less ex- 
 tent. As llie len<>:tli of the road increased and the lum- 
 ber was taken off, otlier industries obtained a foothold 
 alon,<2: the line and various commodities besides lumber 
 were transported over these lo<;ging roads. In this man- 
 ner the business of some of these tap lines (|e\-eh)j)ed 
 until what was a loo^o-in^- n,ad pure and simple became 
 a connnon carrier of miscellaneous freight and pas- 
 sengers."" 
 
 As long as these railroads were engaged exclusively 
 in the trans]wrtation of logs of the affiliated lumber 
 comi)anies, they were a part of the plant facilities of 
 the mills owned by the lumber concerns. When, how- 
 ever, they ceased to be private adjuncts of the lumber 
 industries, or mere appendages to the mills, and became 
 common carriers even to a small extent, they thei'e})y 
 became public institutions and subject to regulations as 
 carriers.''^ They then became entitled to participate in 
 joint rates with trunk lines as to proprietary as well as 
 nonpro])rietary tratific;"- but if the division of joint rates 
 
 90. Kaiil Lumber Co. v. Central 
 of Georgia Ry. Co., 20 I. C. C. 4.^0: 
 Star Grain & Lumber Co. v. Atchi- 
 son, T. & S. F. R. Co., 17 L C. C. 
 338, 14 L C. C. 364: Central Yel- 
 low Pine Ass'n v Illinois Cent. R. 
 Co., 10 I. C. C. 505; Central Yellow 
 Pine Ass'n v. Vicksburg, S. P. R. 
 Co., 10 I. C. C. 193. 
 
 91. Tap Line Case v. Louisiana 
 & P. Ry. Co., 34 I. C. C. 116; Tap 
 Line Case. 31 I. C. C. 490. 
 
 92. "But a common carrier 
 performing service as such, regu- 
 lated and operated under compe- 
 tent authority, as observed by 
 Commissioner Prouty in Kaul 
 Lumber Co v. Central of Georgia 
 Railway Co.. 20 L C. C. 450, 456 
 is no longer a mere appendage of 
 a mill 'but a public institution.' 
 It thus becomes apparent that the 
 real question in these cases is the 
 true character of the roads here in- 
 
 volved. Are they plant facilities 
 merely or common carriers with 
 rights and obligations as such? It 
 is insisted that these roads are not 
 carriers because the n ost of their 
 traffic is in their own logs and 
 lumber and that only a small part 
 of the traffic carried is the prop- 
 erty of others. But this conclu- 
 sions loses sight of the principle 
 that the extent to which a railroad 
 is in fact ased, does not determine 
 the fact whether it is or is not a 
 common carrier. It is the right 
 of the public to use the road's fa- 
 cilities and to demand service of 
 it rather than the extent of its 
 business which is the real crite- 
 rion determinative of its character. 
 This principle has been frequent- 
 ly recognized in the decisions of 
 the courts." Tap Line Cases, 234 
 U. S. 1. 58 L. Ed. 1185, 34 Sup. Ct. 
 841.
 
 240 Duties to Intekstate Shippees. [§ 104 
 
 is sucli as to amount to a rebate or discrimination in 
 favor of the owner of the tap line because of an exces- 
 sive amount in view of the service rendered, the Com- 
 mission may reduce the amount so that the tap line will 
 receive just compensation only."^ 
 
 § 105. Private Car Lines Not Common Carriers 
 Within Meaning of Act to Regulate Commerce. Under 
 the Hepburn Amendment of 1906 the term "transporta- 
 tion" was declared to include cars and other vehicles 
 and all instrumentalities and facilities of shipment or 
 carriage, irrespective of ownership. Railroad compa- 
 nies are therefore answerable for what they hire from 
 private car lines; but private car owners, leasing refrig- 
 erator, tank and other cars to railroads and shippers, 
 and who operate stations on railroad lines for the pur- 
 pose of icing cars for which the railroads pay a certain 
 rate per ton, and who furnish cars for the shipment of 
 perishable fruits and keep them iced, but have no con- 
 trol over the movement of the cars they furnish, are not 
 common carriers within the meaning of the Act. The 
 definition of "transportation" includes such instrumen- 
 talities as these car lines furnished to the railroads, but 
 the definition is preliminary to the requirement that the 
 carrier shall furnish them upon reasonable request and 
 reasonable charges. The control of the Commission over 
 private cars is to be effected by its control over the car- 
 riers that are subject to the Act."* 
 
 93. Industrial Railways Case, 32 and reices the cars, when set by 
 I. C. C. 129. the railroads at the icing plant, 
 
 94. Ellis V. Interstate Com- by filling the bunkers from the 
 merce Commission, 237 U. S. 434, top, after which the railroads re- 
 59 L. Ed. 1036, 35 Sup. Ct. 645, in move the cars. The railroads pay 
 which the Court said: "The Ar- a certain rate per ton, and charge 
 mour Car Lines is a New Jersey the shipper according to tariffs on 
 corporation that owns, manufac- file with the Commission. Final- 
 tures and maintains refrigerators, ly it furnishes cars for the ship- 
 tank and box cars, and that lets ment of perishable fruits, etc., and 
 these cars to the railroad or to keeps them iced, the railroads pay- 
 shippers. It also owns and oper- ing for the same. It has no ron- 
 ates icing stations on various lines trol over motive power or over 
 of railway, and from these ices the movement of the cars that it
 
 "§> 107] Carhikhs L'^'L)l•;K Commerce Act. 241 
 
 § 106. Common Carriers of Oil and Other Commod- 
 ities by Pipe Line Included. Tiic Intci-.slale CoiniiK.Tco 
 Act in 1906 was amended so as to include any corpora- 
 tion or any person or persons engaged in tlie transporta- 
 tion of oil or other commodities, except water and nat- 
 ural or artificial gas, by means of pipe lines or partly 
 by pipe line, and partly ))y railroad, or i)artl>- l)y pipe 
 line and ])artly by water, from one state, territory or 
 district of the I'nited States to any other state, territory 
 or district of the United States, or to any foreign coun- 
 try who shall l)e considered and held to be common car- 
 riers within the meaning and purpose of the Act. 
 
 As the transportation of oil from one state to 
 another constitutes interstate commerce, those jiipe line 
 companies which hold themselves out as common car- 
 riers of oil or other commodities, except water and gas, 
 by pipe line are subject to the jurisdiction of the Com- 
 mission. The fact that the \)\\)Q line was built over a 
 privately acquired right of way does not affect its 
 status, nor is the interstate character of such traffic de- 
 stroyed by placing the ownership of the pipe line in a 
 different corporation in each state through which the oil 
 passes in transportation, for the question of what is 
 commerce among the states depends upon broader con- 
 siderations than the time or place w1iei(^ tlie title 
 passes."^ 
 
 § 107. Pipe Line Companies Transporting Solely 
 Their Own Oil, Common Carriers, When. Tlie Interstate 
 
 furnishes as above, and in short, garded as carriers, contrary to the 
 
 notwithstanding some argument to truth. The control of the Com- 
 
 the contrary, is not a common car- mission over private cars, etc., is 
 
 rier subject to the act. It is true ro be effected by its control over 
 
 that the definition of transporta- the railroads that are subject to 
 
 tion in Sec. 1 of the act includes the act. The railroads may be 
 
 such instrumentalities as the Ar- made answerable for what they 
 
 mour Car Lines lets to the rail- hire from the Armour Car Lines, 
 
 roads. But the definition is a pre- if they would not be otherwise, but 
 
 limlnary to a requirement that that does not affect the nature of 
 
 the carriers shall furnish them up- the Armour Car Lines itself." 
 on reasonable request, not that the 95. In the !\Iatter of Pipe Lines, 
 
 owners and builders shall be re- 24 I. C. C. 1. 
 
 1 l"ontri>I Carriors 16
 
 242 Duties to Interstate Shippers. [^ 107 
 
 Commerce Act plainly includes only those corporations 
 or persons who are in fact common carriers as dis- 
 tingiiishod from those engaged in a private hnsiness. A 
 person does not become a common carrier unless he 
 undertakes to transport for hire for those who choose to 
 employ him. He must have committed himself to serve 
 the public and he is not subject to legislative control as 
 a carrier unless he undertakes to carry goods for all 
 who choose to employ him. His undertaking must be 
 public in character so that in case of his refusal to 
 accept and carry the goods, lie will be liable in an action 
 for damages. ^^ A law, therefore, which requires a cor- 
 poration, engaged strictly in a private business, to be- 
 come a common carrier is invalid. For example, a 
 company simply drawing oil from its own wells across 
 a state line to its own refinery for its own use is not 
 and cannot be declared a common carrier within the 
 meaning of the statute.^^ 
 
 But where pipe line companies are engaged in the 
 transportation of oil from one state to another for the 
 public in general provided the oil is sold to them before 
 the transportation commences, they are common car- 
 riers in substance if not in form. A common carrier in 
 fact cannot exempt itself from legislative control as 
 such by requiring all prospective shippers to sell the 
 commodity to it before beginning the transportation. 
 Such a device is a most vicious kind of a monopoly and 
 does not prevent the control of the Interstate Commerce 
 Commission over such cases. After the passage of the 
 amendment including pipe lines, the Interstate Com- 
 merce Commission instituted a proceeding to determine 
 the status of x)ipe line companies throughout the coun- 
 try."" 
 
 The Commis.«i()n held that the obligation of a com- 
 
 96. Cownie Glove Co. v. Mer- 97. United States v. Ohio Oil 
 
 chants' Dispatch Trans. Co.. 130 Co. 234 U. S. 548, 58 L. Ed. 1459, 
 
 Iowa 327, 4 L. R. A. (N. S.) 1060, 34 Sup. Ct. 957. 
 
 114 Am. St. Rep. 419, 106 N. W 98. In the Matter of Pipe Lines. 
 
 749; Carpenter v. Baltimore & O. 24 I. C. C. 1. 
 R. Co., 6 Pennew. (Del.) 15, 64 
 Atl 252.
 
 '§ 107J Carkieks Undkr Commerce Act. 243 
 
 moil carrier was, by tlie Act, impressed upon a pipe line 
 company engaged in the transi)ortation of oil in inter- 
 state commerce although the pipe line was Iniilt over a 
 privately ac(|uired right of way and it transi)orted only 
 its own oil b}' pursuing a i)olicy of refusing to receive 
 oil from other parties except as a purchaser of such oil. 
 An order was made re(iuiring the o])erators of such iM})e 
 lines to file with the Commission schedules of their rates 
 and charges for the transportation of oil in compliance 
 with the statute. 
 
 Suits were brought to annul this order and the Com- 
 merce Court held that sucli pipe lines so transporting 
 their own oil after sale, were, in fact, private, and not 
 common carrieis, and that, as thus construed, the amend- 
 ment including such pipe lines was invalid in that it 
 deprived them of their property without due process of 
 law.^« 
 
 On appeal to the national Supreme Court, the deci- 
 sion of the Commerce Court was reversed and the order 
 of the Commission was sustained except as to one com- 
 pany which carried only the oil from its own wells to 
 its own refinery.^ "Availing itself of its monopoly of 
 the means of transportation," said the Court in the case 
 cited, "the Standard Oil Company refused through its 
 subordinates to carry any oil unless the same was sold 
 to it or to them and through them to it on terms more 
 or less dictated by itself. In this way it made itself 
 master of the fields without the necessity of owning 
 them and carried across half the continent a great sub- 
 ject of international commerce coming from many own- 
 ers but, by the duress of which the Standard Oil Com- 
 pany was master, carrying it all as its own. The main 
 question is whether the act does and constitutionally 
 can a]iply to the several constituents that then had been 
 united into a single line, ''leaking u}) fust the construc- 
 tion of the statute, we think it ]^lain that it was in- 
 tended to reach the combination of pij)e lines that we 
 
 99. Prairie Oil & Gas Co. v. Co., 2:',4 U. 8. 548, 58 L. Ed. 1459. 
 United States. 204 Fed. 798. :54 Sup. Ct. 957. 
 
 1. United States v. Ohio Oil
 
 244 Duties to Interstate Shippees. [*§ 107 
 
 have described. The provisions of the act are to apply 
 to any person engaged in the transportation of oil by 
 means of pipe lines. The words 'who shall be consid- 
 ered and held to be common carriers wHthin the meaning 
 and purpose of this act' obviously are not intended to 
 cut down the generality of the previous declaration to 
 the meaning that only those shall be held common car- 
 riers within the act who were common carriers in a 
 technical sense, but an injunction that those in control 
 of pipe lines and engaged in the transportation of oil 
 shall be dealt with as such. If the Standard Oil Com- 
 pany and its cooperating companies were not so engaged 
 no one was. It not only would be a sacrifice of fact to 
 form but would empty the act if the carriage to the 
 seaboard of nearly all the oil east of California, were 
 held not to be transportation within its meaning, be- 
 cause by the exercise of their power the carriers im- 
 posed as a condition to the carriage a sale to them- 
 selves. As applied to them, while the amendment does 
 not compel them to continue in operation it does re- 
 quire them not to continue except as common carriers. 
 That is the plain meaning as has been held with regard 
 to other statutes similarly framed. Atlantic Coast Line 
 R. E. Co. V. Riverside Mills, 219 U. S. 186, 195, 203. 
 Its evident purpose was to bring within its scope pipe 
 lines that although not technically common carriers yet 
 were carrying all oil offered, if only the offerers would 
 sell at their price. The only matter requiring niucli 
 consideration is the constitutionality of the act. That 
 the transportation is commerce among the States we 
 think clear. That conception cannot be made wholly 
 dependent upon technical questions of title, and the fact 
 that the oils transported belonged to the owner of the 
 pipe line is not conclusive against the transportation 
 being such commerce. Rearick v. Pennsylvania, 203 U. 
 S. 507, 512. See Texas & New Orleans R. R. Co. v. 
 Sabine Tram. Co., 227 U. S. 111. The situation that we 
 have described would make it illusory to deny the title 
 of commerce to such transportation, beginning in pur- 
 chase and ending in sale, for the same reasons that
 
 § 108] Carriers Under Commerce Act. 245 
 
 make it transixjitation witliin tlie act, Tlic control of 
 Congress over coinnuMXM; among the Slates cannot he 
 made a means of exercising powers not entrusted to it 
 by the Constitution, but it may require those who are 
 common carriers in suljstance to become so in form. So 
 far as the statute contemplates future pipe lines and 
 prescribes the conditions upon which they may be estab- 
 lished there can be no doubt that it is valid. So the 
 objection is narrowed to the fact that it a])plies to lines 
 already engaged in transportation. But, as we already 
 have intimated, those lines that we are considering are 
 common carriers now in everything but form. They 
 carry everybody's oil to a market, although they com- 
 l)el outsiders to sell it before taking it into their pipes. 
 The answer to their objection is not that they may give 
 up the business, but that, as applied to them, the statute 
 practically means no more than they must give up re- 
 quiring a sale to themselves before carrying the oil that 
 they now receive. The whole case is that the appellees 
 if they carry must do it in a way that tliey do not like. 
 There is no taking and it does not become necessary to 
 consider how far Congress could subject them to pecu- 
 niary loss without compensation in order to accomplish 
 the end in view. Hoke v. United States, 227 U. S. 308, 
 323. Lottery Case, 188 U. S. 321, 357." 
 
 § 108. Assumption of National Control over Inter- 
 state and Foreign Cable, Telephone and Telegraph Com- 
 panies. Intercourse between the states by telephone and 
 telegraph constitutes interstate commerce.- Companies 
 
 2. United States. Western U. 162 U. S. 650, 40 L. Ed. 1105. 16 
 
 Tel. Co. V. Commercial Milling Co., Sup. Ct. 934; Primrose v. Western 
 
 218 U. S. 406, 54 L. Ed. 10S8, 31 U. Tel. Co., 154 U. S. 1, 38 L. Ed. 
 
 Sup. Ct. 59, 36 L. R. A. (N. S.) 883, 14 Sup. Ct. 1098; Postal Tel. 
 
 220, 21 Ann. Cas. 815; Chesapeake Cable Co. v. Charleston, 153 U. 
 
 & P. Tel. Co. V. Manning. 186 U. S. 692. :?8 L. Ed. 871, 14 Sup. Ct. 
 
 S. 238. 46 L. Ed. 1144, 22 Sup. Ct. 1094; St. Louis v. Western U. Tel. 
 
 881; Richmond v. Southern Bell Co., 148 U. S. 92, 37 L. Ed. 380, 13 
 
 Telephone & Telegraph Co., 174 U. Sup. Ct. 485; Western U. Tel. Co. 
 
 S. 761, 43 L. Ed. 1162, 19 Sup. Ct. v. Seay, 132 U. S. 472, 33 L. Ed. 
 
 778; Western U. Tel. Co. V. James, 409, 10 Sup. Ct. 161; Leloup v.
 
 24G 
 
 Duties to Interstate Shippers. 
 
 [§ 108 
 
 engaged in the telegraph and telephone business, whose 
 lines extend from one state to another, are engaged in 
 interstate commerce, and messages passing from one 
 state to another constitutes such commerce. Such com- 
 panies and messages, therefore, may be regulated by 
 Congress.^ 
 
 The amendment of 1910 to the Interstate Commerce 
 Act extended its provisions to telegraph, telephone and 
 cable companies (whether wire or wireless) engaged in 
 sending messages from one state, territory, or district 
 of the United States, to any other state, territory or 
 district of the United States, or to any foreign country, 
 and the statute declared them to be common carriers 
 within the meaning and purpose of the act; but pro- 
 vided that messages by telegraph, telephone or cable 
 
 Port of Mobile, 127 U. S. 640, 32 
 L. Ed. 311, 8 Sup. Ct. 1380; Rat- 
 terman v. Western U. Tel. Co., 127 
 U. S. 411, 32 L. Ed. 229, 8 Sup. Ct. 
 1127; Western U. Tel. Co. v. Pen- 
 dleton, 122 U. S. 347, 30 L. Ed. 
 1187, 7 Sup. Ct. 1126; Western U. 
 Tel. Co. V. Texas, 105 U. S. 460, 
 26 L. Ed. 1067; Pensacola Tel. Co. 
 V. Western U. Tel. Co., 96 U. S. 
 1, 24 L. Ed. 708. 
 
 Maine. Haskell Implement & 
 Seed Co. v. Postal Tel. -Cable Co., 
 114 Me. 277, 96 Atl. 219. 
 
 Massachusetts. Western U. Tel. 
 Co. V. Foster, 224 Mass. 365, 113 
 N. E. 192. 
 
 ■ Missouri. Jacobs v. Western U. 
 Tel. Co., 196 Mo. App. 300, 196 S. 
 W. 31; Poor v. Western U. Tel. 
 Co., 196 Mo. App. 557, 196 S. W. 
 28; Reed v. Western U. Tel. Co., 
 56 Mo. App. 168. 
 
 Nebraska. Western U. Tel. Co. 
 V. City of Fremont, 43 Neb. 499, 26 
 L. R. A. 706, 61 N. W. 724. 
 
 New Jersey. Ames v Kirby, 71 
 N. J. L. 442, 59 Atl. 558. 
 
 Virginia. Western U. Tel. Co. 
 V. Boiling, 120 Va. 413, 91 S. E. 
 
 154; Western U. Tel. Co. v. Biliso- 
 ly, 116 Va. 562, 82 S. E. 91; West- 
 ern U. Tel. Co. V. Hughes, 104 Va. 
 240, 51 S. E. 225; Western U. Tel. 
 Co. V. Tyler, 90 Va. 297, 44 Am. 
 St. Rep. 910, 18 S. E. 280. 
 
 3. United States. Western U. 
 Tel. Co. V. Brown, 234 U. S. 542, 
 58 L. Ed. 1457, 34 Sup. Ct. 955, 5 
 N. C. C. A. 1024; Western U. Tel. 
 Co. V. Crovo, 220 U. S. 364, 55 L. 
 Ed. 498, 31 Sup. Ct. 399; Western 
 U. Tel. Co. V. Commercial Milling 
 Co., 218 U. S. 406, 54 L. Ed. 1088. 
 31 Sup. Ct. 59, 36 L. R. A. (N. S.) 
 220. 21 Ann. Cas. 815; Western U. 
 Tel. Co. V. Pendleton, 122 U. 3. 
 347, 30 L. Ed. 1187, 7 Sup. Ct. 1126; 
 Western U. Tel. Co. v. State, 105 
 U. S. 460, 26 L. Ed. 1067. 
 
 Arkansas. Western U. Tel. Co. 
 V. Stewart, 120 Ark. 631, 179 S. 
 W. 813; Western U. Tel. Co. v. 
 Johnson, 115 Ark. 564, 171 S. W. 
 859; Western U. Tel. Co. v. Comp- 
 ton, 114 Ark. 193, 169 S. W. 946. 
 
 Mississippi. Western U. Tel. Co. 
 V. Showers, 112 Miss. 411, 73 So. 
 276.
 
 § 108] Carriers Under Commerce Act. 247 
 
 subject to the provisions of the act, mij^ht bo classified 
 into day, night, repeated, unrei)eated, letter, commer- 
 cial, press, government and such other classes as were 
 just and reasonable, and different rates might be charged 
 for the different classes of messages, and provided 
 further that nothing in the act should be construed to 
 prevent telephone, tf^legraph and cable companies from 
 entering into contracts with common carriers for the ex- 
 change of service. 
 
 Since the inclusion of these companies within the 
 exclusive jurisdiction of the Interstate Commerce Com- 
 mission as to all interstate messages, the reasonableness 
 of rules adopted by them as to interstate messages is 
 a question which must be raised and determined pri- 
 marily by the Interstate Commerce Commission before 
 it can be considered by the courts.* Messages between 
 points in the same state, but passing in transmission in 
 part over the territory of another state, constitute inter- 
 state commerce under analogous rulings as to interstate 
 shipments of goods,^ though two state courts have held 
 
 Oklahoma. Western U. Tel. Co. son, 115 Ark. 564, 171 S. W. 859; 
 
 V. Kaufman, Okla. , 162 Western U. Tel. Co. v. Compton, 
 
 Pac. 708; Western U. Tel. Co. v. 114 Ark. 193, 169 S. W. 946. 
 
 Bank of Spencer, Okla. , Maine. Haskell Implement & 
 
 156 Pac. 1175. Seed Co. v. Postal Tel.-Cable Co., 
 
 Texas. Western U. Tel. Co. v. 114 Me. 277, 96 Atl. 219. 
 
 Smith, Tex. Civ. App. , Missouri. Jacobs v. Western U. 
 
 188S. W. 702; Western U. Tel. Co. Tel. Co., 196 Mo. App. 300, 196 
 
 V. Schoonmaker, Tex. Civ. S. W. 31. 
 
 App. , 181 S. W. 263. North Carolina. iVIeadows v. Pos- 
 
 Virginia. Western U. Tel. Co. v. tal Telegraph & Cable Co., 173 N. 
 
 Boiling. 120 Va. 413, 91 S. E. C. 240, 91 S. E. 1009. 
 
 154; Western U. Tel. Co. v. Biliso- Oklahoma. Western U. Tel. Co. 
 
 ly, 116 Va. 562, 82 S. E. 91. v. Orr, Okla. , 158 Pac. 
 
 4. United States. Gardner v. 1139. 
 
 Western U. Tel. Co., 145 C. C. A. Virginia. Western U. Tel. Co. 
 
 399, 231 Fed. 405; H. B. Williams. v. Boiling, 120 Va. 413, 91 S. E. 
 
 Inc., V. Western U. Tel. Co., 203 154. 
 
 Fed. 140. Wisconsin. Durre v. Western U. 
 
 Arkansas. Western U. Tel. Co. Tel. Co., 165 Wis. 190. 161 N. W. 
 
 V. Holder. 117 Ark. 210, 174 S. 755. 
 
 W. 552: Western U. Tel. Co. v. 5. Hanley v. Kansas City South- 
 Simpson, 117 Ark. 156. 174 S. W. ern R. Co., 187 U. S. 617, 47 L. 
 232; Western U. Tel. Co. v. John- Ed. 333, 23 Sup. Ct. 214; Wes-
 
 248 
 
 Duties to Interstate Shippers. 
 
 [§ 108 
 
 that such telegrams do not constitute interstate mes- 
 sages.*' 
 
 As the Interstate Commerce Commission has ac- 
 quired control of the interstate business of telegraph, 
 telephone and cable companies, all state laws penalizing 
 such carriers for negligence for a failure to deliver such 
 messages, are invalid.' A limitation of $50.00 as the 
 company's liability for negligence for failure to deliver 
 an interstate message has been held to be valid since the 
 1910 amendment, for the reason that such a limitation 
 was fixed by the company's tariff tiled with the Inter- 
 state Commerce Commission.' A stipulation on the back 
 of an interstate telegram that the company shall not be 
 liable for mistakes in an unrepeated message beyond the 
 amount received for sending the same, is binding upon 
 state courts since the assumption of control over tele- 
 o-raph companies by the Interstate Commerce Commis- 
 sion.** But the Texas Supreme Court has held that a 
 
 tern U. Tel. Co. v. Kaufman, 
 
 Okla. 162 Pac. 708. 
 
 "Upon principle "we cannot con- 
 ceive how any different doctrine 
 can be applied to telegraphic mes- 
 sages between points within the 
 state, which in the course of their 
 transmission pass without the 
 state into any other state or the 
 district of Columbia. We conclude, 
 therefore, that under the authori- 
 ties the message involved herein 
 was interstate commerce." Pren- 
 tis, J., in Western U. Tel. Co. v. 
 
 Boiling, Va. , 91 S. 3. 
 
 154. 
 
 6. Leavel v. Western U. Tel. Co., 
 116 N. C. 211, 27 L. R. A. 483, 47 
 Am. St. Rep. 798, 21 S. E. 391; 
 Railroad Com'rs v. Western U. Tel. 
 Co., 113 N. C. 213, 22 L. R. A. 570; 
 18 S. E. 389; Western U. Tel. Co. 
 v. Hughes. 104 Va. 240, 51 S. E. 
 225; Western U. Tel. Co. v. Rey- 
 nolds, 100 Va. 459, 93 Am. St. Rep. 
 971, 41 S. E. 856. The courts in 
 these cases followed the case of 
 
 Lehigh Valley R. Co. v. Pennsyl- 
 vania, 145 U. S. 192, 36 L. Ed. 672, 
 12 Sup. Ct. 806. 
 
 7. Arkansas. Western U. Tel. Co. 
 V. Simpson, 117 Ark. 156 S. W. 
 232. 
 
 Kansas. Kirsch v. Postal Tel. 
 Cable Co., 100 Kan. 250, 164 Pac. 
 267. 
 
 Oklahoma. Western U. Tel. Co. 
 
 v. Kaufman, Okla. , 162 
 
 Pac. 708. 
 
 Texas. Western U. Tel. Co. v. 
 
 Smith, Tex. Civ. App. r, 
 
 188 S. W. 702. 
 
 Virginia. Western U. Tel. Co. v. 
 First Nat. Bank of Berryville, 116 
 Va. 1009, 83 S. E. 424; Western 
 U. Tel. Co. v. Bilisoly, 116 Va. 562, 
 82 S. E. 91. 
 
 8. Western U. Tel. Co. v. Comp- 
 ton, 114 Ark. 193, 169 S. W. 946; 
 Western U. Tel. Co. v. Showers, 
 112 Miss. 411, 73 So. 276. 
 
 9. Poor V. Western U. Tel. Co., 
 196 Mo. App. 557, 196 S. W. 28.
 
 § 10« 
 
 Carriers Undkr Commerce Act. 
 
 249 
 
 stipulation limiting liability for negligence to $50,00 in 
 the tiansmission and delivery of a telegram, was void 
 even as to interstate messages, and that a recovery may 
 be permitted for mental anguish under a state statute 
 for a failure Jto deliver an interstate; message/" The 
 decision of the Texas court in itcnnittiiig a recovery for 
 mental anguisli due to a failnn; to deliver an interstate 
 telegram, seems to be in conflict with a controlling 
 decision of the national Supreme Court/^ Whetlier the 
 provision on the back of a n\essage limiting the amount 
 of liability to $50.00 is reasonable or unreasonable, is a 
 question that must primarily be submitted to the Inter- 
 state Commerce Commission.'- Similar provisions in 
 tariifs and contracts of railroad and exjiress companies 
 have been held to be valid as to interstate shipments 
 of goods.^^ A Missouri court lield that the rule per- 
 mitting a railroad company to recover the freight rate 
 in its tariff filed with the Interstate Commerce Commis- 
 sion though the agent erroneously quoted a lower rate, 
 
 10. Western U. Tel. Co. v. 
 Bailey, 108 Tex. 427, 19G S. W. 
 516. The same case was before 
 the Texas Court of Civil Appeals 
 and is reported in 171 S. W. 839 on 
 the first appeal, and in 184 S. W. 
 519 on the second appeal. 
 
 Damages for mental anguish due 
 to a negligent failure to transmit 
 and deliver a telegram from a 
 point in one state to a point in an- 
 other, are not recoverable since 
 the amendment of 1910 to the In- 
 terstate Commerce Act. Norris v. 
 
 Western U. Tel. Co., N. C. 
 
 , 93 S. E. 465. 
 
 11. Western U. Tel. Co. v. 
 Brown, 234 U. S. 542, 58 L. Ed. 
 1457, 34 Sup. Ct. 955, 5 N. C. C. A. 
 1024. See also Western U. Tel. 
 Co. V. Stewart, 120 Ark. 631, 179 
 S W. 813; Western U. Tel. Co. v. 
 Johnson. 115 Ark. 564, 171 S. W. 
 859; Jacobs v. Western U. Tel. Co., 
 196 Mo. App. 300, 19G S. W. 31; 
 Western U. Tel. Co. v. Boiling, 120 
 Va. 413, 91 S. E. 154. 
 
 12. Gardner v. Western U. Tel. 
 Co., 145 C. C. A. 399, 231 Fed. 405; 
 H. B. Williams, Inc., v. Western 
 U. Tel. Co., 203 Fed. 140. 
 
 13. Cleveland, C, C. & St. L. 
 R. Co. v. Dettlebach, 239 U. S. 588. 
 60 L. Ed. 453, 36 Sup. Ct. 177; Atch- 
 ison, T. & S. F. R. Co. v. Robin- 
 son, 233 U. S. 173, 58 L. Ed. 901, 
 34 Sup. Ct. 556; Boston & M. R. 
 Co. v. Hooker, 233 U. S. 97, 58 L. 
 Ed. 868, 34 Sup. Ct. 526. L. R. A. 
 1915B 450, Ann. Cas. 1915D 953; 
 Missouri, K. & T. R. Co. v. Harri- 
 man, 227 U. S. 657, 57 L. Ed. 690, 
 33 Sup. Ct. 397; Kansas City 
 Southern R. Co. v. Carl. 227 U. S. 
 6;i9, 57 L. Ed. 683, 33 Sup. Ct. 391: 
 Wells. Fargo & Co. v. Neiman-Mar- 
 cus Co, 227 U. S. 469, 57 L. Ed. 600, 
 33 Sup. Ct. 267; Adams Exp. Co. 
 V Croninger, 226 U. S. 491, 57 L. 
 Ed. 314, 33 Sup. Ct. 148. 44 L. R. 
 9. (N. S.) 257.
 
 250 Duties to Interstate Shippeus. [§ 108 
 
 did not apply to the cliarg-es made by an operator for a 
 telei>raph company; but the message before the court in 
 tliat case was an intrastate telegram." 
 
 The Interstate Commerce Commission refused to 
 assume jurisdiction of a complaint of undue discrimina- 
 tion against a local telephone company at Pittsburgh, Pa., 
 for the reason that the messages involved were solely 
 intrastate in character." In another case, the Commis- 
 sion held that the rates charged by a telegraph com- 
 pany for messages between New York and San Francisco 
 and by cable from New York to England were reason- 
 able and nondiscriminatory.^*^ It is the duty of tele- 
 graph companies, the Commission has held, to distin- 
 guish the classes of messages mentioned in the statute, 
 and to adopt just and reasonable rules relating there- 
 to.^^ 
 
 The new duties and liabilities of telegraph com- 
 panies as to interstate messages since the assumption of 
 federal control, were well and clearly stated by one 
 court, as follows:^* "The suit is based upon the viola- 
 tion of defendant's public duty to correctly transmit 
 and deliver the message. This public duty, arising upon 
 the creation of the contract of transmission, the defend- 
 ant owed the sendee, even though the latter was not an 
 immediate party to the contract. Hence plaintiif, as 
 sendee, has a right of action based upon the violation 
 of that public duty. Western Union Tel. Co. v. Burris, 
 179 Fed. 92, 102 C. C. A. 386; State Bank of Commerce 
 V. Western Union Tel. Co., 19 N. M. 211, 142 Pac. 156, 
 L. E. A. 1915A, 120; Bailey v. Western Union Tel. Co., 
 227 Pa. 522, 76 Atl. 736, 43 L. R. A. (N. S.) 502, 19 Ann. 
 Cas. 895; Western Union Tel. Co. v. Holder, 117 Ark. 
 210, 174 S. W. 552; Eureka Cotton Mills Co. v. Western 
 
 14. Higbee v. Western U. Tel. 17. White v. Western U. Tel. 
 Co., 179 Wo. App. 195, 16G S. W. Co., 33 I. C. C. 500. 
 
 825. 18. Trimble, J., in Poor v. West- 
 
 15. Local Commercial Tele- ern U. Tel. Co., 196 Mo. App. 557. 
 phone Service in Pittsburgh, Penn- 196 S. W. 28. 
 
 sylvania, 27 I. C. C. 622. 
 
 16. White V. Western U. Tel. Co., 
 33 I. C. C. 500.
 
 <§> ]()SJ ( 'ahhikiss Tn'mku Commkhck Act. -')i 
 
 Uu'um To). Co., 88 S. ('. 498, 70 S. E. 1040, Ann. Cas. 
 li)12(), 1273; Woslorn Tnion Tel. Co. v. Jackson l^umbor 
 Co., 187 Ala. (LM), (15 Soulli 962; Western Union Tel. Co. 
 V. Commercial I^Iilliim- Co., 218 U. S. 406, 420, :U Snj). 
 Ct. 59, 54 L. Ed. 1088, 36 L. R. A. (N. S.) 220, 21 Ann. 
 Cas. 815. The telegram, bein^ from a point in Kansas to 
 a point in Missouri, was an interstate message, and its 
 transmission was an act of interstate commerce. West- 
 ern Union Tel. Co. v. Texas, 105 U. S. 460, 26 U. Ed. 
 1067; Western Union Tel. Co. v. Pendleton, 122 V. S. 
 347, 7 Snpt. Ct. 1126, 30 T.. Ed. 1187. Section 7 of the 
 Act of Congress of June 18, 1910 (36 Stats. L. 544, c. 
 309; Fed. Stats. Ann. 1912, vol. 1, p. Ill (U. S. Comp. 
 St. 1916, sec. 8563), amending section 1 of the original 
 Interstate Commerce Act (24 Stats. L. 379, c. 104; 3 
 Fed. Stats. Ann. 809), as amended by the Act of June 29, 
 1906 (34 Stats. L. 584, c. 3591; Fed. Stats. Ann. 1909 
 Supp. p. 255), known as the 'Hepburn Act' with the 
 'Carmack A^meudment' thereto, declares that telegrai)h 
 companies engaged in sending messages from one state 
 to another state 'shall be considered and held to be 
 common carriers witiiin the meaning and purpose of 
 this act,' i. e., within the meaning and purpose of the 
 entire Interstate Commerce Ijaw as it then existed. Be- 
 ing therefore a common carrier within the meaning of 
 the Interstate Commerce Statutes, and engaged in inter- 
 state commerce with respect to the particular message 
 in controversy, the defendant telegraph company is sub- 
 ject to a7id governed by the federal law as ex])ounded 
 and a]i]iliod by tlic federal courts to the exclusion of nil 
 state laws and decisions. Undoubtedly, it is well estab- 
 lished that the liability of common carriers of ]n-operty, 
 for any violation of their public duty in interstate ship- 
 ments or "carriage, is governed wholly by the federal 
 statutes relating thereto and by the rules of decision 
 observed by the federal courts in construing such stat- 
 utes and in ai^jilying the general principles of law to 
 the questions of liability. This has been decided so 
 frequently of late years that it is hardly necessary to 
 cite even a few of the inanv cases aniKMincing that
 
 252 Duties to Interstate Siitppees. [^ 108 
 
 doctrine. Adams Express Co. v. Croninger, 226 U. S. 
 491, 33 Sup. Ct. 148, 57 L. Ed. 814, 44 L. R. A. (N. 8.) 
 257; Missouri, etc., R. Co. v. Harriman, 227 U. S. 657, 
 33 Sup. Ct. 397, 57 L. Ed. 690; Boston & Maine R. Co. 
 V. Hooker, 233 U. S. 97, 34 Sup. Ct. 526, 58 L. Ed. 868, 
 L. R. A. 1915B, 450, Ann. Cas. 1915D, 593; Hamilton 
 V. Chicago, etc., R. Co., 177 Mo. App. 145, 164 S. W. 
 248; Kent v. Chicago, etc., R. Co., 189 Mo. App. 424, 176 
 S. W. 1105. But plaintiff contends that Congress has 
 not legislated upon the subject of the liability of tele- 
 graph companies nor upon the measure of damages 
 governing in a suit in tort, and that therefore such 
 matters are not controlled by federal legislation and 
 rules of decision. It is true, the Carmack Amendment 
 to the Hepburn Act dealt with the liability of common 
 carriers transporting property. And it is also true that 
 section 6 of the Commerce Act (U. S. Comp. St. 1916, 
 sec. 8569), requiring common carrires subject to the pro- 
 visions of said act to tile with the Interstate Commerce 
 Commission schedules of its rates, fares, and charges for 
 the transportation of passengers and property, is held 
 not to applv to telegraph campanies. 25 An. Rep. I. C. 
 C. 1911, p. 5; Conf. Rul. No. 305. But sections 1, 3, 15, 
 and 20 of the Interstate Commerce Law do apply to 
 such companies. Section 1, as stated before, makes the 
 act applicable to telegraph companies engaged in trans- 
 mitting messages from one state to another, and requires 
 that 'all charges for services rendered shall be just and 
 reasonable, and all unjust and unreasonable charges are 
 declared to bf unlawful; and it further provides that 
 messages 'may be clasified into day, night, repeated, 
 unrepeated, letter, commercial, press, government, and 
 such other classes as are just and reasonable, and differ- 
 ent rates may be charged for the different classes of mes- 
 sages.' Section 3 provides for uniformity of charges for 
 the different classes of service by making it unlawful to 
 give preferences or advantages in any respect whatso- 
 ever. Section 15 provides that upon complaint being 
 made to the Interstate Commerce Commission that any 
 rate or classification, regulation, or practice whatsoever
 
 <§. 108] Carriers Under Commerce Act. 253 
 
 of common carriers subject to tlie act, including tele- 
 graph companies, the commission sliall have power to 
 declare what rate, or i)ractice, or regulation is reason- 
 able, and to foil)id those found to be unjust, and to re- 
 (|uire the c()mi)anies to adopt the one i)i'escribed. Sec- 
 tion "20 also covers the matter of making reports and 
 keeping accounts. The Commerce Commission in its 
 24th. An. Rep. p. 82, says: 'The administration of the 
 twentieth section of the Act to regulate commerce, so 
 far as telegraph comi)anies are concerned, gives rise to. 
 no very serious dii^culty.' It is therefore apparent that 
 the interstate commerce statutes clearly bring inter- 
 state telegraph companies within the terms and subject 
 to all the provisions of the Interstate Commerce Law so 
 far as applicable thereto; and that such companies are 
 allowed the privilege of making their rates, classifica- 
 tions, and charges subject to the power of the Interstate 
 Commerce Commission to revise them upon complaint, 
 and subject to the law's requirement that they shall be 
 reasonable and uniform for the same service and class- 
 ification (White & Co. V. Western Union Tel. Co., 33 
 Interst. Com. Com'n, R. 500, which was duly offered in 
 evidence and is shown in the abstract). So that the 
 above-named federal laws constitute an assertion of the 
 power of Congress over the subject of interstate tele- 
 grams and the duties of companies engaged in trans- 
 mitting them. And this assertion of power over them 
 expressly provides for imiformity of rate, of classifica- 
 tion, and of service; and necessarily of responsilnlity 
 therefor. In so doing, state action and rules are ex- 
 cluded. These principles are clearly announced in and 
 deducible from the cases of Atchison, etc. R. Co. v. 
 Harold, 241 U. S. 371, 36 Sup. Ct. 665, 60 L. Ed. 1050; 
 Southern Railway Co. v. Prescott, 240 U. S. 632, 36 Sup. 
 Ct. 469, 60 L. Ed. 836. See, also. Seaboard Air Line Ry. 
 Co. V. Horton, 233 U. S. 492, 34 Suj). Ct. 635, 58 L. Ed. 
 1062, L. R. A. 1915C, 1 Ann. Cas. 1915B, 475; Cleveland, 
 etc., R. Co. V. Dettlebach, 239 U. S. 588, 36 Sup. Ct. 177, 
 60 L. Ed. 453; Southern Ry. Co. v. Reid, 222 U. S. 424, 
 36 Sup. Ct. 140, 56 L. Ed. 257. From all of which it
 
 254 Duties to Inteestatk Siiippeks. [§ 108 
 
 follows that the rnlo of decision luTetoforo in force in 
 this state respecting the force and effect of provisions 
 in tlie contract by which a message is transmitted are 
 no longer controlling with respect to interstate mes- 
 sages. They are to be given tlie effect accorded by the 
 federal laws and decisions. Gardner v. Western Union 
 Tel. Co., 231 Fed. 405, 145 C. C. A. 399; Western Union 
 Tel. Co. V. Brown, 234 U. S. 542, 34 Sup. Ct. 955, 58 L. 
 Ed. 1457; Haskell Implement, etc., Co. v. Postal Tel., 
 .etc. Co., 114 Me. 277, 96 Atl. 219; Western Union Tel. 
 Co. V. Bank of Spencer (Old.) 156 Pac. 1175; Western 
 Union v. Bilisoly, 116 Va. 562, 82 S. E. 91; Western 
 Union Tel. Co. v. First National Bank of Berryville, 116 
 Va. 1009, 83 S. E. 424; Durre v. Western Union Tel. Co. 
 (Wis.) 161 N. W. 755; Meadows v. Postal, etc., Co. (N. 
 C.) 91 S. E. 1009; Kirsch v. Postal Tel. Cable Co. (Kan.) 
 164 Pac. 267. The message, an order to buy, was 
 changed in an important particular, and, since every- 
 thing surrounding the change is wholly within the 
 knowledge of the company and it has not seen fit to 
 throw any light upon the matter, the proof is sufficient 
 to make out a prima facie case of at least the 'ordinary 
 negligence' spoken of by the federal courts, for which 
 the stipulation on the back of the telegram limiting lia- 
 bility provides. Williams v. Western Union Telegraph 
 Co. "(1). C.) 203 Fed. 140, 144; Jones v. Western Union 
 Telegraph Co. (C. C.) 18 Fed. 717. Since the case is 
 governed wholly by the federal rules of decision, and 
 since they uphold the validity of the stipulations set out 
 on the back of the telegraph blank limiting liabilitv for 
 incorrect transmission, plaintiff's recovery must be 
 limited by the provision applicable thereto. That pro- 
 vision is that the company shall not be liable for a mis- 
 take in the transmission of any unrepeated message be- 
 yond the amount received for sending the same. There 
 is here no distinction as to whom such limitation shall 
 apply, whether to sender or sendee. And while the latter 
 is not directly a party to the contract for transmission, 
 yet his rights are drawn from and are limited by that 
 contract. Gardner v. Western Union Tel. Co., 231 Fed.
 
 § 109] Cahhiers Undkh ('ommkrcf. Act. 255 
 
 405, 145 0. 0. A. 391); Findlav v. Western L'nioii Tel. 
 Co. (C. C.) 64 Fed. 459; Wliitehill v. Western Union 
 Tel. Co. (C. C.) 136 Fed. 499; Western Union Tel. Co. 
 V. Bank of Spencer (Okl.) 156 Pac. 1178; McGeliee v. 
 Western Union Tel. Co., 169 Ala. 109, 53 South. 205, 
 Ann. Cas. 1912B, 512. Nor is the ciuestion of the reason- 
 ableness or of the real purpose and effect of such a limi- 
 tation 0})en to our consideration, since that is a matter 
 for the Interstate Commerce Commission to pass n])()n. 
 Gardner v. Western Union Tel. Co., 231 Fed. 405, 409, 
 145 C. C. A. 399; AVilliams v. Western Union Tel. Co. 
 (D. C.) 203 Fed. 150; Texas, etc., R. Co. v. Abilene 
 Cotton Oil Co., 204 U. S. 426, 23 Sup. Ct. 350, 51 L. Ed. 
 553, 9 Ann. Cas. 1075; Baltimore, etc., R. Co. v. U. S. ex. 
 rel. Pitcairn Coal Co., 215 U. S. 481, 30 Sup. Ct. 164, 54 
 L. Ed. 292; Boston & Maine R, Co. v. FEooker, 233 U. S. 
 97, 121, 34 Sup. Ct. 526, 58 L. Ed. 868, L. R. A. 1915D, 
 450, Ann. Cas. 19150, 593; Durre v. Western Union Tel. 
 Co. (Wis.) 161 N. W. 755. However much one may be 
 convinced that a stipulation limiting liability to the cost 
 of the message is not a limitation of, but an absolute 
 exemption from, liability for negligence, nevertheless the 
 case must be determined according to the rules of deci- 
 sion laid down by the federal courts, and they have held 
 that such provision is not an exemption from liability. 
 Primrose v. Western Union Tel. Co., 154 U. S. 1, 16, 14 
 Sup. Ct. 1098, 38 L. Ed. 883. And the facts of the case 
 with regard to the negligence shown make the ]U'ovision 
 limiting the damages to the cost of the message appli- 
 cable under the federal rule. Haskell, etc., Seed Co. v. 
 Postal Union Tel. Co. v. Simpson, 117 xVrk. 156, 174 S. 
 W. 232; Western Union Tel. Co. v. Orr (Okl.) 158 Pac. 
 1139; Boyce v. Western Union Tel. Co., 119 Va. 14, 89 S. 
 E. 106; Meadows v. Postal Tel. & C. Co. (N. C.) 91 S. 
 E. 1009." 
 
 § 109. Independent Express Companies Included by 
 Hepburn Amendment of 1906. ITnder the original act 
 
 exi)ress business carried on by a railrt)ad conipaiiy was
 
 256 
 
 Duties to Interstate Shippers. 
 
 [§ 109 
 
 subject to the statute;" but independent express com- 
 panies were not subject to the act until the passage of 
 the amendment of 1906,^° when the term "common car- 
 rier" as used in the act was dech^rod by the statute to 
 include express companies. 
 
 These companies now stand, with reference to the 
 Act and its several provisions and amendments, as 
 though they had been mentioned in the original act. 
 AVith respect to all the provisions of the statute, they 
 are in the same attitude as railroads except in so far as 
 the language of the act necessarily excludes them."^ The 
 exercise of this control by Congress over the interstate 
 business of express companies invalidates state and 
 municipal regulations relating thereto.-^ Joint stock 
 associations conducting an interstate express business 
 are within the purview of the statute and are subject to 
 prosecution under Section 10 of the act prohibiting the 
 collection of any sums in excess of the scheduled rates 
 filed with the Interstate Commerce Commission.^^ 
 
 19. Re Express Companies, 1 
 I. C. R. 677. 
 
 20. Southern Indiana Exp. Co. 
 V. United States Express Co., 88 
 Fed. 659, affirmed in 35 C. C. A. 
 172, 92 Fed. 1022. United States 
 V. Morsman, 42 Fed. 448. 
 
 21. United States v. Wells-Far- 
 go Exp. Co., 161 Fed. 606: Kindel 
 V. Adams Exp. Co., 13 I. C. C. 475. 
 
 22. Barrett v. New York, 232 
 U. S. 14, 58 L. Ed. 483, 34 Sup. Ct. 
 203, in which Mr. Justice Hughes 
 said: "The right of public con- 
 trol, in requiring such a license, 
 is asserted by virtue of the char- 
 acter of the employment, but while 
 such a requirement may be prop- 
 er in the case of local or intrastate 
 business, it cannot be justified as 
 a prerequisite to the conduct of 
 the business that is interstate. 
 Not only is the latter protected 
 from the action of the State, either 
 directly or through its munici- 
 
 palities, in laying direct burdens 
 upon it, but, in the present in- 
 stance. Congress has exercised its 
 authority and has provided its 
 own scheme of regulation in or- 
 der to secure the discharge of the 
 public obligations that the busi- 
 ness involves." 
 
 23. United State v. Adams Exp. 
 Co., 229 U. S. 381, 57 L. Ed. 1237. 
 33 Sup. Ct. 878. "It has been 
 notorious," said the Court, "for 
 many years that some of the great 
 express companies are organized 
 as joint stock associations, and 
 the reason for the amendment 
 hardly could be seen unless it was 
 intended to bring those associa- 
 tions under the act. As suggested 
 in the argument for the Govern- 
 ment, no one, certainly not the 
 defendant, seems to have doubted 
 that the statute now imposes up- 
 on them the duty to file schedules 
 of rates. American Express Co.
 
 § 109] ( 'ahkikhs Under Commerck Act. 257 
 
 A railroad fom])any not otiiorwise subject to tlie act, 
 subjects itself to the jurisdiction of tlie Interstate Com- 
 merce Commission and the provisions of the statute if 
 it transports express matter for an express company 
 that is subject to the act.'* The Carmack amendment, 
 requiring all common carriers to issue a bill of lading 
 and making them liable for loss or damage on lines of 
 connecting carriers, api)lies to express companies." The 
 Supreme Court once held-" that express companies under 
 the provisions of Section 6 and Section 3, of the Elkins 
 Act were prohi])ited from giving franks, that is, free 
 transportation of personal ))aggage, to their employes 
 and members of their families, and to officers and em- 
 ployes of other carriers and members of their families 
 in exchange for passage issued by the transportation 
 companies; but the effect of this decision was nullified 
 by an amendment to Section 1 in 1910 which provides 
 that the provision prohibiting free transportation shall 
 not be construed to prohibit the privilege of passes or 
 franks, or the exchange thereof with each other, for the 
 officers, agents, employes, and their families of such 
 telegraph, telephone, and cable lines, and the officers, 
 agents, employes and their families of other common 
 carriers subject to the provision of the statute. 
 
 Since it has acquired jurisdiction over independent 
 express companies, the Interstate Commerce Commis- 
 sion has frequently been called upon to adjust com- 
 plaints against them and to adopt rules and regulations 
 o-overning the transportation of interstate shipments.-' 
 
 V. United States. 212 U. S. 522, 531. Commission. 
 
 (The American Express Company 25. Wells, Fargo & Co. v. Nei- 
 
 is a joint stock association). But man-Marcus Co., 227 U. S. 469, 57 
 
 if it imposes upon them the du- L. Ed. 600, 33 Sup. Ct. 267; Adams 
 
 ties under the words common car- Exp. Co. v. Croninger, 262 U. S. 
 
 rier as interpreted, it is reason- 491, 57 L. Ed. 314. 33 Sup. Ct. 148. 
 
 able to suppose that the same 44 L. R. A. (N. S.) 257. 
 words are intended to impose up- 26. American Exp. Co. v. Unit- 
 
 on them the penalty inflicted on ed States, 212 U. S. 522, 53 L. Ed. 
 
 common carriers in case those du- 635, 29 Sup. Ct. 315. 
 ties are not performed." 27. In Re Express Rates. Prac- 
 
 24. Conference Rulings, Nos. tices, Accounts and Revenues, 35 
 
 197, 368, of Interstate Commerce I C. C. 3; Lindsay & Co. v. North- 
 
 1 Control tairii'is 17
 
 258 Duties to Interstate Shippers. [^ 109 
 
 A railroad company, it has been held, may contract to 
 give one express company tlie exclusive right to trans- 
 port express over its line to the exclusion of all other 
 companies.-^ 
 
 § 110. Sleeping Car Companies Placed Under Juris- 
 diction of Commission by Hepburn Act of 1906. Sleep- 
 ing car companies do not assume or require the status 
 of common carriers of passengers by furnishing sleep- 
 ing cars to be used by the traveling public under a con- 
 tract with a railroad company unless ^they are declared 
 to be common carriers by some statutory provision. 
 They perform an auxiliary function in the transportation 
 of passengers and are engaged in a public calling, but 
 not as common carriers.-^ Their status as carriers is, 
 in some respects, analogous to private car ovtaiers leasing 
 freight cars to railroad companies. These owners are 
 not, it has been held, common carriers.^" 
 
 Under the original act, therefore, sleeping car com- 
 panies were not under the jurisdiction of the Inter- 
 state Commerce Commission though if a railroad com- 
 pany furnished the sleeping cars, the rates charged for 
 accommodation therein were subject to the control of 
 the Commission. By the Hepburn Amendment of 1906 
 to Section 1 of the Act, sleeping car companies were 
 specifically included within the term "common carrier" 
 as used in the statute. Since that time the Commission 
 has, in several cases, investigated and determined upon 
 
 em Exp. Co., 33 I. C. C. 394; Re Express Rates, Practices, Ac- 
 
 Brackett Co. v. Great Northern counts and Revenues, 24 I. C. C. 
 
 Exp. Co., 29 I. C. C. 667; Rail- 38O. 
 
 road Com'rs of Florida v. South- ^g. Express Cases. 117 U. S. 1. 
 
 ern Exp. Co., 28 I. C. C. 634; Acme ^g l. Ed. 791, 6 Sup. Ct. 542. 628. 
 
 Portland Cement Co v^ Amencan ^ ^^^ 
 Exp. Co., 28 I. C. C. 316; Atlantic 
 
 Packing Co. V. American Exp. Co.. ^ed. 1017; Lemon v. Pullman 
 
 28 I. C. C. 244; In re Express Palace Car Co.. 52 Fed. 262. 
 
 Rates, 28 I. C. C. 132; Parlin & 30. Ellis v. Interstate Com- 
 
 Orendorff Plow Co. v. United merce Commission, 237 U. S. 434, 
 
 States Exp. Co., 2G I. C. C. 561; In 59 L. Ed. 1036, 35 Sup. Ct. 645.
 
 § Hi J Carriers Under Commerce Act. 250 
 
 the reasonableness of specific rates charged by sucli 
 sleepin<^ car companies.^^ 
 
 A statute of tlie state of Wisconsin, passed in 1011, 
 required the upper bciHi of a section in a sleeping car 
 to be closed whenever a person en,c:aj?ed a lower berth 
 and the upper berth of the same section was not at the 
 same time engaged or occupied. This statute was held 
 invalid by the Su]ireme Court of the United States as a 
 taking of the property of the railroad without due pro- 
 cess of law in violation of the federal constitution.''^ 
 The question whether the statute was a direct inter- 
 ference with interstate commerce and in conflict with 
 the rates and regulations filed with the Interstate Com- 
 merce Commission was raised by the railroad company 
 in the case but was not decided by the court. ''A sleep- 
 ing car may not be an 'inn on wheels,' " said the court, 
 "but the operating company does not engage to furnish 
 its patrons with a place in which they can rest without 
 intrusion upon their privacy. Holding out these induce- 
 ments and seeking this patronage, the company is en- 
 titled to the privilege of managing its business in its 
 own way so long as it does not injuriously affect the 
 health, comfort, safety and convenience of the public. 
 The right of the state to regulate public carriers in the 
 interest of the public is very great. But that great 
 power does not warrant an unreasonable interference 
 with the right of management or the taking of the car- 
 rier's property without compensation." 
 
 § 111. Receivers and Purchasers Pendente Lite. Re- 
 ceivers of common carriers by railroad are eommon car- 
 riers within the meaning of the Act and are subject to 
 the regulations thereof.^^ Orders of the Interstate Com- 
 
 31. Commerce Club of Sioux v. State. 238 U. S. 491. 59 L. Ed. 
 Fans V. Pullman Co., 31 I. C. C. 1423. 35 Sup. Ct. 869, L. R. A. 
 664; Corporation Commission of 1916A 1133. 
 
 Oklahoma v. Atchison. T. & S. F. 33. Independent Refiners' As- 
 
 Ry. Co., 25 I. C. C. 120. sociation v. Western New York & 
 
 32. Chicago, M. & St. P. R. Co. P. R. Co., 6 I. C. R. 378.
 
 '260 Duties to Interstate Shippees. [^ 111 
 
 merce Commission made pursuant to the statute are also 
 binding upon pureliasers of the railroad property.^* 
 
 § 112. Railroad Companies Incorporated in Foreign 
 Countries and Engaged in Interstate Commerce. The 
 
 l)rovisions of tlie Interstate Commerce Act appl}^ to rail- 
 road companies incorporated in foreign countries as to 
 their traffic within the United States. Such carriers, for 
 instance, as the Grand Trunk System and the Canadian 
 Pacific Company are under the jurisdiction of the Inter- 
 state Commerce Commission while engaged in interstate 
 or foreign commerce in the United States and must con- 
 form to all the rules and regulations that govern com- 
 panies incorporated in the United States. This rule was 
 enforced by the Interstate Commerce Commission when 
 it held that the Grand Trunk Eailway Company had 
 violated Section 6 of the Act in charging less than the 
 published rate for shipments from points in the State 
 of New York to cities in Canada.^^ 
 
 § 113. Statute Applies to Individuals and Partner- 
 ships as Well as Incorporated Companies. The Act to 
 
 Regulate Commerce applies "to any corporation or any 
 person or persons" engaging in the transportation of 
 passengers or property from a point in one state to a 
 point in another. In some of the states, the law per- 
 mits only incorporated companies to act as common car- 
 riers, and as a matter of fact and practice, common 
 carriers by rail are usually incorporated companies. 
 
 But in view of this statutory definition of inter- 
 state carriers subject to federal control, it follows that 
 incorporation is not a condition precedent to the right 
 to be a common carrier. Tliat relation to the public may 
 lawfully be sustained with respect to interstate traffic 
 by individuals or partnerships or other associations.^^ 
 
 34. Interstate Commerce Com- Grand Trunk Ry. Co., 2 I. C. R. 
 mission v. Western New York & 496. 
 
 P. R. Co., 82 Fed. 192. 36. Tap Line Case, 23 I. C. C. 
 
 35. In Re Investigation of 277.
 
 § lloj Carbiers Under Commerce Act. 261 
 
 A boat line, therefore, owned by an individual, is not, 
 for that reason, to be deprived of the right to have 
 through routes and joint rates established with connect- 
 ing railway companies." 
 
 37. Truckers Transfer Co. v. Charleston & W. C. Ry. Co., 27 I. 
 
 C. C. 275.
 
 CHAPTER VII 
 
 Shtp.^ients and Teansportation Services Controlled 
 By Interstate Commerce Act. 
 
 Sec. 114. Constitutive Elements of Interstate Transportation Within 
 
 the Act. 
 Sec. 115. Illustrative Applications of the Foregoing Principles in Ad- 
 judicated Cases. 
 Sec. 116. Shipments Between Two Points in Same State Passing En- 
 route Through Another State. 
 Sec. 117. Absence of Definite Destination in Foreign Country or in 
 
 Other State Immaterial. 
 Sec. 118. Change of Destination in Transit as Affecting Interstate 
 
 Character of Shipment. 
 Sec. 119. Interstate Transportation Includes Receipt and Delivery of 
 
 Traffic as well as Actual Carriage. 
 Sec. 120. When Temporary Stoppage or Interruption Changes Inter- 
 state Character of Shipment into Intrastate and Vice- 
 Versa. 
 Sec. 121. When Interstate or Intrastate Character of a Shipment is 
 
 not Changed by Temporary Stoppage or Interruption. 
 Sec. 122. Sale and Delivery of Coal f. o. b. Cars at Mine for Trans- 
 portation to Purchasers Outside the State. 
 Sec. 123. Shipments from Points in One State to a Port of Trans- 
 shipment in Same State for Export Included. 
 Sec. 124. Shipments from One Foreign Country to Another Through 
 
 the United States Beyond Control of Commission. 
 Sec. 125. Regulation of Terminal Charges, Services and Facilities for 
 
 Interstate Shipments. 
 Sec. 126. Transportation Wholly Within One State Not Under Federal 
 
 Control. 
 Sec. 127. Transit Privileges Part of Transportation Under Control of 
 
 Interstate Commerce Commission. 
 Sec. 128. Regulation of Grain Elevation Service Under Federal Control. 
 Sec. 129. Loading, Dunnage and Special Preparation of Freight Cars, 
 
 for Shipments of Particular Commodities. 
 Sec. 130. Weighing of Interstate Shipments of Freight Under Fed- 
 eral Control. 
 Sec. 131. Regulations and Rules Concerning Baggage of Interstate Pas- 
 sengers Under Control of Commission. 
 Sec. 132. Refrigeration, Ventilation and Icing of Property in Cars 
 
 Part of Transportation Duties of Interstate Carriers. 
 Sec. 133. Track Storage and Demurrage Charges in Connection with 
 
 Interstate Shipments Under Control of Commission. 
 Sec. 134. Wharves and Connecting Tracks of Interstate Carriers Pub- 
 lic Facilities Under Federal Control. 
 (262)
 
 Sec. 
 
 137. 
 
 Sec. 
 
 138. 
 
 Sec. 
 
 139. 
 
 <§, 1141 TH.xxsj'oiiiAiioN Services Under Act. 2G3 
 
 Sec. 135. Jurisdiction of Commission Over Port Switcliiiig Service 
 
 Performed on Import Traffic. 
 Sec. 13G. Interstate Transportation by Land of Explosives and Other 
 Dangerous Articles Under Federal Control. 
 Peddlinfi Merchandise from Cars not Transportation Service 
 Which Carriers may he Compelled to Furnish. 
 Terms "Railroad" and "Transportation" Defined by Statute. 
 Statute not Applicable to all Interstate Commerce. 
 
 § 114. Constitutive Elements of Interstate Trans- 
 portation Within the Act. Altliou.^li Section 1 ol' the 
 Act to Regulate Commerce defines the interstate traiis- 
 ])ortation of persons and jiroperty subject tliereto, as 
 that wliich is moved from one state or territory to 
 anotlier state or territory, and excludes transportation 
 wholly within one state and not siiipped to another 
 state or territory, the question whether a particular 
 transaction constitutes interstate commerce lias been the 
 cause and source of much litigation.^ 
 
 The interstate status of a shipment cannot be deter- 
 mined by the mere forms of billing or contract, but by 
 the essential character of the commerce, that is, whether 
 in fact there is a continuity of movement from a point 
 in one state to a point in another. Whenever a com- 
 modity is delivered to a carrier for the purpose of being 
 moved to another state, then the interstate character of 
 that commodity has commenced and continues to the 
 linal place of destination until delivered to the con- 
 signee." 
 
 1. Railroad Commission of Worthington, 225 U. S. 101, 5G L. 
 
 Louisiana v. Texas & P. Ry. Co., Ed. 1004, 32 Sup. Ct. 653; Galves- 
 
 229 U. S. 336, 57 L. Ed. 1215, 33 ton, H. & S. A. R. Co. v. WaUace. 
 
 Sup. Ct. 837; Susquehanna Coal 223 U. S. 481, 56 L. Ed. 516. 32 
 
 Co. V. City of South Amboy, 228 Sup. Ct. 205; Louisville & N. R. 
 
 U. S. 665, 57 L. Ed. 1015, 33 Sup. Co. v. F. W. Cook Brewing Co., 223 
 
 Ct. 712; Bacon v. People, 227 U. U. S. 70, 56 L. Ed. 355, 32 Sup. Ct. 
 
 S. 504, 57 L. Ed» 615, 33 Sup. Ct. 189; Southern Pac. Terminal Co. 
 
 299; Texas & N. O. R. Co. v. Sa- v. Interstate Commerce Commis- 
 
 bine Tram Co.. 227 U. S. 111. 57 sion. 219 U. S. 498, 55 L. Ed. 310. 
 
 L. Ed. 442, 33 Sup. Ct. 229; Unit- 31 Sup. Ct. 279; General Oil Co. 
 
 ed States v. Union Stock Yard & v. Grain, 209 U. S. 211. 52 L. Ed 
 
 Transit Co. of Chicago. 226 U. S. 754, 28 Sup. Ct. 475. 
 286, 57 L. Ed. 226, 33 Sup. Ct. 83; 2. Pennsylvania R. Co. v. Clark 
 
 Railroad Commission of Ohio v. Bros. Coal Min. Co., 238 U. S. 456,
 
 264 Duties to Interstate Shippers. [§ 114 
 
 The interstate character of such a shipment cannot 
 be destroyed by ignoring tlie point of origin and des- 
 tination, separating the rate into parts and issuing local 
 bills of lading for the shipment between two points in 
 the same state, when it is, in fact, a continuous ship- 
 ment from a point in one state to a point in another. 
 
 Section 7 of the Act declares that it shall be unlaw- 
 ful for any common carrier subject to the provisions of 
 the Act to enter into any combination, contract or agree- 
 ment, express or implied, to prevent, by change of time 
 schedule, carriage in different cars, or by other means 
 or devices, the carriage of freights from being continuous 
 from the place of shipment to the place of destination, 
 and further provides that no break of bulk, stoppage 
 or interruption made by such common carrier shall pre- 
 vent the carriage of freights from being and being treat- 
 ed as one continuous carriage from the place of ship- 
 ment to the place of destination, unless such break, 
 stoppage, or interruption was made in good faith for 
 some necessary purpose, and without any intent to avoid 
 or unnecessarily interrupt such continuous carriage or 
 to evade the provisions of the statute. 
 
 The movement of a commodity, therefore, from a 
 point in one state to a point in another must be regard- 
 ed as an entirety and it takes character as interstate 
 commerce when it is delivered to a carrier for the pur- 
 pose of transportation to another state.^ 
 
 59 L. Ed. 1406, 35 Sup. Ct. 896; A 31, 173 Fed. 448; United States 
 
 Illinois Cent. R. Co. v. Louisiana v. Colorado & N. W. R. Co., 85 C. 
 
 R. R. Commission, 236 U. S. 157, C. A. 27, 157 Fed. 321, 15 L. R. A. 
 
 59 L. Ed. 517, 35 Sup. Ct. 275; (N. S.) 167, 13 Ann. Cas. 893; Port 
 
 Baer Bros. Mercantile Co. v. Den- Arthur Rice Milling Co. v. Texar- 
 
 ver & R. G. R. Co., 233 U. S. 479, kana & Ft. S. Ry. Co., 28 I. C. C. 
 
 58 L. Ed. 1055, 34 Sup. Ct. 641; 697. 
 
 United States v. Vaccaro Bros. & 3. Pennsylvania R. Co. v. Clark 
 
 Co., 230 Fed. 943; United States Bros. Coal Min. Co., 238 U. S. 456, 
 
 ex rel. Attorney General v. Union 59 L. Ed. 1406, 35 Sup. Ct. 896; 
 
 Stockyard & Transit Co. of Chica- Pennsylvania Co. v. United States, 
 
 go, 192 Fed. 330; Tompkins v. In- 236 U. S. 351, 59 L. Ed. 616, 35 Sup. 
 
 ternational Paper Co.. 106 C. C. A. Ct. 370; Illinois Cent. R. Co. v. 
 
 529, 183 Fed. 773; Pacific Coast De Fuentes, 236 U. S. 157, 59 L. 
 
 R. Co. v. United States, 98 C. C. Ed. 517, 35 Sup. Ct. 275; South
 
 § 115J Transportation Skkvices Under Act. 
 
 ■2()0 
 
 § 115. Illustrative Applications of the Foregoing 
 Principles in Adjudicated Cases. Tlie rules euunciated 
 in the i)recediii^- i)ara,urai)li were illustrated and applied 
 to particular shipments under the following circum- 
 stances: A shi])ment of lumber on local bills of lading 
 fi'om one i)oint in Texas to another but destined for 
 export to a foreign country and so intended at the time 
 of shipment, was held not to be an intrastate shipment 
 while moving between the two points in the same state." 
 The transportation of coal from one point in Ohio to 
 
 Covington & C. St. R. Co. v. City 
 of Covington, 235 U. S. 537, 59 L. 
 Ed. 350, 35 Sup. Ct. 158, L. R. A. 
 1915F 792; Southern Pac. Termi- 
 nal Co. V. Interstate Commerce 
 Commission, 219 U. S. 498, 55 L. 
 Ed. 310, 31 Sup. Ct. 279; Coving- 
 ton Stock-Yards Co. v. Keitli, 139 
 U. S. 128, 35 L. Ed. 73, 11 Sup. Ct. 
 461; Coe v. Errol, 116 U. S. 517, 
 29 L. Ed. 715, 6 Sup. Ct. 475. 
 
 4. Texas & N. O. R. Co. v. Sa- 
 bine Tram Co., 227 U. S. Ill, 57 
 L. Ed. 442, 33 Sup. Ct. 229, "The 
 shipments having the character 
 of foreign commerce," said the 
 Court, "when they passed 'out 
 through the port of Sabine,' 
 when did they acquire it? 
 We have had the occasion to ex- 
 press at what point of time a ship- 
 ment of goods may be ascribed to 
 interstate or foreign commerce, 
 and decided it to he when the 
 goods have actuaUy started for 
 their destination in another state 
 or to a foreign country, or deliver- 
 ed to a carrier for transportation. 
 ♦ * * That there must be a 
 continuity of movement we may 
 concede, and to a foreign destina- 
 tion intended at the time of the 
 shipment. * * * In the pres- 
 ent case the Sabine Company was 
 the manufacturer and shipped 
 them to the Powell Company, the 
 
 purchaser, who paid the freight 
 charges for the Sabine Company. 
 Upon the arrival of the lumber at 
 Sabine, it was carried without de- 
 lay beyond and unloaded into .the 
 water in reach of a ship's tackle. 
 The continuity of the shipment 
 was not as much broken as in the 
 cited case, * * * The deter- 
 mining circumstance is that the 
 shipment of the lumber was but 
 a step in its transportation to its 
 real and ultimate destination in 
 foreign countries. In other words, 
 the essential character of the 
 commerce, not its mere accidents, 
 should determine. It was to sup- 
 ply the demand of foreign coun- 
 tries that the lumber was pur- 
 chased, manufactured and shipped, 
 and to give it a various character 
 by the steps in its transportation 
 would be extremely artificial. 
 Once admit the principle, and 
 means will be afforded of evading 
 the national control of foreign 
 commerce from points in the in- 
 terior of a state. There must be 
 transshipment at the seaboard, and 
 if that may be made the point of 
 ultimate destination by the device 
 of separate bills of lading the com- 
 merce will be given local charac- 
 ter, though it be essentially for- 
 eign."
 
 266 
 
 Duties to Interstate Shippers. 
 
 [§ 115 
 
 another witli tlie intention of reloading it into vessels 
 c.n Lake Erie for shipment to other states or to Canada, 
 T\as held to be interstate or foreign transportation." 
 A shipment of a commodity from St. Louis, Mo., to 
 Leadville, Colo., ^Yhich was moved by the first carrier 
 to Pueblo, Colo., under one contract, and by another 
 carrier from Pueblo to Leadville on a local bill of lading, 
 although there was no through route or through rate 
 established between St. Louis and Leadville, was an 
 interstate movement throughout.'^ A movement of logs 
 and staves from Alexandria to New Orleans, under local 
 
 5. Railroad Commission of Ohio 
 V Worthington, 225 U. S. 101, 56 
 L. Ed. 1004, 32 Sup. Ct. 653. The 
 Court said: "It is contended that 
 this transportation of the coal un- 
 der the rate fixed by the Railroad 
 Commission i not within the pow- 
 er and authority of the Interstate 
 Commerce Commission under Sec- 
 tion 1 of the Act to regulate com- 
 merce, which makes the provi- 
 sions of the Act inapplicable to 
 the transportation of property 
 wholly within one state, and not 
 shipped to or from a foreign coun- 
 try from or to a state or territory; 
 and, furthermore, that a transpor- 
 tation of the character here in 
 question is only within the juris- 
 diction of the Interstate Commerce 
 Commission when it is a trans- 
 portation partly by railroad and 
 partly by water when both are 
 used under a common control, 
 management, or arrangement for 
 a continous carriage or shipment; 
 and therefore that the subject mat- 
 ter in question is left within the 
 state jurisdiction. On the other 
 hand, it is contended that this 
 transportation is within the juris- 
 diction of the Commission under 
 the Act to regulate commerce. It 
 is enough to now, hold, as we do, 
 that the establishing of the rate 
 
 in question is an attempt to regu- 
 late interstate commerce and is 
 therefore beyond the power of the 
 state or a commission assuming to 
 act under its authority. We there- 
 fore reach the conclusion that un- 
 der the facts shown in this case 
 the Railroad Commission, in fix- 
 ing the rate of seventy cents for 
 the transportation above describ- 
 ed, attempted to directly regulate 
 and control interstate commerce, 
 and, for that reason, the enforce- 
 ment of its order should be en- 
 joined." 
 
 6. Baer Bros. Mercantile Co. v. 
 Denver & R. G. R. Co., 233 U. S. 
 479, 58 L. Ed. 1055, 34 Sup. Ct. 641, 
 in which the Court said: "The 
 Denver and Rio Grande claimed 
 in the record in the Court of Ap- 
 peals that the order was void on 
 its face for the reason that the 
 Commission was without jurisdic- 
 tion to pass upon the reasonable- 
 ness of the rate from Pueblo, Colo- 
 rado to Leadville, Colorado, But 
 while there was no through-rate 
 and no through-route there was 
 in fact, a through shipment from 
 St. Louis, Missouri, to Leadville, 
 Colorado. Its interstate charac- 
 ter could not be destroyed by ig- 
 noring the points of origin and 
 destination, separating the rate in-
 
 § IIG] Transportation Services Under Act. 
 
 26- 
 
 bills of lading, i)rovi(iiiig- for delivery at X(j\v Orleans 
 to s]»ii)per's or consignee's order, but which in fact 
 was intended by the siiipper to be exported to foreign 
 countries, constituted a foreign shipment within tlie 
 meaning of tlie Interstate Commerce Act.' 
 
 § 116. Shipments Between Two Points in Same 
 State Passing Enroute Through Another State. Jf a 
 commodity shipped from one point to another in one 
 state passes in transit tli rough another state, tlie trans- 
 action constitutes interstate commerce and is subject to 
 tlie provisions of the Interstate Commerce Act.^ Thus, 
 
 to its component parts and by 
 charging local rates and issuing 
 local way bills, attempting to con- 
 vert an interstate shipment into 
 intrastate transportation." 
 
 1. Railroad Commission of 
 Louisiana v. Texas & P. R. Co., 229 
 U. S. 336, 57 L. Ed. 1215, 33 Sup. 
 Ct. 837. The only difference be- 
 tween interstate and foreign com- 
 merce is that one is destined for 
 another state and the other for a 
 foreign country. The principles 
 in determining both are the same 
 and decisions interpreting one are 
 relevant in construing the other. 
 8. United States. Ewing v. City 
 of Leavenworth, 226 U. S. 464, 57 
 L. Ed. 303, 33 Sup. Ct. 157; Han- 
 ley V. Kansas City Southern R. Co., 
 187 U. S. 617, 47 L. Ed. 333, 23 
 Sup. Ct. 214; United States v. 
 Erie R. Co., 166 Fed. 352; United 
 States v. Chicago Great Western 
 Ry. Co., 162 Fed. 775; West Vir- 
 ginia Rail Co. v. Baltimore & O. 
 R. Co., 26 I. C. C. 622; Board of 
 Trade of Winston-Salem, N. C. .-. 
 Norfolk & W. R. Co.. 26 I. C. C. 
 146; Baker Commercial Club v. 
 Oregon-Washington R. & N. Co., 
 25 L C. C. 281; Bridgeman-Russell 
 Co. V. Great Northern Exp. Co., 
 22 L C. C. 573. 
 
 Arkansas. St. Louis, I. M. & S. 
 R. Co. V. Spriggs, 113 Ark. 118, 
 167 S. W. 96; St. Louis & S. F. 
 R. Co. V. State, 87 Ark. 562, 113 
 S. W. 203. 
 
 California. Cowden v. Pacific 
 Coast S. S. Co., 94 Cal. 470, 18 L. 
 R. A. 221, 28 Am. St. Rep. 142, 29 
 Pac. 873. 
 
 Idaho. Crescent Brewing Co. v. 
 Oregon Short Line R. Co., 24 Ida- 
 ho, 106, 132 Pac. 975. 
 
 Kansas. Leibengood v. Missouri, 
 K. & T. R. Co., 83 Kan. 25, 28 L. 
 R. A. (N. S.) 985, 109 Pac. 988; 
 Patterson v. Missouri Pac. R. Co., 
 77 Kan. 236, 15 L. R. A. (N. S.) 
 733, 94 Pac. 138. 
 
 Kentucky. Cincinnati, N. 0. & 
 T. p. R. Co. v. Goode, 155 Ky. 
 153, 159 S. W. 695; Louisville & N. 
 R. Co. v. Allen, 152 Ky. 145, 153 S. 
 W. 198. 
 
 Maryland. State v. Cumberland 
 & P. R. Co., 105 Md. 478, 66 Atl. 
 458. 
 
 Minnesota. Hardwick Farmers' 
 Elevator Co. v. Chicago, R. I. & 
 P. R. Co., 110 Minn. 25, 19 Ann. 
 Cas. 1088, 124 N. W. 819. 
 
 Missouri. Bowles v. Quincy, 0. 
 
 & K. C. R. Co.. Mo. App. . 
 
 187, S. W. 131; Howard v. Chica- 
 go, R. I. & P. Ry. Co., Mo.
 
 268 
 
 Duties to Interstate Shippers. 
 
 [§ 116 
 
 traffic moving from one point to another in West Virginia 
 but passing in transit for several hundred feet through 
 the state of Kentucky, was held to be subject to the 
 jurisdiction of the Commission.^ And similarly a ship- 
 ment between two points in the United States but pass- 
 
 App. , 184 S. W. 906; Potter 
 
 V. Kansas City Southern R. Co., 
 187 Mo. App. 56, 172 S. W. 1153; 
 DeardorfE v. Chicago, B. & Q, R. 
 Co., 263 Mo. 65, 172 S. W. 333; 
 Mires v. St. Louis & S. F. R. Co., 
 134 Mo. App. 379, 114 S. W. 1052. 
 
 Oklahoma. Western U. Tel. Co. 
 
 V. Kaufman, Okla. , 162 
 
 Pac. 708. 
 
 Texas. Wichita Falls & W. Ry. 
 
 Co. of Texas v. Asher, Tex. 
 
 Civ. App. , 171 S. W. 1114. 
 
 9. West Virginia Rail Co. 
 V. Baltimore & O. R. Co., 26 I. 
 C. C. 622, in which the Com- 
 mission said: "Complainant's 
 shipments moved via the Balti- 
 more & Ohio Railroad from Hunt- 
 ington to Kenova, W. Va., a dis- 
 tance of 8 miles, and thence over 
 the Norfolk & Western Railway to 
 the points of destination. The 
 Norfolk & Western Railway Com- 
 pany, which assumed the burden 
 of the defense, contends that trans- 
 portation from points in West Vir- 
 ginia to destinations in the same 
 state is not within the jurisdiction 
 of the Commission, although for 
 a short distance, about 1,500 feet, 
 the traffic moves through the state 
 of Kentucky. It asks that the 
 Commission reconsider its opin- 
 ions in the cases of New Orleans 
 Cotton Exchange v. C, N. 0. & 
 T. P. Ry. Co., 2 I. C. C, 375; Milk 
 Producers Protective Asso. v. D., 
 L. & W. R. R. Co., 7 I. C. C, 92; 
 and Wells-Higman Co. v. St. L., I. 
 M. & S. Ry. Co., 18 I. C. C, 175, 
 to the effect that such transporta- 
 tion as is here involved is within 
 
 the scope of the act. It is pointed 
 out that while the Supreme Court 
 of the United States, in Hanley v. 
 K. C. S. Ry. Co., 187 U. S., 617, 
 has held that transportation, when 
 the points of origin and destina- 
 tion are in the same state, is in- 
 terstate commerce 'where a large 
 part of the route is outside of the 
 state,' it has not held it to be in- 
 terstate commerce subject to the 
 provisiofis of the act; that whether 
 it is subject to the act is a 
 question on which the Supreme 
 Court has not spoken the final 
 word and on which the lower fed- 
 eral courts are divided; that this 
 question is answered in the af- 
 firmative in United States v. D., 
 L. & W. R. R. Co., 152 Fed. 269; 
 and that it is answered in the 
 negative in United States ex rel. 
 Kellogg V. L. V. R. R. Co., 115 Fed. 
 373. In this case it appears that 
 shipments from Huntington to the 
 point of destination in W^est Vir- 
 ginia pass outside the state of 
 West Virginia into Kentucky for 
 about 1,500 feet, the most of which 
 distance is covered by a tunnel. 
 The Norfolk & Western asserts 
 that there never is any stoppage 
 in transit of traffic moving over 
 the 1,500 feet; and there !s no 
 place for the delivery of freight 
 and that the mere incident of its 
 passing over the 1,500 feet is not 
 sufficient to bring the transporta- 
 tion between West Virginia points 
 within the scope of the act. We 
 are of the opinion, however, that 
 shipments from Huntington to 
 points in West Virginia here un-
 
 § 117] Tkansportation Services Under Act. 269 
 
 ing in transit through the Dominion of Canada is an 
 interstate shipment witliin tlie control of the Commis- 
 sion." 
 
 The transportation of stoclv from a point in Mis- 
 souri to stock yards at Kansas City, Mo., the place for 
 unloading the stock being over the line in Kansas from 
 which point the stock were driven back into the yards 
 in Missouri, was held to be an interstate sliipraent.^^ 
 "The simplest forms of interstate shipments," said 
 Judge Woodson, in the last case cited, "within the mean- 
 ing of the commerce clause of the Constitution of the 
 United States are those which consist of the shipment 
 of some article of commerce designed from the initial 
 point of shipment in one state in the Union, to be car- 
 ried to another point in another state thereof, by means 
 of one and the same common or private carrier or by 
 different carriers, public or private. This definition 
 covers the case at bar, as a glove covers a hand, as 
 shown l)y the authorities to be presently cited, for the 
 reason that it was the intention and agreement of both 
 parties to the contracts of shipment here involved, that 
 the live stock should be transported from Hale, Mo., to 
 the unloading chutes of the Kansas City Stock Yards 
 Company, which, as before stated, were situated in the 
 state of Kansas. The mere fact that after the stock had 
 been transported into the state of Kansas and there 
 unloaded and was then driven from there, on foot, back 
 across the state line into the state of Missouri, had uo 
 effect whatever upon the character of the shipments 
 made by the railroad company." 
 
 § 117. Absence of Definite Destination in Foreign 
 Country or in Other State Immaterial. If a commodity 
 is delivered to a carrier for transportation to another 
 state or country, and the transportation is actually be- 
 
 der consideration are subject to leal Co. v. Bangor & A. R. Co.. 28 
 
 the act to regulate commerce and I. C. C. 298. 
 
 adhere to our previous rulings up- 11. Deardorff v. Chicago, B. & 
 
 on this question." Q. R. Co., 263 Mo. 65, 172 S. W. 
 
 10. American Agriculture Chem- 333.
 
 270 Duties to Interstate Shippees. [§ 117 
 
 gun, the interstate or foreign character, as the case may 
 be, of siicli a shipment is not affected by the absence of 
 a definite destination in the other state or country." 
 
 § 118. Change of Destination in Transit as Affect- 
 ing Interstate Character of Shipment. Wlien goods are 
 moving in interstate commerce, that is, from a pomt in 
 one state to a point in another, a change of the final 
 destination in transit will not affect the interstate 
 character of the shipment. For example, a carload of 
 freight was shipped from Crescent, Okla., destined to 
 Hill City, Kan., but at Salina, Kan., a point in transit, 
 the destination of the car was changed to Buffalo Park, 
 Kas. Under these facts the court properly held that 
 the movement from Salina to Buffalo Park was a part 
 of the interstate transportation commencing at Crescent, 
 Okla." 
 
 A car of corn was shipped from Yanka, Neb., and 
 was consigned to Topeka, Kan., to the order of the con- 
 signor, with a direction on the bill of lading to notify 
 a grain company at Kansas City, Mo. A draft for the 
 purchase price was sent to the Kansas City firm ac- 
 companied by a bill of lading. Upon the presentation 
 of this draft, the grain company at Kansas City, Mo., 
 
 12 Railroad Commission of Can it be said that wtien goods 
 Ohio V. Worthington, 225 U. S. are moving in interstate carriage, 
 101 56 L Ed. 1004, 32 Sup. Ct. an alteration in transit of the final 
 653' Texas & N. O. R. Co. v. Sa- destination will change the inter- 
 bine Tram Co., 227 U. S. Ill, 57 state character of the shipment? 
 L. Ed. 442, 33 Sup. Ct. 229, in if the railway company had grant- 
 which Mr. Justice MeKenna said: ed a reduced, secret, or preferen- 
 "Nor as we have seen, did the ^^^^ rate for the remainder of the 
 absence of a definite foreign des- interstate carriage to the altered 
 tination alter the character of the destination, would it have been 
 shipments." fj,gg from federal prosecution? On 
 
 13. Kirby v. Union Pac. R. Co ^^^^ ^^^^^ ^^^^_ ^^^^^ ^^^ ^^^^p. 
 94 Kan. 485 L. R A. 1916E 528 ^^^^^ ^^^^^^^ ^^^ ^^^ 
 
 146 Pac. 1183. The Court said. -^ . ^.«> . 
 
 , , . ., i„f^,.ofoto the exaction of a rate different 
 
 "In the case at bar, the interstate ^ . ^ o t 
 
 carriage was not completed; mere- from the Kansas rate from Salina 
 
 ly the final destination of that in- to Buffalo Park? Both questions 
 
 terstate shipment was changed, must be answered in the negative."
 
 § ]1H| Transportation vServices Under Act. 271 
 
 while llic crir was yet in transit, paid it and became the 
 l^ossessor and owner of the bill of lading. The ^rain 
 company then surrendered to the carrier the Yanka bill 
 of ladinu' and took in exchange another bill eonsi.irnin.i!: 
 the identical car to tlieii' own order at Elk Falls, Kas. 
 In denyinf>- that that ])ait of the transportation 
 from Tojx'ka, Kan., to Elk Falls, Kan., was intrastate 
 in charactei-, the United States Supreme Court said:" 
 ** The motion to dismiss referred to at the outset is based 
 on the ground that the action of the court involved no 
 (luestion of interstate but purely one of intrastate com- 
 merce. But this disregards the tact that the bill of lad- 
 ing wdiich was sued upon was an interstate commerce 
 bill covering a shipment from Kansas City, Missouri, 
 to Elk Falls, Kansas. True it is urged that that bill of 
 lading is not the test of whether there is jurisdiction 
 because it was shown that in reality the shi]iment was 
 an intrastate one from Topeka, Kansas, to Elk Falls 
 in the State. But this assumes that although the judg- 
 ment rests upon the conception that the previous move- 
 ment of the corn from Yanka could not be considered 
 as against the plaintiff because he was an innocent 
 third holder of the l)ill of lading issued at Kansas City, 
 nevertheless for the pur])ose of determining whether 
 jurisdiction exists the facts as to the shipment from 
 Yanka must be treated as relevant. Leaving aside, how- 
 ever, this contradiction and considering the facts as to 
 the movement of the grain from its inception, we are 
 of opinion that from that point of view it was clearly 
 established that the grain moved in a continuous inter- 
 state commerce shipment from the date of its departure 
 from Yanka to the termination of the transit at Elk 
 Falls and that the delivery of the car to the Santa Fe 
 at Topeka for further movement was therefore not a 
 new and distinct shii^ment in intrastate commerce. We 
 reach this conclusion in view of the ])lace of business 
 
 14. Atchison, T. & S. F. R. Co. v. Harold, 241 U. S. 371, 60 L. Ed. 
 
 1050, 36 Sup. Ct. 665.
 
 272 Duties to Interstate Shippees. [§ 118 
 
 of the fact that there was no person at Topeka to whom 
 of the Fisher Grain Company (Kansas City, Missouri), 
 the p:rain was consigned, of the endorsement of the bill 
 of lading to the Fisher Grain Company and the annexing 
 to it of a draft drawn on that Company at Kansas City 
 for the purchase price, and because the order on the 
 face of the bill of lading to 'notify C. V. Fisher Grain 
 Company,, care of Santa Fe for shipment 'made it ap- 
 parent that it was not contemplated that the interstate 
 shipment should terminate at Topeka, but that the car 
 should move on as the result of such direction as might 
 be given while it was in transit by the Fisher Grain 
 Company at Kansas City, Missouri." 
 
 § 119. Interstate Transportation Includes Receipt 
 and Delivery of Traffic as well as Actual Carriage. The 
 
 beginning of the transit which constitutes interstate 
 commerce is the point of time when an article is com- 
 mitted to a carrier for transportation to another state 
 or started on its ultimate passage. ^^ Interstate trans- 
 ])ortation, therefore, not only includes the carriage of 
 goods from one state to another but also the receipt of 
 the goods by the initial carrier and the final delivery 
 to the consignee. 
 
 A carrier must, at all times, be in proper condition 
 to receive from the shipper and to deliver to the con- 
 signee.^® Hence, the facilities of a carrier for both the 
 delivery and the receipt of freight as to interstate ship- 
 ments are under federal control ;^^ for the transportation 
 commences with delivery to the carrier and does not 
 
 15. Bay v. Merrill & Ring y. Keith, 139 U. S. 128, 35 L. Ed. 
 Logging Co., 243 U. S. 40, 61 L. 73^ j^ g^p ^.j. 451 
 
 Ed. 580, 37 Sup. Ct. 376; McClus- 
 
 key V. Marysville & N. R. Co., 243 
 
 U. S. 36, 61 L. Ed. 578, 37 Sup. 
 
 Ct. 374; Coe v. Errol, 116 U. S. «'«"' 219 U. S. 498. 55 L. Ed. 310, 
 
 517. 29 L. Ed. 715. 6 Sup. Ct. 475; ^1 Sup. Ct. 279; Louisville & N. 
 
 The Daniel Ball. 10 Wall. (U. S.) R- Co. v. Central Stock Yards Co.. 
 
 557, 19 L. Ed. 999. 212 U. S. 132, 53 L. Ed. 441, 29 Sup. 
 
 16. Covington Stock Yards Co. Ct. 246. 
 
 17. Southern Pac. Terminal Co. 
 V. Interstate Commerce Commis-
 
 <§> 120] Transportation Services Under Act. 273 
 
 end until delivory or an offor to deliver to the eonsij?nee." 
 But the cari'vin^- of ])r()duc*ts in wagons or other vehicles 
 to a railroad depot from the surrounding country is 
 no ])art of an interstate journey.'" Nor is the carrying 
 of logs from timber land to a tidewater point in the 
 same state by a logging railroad over its own tracks a 
 part of interstate transportation.^" 
 
 § 120. When Temporary Stoppage or Interruption 
 Changes Interstate Character of Shipment into Intra- 
 state and vice versa. The Act to Kegulate Commerce 
 l)rovides thai no break or bulk, stoppage or interrup- 
 tion made by any carrier shall prevent the carriage of 
 freight from being and being treated as one continuous 
 carriage from the place of shipment to the place of 
 destination, unless such break, stoppage or interruption 
 is made in good faith for some necessary purpose and 
 without any intent to avoid or unnecessarily interrupt 
 such continuous carriage, or to evade any provisions 
 of the statute.^' 
 
 When, therefore, freight is delivered to a carrier 
 and is actually started in the course of transportation 
 from one state to another, its interstate character com- 
 mences and continues to the point of destination-- and 
 so when freight is delivered to a carrier and started in 
 the course of transportation from one point to another 
 in the same state, its intrastate character then com- 
 mences and continues to the point of destination, unless 
 it is know^n or intended by the shipper, either when 
 the delivery was made or while the movement is in 
 progress, that the freight shall be carried to a |)oiut 
 outside of the state. 
 
 18. United States v. Union 29 L. Ed. 715, 6 Sup. Ct. 475. 
 Stock Yard & Transit Co. of Chi- 20. McCluskey v. IMarysville & 
 cago, 226 U. S. 286, 57 L. Ed. 226, N. R. Co., 243 U. S. 36; 61 L. Ed. 
 33 Sup. Ct. 83; Railroad Commis- 578, 37 Sup. Ct. 374. 
 
 sion of Ohio v. WorthinRton. 225 21. Section 7 of the Act to Reg- 
 
 U. S. 101, 56 L. Ed. 1004, 32 Sup. ulate Commerce, Appendix A, in- 
 
 Ct. 653; Coe v. Errol, 116 U. S. fra. 
 
 517, 29 L. Ed. 715, 6 Sup. Ct. 475. 22. Section 114, supra. 
 
 19. Coe V. Errol, 116 U. S. 517. 
 
 1 Cnntnil Carriers IS
 
 1174 Duties to Interstate Shippers. [§ 120 
 
 Whetlior a tomiiorary stoppage or interruption of 
 freight in transit "breaks" tlie continuity of an inter- 
 state sliipnient so that its character is changed into 
 that of an intrastate shipment, or vice versa, depends 
 ui)on tlie character of the movement and not the bill- 
 ing. Tliis question has been frequently raised in de- 
 termining whether interstate or intrastate rates apply, 
 and also in taxation cases''' wherein the states attempted 
 to tax property which the owner claimed was under an 
 interstate shipment. For example, a carload of corn 
 was shipped from Hudson, S. Dak., under a bill of lading, 
 to Texarkana, Tex. Five days later the corn was shipp- 
 ed from Texarkana to Goldthwaite, both points in the 
 state of Texas, upon a- new contract. The shipment 
 j^otween the last two points was held to be intrastate 
 in character.^* In another case, it appeared that sever- 
 al carloads of coal were transported from points in Illi- 
 nois to Davenport, la., under bills of lading calling for 
 delivery at Davenport, where the charges to that point 
 were paid. The city of Davenport was a distributing 
 
 23. Bacon v. People, 227 U. S. in his possession with the con- 
 504, 57 L. Ed. 615, 33 Sup. Ct. 299; trol of absolute ownership. He 
 General Oil Co. v. Grain, 209 U. intended to forward the grain af- 
 S. 211, 52 L. Ed. 754, 28 Sup. Ct. ter it had been inspected, graded, 
 475. In People v. State of Illinois, etc., but this intention, while the 
 supra, the court said: "The grain remained in his keeping and 
 property was held by the plaintiff before it had been actually com- 
 in error in Chicago for his own mitted to the carriers for trans- 
 purposes and with full power of portation, did not make it im- 
 disposition. It was not being ac- mune from local taxation. He had 
 tually transported and it was not established a local facility in Chi- 
 held by carriers for transportation. cago for his own benefit, and 
 The plaintiff in error had with- while, through its employment, 
 drawn it from the carriers. The ^^g gj-ain was there at rest, there 
 purpose of the withdrawal did not ^^^g ^^ reason why it should not 
 alter the fact that it had ceased ^^ included with his other prop- 
 to be transported and had been ^^^^ ^.^^.^ ^^^^ ^^^^^ .^ ^^ ^^^^^^. 
 placed in his hands. He had the _^^^^ ^^^ ^^^^^.^^ ^^.^^ ^^^ ^^^^ 
 
 privilege of continuing the trans- ..., . j. 
 
 , ^, . . . in the usual way without dis- 
 
 portation under the shipping con- '" '""- "'' ^_ ^ 
 
 tracts, but of this he might avail crimination." 
 
 himself or not as he chose. He 24. Gulf, C. & S. F. R. Co. v. 
 
 might sell the grain in Illinois or State, 204 U. S. 403, 51 L. Ed. 540, 
 
 forward it, as he saw fit. It was 27 Sup. Ct. 360.
 
 <^ 120] Transportation Services Under Act. 
 
 270 
 
 point for the coal and llic ccitainty in roi^^ard to tlic sliip- 
 nients ended at Davenport. The point wliere tlie coal 
 was to be shipped beyond Davenport, if at all, was 
 determined after the arrival of the coal at I)av<'nport. 
 The cars were then shijjjK'd under a new contract over 
 another railroad to other cities in tlic state of Iowa. 
 The second shii)inents, tlic court held, constituted intra- 
 state movements." 
 
 Shipments of ^rain were made from initial points 
 in Missouri to "hold" tracks in Kansas City, Mo., with 
 no intention or knowled<i,-e on tiie part of the shii)])er or 
 carrier that the grain would be moved beyond that 
 destination point. Some of the cars of grain, after sale 
 on the floor of the board of trade at Kansas City, were 
 then transported from the "hold" tracks to other points 
 in another state. The court held that the interstate 
 transportation commenced at the hold tracks and not 
 at the initial points of shipments in the interior of Mis- 
 souri. ^*^ Where cai's of coal were shipped and billed 
 from McAllister, Okla., to Denison, Tex., the further 
 disposition of such shij^ments to be determined after 
 
 25. Chicago, M. & St. P. R. Co. 
 V. State, 233 U. S. 334, 58 L. Ed. 
 988, 34 Sup. Ct. 592. Mr. Justice 
 Hughes in this case said: "It is 
 undoubtedly true that the ques- 
 tion whether commerce is inter- 
 state or intrastate must be deter- 
 mined by the essential character 
 ot the commerce and not by mere 
 billing or forms of contract. Ohio 
 Railroad Commission v. Worthing- 
 ton, 225 U. S. 101; Texas & N. 0. 
 R. Co. V. Sabine Tram Co.. 227 U. 
 S. Ill; Railroad Commission of 
 Louisiana v. Texas & P. Ry. Co., 
 229 U. S. 336. But the fact that 
 commodities received on interstate 
 shipments are reshipped by the 
 consignees, in the cars in which 
 they are received, to other points 
 of destination, does not necessarily 
 establish a continuity of movement 
 or prevent the reshipment to a 
 
 point within the same state from 
 having an independent and intra- 
 state character. Gulf, C. & S. F. 
 Ry. Co. V. Texas, 204 U. S. 403; 
 Ohio Railroad Commission v. 
 Worthington, 225 U. S. 101, 109; 
 Texas & N. 0. R. Co. v. Sabine 
 Tram Co., 227 U. S. Ill, 129, 130. 
 The question is with respect to 
 the nature of the actual movement 
 in the particular case; and we 
 are unable to say upon this rec- 
 ord that the state court has im- 
 properly characterized the traffic 
 in question here. In the light of 
 its decision, the order of the Com- 
 mission must be taken as refei- 
 ing solely to Intrastate transpor- 
 tation originating at Davenport." 
 26. State ex rel. Chicago, M. & 
 St. P. Ry. Co. V. Public Service 
 Commission of Missouri, 269 Mo. 
 63, 189 S. W. 377.
 
 276 Duties to Interstate Shippers. [§ 120 
 
 reaching Denison, a subsequent movement of the coal 
 from Denison to Waco, Tex., was intrastate in charac- 
 ter." A shipper delivered logs to a carrier at a point 
 in Mississippi for transportation to Batesville, in the 
 same state. A further movement from Batesville was 
 not intended by the shipper. After a sale the logs were 
 delivered to another carrier at Batesville for shipment 
 to Memphis, Tenn. The court held that the interstate 
 shipment commenced at Batesville and not at the initial 
 point of delivery. ^^ 
 
 In a controversy as to whether interstate or intra- 
 state rates should be charged to Chicago, 111., on grain 
 originating at points in Illinois, billed to Chicago, and 
 there stored in, or transferred through, elevators and 
 ultimately moved therefrom to destinations beyond the 
 state, the Interstate Commerce Commission held that 
 the movement to Chicago was governed by the state and 
 not the interstate rate.^^ Bolts and billets, originating 
 in Kentucky, were moved by water and rail to Paducah, 
 Ky., where they were manufactured into club-turned 
 spokes and later shipped to Moline, 111. The first move- 
 ment was under one contract and the subsequent trans- 
 portation to Moline from Paducah was under a new 
 contract. The Commission held that it had no juris- 
 diction over the rate for the carriage into Paducah.^" 
 
 § 121. When Interstate or Intrastate Character of 
 a Shipment is not Changed by Temporary Stoppage 
 or Interruption. But when a commodity is shipped 
 from a point in one state to a point in another, its 
 interstate character then commences, and the various 
 mutations through which the article passes, and the 
 
 27. Missouri, K. & T. Ry. Co. 40 I. C. C. 124. See also Mer- 
 
 of Texas v. Pace, Tex. Civ. chants Exch. of St. Louis v. Bal- 
 
 App. , 184 S. W. 1051. timore & 0. R. Co., 34 I. C. C. 341. 
 
 28. Batesville Southwestern R. 30 Mutual Wheel Co. v. Nash- 
 Co. V. Mims, 111 Miss. 574, 71 So. ville, C. & St. L. R. Co., 40 I. G. 
 827. C. 612. 
 
 29. Illinois Grain to Chicago,
 
 § 121] Transporta'jion Services Under Act. 277 
 
 liaiidlino:s whioli it lUKlori^^oos wliile in transit, are 
 nieroly incidental to such an interstate movement. ^^ 
 
 For example, where milk was shipped from several 
 points in New York to Boston, Mass., the fact that it 
 was inspected, pasteurized, refrigerated and transferred 
 to other cars at Eagle Bridge, N. Y., to be further ti'ans- 
 ])ort('d to Boston, did not render the shipment from the 
 initial points to Eagle Bridge intrastate.''- In another 
 case it appeared that for several years tie contractors, 
 residing and doing business in Indiana, bought and 
 ship])ed ties from several points in Missouri to eastern 
 destinations, usually by way of Cairo, 111. After a re- 
 duction in the intrastate rates on ties in Missouri, the 
 contractors bought a yard at Commerce, Mo., directly 
 across the Mississippi river from Cairo, and, thereafter, 
 shipped the ties from the initial points in Missouri to 
 Commerce for inspection and assortment. The ties were 
 unloaded at Commerce, inspected, culled, and then ship- 
 ped from Commerce to Cairo on barges and thence to the 
 eastern destination points. The Missouri Supreme 
 Court held that the intrastate rate did not apply from 
 the initial points to Commerce as the shippers knew and 
 intended that the ties would eventually go out of the 
 state. The interstate character of the shij^ments, it 
 was held, commenced, from the initial points in Mis- 
 souri and continued to the destination points on eastern 
 railroads.^^ 
 
 Uncompressed cotton, purchased at Albertville, Ala., 
 for export and for sale outside of the state of Alabama, 
 was shipped to Birmingham, Ala., where the cotton was 
 unloaded, compressed, and then rebilled and reshipped in 
 
 31. Pine Belt Lumber Co. v. Transit Rates, 17 I. C. C. 113; In 
 Gulf & S. I. R. Co., 33 I. C. C. 117; re Alleged Unlawful Rates and 
 Mixed Car Dealers' Ass'n v. Del- Practices in Transportation of Cot- 
 aware, L. & W. R. Co., 33 I. C. C. ton, 8 I. C. C. 121; Duluth-Superi- 
 133; Liberty Mills v. Louisville or Milling Co. v. Northern Pac. R. 
 & N. R. Co., 23 1. C. C. 182; In re Co., 152 Wis. 528, 140 N. W. 1105. 
 Substitution of Tonnage, 18 I. C. 32. Hood & Sons v. Delaware & 
 C. 280; Merchants Cotton Press & H. Co., 17 I. C. C. 15. 
 Storage Co. v. Illinois Cent. R. Co., 33. Lusk v. Atkinson, 268 Mo. 
 17 I. C. C. 98; In re Milling-in 109, ISG S. W. 703.
 
 278 Duties to Interstate Shippees. [§121 
 
 other cars to New Orleans, La. The entire transporta- 
 tion from Albertville to New Orleans, it was held, consti- 
 tuted an interstate shipment, and the intrastate rate 
 was not applicable between Albertville and Birming- 
 ham.^* A passenger, having baggage to ship from St. 
 Francis, Ark., to Delta, Mo., purchased a ticket to Bernie, 
 Mo., an intermediate point, and checked his goods to 
 that station. Upon arrival at Bernie, he bought an- 
 other ticket to Delta and rechecked the baggage to 
 Delta. The goods were destroyed in a car at Bernie, 
 after being rechecked. The shipment throughout, from 
 St. Francis to Delta, was interstate and the tariffs on 
 file with the Interstate Commerce Commission applied 
 to the goods while in transit even between the two 
 Missouri points.^^ 
 
 Where commodities were shipped from a point in 
 Louisiana to New Orleans, La., under a bill of lading 
 calling for a delivery at New Orleans, but in fact in- 
 tended by the shippers to be exported to foreign coun- 
 
 34. Alabama Great Southern R. the time the cotton left Albertville 
 Co. V. George H. McFadden & Bros., until its arrival at New Orleans. 
 232 Fed. 1000, in which the court It was continuously in the pos- 
 said: "I fail to see how the ship- session, custody, and control of the 
 ments from Albertville to Birming- carrier, and the stoppage of the 
 ham, under the circumstances ^f cotton at Birmingham for com- 
 the present case, can be construed pression, still in the possession of 
 as interstate. The stoppage in the carriers, was merely for a 
 transit for compression at Birm- service incidental to its transit 
 ingham, the assembling of the cot- over the entire interstate route, 
 ton originating at Albertville with That the essential character of the 
 other cotton purchased at Birming- commerce, not its mere accidents, 
 ham and other points in Alabama, such as its billing, its handling 
 and the subsequent routing of the and concentration at Birmingham, 
 compressed cotton to points de- or the loss of identity of the actual 
 termined by the defendants ac- cotton shipped from Albertville, 
 cording to their trade contracts, determines its interstate character, 
 do not relieve the shipments orig- is no longer open to dipute." 
 inating at Albertville and billed 35. Reynolds v. St. Lcuis South- 
 to Birmingham, and subsequent- western R. Co., 195 Mo. App. 213, 
 ly billed from Albertville or Attal- 190 S. W. 423. Contra, but erro- 
 la to New Orleans, of their charac- neous: Kansas City Southern Ry. 
 ter as interstate commerce. There Co. v. Brooks, 84 Ark. 233, 105 S. 
 was no change of ownership from W. 93.
 
 § \'2'2\ TiuNsi'oirrATioN Slkvicks L'xdku Act. 279 
 
 tries, the cars romainiiiu' on tlio Irar-ks at New r)rl(>ans 
 for several days witiiout tlic usual demurrage eliar^^es 
 and then unloaded from the cars and put on board ships 
 for foreign countries, such shipments did not constitute 
 intrastate inovcnients between the two points in T^ouisi- 
 ana so that tlie state rate ini<>-ht be api)lied thereto.^" 
 An oil refining company shi))pinft' oil fioni a point in 
 Kansas to a point in Okhdioma, in order to tak(! ad- 
 vantage of the lowei' intrastate rate of Kansas, shi])pod 
 the oil to another ])oint in Kansas, close to tlie sta1<' line, 
 where it employed an agent for the purpose of re- 
 billing the oil to the Oklahoma destination point. The 
 carrier refused to carry the oil from the initial point 
 in Kansas to the delivering ])oint in ()klalioma unless 
 flic interstate rate was ])aid for the entire movement. 
 'The Interstate Commerce Commission held that the 
 oil refining company was attempting to evade the provi- 
 sions of the Interstate Commerce Act and Ihal Hie inter- 
 state rate applied.'' 
 
 § 122. Sale and Delivery of Coal f.o.b. Cars at 
 Mine for Transportation to Purchasers Outside the 
 State. When coal is sold and delivered f. o. b, at a 
 mine for transportation to ])urchasers in other states, 
 the commerce involved is interstate. The furnishing 
 of cars, therefore, for this service, as needed and re- 
 (|uesl('d l)y the mine owner, is an essential step in the 
 intended movement of the coal from one state to an- 
 other. A movement thus initiated is interstate, and the 
 facilities required are instrumentalities of interstate 
 commerce. ^^ 
 
 36. Railroad Commission of 896. in wliicli Mr. .Justice Hughes, 
 Louisiana v. Texas & P. R. Co., for tlae Court, said: "In consider- 
 229 U. S. 336, 57 L. Ed. 1215, 33 ing the right of the plaintiff to 
 Sup. Ct. 837. maintain this action, despite the 
 
 37. Kanotex Refining Co. v. proceeding before the Commission. 
 Atchison, T. & S. F. Ry. Co., 34 I. an initial question is presented as 
 C. C. 271. to the nature of the commerce in- 
 
 38. Pennsylvania R. Co. v. volved. It appeared, as stated "r/ 
 Clark Bros. Coal Min. Co., 238 U. the state court, that practically all 
 S. 456, 59 L. Ed. 1406, 35 Sup. Ct. the coal mined by the plaintiff was
 
 280 
 
 Duties to Interstate Shippers. 
 
 [§ 122 
 
 In overruling the decision of the Supreme Court 
 of Pennsylvania,^^ holding that as the coal was sold 
 at the mine to purchasers in other states, the commerce 
 involved was not interstate, the United States Supreme 
 
 sold f. 0. b. cars at the mines. 
 About ninety-five or ninety-eight 
 per cent wt-s sold in this way. 
 Hence, it is said, it is 'not subject 
 to Interstate Commerce regula- 
 tion.' We do not understand that 
 it is questioned that a very large 
 part of the damages recovered in 
 this action pertain to coal which 
 with a fair method of car distribu- 
 tion would have been shipped from 
 the mines to purchasers in other 
 States. There is no controversy 
 as to the course of business. The 
 plaintiff sold to persons within 
 and without the State of Pennsyl- 
 vania. The coal was loaded on 
 cars to be transported to various 
 points of destination not only in 
 Pennsylvania but in other States. 
 The transportation to other States 
 absolutely depended upon a proper 
 supply of cars, and it is manifest 
 that unjust discrimination against 
 the plaintiff in car distribution 
 would improperly obstruct the 
 freedom of such transportation, 
 in which the plaintiff had a direct 
 interest. And the question pre- 
 sented is whether unjust discrim- 
 ination of this character is a sub- 
 ject which falls without the scope 
 of the jurisdiction conferred upon 
 the Interstate Commerce Commis- 
 sion, that is, whether there is an 
 absence of such jurisdiction merely 
 because the plaintiff sold its prod- 
 uct, which was to be transported 
 to other States, f. o. b. at its mines. 
 This question must be answered in 
 the negative. In determining 
 whether commerce is interstate or 
 intrastate, regard must be had to 
 its essential character. Mere bill- 
 
 ing, or the place at which title 
 passes, is not determinative. If 
 the actual movement is interstate, 
 the power of Congress attaches to 
 it and the provisions of the Act 
 to Regulate Commerce, enacted for 
 the purpose of preventing and re- 
 dressing unjust discrimination by 
 interstate carriers, whether in 
 rates or facilities, apply. * * * 
 Thus, in varying circumstances, 
 the same principle has been ap- 
 plied in these cases and in the 
 others cited; and that principle 
 is that the jurisdiction of tlie Com- 
 mission is determined by the es- 
 sential character of the commorca 
 in question. In the present case, 
 to repeat, it appears that for the 
 purpose of filling contracts with 
 purchasers in other States, coal ia 
 delivered f. o. b. at the mines for 
 transportation to such purchasers. 
 The movement thus initiated is an 
 interstate movement and the facil- 
 ities required are facilities of in- 
 terstate commerce. A very large 
 part of what in fact is the inter- 
 state commerce of the country is 
 conducted upon this basis and the 
 arrangements that are made be- 
 tween seller and purchaser with 
 respect to the place of taking title 
 to the commodity, or as to the pay- 
 ment of freight, where the actual 
 movement is interstate, does not 
 affect either the power of Con- 
 gress or the jurisdiction of the 
 Commission which Congress has 
 established." 
 
 39. Sonman Shaft Coal Co. v. 
 Pennsylvania R. Co., 241 Pa. 487, 
 88 Atl. 746.
 
 § 123] Transportation Services Under Act. 281 
 
 Court said:*" "The coal company sold its coal f. o. b. 
 cars at the mine, and wiicn llic cars wci'e loaded, the 
 coal was promptly forwarded to the purchasers at i)oints 
 within and without the state, — largely to points in other 
 states. This was well understood by both companies, — 
 by the coal company when it asked for cars and by the 
 railroad company when it supplied them. Cars were 
 not requested or furnished merely to be used in lioldinsj 
 or storing coal, but always to be employed in its immedi- 
 ate transportation. While furnishing some cars for this 
 service, the railroad company failed to furnish as many 
 as the coal company needed and requested. It is plain 
 that supplying the requisite cars was an essential step 
 in the intended movement of the coal and a part of the 
 commerce — whether interstate or intrastate — to which 
 that movement belonged." 
 
 § 123. Shipments from Points in One State to a 
 Port of Transshipment in Same State for Export In- 
 cluded. The Interstate Commerce Commission has con- 
 trol over trans|)ortation of property shipped from any 
 place in the United States to a foreign country and 
 carried from such place to a port of transshipment, or 
 shipped from a foreign country to any place in the 
 United States and carried to such place from a port of 
 entry in the United States or an adjacent foreign coun- 
 try. ' 
 
 The purpose of the statute was to give the Com- 
 mission authority solely over the inland portion of a 
 shipment to a foreign country, that is, as to outgoing 
 shi])ments from the place of origin to the port of trans- 
 shipment, and as to incoming shipments, from the port 
 of entrj^ to the point of destination in the United States. 
 This control applies even when the point of origin and 
 the port of transshipment or the port of entry and the 
 point of destination are in the same state. 
 
 40. Pennsylvania R. Co. v. Son- man Shaft Coal Co., 242 U. S. 120. 
 
 61 L. Ed. 188. 37 Sup. Ct. 46.
 
 282 Duties to Interstate Shippers. [§ 123 
 
 When, therefore, an article of commerce is carried 
 from auy point in a state to a port of transshipment in 
 the same state, but intended by the shipper to be ex- 
 ported to foreign countries, or where any article of com- 
 merce shipped from a foreign country is transported 
 from a port of entry to the point of destination in the 
 same state in a continuous carriage, such shipments 
 constitute foreign commerce, and are subject to the 
 Interstate Commerce Act, tlie inland part of the move- 
 ment being under the jurisdiction of the Interstate 
 Commerce Commission and not the laws of the state." 
 For example, a shipment from a point in Louisiana 
 to New Orleans, La., a port of transshipment, of lumber 
 destined to a foreign country, is not subject to the rates 
 fixed by the state between the two points in Louisiana, 
 but is under the control of the Interstate Commerce 
 Commission.*^ 
 
 § 124. Shipments from One Foreign Country to 
 Another Through the United States Beyond Control 
 of Commission. The Act to Regulate Commerce aj)- 
 plies to carriers engaged in transportation from any 
 place in the United States to an adjacent foreign country, 
 or from any place in the United States through a for- 
 eign country to any other places in the United States, 
 and to the transportation of property shipped from any 
 place in the United States to a foreign country and 
 to be carried from such place to a port of transshipment, 
 or shipped from a foreign country to any place in the 
 United States and carried to such place from a port of 
 
 41. Texas & P. R. Co., v. Inter- of Louisiana Ry. & Nav. Co., 22 I. 
 
 state Commerce Commission, 162 c. C. 558; Cosmopolitan Shipping 
 
 U. S. 197, 40 L. Ed. 940, 16 Sup. Co. v. Hamburg-American Packet 
 
 Ct. 666; Arkansas Pass Channel & q^ ^g j c. c. 266; In re Investiga- 
 
 Dock Co. V. Galveston, H. & S. A. ^.^^ ^^ ^^^^^^ rj.^^^^ ^^ Co., 2 I. 
 
 Ry. Co., 27 I. C. C. 403; In re ^ ^ ^^^ 
 
 Wharfage Charges at Galveston, 26 ' ' . . 
 
 X ^ ^^nr o f Tvw.r 42. Railroad Commission of 
 
 I C. C. 695; Commerce of New 
 
 York V. New York, C. & H. R. Co.. I^ouisiana v. Texas & P. R. Co., 229 
 
 24 I. C. C. 55; In re Advance o.i H. S. 336. 57 L. Ed. 1215, 33 Sup. 
 
 Cotton. 23 I. C. C. 404; In re Rates Ct. 837.
 
 <§. 125 J TiiANSpoKTATiuN SiusvicEs Undeu Act. '2H'i 
 
 entry oithor in tlic (^nitcd Slates or in ;iii nd.jaccnt foi"- 
 oip:n foiintry. 
 
 Tho transi)oi'tati()ii ol" <^(j()(ls from a foreign (-(miiti-y 
 llirou^h the United States to destination points in an 
 adjaeont foreign country is not, therefore, under the 
 jurisdiction of the Cominission.^'' Tlius, tlio Commission 
 had IK) i)ower to order a reparation for overcharges in 
 tlio siiipm(»nt of sugar from (iermany to Mexico and 
 covering tliat part of tlie movement between New Or- 
 leans, La., and El Paso, Tex.** Neither has the Com- 
 mission the power to prescribe tJie rate for the trans- 
 portation of a commodity in bond from a point in Mexi- 
 co through the United States to another point in Mexi- 
 co.*^ 
 
 §125. Regulation of Terminal Charges, Services 
 and Facilities for Interstate Shipments. Interstate 
 transportation covers all stages of a sliiinucnt from the 
 time of delivery of the freight to the carrier until the 
 shipment is finally delivered to the consignee at the 
 point of destination.*'^ This principle was recognized 
 by Congress in the passage of the Interstate Commerce 
 Act when transportation was defined and declared to 
 include all services in connection with the receipt, de- 
 livery and storage of interstate shipments. The regula- 
 tion, therefore, of terminal charges, services and facili- 
 ties for interstate shipments is clearly within the scope 
 
 43. United States v. Philadel- 1001, 32 Sup. Ct. 657: Southern Ry. 
 phia & R. Ry. Co., 188 Fed. 484. Co. v. Reid & Beam, 222 U. S. 444, 
 
 44. ]\Iorgan's L. & T. R. & S. S. 56 L. Ed. 263, 32 Sup. Ct. 145; 
 Co., 35 I. C. C. 492. Southern R. Co. v. Reid, 222 U. S. 
 
 45. Canales v. Georgia, H. & S. 424, 56 L. Ed. 257. 32 Sup. Ct. 140; 
 A. Ry. Co., 37 I. C. C. 573. McNeill v. Southern R. Co., 202 
 
 46. Chicago, R. I. & P. R. Co. U. S. 543, 50 L. Ed. 1142, 26 Sup. 
 V. Hard wick Farmers Elevator Co., Ct. 722; Interstate Commerce Com- 
 226 U. S. 426, 57 L. Ed. 284, 33 Sup. mission v. Chicago, B. & Q. R. Co., 
 Ct. 174, 46 L. R. A. (N. S.) 203; 186 U. S. 320, 46 L. Ed. 1182. 22 
 United States v. Union Stock Yard Sup. Ct. 824: Covingron Stock- 
 & Transit Co. of Chicago, 226 U. Yards Co. v. Keith, 139 U. S. 128, 
 S. 286, 57 L. Ed. 226, 33 Sup. Ct. 35 L. Ed. 73, 11 Sup. Ct. 461; Coe 
 83; Southern R. Co. v. Burlington v. Errol, 116 U. S. 517, 29 L. Ed. 
 Lumber Co., 225 U. S. 99, 56 L. Ed. 715, 6 Sup. Ct. 475.
 
 284 Duties to Interstate Shippers. [§ 125 
 
 of the Interstate Commerce Act and the jurisdiction 
 of the Interstate Commerce Commission/^ 
 
 The states still have the power to make rules and 
 regulations as to terminal service in connection with 
 and relating to intrastate transportation;*^ but they 
 have no power over cars moving in interstate commerce. 
 ''As legislation concerning the delivery of cars," said 
 the Supreme Court,*" ''for the carriage of interstate 
 traffic was clearly a matter of interstate commerce regu- 
 lation, even if such subject was embraced within that 
 class of powers concerning which the State had a right 
 to exert its authority in the absence of legislation by 
 Congress, it must follow in consequence of the action 
 of Congress to which we have referred that the power 
 of the State over the subject-matter ceased to exist 
 from the moment that Congress exerted its paramount 
 and all embracing authority over the subject. We say 
 this because the elementary and long settled doctrine 
 is that there can be no divided authority over interstate 
 commerce and that the regulations of Congress on that 
 subject are supreme. It results, therefore, that in a 
 case where from the particular nature of certain sub- 
 jects the State may exert authority until Congress acts 
 under the assumption that Congress by inaction has 
 tacitly authorized it to do so, action by Congress de- 
 stroys the possibility of such assumption, since such 
 action, when exerted, covers the whole field and renders 
 
 47. Louisville & N. R. Co. v. Yards Co. v. Louisville & N. R. Co., 
 United States, 238 U. S. 1, 59 L. 192 U. S. 568, 48 L. Ed. 565, 24 
 Ed. 1177, 35 Sup. Ct. 696; Penn- Sup. Ct. 339; Interstate Commerce 
 sylvania Co. v. United States, 2.36 Commission v. Detroit, G. H. & M. 
 U. S. 351, 59 L. Ed. 616, 35 Sup. Ry. Co., 167 U. S. 633, 42 L. Ed. 
 Ct. 370. 306, 17 Sup. Ct. 986; Gulf, C. & S. 
 
 48. Baltimore & O. R. Co. v. F. R. Co. v. Hefley, 158 U. S. 98. 
 United States ex rel. Pitcairn Coal ?id L. Ed. 910, 15 Sup. Ct. 802. 
 
 Co., 215 U. S. 481, 54 L. Ed. 292, 49. Chicago, R. I. & P. R. Co. v. 
 
 30 Sup. Ct. 164; Interstate Com- Hardwick Farmers Elevator Co., 
 
 merce Commission v. Illinois Cent. 226 U. S. 426, 57 L. Ed. 284, 33 
 
 R. Co. 215 U. S. 452, 54 L. Ed. 280, Sup. Ct. 174, 46 L. R. A. (N. S.) 
 
 30 Sup. Ct. 155; Central Stock 203.
 
 ^ 127] Transportation Services Under Act. 285 
 
 the State impotent to deal witli a subject over which 
 it had no inlierent l)ut only permissive power." 
 
 § 126. Transportation Wholly Within One State 
 Not Under Federal Control. Under tlie commerce 
 clause of tiie Constitution, Congress has no XJO"^ver to 
 regulate intrastate commerce, that is, transportation of 
 passengers, property or intelligence wholly within a 
 single state. 
 
 In conformity, therefore, with the limitation upon 
 the power of Congress, Section 1 of the Interstate Com- 
 merce Act provides that none of its provisions shall 
 apply to the transportation of passengers or property, 
 or the receiving, delivering, storing, or handling of 
 property wholly within one state and not shipped to 
 or from a foreign country from or to any state or terri- 
 tory, nor to the transmission of messages by telephone, 
 telegraph or cable wholly within one state and not trans- 
 mitted to or from a foreign country from or to any 
 state or territory. 
 
 Transportation wholly within one state is not, there- 
 fore, subject to the control of the Commission.^" 
 
 § 127. Transit Privileges Part of Transportation 
 Under Control of Interstate Commerce Commission. 
 Prior to the amendment of 190G the Interstate Com- 
 merce Commission had no jurisdiction to regulate the 
 various forms of transit i:)rivileges granted to shippers 
 by carriers, such as milling of grain, the dressing of 
 lumber, of cotton, etc., except perhaps when the carriers 
 practiced undue discrimination.^^ 
 
 50. Houston, E. & W. T. R. Co. mission v. Brimson. 151 U. S. 447, 
 
 V. United States, 234 U. S. 342, 58 38 U Ed. 1047, 14 Sup. Ct. 1125; 
 
 L. Ed. 1341, 34 Sup. Ct. 833; Min- Hocking Valley R. Co. v. New York 
 
 nesota Rate Cases (Simpson v. Coal Co., 132 C. C. A. 587, 217 Fed. 
 
 Shepard), 230 U. S. 352, 57 L. Ed. 727; Southern Pac. Co. v. Carap- 
 
 1511, 33 Sup. Ct. 729, 48 L. R. A. bell, 189 Fed. 696. 
 
 (N. S.) 1151, Ann. Cas. 1916A 18; 51. Koch & Co. v. Pennsylvania 
 
 Cincinnati. N. O. & T. P. R. Co. v. R. Co., 10 I. C. C. 675; Diamond 
 
 Interstate Commerce Commission, Mills v. Boston & M. R. Co., 9 I. 
 
 162 U. S. 184, 40 L. Ed. 935, 16 Sup. C. C. 311; In re Wool, Hide & 
 
 Ct. 700: Interstate Commerce Com- Pelt Rates, 23 I. C. C. 151.
 
 286 Duties to Interstate Shippers. [§ 127 
 
 But tlio definition of the term "transportation" 
 was amended so as to include all services in connection 
 with the handling of property transported in 1906, and 
 the Commission, since that time has held that transit 
 privileges were regulations affecting the rate under its 
 jurisdiction, and carriers may be compelled to accord 
 shippers the privilege upon the payment of reasonable 
 compensation.^^ 
 
 § 128. Regulation of Grain Elevation Service Under 
 Federal Control. By the Amendment of 1906 the trans- 
 portation subject to federal control and the jurisdiction 
 of the Interstate Commerce Commission, was extended 
 so as to include the subject matter of grain elevator 
 service. The statute makes it the duty of the carrier to 
 provide and furnish all the facilities that are a part of 
 the transportation included within the Act, and it is 
 required to state in its schedules the charges for all 
 privileges or facilities granted or allowed. 
 
 If an owner of property transported renders any 
 service connected with such transportation, he may be 
 allowed a reasonable and just compensation therefor. 
 It has therefore been held that a railroad company may 
 and must pay the owners of elevators a reasonable sum 
 for elevating grain. ^^ "The long mooted question as 
 to whether elevation was such a part of transportation 
 as to bring it within the jurisdiction of the Interstate 
 Commerce Commission," said the Court in the case 
 cited, "was answered by the act of June 29, 1906, 34 
 Stat. L. 584, 590, c. 3591, in which Congress declared 
 that 'the term 'transportation' shall include * * * 
 all * * * facilities of shipment, * * * irrespec- 
 
 52. Lewis, Leonhardt & Co. v. I C. C. 70; Spiegle v. Southern Ry. 
 
 Southern R. Co., 1^3 CO. A. 237, Co., 25 I. C. C. 71; Transit Case, 
 
 217 Fed. 321; Grand Rapids & I. 24 I. C. C. 340; In re Wool, Hide & 
 
 R. Co. V. United States, 129 C. C. A. Pelt Rates, 23 I. C. C. 151. 
 113, 212 Fed. 577; Wichita Board 53. Union Pacific R. Co. v. 
 
 of Trade v. Abilene & S. Ry. Co., Updike Grain Co., 222 U. S. 215, 
 
 29 I. C. C. 376; In re Advances 56 L. Ed. 171, 32 Sup. Ct. 39. 
 Fabrication-in transit Charges, 29
 
 <§. 129] TRANSPoiiiArioN Skrvices Under Act. 287 
 
 tive of owiiersliip, * * * and all services in con- 
 nection with Uie * * * (.I(.vatiou, and transfer in 
 transit * * * atid liniKHiiiL;- of property transported.' 
 Carriers were r(M|iiired 'to i)rovide and furnish such 
 transportation ui)on reasonable request therefor.' 'VUc 
 act recog-nized that the shipper himself mift-ht own Hie 
 elevator or other facility included within the delinition 
 of transportation. For Sec. 4 {'.U Stat. 590) provides 
 that 'if the owner * * * renders any service con- 
 nected with sncli transportation, or furnishes any instru- 
 mentality used therein, the charge and allowance there- 
 for shall be no more than is just and reasonable,' the 
 Commission being authorized to determine what was 
 reasonable. This act was passed after the decision by 
 the Commission in 1904 (10 I. C. C. 309), that the 
 Peavey contract was valid, and after the recommendation 
 in its report for 1905 (p. 11), that it should be given 
 authority to determine whether the allowance paid to 
 the owner was just. The statute must be taken as a 
 legislative recognition of the long-continued practice 
 and a declaration tl>at the incidental advantage derived 
 by the owner was not undue. In pursuance of the au- 
 thority thus expressly conferred the Interstate Com- 
 merce Commission, in April, 1907 (12 I. C. C. 86), fixed 
 the allowance for elevating grain at % of a cent per 
 hundred pounds, being actual cost, with no allowance 
 whatever for profit. Its final order (14 I. C. C. 315), 
 ])rohibiting any payment to the owner who performed 
 this transportation service was reversed, as being be- 
 yond the jurisdiction of the Commission, because Con- 
 gress had expressly permitted such payment to be made 
 (Interstate Commerce Commission v. Diffenbangh, Same 
 v. Peavey, ante. p. 42). The language of the statute 
 and this decision answer the Union Pacific's contention 
 that it was unlawful to pay these comjianies for trans- 
 portation services." 
 
 § 129. Loading, Dunnage and Special Preparation 
 of Freight Cars for Shipments of Particular Commodi- 
 ties. Whih^ the tci'ni "transportation," as driiiicd in
 
 288 
 
 Duties to Inteestate Shippers. 
 
 [§ 129 
 
 tlie Act, the subject matters under which the carrier may 
 be compelled to furnish, includes all services in con- 
 nection with the receipt, deliver}^, elevation, ventilation, 
 refrigeration or icing, and handling of the property 
 transported, there are many elements in the special 
 preparation of freight cars for the shipment of particu- 
 lar commodities which are not included within the scope 
 of the transportation facilities which the carriers must 
 furnish, and which must be supplied by the shippers 
 themselves without any allowances therefor.^* 
 
 54. Atchison, T. & S. F. R. Co. 
 V. United States, 232 U. S. 199, 58 
 L. Ed. 568, 34 Sup. Ct. 291, in 
 which the Court said: "Sometimes 
 the shipper, as here, insists on the 
 right to load and provide necessary 
 appliances. At other times he de- 
 mands that such service and appli- 
 ances be furnished by the railroad 
 company. Conversely the carriers 
 sometimes claim, as here, the right 
 to furnish service and facilities, 
 while in other cases insisting that 
 one or both must be supplied by 
 the consignor. Cf. National Lum- 
 ber Dealers Association v. Atlantic 
 Coast Line, 14 L C. C. 154; Schultz 
 V. Southern Pacific, 18 I. C. C. 234; 
 In re Allowance for Lining and 
 Heating Cars, 26 I. C. C. 681; 
 25 I. C. C. 497. These inconsistent 
 and conflicting demands serve 
 to emphasize the fact that, before 
 the haul actually begins, the right 
 or duty of each party, where not 
 absolutely fixed by statute, must 
 be decided with reference to the 
 special facts of each case. As a 
 general rule, the carrier loads 
 all freight tendered in less than 
 carload lots while the consignor 
 loads in all cases where, for his 
 convenience, the car is placed at 
 his warehouse or on public team 
 tracks. This practice has grown 
 up not only because the work can 
 
 be more satisfactorily performed 
 by the owner, but also because it 
 is impossible for railroad compa- 
 nies economically to load cars at 
 private warehouses or on those 
 tracks where vehicles of the con- 
 signor or consignee come and go 
 at the direction of the owner. 25 
 I. C. C. 490. But loading may in- 
 volve more than the mere placing 
 of the freight on the car, sinoe 
 the character of the shipment may 
 be such as to require the furnish- 
 ing and placing of stakes, racks, 
 blocks and binders needed to make 
 the transportation safe; or, the 
 freight may be such as to require 
 a special covering, packing, icing 
 or heating, in order to preserve 
 the merchandise in condition fit 
 for use at the end of the journey. 
 Who is to furnish these needed 
 facilities, may be quite as un- 
 certain as who is to place the 
 freight on the car, and can only 
 be determined by considering the 
 character of the shipment, the 
 place where the loading begins, 
 and who can most economically 
 perform the service required. 
 Neither party has a right to in- 
 sist upon a wasteful or expensive 
 service for which the consumer 
 must ultimately pay. The interest 
 of the public is to be considered 
 as well as that of shippers and
 
 § 129] Transportation Services Under Act. 289 
 
 No hard and fast rule has been established as to 
 who shall supi)ly these aceessorial services necessary to 
 prepare freight cars for shipment, but tlie respective 
 duties and rights of the shii)pers and carriers in con- 
 nection thereto can only be determined by considering 
 the character of the shipment, the place where the 
 loading begins and who can most economically perform 
 the service. The interests of the public as well as the 
 carrier are to be considered, and the rights and duties 
 of each party when not controlled by statute, must be 
 decided largely with reference to the special facts of 
 each case. Generally, however, where special prepara- 
 tion is required to fit a car for the shipment of a par- 
 ticular commodity, the duty devolves upon the shipper." 
 For example, the duty to provide stakes to be used in 
 shipping lumber on flat cars where it appeared that 
 it was impracticable to provide a permanent stake which 
 would be a part of the car itself, it was held, should 
 not be placed upon the carrier.^" 
 
 Carriers should not be compelled, it was held in 
 another case, to furnish the lining on the walls of the 
 car and the j^adding on the floor necessary to properly 
 transport flour in cotton sacks so that the sacks might 
 not be torn through friction with the sides and floor of 
 the car." The furnishing of such a protection partakes 
 of the nature of a private packing rather than of a public 
 equipment. On the other hand, where perishable freight 
 moves regularly and in sufficient volume to justify it, the 
 carrier is required to furnish special etiuipment for 
 protecting certain kinds of traffic from freezing.^® The 
 
 carriers — their rights in turn hav- Co., 26 I. C. C. 245; Davies v. 
 
 Ing been adjusted by a reduction LouisviUe & N. R. Co., 18 I. C. C. 
 
 In the rate, if the loading is done 540. 
 
 in whole or in part by the shipper; 56. National Wholesale Lumber 
 
 and by an increase in the rate Dealers' Ass'n. v. Atlantic C. L. R. 
 
 where the loading is done in whole Co., 14 I. C. C. 154. 
 
 or in part by the carrier." 57. Southwestern Missouri Mil- 
 
 55. New York State Shippers lers' Club v. St. Louis & S. F. R. 
 
 Protective Ass'n v. New York Co., 26 I. C. C. 245. 
 
 Cent. & H. River R. Co., 30 I. C. .58. In re Advances Protection of 
 
 C. 437; Southwestern Missouri Mil- Potato Shipments in Winter, 29 I. 
 lers' Club v. St. Louis & S. F. R. 
 
 1 Cuutrol CanitTs 19
 
 290 Duties to Interstate Shippers. [*§ 129 
 
 service of loading, furnishing' material and placing in 
 cars is an additional service over and above the trans- 
 portation for which the carrier is entitled to receive 
 compensation, and hence a tariff providing that the car- 
 rier would load fruits and vegetables, supply and place 
 the dunnage and braces at the expense of the shipper 
 was approved by the Commission.'^^ 
 
 § 130. Weighing of Interstate Shipments of Freight 
 Under Federal Control. As the amendment of 1906 in- 
 cluded all service in connection with the receipt, de- 
 livery and handling of property transported in inter- 
 state and foreign commerce, the charges for weighing 
 freight are under federal control. The weighing service 
 is an incident to the transportation service as it is 
 used in the computation of freight charges. The Inter- 
 state Commerce has, therefore, jurisdiction to determine 
 the reasonableness and nondiscriminatory character of 
 weighing service.'*'^ 
 
 § 131. Regulations and Rules Concerning Baggage of 
 Interstate Passengers Under Control of Commission. 
 
 Under the common law, the decisions of the courts as to 
 what was baggage, and what was the extent of the 
 carriers' liability were not uniform." The rights of 
 
 C. C. 504; Protection of Potatoes 923, 46 S. W. 421; Kansas City, Ft. 
 
 in Winter, 26 I. C. C. 681. S. & M. Ry. Co. v. McGahey, 63 
 
 59. In re Advances Dunnage Al- Ark. 344, 36 L. R. A. 781, 58 Am. 
 lowances, 30 I. C. C. 539; See also St. Rep. Ill, 38 S. W. 659. 
 Davies v. Louisville & N. R. Co., 18 Kentucky. Illinois Cent. R. Co. 
 I C. C. 540. V. Matthews, 24 Ky. L. Rep. 1766, 
 
 60. Detroit Coal Exchange v. 60 L. R. A. 846, 72 S. W. 302. 
 Michigan C. R. Co., 38 I. C. C. 79. Maine. Wood v. Maine Cent. R. 
 See also New England Coal & Coke Co., 98 Me. 98, 99 Am. St. Rep. 
 Co. v. Norfolk & W. Ry., 22 I. C. C. 339, 56 Atl. 457. 
 
 398; Wilson Produce Co. v. Penn- Minnesota. McKibbin v. Great 
 
 sylvania R. R., 14 I. C. C. 170. Northern Ry. Co., 78 Minn., 232, 
 
 61. United States. Saunders v. 80 N. W. 1052. 
 
 Southern R. Co., 62 C. C. A. 523, Mississippi. Yazoo & M. V. R. 
 
 128 Fed. 15. f^O-. v. Georgia Home Ins. Co., 85 
 
 Arkansas. Kansas City, P. & Miss. 7, 67 L. R. A. 646, 107 Am. 
 
 G. R. Co. v. State, 65 Ark. 363, St. Rep. 265, 37 So. 500. 
 
 41 L. R. A. 333, 67 Am. St. Rep. Nebraska. Ringwalt v. Wabash
 
 § 132] Transpoktation Services Under Act. 291 
 
 passengers were subject to conflicting statutes and deci- 
 sions of various courts. 
 
 To secure uniformity and reasonableness of all regu- 
 lations governing baggage as to all interstate passengers, 
 the Interstate Commerce Act was amended in 1910 so 
 that thereafter it became the duty of all common car- 
 riers to establish, observe and enforce just and reason- 
 able regulations and practices affecting the carrying of 
 personal, sample and excess baggage.**" 
 
 Prior to the 1910 amendment; the Act contained 
 no specific provision relating to the interstate trans- 
 portation of baggage. Conformable to the requirements 
 of the 1910 amendment, the carriers appointed a com- 
 mittee to collate their baggage rules and regulations, 
 and new regulations governing the transportation of 
 baggage were adopted and enforced. •*■' 
 
 § 132. Refrigeration, Ventilation and Icing of 
 Property in Cars Part of Transportation Duties of Inter- 
 state Carriers. Under the Hepburn Amendment of 1906, 
 refrigeration, ventilation and icing of property trans- 
 ported in interstate and foreign commerce became a 
 part of the transportation service which the carriers 
 under federal control are required to furnish upon 
 reasonable request therefor."* Carriers, therefore, may 
 
 R. Co. 45 Neb. 760, 64 N. W. 219. 599; Nashville C. & St. L. R. Co. v. 
 
 New Jersey. Runyan v. Central LlUie, 112 Tenn., 331, 105 Am. 
 
 R. Co. of New Jersey, 61 N. J. L. St. Rep. 947, 78 S. W. 1055. 
 
 537, 43 L. R. A. 284, 68 Am. St. Texas. Missouri, K. & T. R. Co. 
 
 Rep. 711, 41 Atl. 367; Pennsylvania of Texas v. Meek, 33 Tex. Civ. App. 
 
 R. Co. V. Knight, 58 N. J. 287, 33 47, 75 s. W. 317. 
 
 Atl. 845. 62. Boston & M. R. Co. v. Hook- 
 New York. Knieriem v. New er, 233 U. S. 97, 58 L. Ed. 868, 
 
 York Cent. & H. River R. Co., 109 34 g^p ^t. 526, L. R. A. 1915B 
 
 N. Y. App. Div. 709, 96 N. Y. Supp. 45^. j^^ ^^ Advances Regulations 
 
 602; Curtis V. Delaware L. & W. Restricting the Shape of Baggage, 
 
 R. Co., 74 N. Y. 116, 30 Am. St 
 
 33 I. C. C. 266; In re Baggage Reg- 
 ulations, 26 I. C. C. 292. 
 
 Rep. 271. 
 
 South Carolina. Adger v. Blue 
 
 Ridge Rv. Co.. 71 S. C. 213. 110 ^'^- Jewelers Protective Union v. 
 
 Am. St. Rep. 568, 50 S. E. 783. Pennsylvania R. Co., 36 I. C. C. 71. 
 
 Tennessee. Yazoo & M. V. R. Co. 64. Cudahy Packing Co. v. Grand 
 
 V. Baldwin, 113 Tenn. 205, 81 S. W. Trunk Western R. Co., 131 C. C. A.
 
 292 
 
 Duties to Interstate Shippees. 
 
 [§ 132 
 
 use their own refrigeration cars and ice them, and can- 
 not be compelled to accept those tendered by the ship- 
 per; for whatever transportation service or facility the 
 law requires carriers to supply, they have the right to 
 furnish them.®^ 
 
 Even under the common law a railroad company, 
 holding itself out as a carrier of perishable goods, was 
 under legal obligation, arising out of the nature of its 
 employment, to provide suitable and necessary lines and 
 facilities for such transportation.''® "When the refrigera- 
 
 401, 215 Fed. 93; In re Precooling 
 and Preicing, 23 I. C. C. 267. 
 
 65. Atchison, T. & S. F. R. Co. 
 V. United States, 232 U. S. 199, 58 
 L. Ed. 568, 34 Sup. Ct. 291, in 
 which Mr. Justice Lamar said: 
 "This rule is attacked by the ap- 
 pellants, who contend that icing 
 is a part of refrigeration, which 
 the Hepburn Act makes a part 
 of the transportation they are 
 bound to furnish upon reasonable 
 request. They insist that in order 
 to meet the duty, thus imposed by 
 statute, they have been compelled 
 at great expense to erect immense 
 plants where trainloads of fruit 
 can be cooled and where an enor- 
 mous quantity of ice is manufac- 
 tured for refrigeration purposes. 
 They argue that, being bound to 
 furnish all necessary icing and re- 
 icing and having at great cost pre- 
 pared to furnish the supply, It is 
 not only just, but a right given 
 by statute, that they should be 
 allowed to provide all needed icing 
 or refrigeration at a rate to be 
 approved by the Commission. 
 Whatever transportation service 
 or facility the law requires the 
 carrier to supply they have the 
 right to furnish. They can there- 
 fore use their own cars, and cannot 
 be compelled to accept those ten- 
 dered by th2 shipper on condition 
 
 that a lower freight rate be 
 charged. So, too, they can furnish 
 all the ice needed in refrigeration, 
 for this is not only a duty and n. 
 right, under the Hepburn Act, but 
 an economic necessity due to the 
 fact that the carriers cannot be 
 expected to prepare to meet the 
 demand, and then let the use of 
 their plants depend upon hap- 
 hazard calls, under which refrig- 
 eration can be demanded by all 
 shippers at one time and by only 
 a few at another. This contention 
 was sustained by the Commission, 
 which recognized that 'the shipper 
 has no right to provide refriger- 
 ation himself today and call upon 
 the railroad company for that 
 service tomorrow. To permit such 
 a course is to demoralize the ser- 
 vice of the defendants and prevent 
 them from discharging their duty 
 with economy and efficiency . . . 
 It is the duty of the carrier to 
 furnish refrigeration upon reason- 
 able demand, and in so far as the 
 furnishing of that refrigeration 
 is a part of the service rendered 
 by the carrier, the carrier may 
 insist upon its right to furnish 
 that service exclusively.' 20 I. 0. 
 C. 116. 
 
 66. United States. Atlantic Coast 
 Line R. Co. v. Macon Grocery Co., 
 92 C. C. A. 114, 166 Fed. 206.
 
 § 132J Teanspoktation Services Under Act. 293 
 
 lion service is wliolly under the control of the carrier 
 and it determines wlien ice sliall be supplied and in 
 wliat quantities so that llie shipper neither directs the 
 use nor knows the amount used, and the amount depends 
 upon the manner in which the ear is handled by the car- 
 rier itself, the charge should be a gross sum for the 
 entire service, and a tariff requiring the shipper to pay 
 for the amount of ice consumed in reicing, is unduly 
 discriminatory between different shippers." 
 
 When ice is actually needed and used in the trans- 
 portation of perishable goods, the question has frequent- 
 ly arisen even since the passage of the Hepburn amend- 
 ment, whether the icing is a part of the transportation 
 or is a part of the ])reparation for transportation which 
 may be done by the shipper himself. In other words, 
 has the shipper the legal right under some circum- 
 stances to precool and preice his own shipment? This 
 question was decided by the Supreme Court in Atchi- 
 son, T. & S. F. R. Co. V. United States,"^ known as the 
 Precooling Case. The Commission had made two orders, 
 one reducing the rate on precooled and preiced freight 
 from points in Southern California to eastern destina- 
 tions, and the other requiring the carriers to maintain 
 tariffs permitting preicing and precooling of their own 
 shipments by shippers, this being a service performed by 
 the ship])ers in precooling the freight, and placing in 
 the bunkers of the cars the icing necessary for the preser- 
 vation of the freight during transportation. In sustain- 
 ing the validity of the orders of the Interstate Commerce 
 Commission, the Supreme Court held on the question 
 
 Colorado. Carr v. Schafer, 15 Virginia. New York, P. & N. R. 
 
 Colo. 48, 24 Pac. 873. Co. v. Cromwell, 98 Va. 227, 49 L. 
 
 Iowa. Beard v. Illinois Cent. Ry. r. a. 462. 81 Am. St Rep 72'' 15 
 
 Co.. 79 Iowa 518, 7 L. R. A. 280, s E 444 
 18 Ann. St. Rep. 381, 44 N. W. 800. 
 
 Michigan. Johnson v. Toledo. S. ^^- Crutchfield & Woolfolk v. 
 
 & M. R. Co., 133 Mich. 59fi. 103 Southern P. Co., 24 I. C. C. 651. 
 
 Am. St. Rep. 464, 95 N. W. 724. ^8. Atchison, T. & S. F. R. Co. 
 
 Pennsylvania. Davenport Co. v. v United States. 232 U. S. 199, 58 
 
 Pennsylvania R. Co.. 173 Pa. St. L.- Ed. 568, 34 Sup. Ct. 291. 
 398, 34 Atl. 59.
 
 294 Duties to Interstate Shippers. [§ 132 
 
 of confiscation, that a rate fixed by the Commission 
 which apparently exclnded any compensation for hanl- 
 ing ice for refrigeration, is not confiscatory when it 
 appears tliat the rate for the freiglit itself practically 
 exclndes the rate for the ice. On the preicing feature, 
 the conrt held that a tariff withdrawing the privilege 
 of preicing, fixed a rule and practice within the mean- 
 ing of Section 15 of the Act empowering the Commis- 
 sion to determine whether any new practice is unreason- 
 able; that it depends upon the facts and circumstances 
 of each case whether icing is a part of the preparation 
 for a shipment to be dofte b}^ the shipper or is a part 
 of the transportation to be furnished by the carrier; 
 that neither the shipper nor carrier can insist upon a 
 wasteful or expensive service for which the consumer 
 must ultimately pay; and that under the circumstances 
 of the case, the shippers have the right to preice their 
 shipments."^ 
 
 § 133. Track Storage and Demurrage Charges 
 in Connection with Interstate Shipments Under Control 
 of Commission. A shipment is not completed until ar- 
 rival at destination and delivery to the consignee or 
 an attempt to deliver to the consignee. The power 
 of Congress under the commerce clause covers every- 
 thing relating to the delivery of freight transported 
 between the states.^" Pursuant to this authority. Con- 
 gress legislated concerning the subject matter of de- 
 murrage and track storage charges on interstate freight 
 by including all services in connection with the delivery 
 and storage of property transported fr/)m one state to 
 
 69. Where refrigeration service Co 167 U. S. 633, 42 L. Ed. 306, 
 is rendered and charges are as- 17 Sup. Ct. 986; Bowman v. Chi- 
 signed therefor, the tariffs should cago & N. W. Ry. Co., 125 U. S. 
 provide and state the amount. 465, 31 Ed. 700, 8 Sup. Ct., 689, 
 Sulzberger v. Minneapolis, St. P. 1062. In Rhodes v. State of Iowa, 
 & S. S. M. R. Co., 40 I. C. C. 173. the Court said: "We think that 
 
 70. McNeill v. Southern R. Co., interpreting the statute by the law 
 202 U. S. 543, 50 L. Ed. 1142, 26 of all its provisions it was not in- 
 Sup. Ct. 722; Rhodes v. State, 170 tended to and did not cause the 
 U. S. 412, 42 L. Ed. 1C88, 18 Sup. power of the State to attach to an 
 Ct. 664; Interstate Commerce Com- interstate commerce shipment, 
 mission v. Detroit, G. H. & M. Ry. whilst the merchandise was in
 
 § 134] Tkanhpohta'iiox Skhvices Under Act. 
 
 295 
 
 another luidcr tlic (IcCuiilioii of 1 raiis|)()ii;i1i()n in llie 
 statute. The assessment of (leiiiunau-e and Iraek stor- 
 age charges on such sliipments is, therefore, witliin 
 the exclusive jurisdiction of the Interstate Coinineice 
 Commission."' 
 
 § 134. Wharves and Connecting Tracks of Inter- 
 state Carriers Public Facilities Under Federal Control. 
 The provisions of the Interstate Commerce Act as 
 amended in 1906 are broad enough to include all facil- 
 ities of any descrii)tion, used in the transportation, or 
 in connection with the transportation of property in 
 commerce subject to the statute." 
 
 Under the common law wharves and tracks leading 
 thereto of common carriers were private facilities, the 
 use of which the carrier might refuse to all persons, or 
 might grant to some and deny to others;'-' but since 
 the enactment of the Hepburn amendment, such wharves 
 are public facilities subject to the provisions of the 
 Interstate Commerce Act.^* The regulations and prac- 
 
 transit under such shipment, and 
 until its arrival at the point of 
 destination and delivery there to 
 the consignee." 
 
 71. Michie v. New. York, N. H. 
 & H. R. Co., 1.51 Fed. 694; United 
 States V. Standard Oil Co.. 148 Fed. 
 719; Wholesale Produce Dealers 
 Ass'n of Brooklyn. New York v. 
 Long Island R. Co.. 26 I. C. C. 413; 
 In re Demurrage Charges, 25 I. C. 
 C. 314; Murphy Bros. v. New York 
 Cent. & H. River R. Co., 21 I. C. C. 
 176; Turnbull Co. v. Erie R. Co.. 
 17 I. C. C. 12:?; Wilson Produce Co. 
 V Pennsylvania R. Co., 16 I. C. C. 
 116; New York Hay Exch. Ass'n 
 V. Pennsylvania R. Co., 14 I. C. 
 C. 178; Wilson Produce Co. v. 
 Pennsylvania R. Co.. 14 I. C. C. 
 170; Kehoe & Co. v. Charleston & 
 W. C. Ry. Co., 11 I. C. C. 166. 
 
 72. United States v. Union Stock 
 Yard & Transit Co. of Chicago, 226 
 
 U. S. 286, 57 L. Ed. 226, 33 Sup. Ct. 
 83. 
 
 73. Louisville & N. R. Co. v. 
 West Coast Naval Stores Co., 198 
 U. S. 483, 49 L. Ed. 1135, 25 Sup. 
 Ct. 745. 
 
 74. Southern Pac. Terminal Co. 
 V. Interstate Commerce Commis- 
 sion, 219 U. S. 498, 55 L. Ed. 310, 
 31 Sup. Ct. 279. In that case Mr. 
 Justice McKenna, for the Court, 
 said: "There is great difference 
 between competing carriers claim- 
 ing the right to use the facilities 
 of one another and the patrons 
 of the same carrier contending for 
 equality of treatment. In stating 
 this we assume that the wharves 
 in the pending case are the Instru- 
 ments of a common carrier. This 
 is, however, denied, and it is as- 
 serted that the Terminal Company 
 is purely a wharfage company, and 
 'has no power under its charter to
 
 296 
 
 Duties to Interstate Shippers. 
 
 [§ 134 
 
 tices aft'eeting the use of wharves owned by rail car- 
 
 act as a common carrier.' The 
 contention is based on a partial 
 view of the conditions. The Ter- 
 minal Company was incorporated 
 to execute the purposes expressed 
 in the act of the legislature of the 
 State of Texas, that is, to construct 
 terminal facilities for the Southern 
 Pacific Railroad and Steamship 
 systems, and to accommodate the 
 export and import traffic at Gal- 
 veston; and necessarily, as instru- 
 mentalities of such traffic, wharves 
 and piers are as essential as steam- 
 ships and railroad, and are, in fact, 
 as they were intended to be by 
 the charter of their authorization, 
 parts of a system. The only track 
 facilities for movement of cars to 
 or from the ships, from or to the 
 tracks of the Southern Pacific 
 Railways, are on the Terminal 
 Company's lands, and are owned 
 by it. To these tracks the Galves- 
 ton, Harrisburg and San Antonio 
 Railway switches cars for other 
 railroads, charging $1.75 per car, 
 and the Terminal Company re- 
 ceives a trackage charge of 50 
 cents per car. It is true that the 
 Terminal Company does a wharf- 
 age business and publishes a sched- 
 ule of its charges, while not filed 
 with the Interstate Commerce 
 Commission, shows a charge of 20 
 cents a ton on cotton seed cake 
 and meal, and this appears as a 
 wharfage charge In the tariffs 
 of the Galveston, Harrisburg and 
 San Antonio Railway Company 
 and other railways entering the 
 city of Galveston. And, besides, 
 the Terminal Company was a party 
 to numerous circulars issued by 
 the Southern Pacific Railway Com- 
 pany, and that effective May 23, 
 1905, was filed with the Interstate 
 
 Commerce Commission. These 
 circulars gave terminal charges 
 at the port of Galveston. The 
 charge on cotton seed meal and 
 cake was given at 1 cent per 100 
 pounds. Shipments on through 
 bills of lading include in the 
 freight rate the wharfage charge. 
 Another and important fact is 
 the control of the properties by 
 the Southern Pacific Company 
 through stock ownership. There 
 is a separation of the companies 
 if we regard only their charters; 
 there is a union of them if we 
 regard their control and operation 
 through the Southern Pacific Com- 
 pany. This control and operation 
 are the important facts to ship- 
 pers. It is of no consequence that 
 by mere charter declaration the 
 Terminal Company is a wharfage 
 company or the Southern Paci.ic 
 a holding company. Verbal dec- 
 larations cannot alter the facts. 
 The control and operation of the 
 Southern Pacific Company of the 
 railroads and the Terminal Com- 
 pany have united them into a 
 system of which all are necessary 
 parts, the Terminal Company as 
 well as the railroad companies. As 
 said by the Interstate Commerce 
 Commission, 'the Terminal Com- 
 pany was organized to furnish 
 terminal facilities for the system 
 at the port of Galveston,' and it 
 is further said that 'through ship- 
 ments on the railroad lines from 
 and to points in different States 
 of the Union pass and repass over 
 the docks of the Terminal Com- 
 pany. It forms a link in this 
 chain of transportation. It is nec- 
 essary to complete the avenue 
 through which move shipments 
 over these lines owned by a single
 
 § 1.j5J Tj{ANsroiriATiux\ JSehvices Undkh Act. 
 
 297 
 
 riers engaged in interstate commerce and used for re- 
 ceiving and delivering property moved by rail in inter- 
 state and foreign commerce must be reasonable and 
 nondiscriminatory.^^ 
 
 § 135. Jurisdiction of Commission Over Port 
 Switching Service Performed on Import Traffic. The 
 
 corporation.' And this unity of 
 the railroad's lines and the termi- 
 nal facilities is recognized in the 
 lease to Young. By it he agrees 
 to route all of his shipments 
 over 'the lines of the Terminal 
 Company and its connections, ac- 
 cording to the instructions of said 
 Terminal Company from time to 
 time.' And provision is made 
 against the possibility of other 
 lines bidding for the traffic by 
 lower rates. In such event he 
 must give notice to the Terminal 
 Company and give it 'the option of 
 meeting such proposed rates,' and 
 if the company 'elects to do so,' 
 then he 'shall not divert such 
 shipments, but shall abide by the 
 provisions' of his agreement. And 
 surely a system so constituted 
 and used as an instrument of in- 
 terstate commerce may not escape 
 regulation as such because one of 
 its constituents Is a wharfage com- 
 pany and its dominating power 
 a holding company. As well said by 
 the Interstate Commerce Commis- 
 sion, 'a corporation such as this 
 Terminal Company, which has 
 'competing lines,' should not be 
 permitted to defeat the jurisdic- 
 tion of this Commission by show- 
 ing that it is not in fact owned by 
 any railroad company. . . . The 
 Terminal Company is part and 
 parcel of the system engaged in 
 the transportation of commerce, 
 and to the extent that such com- 
 merce is interstate, the Commis- 
 sion has jurisdiction to supervise 
 and control it within statutory 
 
 limits. To hold otherwise would 
 in effect permit carriers general- 
 ly, through the organization of 
 separate corporations, to exempt 
 all of their terminals from our 
 regulating authority.' The reason- 
 ing of the Commission is justified 
 by the statute. It includes in the 
 term 'railroad' 'all bridges and 
 ferries used or operated in con- 
 nection with any railroad, and 
 also all the road in use by any 
 corporation operating a railroad, 
 whether owned or operated under 
 a contract, agreement, or lease, 
 and shall also include all switches, 
 spurs, tracks, and terminal facil- 
 ities of every kind used or neces- 
 sary in the transportation of the 
 persons or property designated 
 herein, and also all freight depots, 
 j'^ards, and grounds used or nec- 
 essary in the transportation or de- 
 livery of any of said property.' 
 The property of the Terminal Com- 
 pany is 'necessary in the trans- 
 portation or delivery' of the in- 
 terstate and foreign freight trans- 
 ported by the lines of the Southern 
 Pacific System." 
 
 75. Railroad Com'rs of Florida 
 V. Atlantic C. L. R. Co., 28 I. C. 
 C. 356; In re Wharfage Facilities 
 at Pensacola, Florida 27 I. C. C. 
 252; Humboldt Steamship Co. v. 
 White Pass & Yukon Route, 25 I. 
 C. C. 136; Flour City Steamship 
 Co. V. Lehigh VaUey R. R.. 24 I. C 
 C. 179; Mobile Chamber of Com- 
 merce V. Mobile & 0. R. R., 23 I. 
 C. C. 417.
 
 298 Duties to Interstate Shippers. [§ 135 
 
 Act to Regulate Commerce applies to the transportation 
 of property shipped from a foreign country to any 
 place in the United States and carried to such places 
 from port of entry.'" A switching service, therefore, 
 by a rail carrier of foreign freight in a car from a 
 vessel to team tracks in the same city, is subject to the 
 Interstate Commerce Act.^' In the case cited, it ap- 
 peared that the railroad company had filed with the 
 Commission a switching tariff providing for a charge 
 of $2.00 per car for switching carload shipments within 
 the limits of the city of New Orleans. Vessels carrying 
 bananas from Central America were docked at New 
 Orleans and a part of the bananas was loaded directly 
 from the vessels into cars which were then switched to 
 team tracks within the city where the bananas were un- 
 loaded. The railroad company refused to collect its 
 published tariff charge on the theory that the movement 
 of a car from the dock to a team track was not subject 
 to the Interstate Commerce Act, but the Commission 
 held that the service was a movement of foreign com- 
 merce and fell within the jurisdiction conferred upon 
 the Commission in Section 1 of the Act. 
 
 § 136. Interstate Transportation by Land of Ex- 
 plosives and Other Dangerous Articles Under Federal 
 Control. Under an act of Congress approved March 4, 
 1909, known as the Transportation of Explosives Act, 
 the Interstate Commerce Commission is directed and em- 
 powered to formulate and prescribe rules and regulations 
 governing the safe transportation of explosives, which 
 rules, the statute declares, shall be binding upon all 
 common carriers engaged in the interstate or foreign 
 transportation of explosives by land. 
 
 The Commission is further empowered, of its own 
 motion, or upon the application of an interested party, 
 to make changes or modifications in such regulations, 
 made desirable by new information or altered conditions. 
 
 76. Section 1, Act to Regulate 77. United States v. Illinois 
 
 Commerce, appendix A, infra. Cent. R. Co., 2.30 Fed. 940.
 
 § 137] Transportation Services Under Act. 299 
 
 SiK^li I'cgulatioiis ai'c r<M|uii'('d to he in accuid with the 
 best known praeticahlo means for securing safety in 
 transit, covering tlio })aeking, marking, loading, hand- 
 ling and precautions necessary to determine whether 
 the material is in proper condition to transport. It is 
 further provided in this statute that such regulations 
 as w^ell as all changes and modifications thereof, shall 
 take effect ninety days after their formulation and pub- 
 lication by the Commission, and shall he in effect until 
 reversed, set aside or modified."* 
 
 The Interstate Commerce Commission in VJlO in- 
 stituted an investigation into the reasonableness of the 
 rules of the American Railway Association governing 
 the transportation of ex[)losives and other dangerous 
 articles on the lines of the carriers who were members 
 of that association. Thereafter the Commission pre- 
 scribed rules and regulations in conformity with the 
 provisions of the Transportation of Ex])losives Act, 
 which became effective on March 31, 1912. 
 
 In National Petroleum Association v. Atchison, T. 
 & S. F. Ry. Co.,'^^ the complainant alleged that certain 
 requirements of these rules were unreasonable and un- 
 necessary; but the Commission held that the particular 
 rule attacked was in the nature of a federal police reg- 
 ulation designed to minimize as much as possible the 
 dangers attending the transportation of inflammable 
 li(iuids, and to ]:>romote the safety of life and property 
 by recjuiring efficient equipment. 
 
 § 137. Peddling Merchandise from Cars not Trans- 
 portation Service Which Carriers may be Compelled to 
 Furnish. The use of cars, tracks and yards of a carrier 
 in retailing commodities, generally known as "peddling 
 service" is not a ]iart of transportation within the Act 
 to Regulate Commerce that a shipper may demand of a 
 carrier. 
 
 77a. For coi)y of act, see Ap- 78. National Petroleum Ass'n 
 
 l)endlx P. infra. v. Atchison T. & S. F. Ry. Co., 38 
 
 I C. C. 65.
 
 300 Duties to Inteestate Shippees. [§ 137 
 
 The business of a railroad is transportation, and to 
 supply the public with conveniences not connected there- 
 with is no part of its ordinary duty," The mere tolera- 
 tion by a carrier through a period of years of the use 
 of its cars for the purpose of vending perishable com- 
 modities affords no basis for a rule by the Commission 
 that the practice has grown into a shipper's right and a 
 carrier's duty under the law.^'' 
 
 § 138. Terms "Railroad" and "Transportation" 
 Defined by Statute. Section 1 of the Interstate Com- 
 merce Act defines the term "railroad" as used in the 
 Act, to include all bridges and ferries used or operated 
 in connection with any railroad, and also all the road in 
 use by any corporation operating a railroad whether 
 owned or operated under a contract, agreement or 
 lease, and shall include all switches, spurs, tracks, and 
 terminal facilities of every kind used or necessary in 
 the transportation of the person or property designated 
 in the statute, and also all freight depots, yards, and 
 grounds used or necessary in the transportation or deliv- 
 ery of any of the said property. The term "transpor- 
 tation" as defined in the statute includes cars and 
 other vehicles and all instrumentalities and facilities 
 of shipment or carriage, irrespective of ownership or 
 of any contract, express or implied, for the use thereof 
 and all services in connection with the receipt, delivery, 
 elevation, and transfer in transit, ventilation, refrigera- 
 tion, or icing, storage and handling of property trans- 
 ported.*^ 
 
 § 139. Statute not Applicable to all Interstate Com- 
 merce. The Interstate Commerce Act in its application 
 to interstate commerce, is limited to common carriers by 
 rail, express companies, sleeping car companies, tele- 
 
 79. Great Northern R. Co. v. 80. The Car Peddling Case, 45 
 
 State ex rel. State Railroad & I. C. C. 494. 
 
 Warehouse Commission, 238 U. S. 81. Southern R. Co. v. Prescott, 
 
 340, 59 L. Ed. 1337, 35 Sup. Ct. 240 U. S. 632, 60 L. Ed. 836, 36 
 
 753; Donovan v. Pennsylvania Sup. Ct. 469; Cleveland, C, C. 
 
 Co., 199 U. S. 279, 50 L. Ed. 192, & St. L. R. Co. v. Dettlebach, 239 
 
 26 Sup. Ct. 91. U. S. 588, 60 L. Ed. 453, 36 Sup.
 
 <§ 139] Transportation Services Under Act. 301 
 
 graph, cable and telephone companies, carriers of oil or 
 other commodities, except water and gas, by pipe line 
 or partly by pipe line and partly by railroad or water, 
 and carriers by water used imder a common arrange- 
 ment with carriers by rail. 
 
 The provisions of the statute do not apply to car- 
 riers engaged in traffic wholly by water." Nor has the 
 Commission any jurisdiction over stage coach com- 
 panies engaged in interstate commerce.*^ A baggage 
 company conveying passengers and baggage by bus and 
 transfer wagons between railroad stations in a city and 
 stations and residences, was held to be a common car- 
 rier engaged in interstate commerce, but not subject to 
 the provisions of the Interstate Commerce Act as it 
 was not a common carrier within any of the classes 
 mentioned in the statute.®* Transportation by team and 
 wagon from one state to another is -not subject to the 
 statute.^^ 
 
 Ct. 177; Ellis v. Interstate Com- man v. Adams Exp. Co., 14 I. C. 
 merce Commission, 237 U. S. 434, C. 340; Cosmopolitan SLiipping 
 59 L. Ed. 1036, 35 Sup. Ct. 645; Co. v. Hamburg-American Packet 
 Southern R. Co. v. Reid, 222 U. Co., 13 I. C. C. 26G. 
 S. 424, 56 L. Ed. 257, 32 Sup. Ct. 83. Wylle v. Northern P. R. Co., 
 140; Hoadley Brake Shoe Co. v. 11 I. C. R. 145. 
 American Brake Shoe & Foundry 84. Re Exchange of Free Trans- 
 Co., 141 C. C. A. 638, 227 Fed. 90. portation, 12 I. C. C. 39. 
 
 82. In re Jurisdiction over Wa- 85. Cary v. Eureka Springs R. 
 
 ter Carriers, 15 I. C. C. 205; Ull- Co., 7 I. C. R. 286.
 
 CHAPTER VIII 
 
 Unjust Discriminations and Unlawful Peefeeences 
 BY Inteestate Caeeiees — Geneeal Pbinciples 
 
 Sec. 140. Statutory Definitions of Unjust Discriminations and Undue 
 Preferences. 
 
 Sec. 141. Unlawful Discriminations and Preferences Between Shippers 
 Under the Common Law. 
 
 Sec. 142. Origin and History of Sections Two and Three of the Inter- 
 state Commerce Act. 
 
 Sec. 143. Purpose and Object of Congress in the Enactment of Sec- 
 tions Two and Three. 
 
 Sec. 144. Relations and Distinction Between Sections Two and Three. 
 
 Sec. 145. Distinction between Section Two and Clause in Section One 
 Prohibiting Unjust and Unreasonable Charges. 
 
 Sec. 146. Statutory Conditions Rendered Difference in Charges Un- 
 lawful Under Section Two. 
 
 Sec. 147. Circumstances and Conditions Determining Dissimilarity of 
 Service Under Section 2 Refer Strictly to Matters of 
 Carriage. 
 
 Sec. 148. Unjust Discrimination and Preference Sections of Original 
 Act Apply to Subsequent Amendments Defining Railroads 
 and Transportation. 
 
 Sec. 149. Distinction Between Ordinary Definition of Rebate and 
 Meaning of That Term Under Provisions of Section Two. 
 
 Sec. 150. Discrimination Under Section 3 Must Ordinarily be Preju- 
 dicial to One Party and Source of Advantages to the Other. 
 
 Sec. 151. Relation of Discrimination Clause to the Elkins Act of 1903. 
 
 Sec. 152. All Methods and Means Employed Unlawful if Ultimate Re- 
 sults Thereof Cause Unjust Discriminations. 
 
 Sec. 153. Effect of Statute Upon Contracts with Discriminatory Pro- 
 visions. 
 
 Sec. 154. Terms "Unreasonable" or "Undue" Imply Comparison of all 
 Facts and Circumstances Applicable. 
 
 Sec. 155. Existence of Undue Preference or Unjust Discrimination a 
 Question of Fact. 
 
 Sec. 156. Strict Uniformity Not Always Required. 
 
 Sec. 157. Long Existence of Undue Discrimination No .Justification for 
 its Continuance. 
 
 Sec. 158. Prohibition Against Unjust Discrimination Covers Judg- 
 ments by Consent and Waiver of Valid Defences. 
 
 Sec. 159. Proof of Injury and Measure of Damages in Actions for Un- 
 lawful Discrimination. 
 
 (302)
 
 § 140 I I )|S('HIMINA riONS AM) PkEFERENCKS. .jOiJ 
 
 § 140. statutory Definitions of Unjust Discrimina- 
 tions and Undue Preferences. Sootion 2 of tlio Act to 
 Regulate Commerce provides tliat any (common (-dinov 
 chnr^/niiJ!;, demanding, collecting or rocoiving, directly 
 oi- indirectly, ])y any sjx'cial rate, rebate, drawback or 
 oilier device, tVoiii ;in>- person a greatei' oi' less com- 
 pensation for any service rendered or to be rendered, in 
 the transportation of passengers or property, subject 
 to the Act, than it charges, demands, collects or receives 
 from any other ]ierson for doing for him a like and con- 
 teTn]^oran(M>ns service in the transportation of a like 
 kind of traffic under substantially similar circumstances 
 and conditions, shall be deemed guilty of unjust dis- 
 criinination which is declared unlawful. 
 
 Section 3 of the Act prescribes that it shall be un- 
 lawful for any common carrier subject to the ]H'ovisions 
 of the Act to make or give any undue or unreasonable 
 preference or advantage to any particular person, com- 
 pany, firm, corporation or locality, or any particular 
 description of traffic, in any respect whatsoever, or to 
 subject any ]iarticular person, company, firm, corporation 
 or locality, or any particular description of traffic, to 
 any undue or unreasonable prejudice or disadvantage in 
 any respect whatsoever, and further prescribes that all 
 common carriers shall, according to their respective 
 powers, atford all reasonable, proper and equal facil- 
 ities for the interchange of traffic between their respect- 
 ive lines and for the receiving, forwarding and deliver- 
 ing of passengers and ]iroperty to and from their several 
 lines and those connecting therewith, and shall not dis- 
 criminate in their rates and charges between such con- 
 necting lines, but nothing in the statute shall be con- 
 strued as requiring any common carrier subject to the 
 Act to give the use of its ti'acks or terminal facilities 
 to any other carrier engaged in like business. 
 
 These two sections formed an important part of the 
 Interstate Commerce Act as originally enacted in 1887, 
 and have remaine<l in the statute since that time with- 
 out any amendments or changes.
 
 J04 
 
 Duties to Interstate Shippers. 
 
 [§ 141 
 
 § 141. Unlawful Discriminations and Preferences 
 Between Shippers Under the Common Law. Before the 
 passage of the Act to Regulate Commerce, railway traffic 
 in this country was regulated by the principles of the 
 common law applicable to common carriers except when 
 modified by state statutes. Their charges for transpor- 
 tation were required to be reasonable, and when a car- 
 rier refused to receive goods except upon the payment 
 of an unreasonable sum, the shipper had a right of 
 action in damages;^ but there was a conflict of opinion 
 among the courts as to whether carriers were bound to 
 make the same charge to all persons for the same serv- 
 ice.^ 
 
 Some courts, under the common law, held that the 
 duty to carry for all did not require an equality of com- 
 
 1. United States. Texas & P. 
 R. Co. V. Abilene Cotton Oil Co., 
 204 U. S. 426, 51 L. Ed. 553, 27 
 Sup. Ct. 350, 9 Ann. Cas. 1075; 
 Western U. Tel. Co. v. Call Pub. 
 Co., 181 U. S. 92, 45 L. Ed. 765, 
 21 Sup. Ct. 561; Union Pac. Ry. 
 Co. V. Goodridge, 149 U. S. 680, 
 37 L. Ed. 896, 13 Sup. Ct. 970; 
 Interstate Commerce Commission 
 V. Baltimore & 0. R. Co., 145 U. 
 S. 263, 36 L. Ed. 699, 12 Sup. Ct. 
 844; Munn v. Illinois, 94 U. S. 
 113, 24 L. Ed. 77; Tift v. South- 
 ern Ry. Co., 123 Fed. 789; Men- 
 acho V. Ward, 27 Fed. 529. 
 
 niinois. Chicago & A. R. Co. v. 
 People ex rel Koerner, 67 111. 11, 
 16 Am. St. Rep. 599; Chicago, B. 
 & Q. R. Co. V. Parks, 18 111. 460, 
 68 Am. Dec. 562. 
 
 Maine. New England Exp. Co. 
 V. Maine Cent. R. Co., 57 Me. 188, 
 2 Am. Rep. 31. 
 
 New York. Killmer v. New York 
 Cent. & H. River R. Co., 100 N. Y. 
 395, 53 Am. Rep. 194, 3 N. E. 293. 
 
 Ohio. Scofield v. Lake Shore & 
 M. S. Ry. Co.. 43 Ohio St. 571, 54 
 Am. Rep. 846, 3 N. E. 907. 
 
 Pennsylvania. Sanford v. Cata- 
 wissa, W. & E. R. Co., 24 Pa. St. 
 378, 64 Am. Rep. 667. 
 
 South Carolina. Ex parte Ben- 
 son & Co., 18 S. C. 38, 44 Am. Rep. 
 564. 
 
 West Virginia. Brown v. Adams 
 Exp. Co., 15 W. Va. 812. 
 
 Wisconsin. Smith v. Chicago & 
 N. W. Ry. Co., 49 Wis. 443, 5 N. 
 W. 240. 
 
 2. Interstate Commerce Com- 
 mission V. Baltimore & 0. R. Co., 
 145 U. S. 263, 36 L. Ed. 699, 12 
 Sup. Ct 844; Pennsylvania R. Co. 
 V. International Coal Min. Co., 23o 
 U. S. 184. 57 L. Ed. 1446, 33 Sup. 
 Ct. 893, Ann. Cas. 1915A 315. in 
 which the Court said: "Indeed it 
 is exceedingly doubtful whether 
 there was at common law any 
 right of action for any sort of dam- 
 ages like this, while this statuL^ 
 does give a clear, definite and posi- 
 tive right to recover for unjust dis- 
 crimination. It thereby either first 
 created the right or removed the 
 doubt as to whether such suit 
 could be brought."
 
 § 141] Discriminations and Preferences. 
 
 305 
 
 pensation or cliarge, that is, that tho oarriors were not 
 required to transport freight for all persons similarly 
 situated for the same compensation;^ while others held 
 that all ship])ers had o([\vd] ri(?hts and that carriers 
 were required to make the same charge to all porsons 
 for similar services.* 
 
 In a leading case decided in 1900 and before tele- 
 graph companies became subject to the Interstate Com- 
 meirce Act, the United States Supreme Court held that 
 the principles of the common law were operative upon 
 all interstate commerce transactions, expect in so far as 
 they were modified by congressional enaclment, and that 
 common carriers were required to treat all patrons 
 similarly situated on equal terms, but such ef|uality of 
 right did not prevent differences in modes and kinds of 
 services and different charges based thereon. Applying 
 
 3. United States. United States 
 ex rel. Morris v. Delaware, L. & 
 W. R. Co., 40 Fed. 101; Menacho 
 V. Ward, 27 Fed. 529. 
 
 California. Cowden v. Pacific 
 Coast S. S. Co., 94 Cal. 470, 18 L. 
 R. A. 221. 28 Am. St. Rep. 142. 29 
 Pac. 873. 
 
 Florida. .Tohnson v. Pensacola 
 & P. R. Co., 16 Fla. 62.*?, 26 Am. 
 Rep. 731. 
 
 Massachusetts. Spoffard v. Bos- 
 ton & M. R. Co., 128 Mass. 326; 
 Sargent v. Boston & L. R. Co., 115 
 mass. 416; Fitchburg R. Co. v. 
 Case, 42 Gray (Mass.) ."^PS. 
 
 New York. Killmer v. New 
 York Cent. & H. River R. Co., 100 
 N. Y. 395. 53 Am. Rpp. 194, 3 N. 
 E. 293. 
 
 Pennsylvania. Hoover v. Penn- 
 sylvania R. Co.. 156 Pa. 220, 22 L. 
 R. A. 263, 36 Am. St. Rep. 43, 27 
 Atl. 282. 
 
 South Carolina. Ex parte Benson 
 & Co., 18 S. C. 38. 44 Am. Rep. 564. 
 
 Tennessee. Ragan v Aiken & 
 Buffet, 9 T^a (Tenn.) 609. 
 
 In Menacho v. Ward, supra, the 
 
 Court, construing tlie rights of a 
 common carrier under the common 
 law, said; "Unquestionably a com- 
 mon carrier is always entitled to 
 reasonable compensation for his 
 services. Hence it follows that he 
 is not entitled to treat all those 
 who patronize him with absolute 
 equality. It is his privilege to 
 charge less than fair compensation 
 to one person, or to a class of per- 
 sons, and others cannot justly 
 complain so long as he carries on 
 reasonable terms for them. Re- 
 specting preferences in rates of 
 compensation, his obligation is to 
 charge no more than a fair return 
 in each particular transaction, and 
 except as thus restricted, he Is 
 free to discriminate at pleasure. 
 This is the equal justice to all 
 which the law exacts from tho 
 common carrier in his relations 
 with the public." 
 
 4. Atchison T. & S. F. R. Co. 
 v. Denver, N. & 0. R. Co., 110 U. 
 S. 667, 28 L. Ed. 291. 4 Sup. Ct. 
 185; Kinsley v. Buffalo. N. Y. & 
 P. R. Co., 37 Fed. 181; Handy v 
 
 1 Control Cnrrlors 30
 
 306 Duties to Interstate Shippers. [§ 141 
 
 these principles, a judgment ag'ainst an interstate tele- 
 graph company for discrimination between two patrons 
 similarly situated for similar services, was sustained/ 
 
 § 142. Origin and History of Sections Two and 
 Three of the Interstate Commerce Act. Section 2 of the 
 Interstate Commerce Act was modeled after an English 
 statute ]iassed in 1845 and known as Section 90 of tlie 
 Eailway Clauses Act of 1845." The British statute was 
 known as the "Equality Clause" governing railroads 
 and canals. The American statute is far broader than 
 the English law, for instead of the words ''under sub- 
 stantially similar circumvStances and conditions" found 
 in Section 2, the British Act contines the carriage to 
 that "passing only over the same portion of the line of 
 railway under the same circumstances." Decisions by the 
 British courts prior to 1887, when Section 2 was adopted, 
 have frequently been cited by the national Supreme 
 Court in construing the American Act.^ 
 
 The English statute was as follows: "And whereas 
 it is expedient that the company should be enabled to 
 vary the tolls upon the railway so as to accommodate 
 them to the circumstances of the traffic but that such 
 
 Cleveland & M/R. Co., 31 Fed. 089; his conduct should be equal and 
 
 Burlington, C. R. & N. Ry. Co. v. just to all. * * * ^ common 
 
 Northwestern Fuel Co., 31 Fed. carrier owes an equal duty to all, 
 
 652; Missouri Pac. Ry. Co. v. Tex- and it cannot be discharged if he 
 
 as & Pac. Ry. Co., 30 Fed. 2; John is allowed to make unequal pref- 
 
 Hays & Co. v. Pennsylvania Co., 12 erences, and thereby prevent or 
 
 Fed. 309; Christie v. Missouri Pac. impair the enjoyment of the com- 
 
 Ry. Co., 94 Mo. 453, 7 S. W. 567; nion law." 
 Messenger v. Pennsylvania R. Co , 5. Western U. Tel. Co. v. Call 
 
 36 N. .T. L. 407, 13 Am. Rep. 457, Pub. Co., 181 U. S. 92, 45 L. Ed. 
 
 37 N. J. L. 531, 18 Am. Rep. 754. 765, 21 Sup. Ct. 561. 
 
 This view of the courts is well 6. Trammel v. Clyde Steamship 
 
 expressed in Messenger v. Penn- Co., 5 I. C. C. 324, 4 I. C. R. 121. 
 
 sylvania R. Co., 37 N. J. L. 531, 7. Texas & P. R. Co. v. Inter- 
 
 18 Am. Rep. 754, as follows: "The state Commerce Commission, 162 
 
 business of the common carrier is U. S. 197, 40 L. Ed. 940, 16 Sup. 
 
 for the public, and it is his duty Ct. 666; Interstate Commerce Com- 
 
 to serve the public indifferently. mission v. Baltimore & 0. R. Co., 
 
 * * * In the very nature, then, 145 U. S. 263, 36 L. Ed. 699, 12 
 
 of his duty, and of the public right. Sup. Ct. 844.
 
 § 143] Discriminations and Preferences. 307 
 
 power of varying- should iiol he used for the purpose of 
 prejudicing or favoring i)aiticular parties or for the 
 purpose of collusively or unfairly creating a monopoly, 
 either in the hands of the company or of particular 
 parties; it shall be lawful, therefore, for the company, 
 subject to the provisions and limitations herein and in 
 the special act contained from time to time to alter or 
 vary the tolls ])y the special act authorized to ])e taken, 
 either upon the whole or upon any particular portions 
 of the railway, as they shall think fit; ])rovided, that 
 all such tolls be at all times charged equally to all per- 
 s6ns, and after the same rate, whether per ton, per 
 mile, or otherwise, in respect to all passengers, and of 
 all goods or carriages of the same description, and 
 conveyed or propelled by a like carriage or engine, pass- 
 ing only over the same portion of the line of railway 
 under the same circumstances; and no reduction or ad- 
 vance in any such tolls shall be made either directly 
 or indirectly in favor of or against any particular com- 
 pany or person traveling upon or using the railway." 
 Section 3 of the Interstate Commerce Act is a copy 
 of the "undue preference clause" of the British Rail- 
 way and Canal Act passed in 1854 as 'amended in 1873, 
 with the exception that the word ''locality" found in 
 the American statute does not appear in the British law. 
 The English Act provides that "no such company shall 
 make or give any undue or unreasonable preference or 
 advantage to or in favor of any particular person or 
 company, or any particular description of traffic in any 
 respect whatsoever, nor shall any such company subject 
 any particular person or company, or any ]iarticular 
 description of traffic, to any undue or unreasonable 
 prejudice or disadvantage in any respect whatsoever."* 
 
 § 143. Purpose and Object of Congress in the En- 
 actment of Sections Two and Three. The congressional 
 
 8. Some of the English cases sion v. Baltimore & O. R. Co., 145 
 construing Section 3 are reviewed U. S. 26.1, 36 L. Ed. 699, 12 Sup. 
 in Interstate Commerce Commis- Ct. 844.
 
 308 Duties to Interstate Shippers. [§ 143 
 
 investigation preceding the passage of the Interstate 
 Commerce Act, disclosed an elaborate system among 
 common carriers of secret special rates, rebates, draw- 
 backs, concessions and preferences. Shipments of im- 
 portance were commonly made under special bargains 
 entered into for the occasion. Favored shippers were 
 enriched, and free competition was destroyed. Common 
 carriers gave favors with the hope of gain and sought 
 to control business by demands and concessions. Dis- 
 crimination in rates between cities flourished so that 
 some towns withered away and others became prosper- 
 ous. The carriers encouraged the growth of large trade 
 centers so that the traffic might be concentrated in large 
 quantities and handled more cheaply by lowering the 
 rates to these points and raising them to other cities 
 not so fortunately favored. Free transportation was 
 given to secure business and to obtain the favor of local- 
 ities and public bodies. 
 
 Confronted with these evils, the purpose of Con- 
 gress in the enactment of the second and third sections 
 of the Act was, to cut up by the roots the entire system 
 of rebates and discriminations in favor of particular 
 localities or favored corporations;^ to put all shippers 
 on an absolute equality; to prevent unjust inequalities, 
 partiality, favoritism or unfairness as between persons, 
 traffic or localities similarly circumstanced;^" to compel 
 the carrier as a public agent to give equal treatment to 
 all;" to prevent undue and unreasonable preferences to 
 persons, corporations or localities;^- to restrain the 
 building up of one locality at the expense of another 
 by rates favoring the former and discriminating against 
 the latter;" to prevent unjust discrimination between 
 
 9. Union Pac. Ry. Co. v. Good- sion, 200 U. S. 3C1, 50 L. Ed. 515, 
 ridge, 149 U. S. 680, 37 L. Ed. 896, 26 Sup. Ct. 272. 
 
 13 Sup. Ct. 970. 12. Interstate Commerce Com- 
 
 10. Interstate Commerce Com- mission v. Chicago Great Western 
 mission v. Baltimore & O. R. Co., Ry. Co., 141 Fed. 1003. 
 
 43 Fed. 37. 13. Hampton Board of Trade 
 
 11. New York, N. H. & H. R. Co. v. Nashville, C. & St. L. Ry., 8 I. 
 V. Interstate Commerce Commis- C. C. 503.
 
 §144] Dtscbiminations and Preferences. 309 
 
 sliipjiers;^* to prohibit unjust discriminations in the 
 rendition of like services under similar circumstances;" 
 to compel every carrier to give equal rights to all ship- 
 pers over its own road and to i'orbid it by any devices 
 from enforcing higher charges against one than another;" 
 to restrain the carrier from giving any shipper ])riv- 
 ileges or charges in connection with the transportation 
 of its property that were witlilield horn its competitor/^ 
 and to forbid any advantage of one locality over another 
 not arising out of differences in transportation condi- 
 tions." 
 
 The underlying purpose of this legislation was to 
 insure shipper not only equal rates but an impartial 
 enjoyment of the facilities and services of interstate 
 common carriers. By section 2, the shipper is assured 
 an equality of rates for the transportation of like traffic 
 under substantially similar circuuistauces, and by sec- 
 tion 3 he is assured an equality in the opportunity to 
 use the rates, facilities and services of a carrier. One 
 section supplements the other. An equality in rates 
 without an equal opportunity to use the facilities of the 
 carrier, would fall short of the object sought to be at- 
 tained by Congress." 
 
 § 144. Relation and Distinction Between Sections 
 Two and Three. Section 2 prohibits unjust discrimina- 
 tion in rates between shippers of like traffic and ser- 
 vices of transportation under substantially similar con- 
 ditions. It was aimed primarily at the wholesale dis- 
 crimination by rebate so prevalent at the time of the 
 passage of the Act.^° Section 3 is far broader in its 
 
 14. Texas & P. R. Co. v. Inter- J 7. Federal Sugar Refining Co. 
 state Commerce Commission, 162 v. Baltimore & O. R. Co., 20 I. C. 
 U. S. 197, 40 L. Ed. 940, 16 Sup. q 2OO. 
 
 ^^- ^^^- 18. Railroad Commission of 
 
 15. Interstate Commerce Com- Louisiana v. St. Louis S. W. Ry. 
 mission v. Baltimore & O. R. Co., , *>•' t P r '^1 
 
 145 U. S. 263, 36 L. Ed. 699, 12 " "" 
 
 Sup Ct 844 ^^' ^^*^ * River Coal Co. v. 
 
 16. Wight V. United States, 167 Baltimore & O. R. Co., 14 I. C. C. 
 U. S. 512, 42 L. Ed. 258, 17 Sup. ^6. 
 
 Ct 822. 20. Re Underbills, 1 I. C. R. 813.
 
 310 Duties to Interstate Shippees. [§ 144 
 
 scope tliau section 2. It prohibits all iinrcasonalDle ])re- 
 ferences or advantages for or against localities, and be- 
 tween kinds of traffic as well as discriminations be- 
 tween shippers not only as to rates bnt as to other ser- 
 vices and advantages as well. 
 
 Section 2 deals principall}^ with discriminations 
 among shippers as to rates. Section 3 covers discrimina- 
 tions and preferences among shippers as to all services 
 other than rates, and also with preferences between 
 localities and kinds of traffic. Since both sections re- 
 quire equalty of service as to shippers and localities 
 under similar conditions, they may be conveniently 
 treated together as the same principles largely govern 
 in the application of both to the mnltifarions facts of 
 interstate transportation. 
 
 § 145. Distinction between Section Two and Clause 
 in Section One Prohibiting Unjust and Unreasonable 
 
 Charges. The reasonableness of a rate is not necessarily 
 involved in determining unjust discrimination under 
 section 2. Section 1 requires the carrier to provide and 
 furnish transportation upon reasonable request therefor 
 and to establish just and reasonable rates applicable 
 thereto; but a rate may be reasonable and just under 
 requirements of section 1 and yet be unlawful under the 
 provisions of sections 2 and 3 as to a sliip])er because 
 of an unjust discrimination. A rate, therefore, must 
 run two gantlets; it must be reasonable under the re 
 quirements of section 1, and it must be non-discrimina- 
 tory under the provisions of section 2.^^ 
 
 When it is sought to show that the charges for any 
 service rendered by a railroad company is extortionate 
 as being contrary to the obligation to charge equally, 
 it is immaterial whether the charge is reasonable or not; 
 it is enough to show that the company carried for some 
 other person or class of persons at a lower charge dur- 
 
 21. Kinavey v. Terminal Rail- road Ass'n, 81 Fed. 803.
 
 § 146J DlSCHI.MINAlloNS AMt 1 'liKFERKNCKS. 311 
 
 in^ tlio same jK'i-iod iln'onulioiii which tho paity ooin- 
 plaiiiiii^" was cliar^cfl more uiidoi- like ciiT'iiiiistniiccs.*" 
 
 § 146. Statutory Conditions Rendered Difference in 
 Charges Unlawful Under Section Two. A cairicr does 
 not x'iohiic the juoxisioiis ot" section '2 in dciiunidiii'j: or 
 receivin*^' a .i^reater compensation for services rendered, 
 from one shipper than another unless, first, the services 
 rendered in the transjiortation of persons or property are 
 like and contemporaneous; second, the services are 
 rendered in Ihc transportation of a like kind of li-aflic, 
 and, third, the services are rendered under substantially 
 similar circumstances and conditions.-'' Tf, therefore, 
 the services rendered to ship]iers are not like and con- 
 temporaneous, or if the traflRc carried for each of them 
 is not of a like kind, or if the transportation is made 
 under circumstances and conditions substantially dis- 
 similar, the demand or collection of a gTeater compensa- 
 tion from one than the other, does not constitute an 
 unjust discrimination. 
 
 In order for the services to be "like" they must be 
 rendered at least over the same line.^* Tlie expression 
 "like kind of traffic" does not mean that all classes of 
 livestock, for example, must be transported at the same 
 rate, and, therefore, a higher charge for the transporta- 
 tion of sheep than for the carriage of cattle under simi- 
 
 22. Statement of Mr. .Justice Commission v. Baltimore & O R. 
 Blackburn in Great Western R. Co., 145 U. S. 2C3, 36 L. Ed. 699, 12 
 Co. V. Sutton, L. R. 4 H. L. 226. Sup. Ct. 844; Union Pac. Ry. Co. 
 approvingly cited in Interstate v. United States, 117 U. S. 355, 2.) 
 Commerce Commission v. Balti- L. Ed. 920, 6 Sup. Ct. 772; United 
 more & O. R. Co., 145 U. S. 2(i3, 36 States v. Hanley, 71 Fed. 672; 
 L. Ed. 699, 12 Sup. Ct. 844. United States ex rel. Morris v. Del- 
 
 23. Penn Refining Co., Ltd. / aware, L. & W. R. Co., 40 Fed. 101; 
 Western New York & P. R. Co., Kentucky & I. Bridge Co. v. Louis- 
 208 U. S. 208, 52 L. Ed. 456, 2S ville & N. R. Co.. 37 Fed. 567, 2 L. 
 Sup. Ct. 268; Texas & P. R. Co. v. R. A. 289. 
 
 Interstate Commerce Commission, 24. Cattle Raisers' Association 
 
 162 t. S. 197, 40 L. Ed. 940, 16 Sup. of Texas v. Fort Worth & D. C. 
 Ct. 666; Interstate Commerce Ry. Co.. 7 I. C. C. 51."..
 
 312 Duties to Interstate Shippers. [§ 146 
 
 lar circumstances does not constitute an unjust discrimi- 
 nation.-^ 
 
 § 147. Circumstances and Conditions Determining 
 Dissimilarity of Service Under Section 2 Refer Strictly 
 to Matters of Carriage. In determining whether dis- 
 crimination exists in violation of section 2, the phrase 
 "under substantially similar circumstances and condi- 
 tions" does not include extraneous conditions or cir- 
 cumstances not affecting the haulage or carriage. Con- 
 siderations beyond the actual carriage itself or the 
 transportation service of the carrier, cannot be per- 
 mitted to create dissimilar conditions.^" 
 
 The phrase in question does not allow carriers to 
 make a difference in rates because of a dissimilarity in 
 circumstances arising either before the service of the 
 carrier began or after it was terminated." If the car- 
 rier were allowed to take into consideration matters not 
 relating to the actual carriage itself, to create dissimilar 
 circumstances, the interests or the personal relation of 
 the shippers to the carrier both before and after the 
 transportation, would create justifiable conditions under 
 the statute and thus open the way for preferences 
 among them.^* 
 
 § 148. Unjust Discrimination and Preference Sec- 
 tions of Original Act Apply to Subsequent Amendments 
 Defining Railroads and Transportation. AVhile sections 
 2 and 3 of the Act defining and prohibiting unjust dis- 
 crimination and undue preference were a part of the 
 original Act and have remained in the statute without 
 amendment, these provisions apply with equal force to 
 
 25. Wynn v. Wabash R. Co., Ill 45; In re Restricted Rates, 20 I. 
 Mo. App. 642, 86 S. W. 562. C. C. 426. 
 
 26. Interstate Commerce Com- 27. Interstate Commerce Com- 
 mission V. Baltimore & O. R. Co., mission v. Delaware, L. & W. R. 
 225 U. S. 326, 56 L. Ed. 1107, 32 Co., 220 U. S. 235, 55 L. Ed. 448, 31 
 Sup. Ct. 742, Ann. Cas. 1914A 504; Sup. Ct. 392. 
 
 Interstate Commerce Commission 28. Pennsylvania R. Co. v. In- 
 
 V. Alabama Midland R. Co., 168 U. ternational Coal Min. Co., 97 C. C. 
 S. 144, 42 L. Ed. 414, 18 Sup. Ct. A. 383, 173 Fed. 1.
 
 § 149] Discriminations and Preferences. 313 
 
 new subject matters brought within tlie jurisdiction of 
 the Interstate Commerce Commission by amendments 
 and must be construed in connection witli these amend- 
 ments and subsecjuent provisions. 
 
 For example, the original definition of transporta- 
 tion in the Act was amended in 1906 so as to include all 
 service in connection with the receipt, delivery, eleva- 
 tion, transfer in transit, ventilation, refrigeration, stor- 
 age and handling of property transported, and the defi- 
 nition of the term railroad in the original Act was 
 amended at the same time so as to include all switches, 
 spurs, tracks and terminal facilities of every kind used 
 or necessary in the transportation of the i)ersons or 
 property designated in the Act, and also all freight 
 depots, yards and grounds used or necessary in the 
 transportation or delivery of any of said property. 
 
 It therefore follows that the provisions of sections 
 2 and 3 must be read in connection with subsequent 
 amendments which show^ the transportation as used in 
 the Act covers the entire carriage and service in con- 
 nection with the receipt and delivery of property trans- 
 ported. The prohibition against undue discriminations 
 and undue preferences apply to terminal facilities of 
 every kind and character, including the delivery and 
 interchange of cars at such terminals.^^ 
 
 § 149. Distinction Between Ordinary Definition of 
 Rebate and Meaning of That Term Under Provisions of 
 Section Two. While the word ''rebate" ordinarily in- 
 cludes any discount or deduction from a stipulated pay- 
 ment, charge or rate not taken out in advance of pay- 
 ment but handed back to the payer after he has paid 
 the stipulated sum, the meaning of that term as used in 
 the equality clause of section two is plainly limited 
 to such sums as are refunded to one shipper for like 
 services under similar conditions without a similar re- 
 
 29. Pennsylvania Co. v. United States, 236 U. S. 351, 59 L. Ed. 
 
 616, 35 Sup. Ct. 370.
 
 314 Duties to Interstate Sitippers. [§ 149 
 
 fund to another. In other words, the term as used in 
 tliis statute refers only to such discount, deduction or 
 drawback as is the basis of a discrimination in favor 
 of a particuUir person and against other persons in like 
 situations, and destroj^s that equality of treatment in 
 rates or charges to which the public is entitled. A re- 
 bate is not illegal under section 2 unless it produces 
 the discriminatory result defined in the statute. For 
 example, it has been held that a deduction of two cents 
 per hundred pounds for transfer on shipments of sugar 
 in carload lots, from the through rate when destined 
 to certain termini, applicable to all shippers without dis- 
 crimination, did not constitute a rebate within the terms 
 of the statute.^" 
 
 § 150. Discrimination Under Section 3 Must Ordi- 
 narily be Prejudicial to One Party and Source of Ad- 
 vantage to the Other. Under section 3 of thp Act, tbo 
 discrimination, to be undue and unlawful, must ordi- 
 narily be such that the prejudice resulting against one 
 party is a source of advantage to the other alleged to 
 be favored. For example, an unlawful discrimination 
 is not shown by proof that carriers refuse to absorb 
 switching charges on grain, while absorbing such charges 
 in the cases of other commodities which have no com- 
 petitive relation with grain.''^ And so proof that car- 
 riers at Chicago did not furnish assistance in the un- 
 loading of fruit and vegetables in carload lots while 
 furnishing the same service at Milwaukee or i:u'e versa, 
 does not create a discrimination that is undue or un- 
 reasonable for the same reason. ^^ 
 
 § 151. Relation of Discrimination Clause to the El- 
 kins Act of 1903. Tlie ])rovisions of section "J prohibiting- 
 unjust discriminations were materially strengthened 
 
 30. American Sugar Refining New York, N. H. & H. R. Co., 11 
 Co. V. Delaware, L. & W. R. Co., I. C. C. 422. 
 
 125 C. C. A. 251, 207 Fed. 733. 32. Board of Trade of St. Paul 
 
 31. Board of Trade of Chicago, v. Chicago, M. & St. P. Ry. Co., 17 
 111. V. Atchison, T. & S. F. R. Cc, I. C. C. 596. 
 
 29 I. C. C. 438; See also Miner v.
 
 § ITjl'l 1 )IS(I;IMINATI()N.S AM) I 'hKFKRENCES. '-''^'i 
 
 by tlio pasi^a^o of llic KIkiiis Ad of ]'.)()'.'>. liidcr i^cc- 
 tioii 2 llio dciermiiintivo factor as to violation is whetlier 
 tlic cairicr charged one siiipper more than another. The 
 standard of f'oni])arison was the treatment of other 
 shii)pers. Tlic ])arty ui)()n wliom the burden of ])roof 
 rested was i'(M|iiii'c(l to sliow that tlie favored sliipix-r 
 paid less than the other shipper for similar services; 
 hut under the Elkins Act the standard of comparison is 
 the ])ublished rate, and if a carrier is shown to have 
 permitted any shipper to transport his property at less 
 than the published rate, both are guilty of a misde- 
 meanor. Any dejiarture from the published rate is an 
 offense. The tiled and ])ublished rate is conclusively 
 deemed to be the legal rate. 
 
 § 152. All Methods and Means Employed Unlaw- 
 ful if Ultimate Results Thereof Cause Unjust Discrimi- 
 nations. All means or methods however skillfully plan- 
 ned by which an unlawful result is effected, are devices 
 condemned by the statute. In ascertaining whether the 
 carrier unjustly discriminates or is guilty of undue 
 preferences, the law deals with the results produced, 
 and it is not material what means may be emploj^ed for 
 that purpose. If they in fact culminate in what the 
 law forbids, it is of no importance that the means be 
 direct or indirect, open or covert. 
 
 If the result is unlawful, the inhibition of the stat- 
 ute falls alike upon the result itself and the means by 
 which it is reached, and the parties engaged in the trans- 
 portation must be presumed to have intended by their 
 acts the breach of the law that ensues as a necessary 
 consequence. Thus, where a firm of cattle dealers organ- 
 ized a separate corporation for the purpose of supplying 
 a carrier with imi)roved stock cars for the transporta- 
 tion of its stock from riiicago to New York for which 
 the carrier paid a very high rental and extraordinary 
 mileage amounting, in fact, to a rebate on their rates, 
 
 33. See Appendix B, i»/ro.
 
 316 Duties to Interstate Shippees. [§ 152 
 
 the Commission held the arrangement to be an "unlaw- 
 ful i^referonce condemned by the statute."''* 
 
 §153. Effect of Statute Upon Contracts with Dis- 
 criminatory Provisions. All contracts existing at the 
 time of the passage of the Interstate Commerce Act, 
 the provisions of which required a carrier to discrimi- 
 nate either for or against any shipper, became void 
 under the statute.^^ Likewise all such contracts entered 
 into since the passage of the Act are not enforceable 
 and render the carrier, when a party to the same, liable 
 to punishment for undue discrimination.^*' 
 
 §154. Terms "Unreasonable" or "Undue" Imply 
 Comparison of all Facts and Circumstances Applicable. 
 
 In determining whether any rate is unjust or unreason- 
 able or whether any person, locality or kind of traffic is 
 subjected to any undue or unreasonable prejudice or 
 disadvantage the tribunals appointed to enforce the 
 provisions of the statute, whether the Commission or 
 the courts, should take into consideration all the facts 
 and circumstances which bear upon the relation of the 
 rates between the shippers and to different communities. 
 
 34. Shamberg v. Delaware L. & Washington. Cowley v. North- 
 W. R. Co., 3 I. C. R. 502, 4 I. C. ern Pac. R. Co., 68 Wash. 558, 41 
 C. 630. To the same effect; Mus- T.. R. A. (N. S.) 559, 123 Pac. 998. 
 kogee Commercial Club v. Mis- West Virginia. Dorr v. Chesa- 
 
 souri, K. & T. Ry. Co., 12 I. C. C. P^ake & 0. Ry. Co., W. Va. 
 
 o-ip , 88 S. E. 666. 
 
 35. United States. Louisville & ^6. Alabama. Louisville & N. R. 
 N. R. Co. V. Mottley, 219 U. S. 467, ^«- v- Jo"^^' ^ Ala. App. 617. 6 N. 
 55 L. Ed. 297, 31 Sup. Ct. 265, 34 C. C. A. 43, 60 So. 945. 
 
 L. R A. (N. S.) 671; Louisville Georgia. Savannah, F. & W. Ry. 
 
 & N. R. Co. V. Mottley, 211 U. S. ^o. v. Bundick, 94 Ga. 775, 21 S. 
 
 149, 53 L. Ed. 126, 29 Sup. Ct. 4?. -^- ^^•^■ 
 
 Iowa. Gatton v. Chicago, R. I. & Kansas. Chicago, R. I. & P. Ry- 
 
 P. R. Co., 35 Iowa 112, 29 L. R. A. Co. v. Hubbell, 54 Kan. 232, 38 Pac. 
 
 556, 63 N. W. 589. 
 
 266. 
 
 Kentucky. Louisville & N. R. Kentucky. Illinois Cent. R. Co. 
 
 Co. V. Crowe, 156 Ky. 27, 49 L. R. v Fleming, 148 Ky. 473, 146 S. W. 
 
 A. (N. S.) 848. 160 N. W. 759. 1110. 
 
 Nebraska. Fitzgerald v. Fitzger- Missouri. Southern Wire Co. v. 
 aid & Mallory Const. Co., 41 Neb. 
 374, 59 N. W. 838.
 
 § 155] Discriminations and Preferences. 317 
 
 When Congress enacted that one locality should not 
 have undue preferences in rates or facilities over an- 
 other locality, or be subjected to any unreasonable preju- 
 dice or disadvantaf(e, it opened the door for, and made 
 material, any evidence which tends to throw lic^ht upon 
 the question of undue preference or prejudice. The 
 terms of the statute imply comparison of relative loca- 
 tions, of natural and acquired advantages, of the reason- 
 ableness of charg:es per se and their relation to other 
 rates on the various lines which serve the competing 
 localities." 
 
 Both the courts and the Commission in passing upon 
 questions arising under the Act are em]^owerod to fully 
 ponsider all the circumstances and conditions that reason- 
 ably apply to the situation, and, in addition, they should 
 consider the legitimate interests not only of the carriers 
 but also of shippers. In considering whether any locali- 
 ty is subjected to an undue preference, the welfare of 
 the communities occupying the localities where the 
 goods are delivered must be considered as well as that 
 of the communities which are in the locality of the place 
 of shipment. ^^ 
 
 § 155. Existence of Undue Preference or Unjust 
 Discrimination a Question of Fact. The second sec- 
 tion does not define or describe what constitutes a sim- 
 
 St. Louis Bridge & Tunnel R. Co., Great Northern Ry. Co., 4 I. C. R. 
 
 38 Mo. Ap> 191; Christie v. Mis- 230, 5 I. C. C. 571; Board of Trade 
 
 souri Pac. Ry. Co., 94 Mo. 453, 7 of Eau Claire v. Chicago, M. & St. 
 
 S. W. 567. P. R. Co., 4 I. C. R. 65, 5 I. C. C. 
 
 Montana. Bullard v. Northern 264; Board of Trade of Lincoln v. 
 
 Pac. R. Co., 10 Mont. 1G8, 11 L. R. Missouri P. R. Co., 2 I. C. R. 98, 
 
 A. 246, 25 Pac. 120. 2 I. C. C. 155; Raymond v. Chi- 
 
 South Dakota. Church v. Minne- cago, M. & St. P. R. Co., 1 I. C. R. 
 
 apolis & St. L. Ry. Co., 14 S. --'. 627; 1 I. C. C. 230; Board of Trade 
 
 443, 85 N. W. 1001. of Farmington v. Chicago, M. & ot. 
 
 Vermont. Fitzgerald v. Grand P. R. Co., 1 I. C. R. 608, 1 I. C. 
 
 Trunk R. Co., 63 Vt. 169, 13 L. R. C. 215. 
 A. 70, 22 Atl. 76. 38. Texas & P. R. Co. v. Inter- 
 
 37. Daniels v. Chicago, R. I. & state Commerce Commission. 162 
 
 P. R. Co., 6 I. C. C. 458; Chamber U. S. 197, 40 L. Ed. 940, 16 Sup. 
 
 of Commerce of Minneapolis v. Ct. 666.
 
 318 
 
 Ditties to Interstate Shippers. 
 
 [§ 155 
 
 ilarity or dissimilarity of circumstances and conditions. 
 Neither does the third section define when a preference 
 shall be undue or unreasonable. The question, therefore, 
 under these two sections whether a shipper, community 
 or traffic has been subjected to an undue preference or 
 an unjust discrimination is an issue of fact in each 
 particular case and not a question of law.^^ 
 
 § 156. Strict Uniformity Not Always Required. 
 The statute requires that discriminations shall not be 
 unjust, and that preferences and advantages as to any 
 particular firm or locality must not be undue. This 
 necessarily implies that strict uniformity is and must 
 not always be enforced, but all the surrounding facts 
 and circumstances affecting the carrier and the shipper 
 should be considered.^" Thus, the Commission held that 
 
 39. Pennsylvania Co. v. United 
 States, 236 U. S. 351, 59 L. Ed. 616, 
 35 Sup. Ct. 370; New York, N. H. 
 & H. R. Co. V. Interstate Commerce 
 Commission, 200 U. S. 361, 50 L. 
 Ed. 515, 27 Sup. Ct. 272; Louisville 
 & N. R. Co. V. Behlmer, 175 U. S. 
 648, 44 L. Ed. 309, 20 Sup. Ct. 209; 
 Interstate Commerce Commission 
 V. Alabama Midland R. Co., 168 
 U. S. 144, 42 L. Ed. 414, 18 Sup. 
 Ct. 45; Cincinnati, N. O. & T. P. 
 R. Co. V. Interstate Commerce 
 Commission, 162 U. S. 184, 40 L. 
 Ed. 935, 16 Sup. Ct. 700; Texas 
 & P. R. Co. V. Interstate Commerce 
 Commission, 162 U. S. 197, 40 L. 
 Ed. 940, 16 Sup. Ct. 666. 
 
 40. Texas & P. R. Co. v. Inter- 
 state Commerce Commission, 162 
 TJ. S. 197, 40 L. Ed. 940, 16 Sup. Ct. 
 666, in which the court said: "The 
 third section forbids any undue 
 or unreasonable preference or ad- 
 vantage in favor of any person, 
 firm, corporation or locality; and 
 as there is nothing in the act 
 which defines what shall be held 
 to be due or undue, reasonable ir 
 
 unreasonable, such questions are 
 questions not of law, but of fact. 
 The mere circumstance that there 
 is, in a given case, a preference or 
 an advantage does not of itself 
 show that such preference or ad- 
 vantage is undue or unreasonable 
 within the meaning of the act. 
 Hence it I'ollows that before the 
 Commission can adjudge a com- 
 mon carrier to have acted unlaw- 
 fully, it must ascertain the facts; 
 and here again we think it evi- 
 dent that those facts and matters 
 which carriers, apart from any 
 question arising under the stat- 
 ute, would treat as calling, in giv- 
 en cases, for a preference or ad- 
 vantage, are facts and matters 
 which must be considered by the 
 Commission in forming its judg- 
 ment whether such preference or 
 advantage is undue or unreason- 
 able. When the section says that 
 no locality shall be subjected to 
 any undue or unreasonable preju- 
 dice or disadvantage in any re- 
 spect whatsoever, it does not :noan 
 that the Commission is to regard
 
 § 158] DiSCHIMINATIONR AND PhEFERENCES. 319 
 
 a sliipper manufactui'iii^' liiinhci- at Monroe, La., was 
 not entitled to the application of transit rales exactly 
 similar to those in effect at Vicksburg and Jackson, 
 Miss/' *'It must be remembered that not every inequal- 
 ity in rates constitutes a violation of tlie law. Discrim- 
 ination is forbidden only when it is unjust. Preferences 
 and prejutlices are not prohibited unless they are un- 
 due."" 
 
 § 157. Long- Existence of Undiie Discrimination No 
 Justification for its Continuance. That the undue dis- 
 crimination or unjust preference in violation of the 
 statute, had existed for a long time without correction, 
 does not justify the di.«crimination or ])reference; for 
 a just equality of trade for shipper and locality is re- 
 quired by the law, and the statute was passed mainly to 
 abolish the unjust discriminations between persons, 
 places, commodities and traffic which had continued 
 for many years as the ]iaramount evil chargeable against 
 the rail carriers prior to federal regulation.*'' ''The 
 length of time which an abuse has continued does not 
 justify it. It was because time had not corrected abuses 
 of discrimination that the Interstate Commerce Act was 
 passed."** Time cannot be permitted to deprive a 
 group of commodities of their right to relief from what, 
 in view of changed conditions, will be a manifest rate 
 discrimination if further continued.*^ 
 
 § 158. Prohibition Against Unjust Discriminations 
 Covers Judgments by Consent and Waiver of Valid 
 
 only the welfare of the locality C. 195; Commerce Club of Omaha 
 
 or community where the traffic v. Chicago & N. W. R. Co., 7 I. C. 
 
 originates, or where the goods are c. 380. 
 
 shipped on the cars. The welfare 43 Kaufman Commercial Club 
 
 of the locality to which the goods y Chicago & N. W. R. Co.. 7 I. C. 
 
 are sent is also, under the terms jg„ 
 and spirit of the act, to enter in- 
 to the question." ^^- "^"'^^e Taft in East Tennes- 
 
 41. Adams & Sons Co. v. Vicks- see, V. & G. Ry. Co. v. Interstate 
 burg, S & P. Ry. Co., 29 I. C. Commerce Commission, 39 C. C. 
 C 52. A. 413, 99 Fed. 52. 
 
 42. Eagle Distillery v. Louis- 45. State of Iowa v. Atchison 
 ville. H. & St. L. Ry. Co., 32 I. C. T. & S. F. R. Co., 28 I. C. C. 47.
 
 320 Duties to Interstate Shippers. [^ 158 
 
 Defenses. The statute against unjust discriminations 
 and undue preferences not only includes inequality of 
 charges and facilities, but is also directed against the 
 giving of any preferences by means of judgments against 
 the carrier b}^ consent and by the waiver of defenses 
 available to the carrier. To permit a railroad company, 
 for example, to plead the statute of limitation against 
 one shipper and waive it against another, would be an 
 undue preference against the one and an advantage for 
 the other in violation of the statute which forbids all 
 devices by which such a result may be accomplished.^'' 
 
 § 159. Proof of Injury and Measure of Damages 
 in Actions for Unlawful Discrimination. Any common 
 carrier subject to the statute, committing any act or 
 omitting to do any act in violation of sections 2 and 3 
 of the statute prohibiting unjust discrimination and un- 
 reasonable preference, is liable to the person injured 
 for the full amount of the damages sustained in conse- 
 quence of such violation, together with a reasonable at- 
 torney's fee, to be fixed by the court in every case of a 
 recovery which may be taxed and collected as a part of 
 the costs in the case.*^ 
 
 A party suing for damages for violation of these 
 two sections, must not only show the wrong, but he must 
 further prove that the wrong operated to his injury.''^ 
 
 46. PhiUips V. Grand Trunk under the act he must show not 
 Western R. Co., 236 U. S. 662, 59 merely the wrong of the carrier, 
 L. Ed. 774, 35 Sup. Ct. 444. but that that wrong has in fact 
 
 47. Section 8, appendix A, infra. operated to his injury. If he 
 
 48. Parsons v. Chicago & N. W. had shipped to New York and been 
 Ry. Co., 167 U. S. 447, 42 L. Ed. charged local rates he might have 
 231, 17 Sup. Ct. 887, in which Mr. recovered any excess thereon over 
 Justice Brewer said: "The only through rates. He did not ship to 
 right of recovery given by the in- New York and yet seeks to recov- 
 terstate commerce act to the in- er the extra sum he might have 
 dividual is to the 'person or per- been charged if he had shipped, 
 sons injured thereby for the full Penalties are not recoverable or 
 amount of damages sustained in mere possibilities. We think, 
 consequence of any of the viola- therefore, without attempting to 
 tions of the provisions of this act.' take judicial knowledge of the 
 So, before any party can recover general order made by the Inter-
 
 § ir)f)| Discriminations A.N'i) Pi{i:KKHKNcr-:s. ''>-\ 
 
 Tlie measure ol" damages in actions l»y sliippers against 
 carriers for unlawful discrimination, was a question 
 upon wliieh coui-ts formerly disagreed, and tiic conflict 
 of opinion was not delinitely removed until the control- 
 ling decisions of the United States Sui)reme Court in 
 Pennsylvania R. Go. v. International Coal Min. Co." 
 In that case a shipper, without i)roving that he sustained 
 any damage, sought to recover damages from a carrici- 
 for giving a rebate to another shipper. The shipper 
 contended that the damages should be assessed on the 
 basis of giving to it the same rate on all its tonnage 
 that Imd been allowed to other shippers on coal trans- 
 ported, that is, that the plaintiff was entitled to a like 
 reduction on every ton of its coal without further proof 
 of damage or injury. But the court refused to adopt 
 this view and held that the right to recover is limited 
 strictly to the pecuniary loss suffered and proven. In 
 rejecting plaintiff's theory, the court said: "To adopt 
 such a rule and arbitrarily measure damages by rebates 
 would create a legalized, but endless, chain of de- 
 partures from the tariff; \\ould extend the effect of the 
 original crime, would destroy the equality and certainty 
 of rates, and, contrary to the statute, would make the 
 carrier liable for damages beyond those inflicted and 
 to persons not injured. The limitation of liability to 
 the persons damaged and to an amount e(]ual to the in- 
 jury suffered is not out of consideration for the carrier 
 who has violated the statute. On the contrary, the act 
 imposes heavy penalties, independent of the amount of 
 rebate paid, and as each shipment constitutes a separate 
 
 state Commerce Commission in 59 L. Ed. 1414, 35 Sup. Ct. 888; 
 
 reference to the publication of Meeker v. Lehigh Valley R. Co., 
 
 joint tariffs, the plaintiff has fail- 236 U. S. 412, 59 L. Ed. 644, 35 Sup. 
 
 ed in that full and clear showing Ct. 328, Ann. Cas. 1916B 691; 
 
 of injury which is necessary in Pennsylvania R. Co. v. W. F. 
 
 order to justify a recovery under .Tacoby & Co., 242 U. S. 89, 61 L. 
 
 the interstate commerce act." Ed. 165, 37 Sup. Ct. 49; Pennsyl- 
 
 49. 230 U. S. 184, 57 L. Ed. vania R. Co. v. Sonnian Shaft Coal 
 
 1446, 33 Sup. Ct. 893, Ann. Cas. Co., 242 U. S. 120, 61 L. Ed. 188, 
 
 1915A 315. See also Mills v. Le- :J7 Sup. Ct. 46. 
 high Valley R. Co., 238 U. S. 473, 
 
 1 Control C'iirrlers L'l
 
 32l^ DuriK>; TO Tnterstatk SniPrHRs. [§ 159 
 
 offense, the law in its measure of fine and ])nnislinient 
 is a terror to evil doers. But for the public wrong and 
 for the inference with the equal current of commerce 
 these penalties or tines were made payable to the Govern- 
 ment. If by the same act a private injury was inflicted 
 a private right of action was given. But the public 
 wrong did not necessarily cause private damage, and 
 when it did, the pecuniary loss varied with the character 
 of the property, the circumstances of the shipment and 
 the state of the market, so that instead of giving the 
 shipper the right to recover a penalty fixed in amount 
 or measure, the statute made the guilty carrier liable for 
 the full amount of damages sustained, — whatever they 
 might be and whether greater or less than the rate of 
 rebate paid."
 
 CHAPTER IX 
 
 Discriminations Betwekn Shippers as to Rates, Serv- 
 ices, Facilities and Allowances 
 
 Sec. 160. Carrier Must Deal with All Its Shippers on Absolute Equal- 
 ity and Must Afford Equal Facilities. 
 
 Sec. 161. Difference in Rates When Based Upon Difference in Serv- 
 ice Not Discriminatory. 
 
 Sec. 162. Different Rates for Wholesalers and Retailers Prohibited. 
 
 Sec. 163. Rates for Train Loads Lower Than for Single Car Loads 
 Subject Small Shippers to Undue Disadvantage. 
 
 Sec. 164. Higher Rates on Domestic Than on Export Traffic Between 
 Ports of Pantry and Inland Points not Discriminatory. 
 
 Sec. 165. Doctrine of Import Case Applied and Illustrated. 
 
 Sec. 166. Use of Terminal Facilities by Permitting Interchange of 
 Traffic with one Carrier and Denying it to Another. 
 
 Sec. 167. Discrimination in Reserving Right to Route Through Ship- 
 ments Beyond Carriers Terminal — Former and Present 
 Rule. 
 
 Sec. 168. Discrimination in Refusal of Rail Carriers to Establish 
 Through Routes and .Joint Rates with Water Lines. 
 
 Sec. 169. Exclusive Privileges for Auxiliary Facilities at Stations and 
 Terminal Grounds Lawful. 
 
 Sec. 170. Distribution of Cars Among Shippers During Time of Short- 
 age Must be Free from Discrimination. 
 
 Sec. 171. Preferences and Discriminations in Demurrage and Track 
 Storage Charges. 
 
 Sec. 172. Unreasonable Compensation to Shippers for Services in 
 Connection with Transportation. 
 
 Sec. 173. Abnormal Division of .loint Rates to Carriers Unlawful. 
 
 Sec. 174. Undue Discrimination in Divisions of Joint Through Rales 
 to Tap Lines or Logging Roads. 
 
 Sec. 175. Grant of Wharfage Privileges to One Shipper Denied to 
 Others T^nlawfnl. 
 
 Sec. 176. Unlawful Discriminations and Preferences in Transit Privi- 
 leges. 
 
 Sec. 177. Compensation for Transit Privileges Not Limited to Actual 
 Cost. 
 
 Sec. 178. Extension of Transit Privileges Over Twelve Months Unrea- 
 sonable — Exceptions Permitted. 
 
 Sec. 179. Carriers May Allow Comiiensation to One Shipper for Trans 
 portation Services and Deny Same Privilege to Another 
 
 Sec. 180. Contracts Requiring Expedited Services Not Open to All 
 Shippers Invalid. 
 
 Sec. 181. Preferential Rates to Other Carriers as Shippers Prohibited. 
 
 / 1 .1 o \ 
 
 (oJo)
 
 324 Duties to Interstate Shippers. [<§ 160 
 
 Sec. 182. Foregoing Rules Illustrated and Applied. 
 
 Sec. 183. Storage Regulations Must Be Enforced Without Preference 
 or Discrimination. 
 
 Sec. 184. Haulage by Stage or Wagon from Destination Points not a 
 Dissimilar Circumstance justifying Lower Rates. 
 
 Sec. 185. Preparing Cars for Shipment of Commodities for Some 
 Shippers and Refusing Same Service to Others. 
 
 Sec. 186. Grain Elevator Service Must be Open to All Shippers With 
 out Preference. 
 
 Sec. 187. Allowances When Owner of Elevator is Shipper of Grain — 
 Former and Present Rule. 
 
 Sec. 188. Allowances for Lighterage Services to Shipper Within Free 
 Delivery Zone not Discriminatory as to Shipper Beyond 
 Zone. 
 
 Sec. 189. Rebating Part of Freight Rates in Payment for Land for 
 Right of Way. 
 
 Sec. 190. Assisting One Shipper to Collect Private Charges and Re- 
 fusing Same Service to Another. 
 
 Sec. 191. Discrimination in Demanding Cash Payment of. Some Ship- 
 pers and Extending Credit to Others — Conflicting Deci- 
 sions. 
 
 Sec. 192. Deduction from Freight Rates to Pay Shipper for Building 
 Tie Hoist Invalid. 
 
 Sec. 193. Difference in Rates on Freight Not Justified by Different 
 Method of Loading. 
 
 Sec. 194. Carrier "Spotting'' Cars for One Shipper and Refusing Same 
 Service to Another Similarly Situated. 
 
 Sec. 195. Trap Car Service Not Unlawful If Practiced Without Dis- 
 crimination. 
 
 § 160. Carrier Must Deal with All Its Shippers on 
 Absolute Equality and Must Afford Equal Facilities. 
 
 The statute recognizes tliat it is not a proper business 
 of a common carrier to foster particular enterprises or 
 to build up new industries by discriminatory practices 
 and unjust preferences. Deriving its franchises from 
 the state, and depending upon the law of the people for 
 its existence, a carrier is bound to deal fairly with the 
 public, to extend to them reasonable facilities for the 
 transportation of persons and property, and to put all 
 their patrons on an absolute equality.^ 
 
 The carrier is bound by every principle of justice 
 and law to accord equal rights to all shippers who are 
 
 1. Union Pac. Ry. Co. v. Good- ridge, 149 U. S. 680, 37 L. Ed. 896, 
 
 13 Sup. Ct. 970.
 
 § HK) 
 
 DlSCRIMIXATlOX AS TO RaTKS, F.TC 
 
 :?2."3 
 
 (Mil it led to like treatment, botli in the rcfcivin'z: of suj>- 
 ])lies and sliii)ment of thcii' piodufts, and a carrier wlio, 
 under any [pretext whatever, .^-rants to one .sliipjx'r an 
 advantage which it denies to another, violat<'s the spii'it 
 and tliwarts Ihc purpose of the statute.^ 
 
 Wlien, therefore, two lailroad eompanics. Joint 
 owners of a connecting- spur terminating at a dock, 
 make a charge of two dollars per car against one shipper 
 from a point on the dock in addition to the published 
 rate, and make no similar charge against another shi])- 
 ))er similarly situated, such a practice constitutes an nn- 
 just discrimination in violation of the statute.^ And 
 where it ap])eai'ed that a In'ewing com}iany, a large 
 shipper, organized a sepai'ate transit conii)any which re- 
 ceived commission from a carrier under the pretense 
 that such demands were made for soliciting business 
 for the carrier, the whole scheme, it was held, was a 
 mere device to evade the statute against discrimination.* 
 
 2. Castle v. Baltimore & 0. R. 
 Co., 8 I. C. C. 333. 
 
 3. Ohio Coal Co. v. Whitcomb, 
 59 C. C. A. 487. 123 Fed. 359. 
 
 4. United States v. Milwaukee 
 Refrigerator Transit Co.. 142 Fed. 
 247, in which the Court said: "Im- 
 mediately on the creation of the 
 transit company the Pabsts, as 
 controlling officers of the brew- 
 ing company, contracted with 
 (hemselves as executive officers of 
 the transit company, for a term 
 not yet expired, to give the latter 
 exclusive control of the shipment 
 of all freight of the brewing com- 
 pany moving in interstate and for- 
 eign commerce, which it Is still 
 exercising. The contract was made 
 to enable the transit company to 
 route the shipment of such freight 
 on the lines of such companies as 
 will pay rebates, and withhold it 
 from such as will not : and all 
 the rebates, concesions, and dis- 
 criminations charged in the bill 
 
 have been exacted by threats of 
 such diversion. Many thousand 
 tons of said freight have been 
 hauled by defendant carriers since 
 the contract was made. On such 
 shipments the brewing compan:* 
 pays to the carriers the full tariff 
 rate, and the carriers pay the 
 transit company for the use of 
 its refrigerator cars for mileage 
 three-fourths of a cent to a cent 
 per mile, and in addition an eighth 
 or tenth of the sums paid them by 
 the brewing company: and in 
 every instance the property is 
 transported by defendant carriers 
 at an eighth or tenth less than the 
 published tariff. Such rebates 
 amount to many thousands of dol- 
 lars, the exact sum unknown to 
 complainants. All the defendant 
 carriers well knew that the transit 
 company was organized in the in- 
 terest of the brewing company, 
 and for the purpose of evading the 
 law. and paid such rebates with
 
 326 
 
 Duties to Ixtki^^tatk Shipi'khs. 
 
 ^ 101 
 
 § 161. Difference in Rates When Based Upon Dif- 
 ference in Service Not Discriminatory. For a like ser- 
 vice the public is entitled to a like price; but the princi- 
 ple of equality among shippers similarly situated does 
 not forbid a difference in charge which is based upon 
 a difference in service. The charge, however, when 
 based u]ion a difference in service should have a reason- 
 able relation to the amount of difference and cannot be 
 so great as to produce an unjust discrimination.^ 
 
 An advantage accorded which fixes the value of the 
 service to the shipper and its cost to the carrier may 
 be made, provided such a special service is open to all 
 others similarly situated.^ Thus the greater cost of car- 
 riage and risk of injury constitute a difference which 
 entitles a carrier to charge a higher rate for carrying 
 
 the like purpose and intent. The 
 transit company claims and pre- 
 tends that such repayments were 
 made and accepted as compensa- 
 tion for its services in soliciting 
 and procuring freight for carriage 
 by defendants: but such claim or 
 pretense is untrue. The transit 
 company has entire control of all 
 the shipping business of the brew- 
 ery, comprising almost the entire 
 business of the transit company, 
 which it does not solicit; the only 
 possible consideration moving 
 from it to the carrier being its 
 refraining to -divert the business. 
 All such repayments have always 
 been known to all said parties to 
 be a device for unlawful rebate, 
 concession, and discrimination. 
 But such payments constitute un- 
 lawful concession and discrimina- 
 tion, whether or not the transit 
 company solicits the shipments, 
 which, if not so solicited and pro- 
 cured, would be diverted from the 
 carrier so paying." 
 
 .5. Interstate Commerce Com- 
 mission v. Chicago Great Western 
 Ry. Co., 209 U. S. 108, 52 L. Ed. 
 705, 28 Sup. Ct. 49.3; Penn Re- 
 
 fining Co. V. Western New York 
 & P. R. Co., 208 U. S. 208, 52 L. 
 Ed. 456, 28 Sup. Ct. 268; Cincin- 
 nati, H. & D. R. Co. V. Interstate 
 Commerce Commission, 206 U. S. 
 142, 51 L. Ed. 995, 27 Sup. Ct. 648; 
 Western U. Tel. Co. v. Call Pub. 
 Co., 181 U. S. 92, 45 L. Ed. 765, 
 21 Sup. Ct. 561; Interstate Com- 
 merce Commission v. Detroit, G. 
 H. & M. Ry. Co., 167 U. S. 633. 42 
 L. Ed. .306, 17 Sup. Ct. 986; Inter- 
 state Commerce Commission v. 
 Baltimore & O. R. Co., 145 U. S., 
 263, 36 L. Ed 699, 12 Sup. Ct. 844; 
 Interstate Commerce Commission 
 V. Chicago Great Western Ry. Co., 
 141 Fed. 1003; Interstate Com- 
 merce Commission v. Baltimore S-. 
 
 0. R. Co., 43 Fed. 37; Burlington, 
 C. R. & N. Ry. Co. v. Northwestern 
 Fuel Co.. 31 Fed. 652; Gator v. 
 Southern P. Co., 6 I. C. C. 113, 4 
 
 1. C. R. 397; Rice v. Cincinnati, W. 
 & B. R. Co., 5 I. C. C. 193. 3 I. C. '^. 
 841; Savery & Co. v. New York 
 Cent. & H. River R. Co., 2 I. C. C. 
 .338. 2 I. C. R. 210. 
 
 6. Chicago & A. R. Co. v. Kir- 
 by, 225 U. S. 155, 56 L. Ed. 1033, 
 32 Sup. Ct. 648, Ann. Cas. 1914A
 
 § IGl] J)ISCK1MIXAT1()X AS I « ) liAIKS, KIC. 
 
 livestock than for carrying livestock products/ In 
 fact, the circumstances which produce an inequality of 
 conditions, justifies an inequality of charges." 
 
 AVhon a carrier renders a special service, such as 
 rapid transit and speedy delivery of perishable freight, 
 it is justified in charging a higher rate than for the 
 transportation of ordinary freight.'-* A higher charge 
 for the transportation of oil in tank cars than for the 
 carriage of oil in barrels has been justified.'" Differen- 
 ces in charges and rates may, therefore, be made in pro- 
 portion to the cost and value of the service." 
 
 501, in which the court said: "But 
 the company, by entering into an 
 agreement for expediting the ship- 
 ment, came under a liability dif- 
 ferent and more burdensome than 
 would exist to a shipper who made 
 no such special contract. For such 
 a special service and Ijigher re- 
 sponsibility it might clearly exact 
 a higher late. But to do so it must 
 make and publish a rate open to 
 all. This was not done. The 
 shipper, it is also plain, was con- 
 tracting for an advantage which 
 was not extended to all others, both 
 in the undertaking to carry so as 
 to give him a particular expedited 
 service, and a remedy for delay 
 not due to negligence. An advan- 
 tage accorded by special agree- 
 ment which affects the value of 
 the service to the shipper and its 
 cost to the carrier should be pub- 
 lished in the tariffs, and for a 
 breach of such a contract, relief 
 will be denied, because its allow- 
 ance without such publication is 
 a violation of the act. It is also 
 illegal because it is an undue ad- 
 vantage in that it is not one open 
 to all others in the same situation. 
 * * * The broad purpose of the 
 Commerce Act was to compel the 
 establishment of reasonable rates 
 and their uniform application. 
 
 That purpose would be defeated if 
 sanction is given to a special con- 
 tract by which any such advan- 
 tage is given to a particular ship 
 per as that contracted for by 
 the defendant in error. To guar- 
 antee a particular connection and 
 transportation by a particular 
 train, was to give an advantage 
 or preference not open to all and 
 not provided for in the published 
 tariffs." 
 
 7. Interstate Commerce Com- 
 mission v. Chicago Great Western 
 Ry. Co., 209 U. S. 108. 52 L. Kd., 
 705. 28 Sup. Ct. 493. 
 
 8. Interstate Commerce Com- 
 mission V. Baltimore & 0. R. Co.. 
 145 U. S. 263. 3G L. Ed. 699, 12 
 Sup. Ct. 844. 
 
 9. Loud V. South Carolina Ry. 
 Co., 5 I. C. C. 529, 4 I. C. R. 205. 
 
 10. Penn Refining Co. v. West- 
 ern New York & P. R. Co.. 208 U. 
 S. 208, 52 L. Ed. 456, 28 Sup. Ct. 
 268. 
 
 11. Kansas Pac. Ry. Co. v. 
 Bayles, 19 Colo. 348, 35 Pac. 744: 
 Bayles v. Kansas Pac. R. Co., 13 
 Colo. 181. 5 L. R. A. 480, 22 Pac. 
 :?41: Scofleld v. Lake Shore & M. 
 S. Ry. Co.. 43 Ohio St. 571. 54 Am. 
 Rep. 846. 3 X. E 907: Hoover v. 
 Beech Creek R. Co., 154 Pa. St. 
 362. 26 Atl. 315.
 
 328 
 
 Duties to Intkhsta'i'k Shippeks. 
 
 [§ 10: 
 
 § 162. Different Rates for Wholesalers and Re- 
 tailers Prohibited. Arrangeiuonts or contracts with 
 common carriers whereby persons shipping a larger 
 amount of traffic should have their goods carried on more 
 favorable terms than those shipping a less quantity, were 
 formerly upheld/- but are now generally condemned as 
 being unjustly discriminative.^^ 
 
 If such a rule were established among railroads, 
 ■the small shippers would soon be eliminated. To grant 
 one shipper a lower rate than his competitor in business 
 solely because he is able to furnirh, and does furnish a 
 larger quantity for shipment, would force the small com- 
 petitor to abandon the unequal contest and destroy the 
 equality of treatment which is the purpose of the stat- 
 ute." 
 
 While it is true that the services for the large deal- 
 er would be somewhat less in proportion to the freight 
 carried than for like services for the small dealer, 
 
 12. Unitad States. John Hays 
 & Co. V. Pennsylvania Co., 12 Fed. 
 309. 
 
 lUinois. Savitz v. Ohio & M. R. 
 Co., 150 111. 208, 37 N. E. 235, aff'g 
 49 111. App. 315. 
 
 Iowa. Cook V. Chicago, R. I. & 
 P. Ry. Co., 81 Iowa 551, 9 L. R. 
 A. 764, 25 Am. St. Rep. 512, 46 N. 
 W. 1080. 
 
 Missouri. Rothschild v. Wabash 
 St. L. & P. Ry. Co., 92 Mo. 91. 4 S. 
 W. 418. 
 
 New Hampshire. Concord & P. 
 R Co. V. Forsaith, 59 N. H. 122, 
 47 Am. Rep. 181. 
 
 New York. Silkman v. Board of 
 Wf ter Com'rs of City of Yonkers, 
 152 N. Y. 327, 37 L. R. A. 827, ■IG 
 N. E. 612. 
 
 Vermont. State v. Central Ver- 
 mont R. Co., 81 Vt. 463, 130 Am. 
 St. Rep. 1065, 71 Atl. 194. 
 
 13. United States v. Tozer, 39 
 Fed. 369; Kinsley v. Buffalo, N. 
 Y & P. R. Co., 37 Fed. 181; Plan- 
 ters' Comprtfs Co. v. Cleveland, C. 
 
 C. & St. L. Ry. Co , 11 I. C. C. 382; 
 Glade Coal Co. v. Baltimore & O. 
 R. Co., 10 I. C. C. 226; Paine Bros. 
 &. Co. V. Lehigh Valley R. Co., 7 
 T C. C. 218; Re Alleged Unlawful 
 Charges for Transportation of 
 Coal, 5 I. C. C. 466, 4 I. C. R. 157; 
 Harvard Co. v. Pennsylvania Co., 4 
 I. C. C. 212, 3 I. C. R. 257. 
 
 14. Burlington, C. R. & N. Ry. 
 Co. V. Northwestern Fuel Co., 31 
 Fed. 652; Scofield v. Lake Shore 
 & M. S. Ry. Co., 43 Ohio St. 571, 
 54 Am. Rep. 846, 3 N. E. 907. In 
 these two cases, the courts approv- 
 ed the following statement of the 
 law by Judge Baxter: "The dis- 
 crimination complained of rested 
 exclusively on the amount of 
 freight supplied by the respective 
 shippers during the year. Ought a 
 discrimination resting exclusively 
 on such a basis to be sustained? 
 If so, then the business of the 
 country is in some degree subject 
 to the will of railroad officials: for 
 if one man engaged in mining coal,
 
 ^ ir)2i 
 
 Discrimination as to Rates, etc. 
 
 32i) 
 
 this is l)iit an item of reduced cost that can only be vcr- 
 mitted in strict subordination to the ruU^s of law which 
 forbid discrimination b('tw<'en dealei's.''' "But when 
 a (juestioii of rebates or discounts is under considera- 
 tion," said ('Ommissioner Cooley in the last case cited, 
 ''it might be misleading- to consider them in the light of 
 
 and dependent on the same rail- 
 road for transportation to the 
 same market, can obtain trans- 
 portation thereof at from twenty- 
 five to fifty cents per ton less 
 than another competing with him 
 in business, solely on the ground 
 that he is able to furnish, and 
 does furnish, a larger quantity for 
 shipment, the small operator will, 
 sooner or later, be forced to aban- 
 don the unequal contest, and sur- 
 render to his more opulent rival. 
 If the principle is sound in its ap- 
 plication to rival parties engaged 
 in mining coal, it is equally appli 
 cable to merchants, manufacturers, 
 millers, dealers in lumber and 
 grain, and to everybody else inter- 
 ested in any business requirin-', 
 any considerable amount of tratis- 
 portation by rail; and it follows 
 that the success of all such en 
 terprises would depend as mufb 
 on the favor of railroad officials as 
 upon the energies and capacities 
 o" the parties prosecuting the 
 same. It is ni.t difficult, with such 
 a ruling, to forecast the conse- 
 quences. The men v.'ho control 
 railroads would be quick to appre- 
 ciate the power with which such 
 a holding would invest them, and. 
 it may be, not slow to make the 
 most of their opportunities and. 
 perhaps, tempted to favor their 
 friends to the detriment of their 
 personal or political opponents; or 
 demand a division of the jirofits 
 realized from such collateral pur 
 suits as could be favored or de- 
 pressed by discriminations for or 
 
 against them; or else, seeing the 
 augmented power of capital, or- 
 ganize into overshadowing combi- 
 nations, and extinguish all petty 
 competition, monopolize business, 
 and dictate the price of coal and 
 every other commodity to consum- 
 ers. We say, these results might 
 follow the exercise of srch a right 
 as is claimed for railroads in this 
 case. But we think no such po.ver 
 exists in them. They have been 
 authorized for the common benefit 
 of every one, and cannot be lawful- 
 ly manipulated for the advantage 
 of any class at the expense of any 
 other. Capital needs no such ex- 
 traneous aid. It possesses inher- 
 ent advantages which cannot be 
 taken from it. But it has no just 
 claim, by reason of its accumulat- 
 ed strength, to demand the use of 
 the public highways of the coun- 
 try, constructed for the common 
 benefit of all, on more favorable 
 terms than are accorded to the 
 humblest of the land; and a dis- 
 crimination in favor of parties fur- 
 nishing the largest quantity of 
 freight, and solely on that ground, 
 is a discrimination in favor of 
 capital, and is contrary to a sound 
 public policy, violative of that 
 equality of right guaranteed to 
 every citizen, and a wrong to the 
 disfavored party, for which the 
 courts are competent to give re- 
 dress." 
 
 15. Providence Coal Co. v. Prov- 
 idence & W. R. Co.. 1 I. C. C. 107, 
 1 I. C. R. 3fir,.
 
 330 Dr II F.S TO TXTHRSTATK SlIlPl'F.HS. [§ 102 
 
 the principles wliit'li niorehants act upon in the case of 
 wliolesale and retail tiansactions. There is a very mani- 
 fest difficulty in applyin<>- those principles to the con- 
 veniences which common carriers furnish to the public, 
 a difficulty which springs from the nature of the duty 
 which such carriers owe to the public. That duty is 
 one of entire i^artiality of service. The merchant is 
 under no corresponding- duty, and may make his rules 
 to suit his own interest, and discriminate as he pleases. 
 There is no occasion to enlarge u]xm this now. A dis- 
 crimination, such as the offer and its acceptance by one 
 or more dealers would create, must have a necessary 
 tendency to destroy the business of small dealers. Under 
 the evidence in the case it appears almost certain that 
 this destruction must result, the margin for profit on 
 wholesale dealings in coal being very small. The dis- 
 crimination is therefore necessarily unjust within the 
 meaning of the law. Tt cannot be supported by the cir- 
 cumstance that the offer is o])en to all; for although 
 made to all, it is not possible that all should accept." 
 
 § 163. Rates for Train Loads Lower than for 
 Single Car Loads Subject Small Shippers to Undue 
 Disadvantage. Tjower rates on train load shipments 
 than on carloads have generally been condemned for 
 such a distinction violates the principle of equality be- 
 tween shippers and tends to defeat its just and whole- 
 some purpose.^® The fact that certain traffic is hauled 
 in train loads, the Commission has held, cannot be made 
 the basis of rates different from those applied io ship- 
 ments in single carloads." In Paine Bros. & Co. v. 
 Lehigh Valley R. Co.,^'' it appeared that the carriers put 
 into effpct on grain from western ytoints to Buffalo by 
 the Great Lakes and destined for certain Atlanfic ports 
 
 16. Rickards v. Atlantic C. Tj. 17. Woodward-Bennett Co. v. 
 
 R. Co., 23 I. C. C. 239; Carstens San Pedro, L. A. & S. L. R. Co., 29 
 
 Packing Co. v. Oregon Short L. R. T. C. C. 6(54. 
 
 Co., 17 T. C. C. 324; Planters' Com- 18. Paine Bros. & Co. v. Lehigh 
 
 pre.sR Co. V. Cleveland. C. C. & St Valley R. Co., 7 I. C. C. 218. 
 L. Ry. Co., 11 I. C. C. 382.
 
 § 1()41 Discrimination' as to Haii:>, in. 331 
 
 lower rates for cargo lots of 8,000 bushels or over than 
 for lots of less than said specified number of bushels. 
 It was contended tliat such rates gave the larger dealer 
 a monopoly of the business and subjected the complainant, 
 a shipi)er of small (piantities, to unreasonable i)rejudice 
 and disadvantage in violation of section .'J. in condemn- 
 ing such distinctions in latcs, the Commission said: 
 
 "But conceding that lower rates on export than on 
 domestic grain may be properly allowed, we perceive 
 no sufficient reason for different rates on carload than 
 on cargo or train load shipments, whether grain is car- 
 ried for export or domestic use. The principle involved 
 in such a distinction violates the rule of equality and 
 tends to defeat its just and wliolesome purpose. That 
 puri)ose is not fully accomi)lished if one scale of charges 
 is applied to cargo shipments and a higher rate is im- 
 l)osed for single carloads, even though all cargo ship- 
 pers pay the same and all carload shippers are charged 
 alike."* 
 
 § 164. Higher Rates on Domestic Than on Ex- 
 port Traffic Between Ports of Entry and Inland 
 Points not Discriminatory. The provisions of the second 
 section prohibiting "unjust" discriminations imply that, 
 in deciding whether differences in charges, in given cases, 
 are unjust, there must be a consideration of the several 
 (j[uestions whether the services rendered were ".like and 
 contemporaneous," whether the kinds of traffic were 
 "like" and whether the transportation was effected un- 
 der "substantially similar circumstances and condi- 
 tions." Conditions existing abroad, as well as those 
 existing in the United States, should be considered. The 
 interest of the carrier and the consuming community 
 as well as the producing comiiuuiity must ))e taken in- 
 to account. 
 
 There is, therefore, no hard and fast rule whicli 
 prohibits a carrier in furtherance of its own interest 
 and the interests of its patrons, from accepting a less 
 sum for the transportation of imported merchandise 
 from a port of entry to an i;iterior point or the trans-
 
 ooJ 
 
 Duties to Ixtkkstate Shippers. 
 
 [§ 1G4 
 
 portation of export traffic from an interior point to a 
 port oi Iransshipmont tluui it does tor tlie transportation 
 of domestic mercliandiso between the same points. ^^ 
 Among the ( ircumstances and conditions to be considered 
 in determining the relative rates on traffic originating in 
 foreign ports and ti'affic originating within the limits of 
 the United States are competition, and lower rates to 
 secure foreign freigiit which would otherwise go by 
 other competitive routes are not undue or unjust.-" 
 
 § 165. 
 
 Doctrine of Import Case Applied and Illus- 
 trated. Following the decision of the Supreme Court 
 in Texas & P. Ry. Co. v. Interstate Commerce Commis- 
 
 19. Texas & P. R. Co. v. In- 
 terstate Commerce Commissiou. 
 162 U. S. 197, 40 L. Ed. 940, 16 
 Sup. Ct. 606: Kemble v. Lake 
 Shore & M. S. Ry. Co., 8 I. C. C. 
 110. 
 
 20. Pittsburgh Plate Glass Co. 
 V Pittsburgh. C. C. & St. L. Ry. 
 Co., 13 I. C. C. 87, in which Com- 
 missioner Clements said: "It is 
 clear that in considering the ques- 
 tion of alleged unjust discrimina- 
 tion in favor of shippers of im- 
 port glass moving from the ports 
 oi entry in this and adjacent for- 
 eign countries to interior Ameri- 
 can destinations, and against do- 
 mestic shipments of glass between 
 points in the United States, it is 
 the duty of the Commission to 
 look to the circumstances and con- 
 ditions affecting the matters in- 
 volved, not only in this country, 
 but in the entire field of commerce 
 here and abroad. In other words, 
 'whatever would be regarded by 
 common carriers, apart from the 
 operation of the statute, as mat- 
 ters which warranted differences 
 in charges' ought to be considered 
 in forming a judgment, whether 
 such differences were or were not 
 unjust, and the circumstance of 
 
 competition by ocean carriers at 
 the different ports is a fact merit- 
 ing consideration by the Commis- 
 sion in passing upon the rea- 
 sonableness of an inland rate ap- 
 plicable from the seaboard on do- 
 mestic traffic when the reasonable- 
 ness of such rate is called in ques- 
 tion by comparison with a lower 
 rate applying from the port of en- 
 try on traffic shipped from a for- 
 eign country. Not all discrimina- 
 tions are unlawful, but only such 
 as are undue or unreasonable; if 
 based on reason and good cause, 
 difecrimination can not be con- 
 demned as unreasonable. It is well 
 settled by the highest judicial au- 
 thority that the existence and ef- 
 fectiveness of competition between 
 carriers, whether by rail or wa- 
 ter, whether subject to the Fed- 
 eral act of regulation or not, and 
 competition of markets, or the ab- 
 sence of such competition, are 
 among other things, pertinent to 
 the question of similarity of cir- 
 cumstances and conditions in- 
 volved in the ultimate question of 
 fact under sections 3 and 4, and 
 as to whether the discrimination 
 complained of and shown is or is 
 not undue or unreasonable. Since,
 
 § l(i5] 
 
 DlSCHIMIXATFOX AS 'lO IJa'I'KS. ETC, 
 
 
 sioD,^'' known as the Import Rate Case, tlie Commission 
 has repeatedly recognized tlie right of carriers to main- 
 tain lower rates on import traflSc than on domestic traf- 
 fic. When the circumstances and conditions are dis- 
 similar the imported goods may be transported under 
 rates which are lower than the rates charged on goods 
 of the same kind which have not been imported. The 
 question of discrimination or whether the difference 
 
 in view of these rulings, it is the 
 duty of the Commission in pass- 
 ing upon these questions to look 
 to these and other facts, wherever 
 found, pertaining to the traffic in- 
 volved, upon the theory that the 
 carriers may lawfully within rea- 
 son meet the circumstances and 
 conditions which confront them, it 
 follows that we must recognize 
 the due and logical effect of the 
 situation thus presented. The 
 necessary conclusion is that dis- 
 criminations of the nature refer- 
 red to in sections 3 and 4 of the 
 act, in so far as they result from 
 the bona fide action of a carrier 
 in meeting circumstances and con- 
 ditions not of its own creation, 
 and which are reasonably neces- 
 sary for that purpose, do net of 
 necessity fall under the condem- 
 nation of the law. There is a long 
 line of decisions of the court to 
 the effect that it is neither requir- 
 ed by law nor just that the rates 
 of a carrier on traffic' subject to 
 intense competition shall mark the 
 limit or measure of its rates on 
 traffic not subject to such com- 
 petition. Transportation from a 
 seaport of the United States or an 
 adjacent foreign country to an in- 
 terior American destination in 
 completion of a through move- 
 ment of freight from a port of a 
 foreign but not adjacent country, 
 whether upon a joint through rate 
 or upon a separately established, 
 
 or proportional, inland rate ap- 
 plicable only to imports moving 
 through, is not a 'like service' to 
 that of the transportation inde- 
 pendent and complete within it- 
 self of traffic starting at such do- 
 mestic port, though bound for the 
 same destination. It is true the 
 court held in the case of Wight 
 V. United States, 167 U. S. 512, 42 
 L. Ed. 258, 17 Sup. Ct. Rep. 822, 
 that the existence of competition 
 did not create 'dissimilar circum- 
 stances and conditions' such as to 
 justify discrimination as defined 
 in the second section. But this 
 referred to unjust discrimination 
 as between different shippers ovor 
 the same line in the performance 
 of a 'like service,' and as we have 
 seen, the transportation of import 
 traffic from the port of entry to an 
 interior destination in completion 
 of ^a through movement from a 
 point in a foreign country is not 
 a like service to that involved in 
 the transportation of domestic traf- 
 fic originating at such port, even 
 where the transportation in all 
 other respects is performed under 
 like conditions. It follows that 
 the charge of unjust discrimination 
 in violation of section 2 of the act 
 i.-; not sustained." 
 
 21. Texas & P. R. Co. v. Inter- 
 state Commerce Commission, 162 
 U. S. 197, 40 L. Ed. 940, 16 Sup. 
 Ct. 666.
 
 334 I)rTiF.s TO Intkrstatk Shippkhs. [§ ]()5 
 
 between the import and dojuestic rate is unjust, is one 
 of fact to be determined by the Commission after con- 
 sidering all the circumstances and conditions, including 
 the interests of the carriers, producers, dealers and con- 
 sumers. 
 
 In Louisiana Sugar Planters' Association v. Illi- 
 nois Cent. R. Co.," a rate of twenty-one cents on black- 
 strap molasses from New Orleans and other Louisiana 
 points to St. Louis was held to be unjustly discrim- 
 inatory as compared with a rating of fifteen cents on 
 imported black-strap molasses between the same points; 
 but a difference not greater than three cents per hun- 
 dred pounds was found to be proper. In another case, 
 a third-class rating on domestic plate glass and a fourth- 
 class rating or lower on imported plate glass, was held 
 not to be unjustly discriminatory."^ In an investigation 
 concerning the rates governing the transportation from 
 ports of entry to interior points in the United States 
 of property imported from foreign countries and 
 the relationship existing between such rates and the 
 rates for transporting similar property originating in 
 the United States, the Commission found that the im- 
 port rates on brewers' rice from Gulf points were not 
 made with relation to the domestic rates, but were con- 
 trolled by the import rates on brewers' rice from North 
 Atlantic ports.^* 
 
 In a later case,^^ an adjustment of import rates on 
 English clay from Gulf ports and North Atlantic ports 
 to points in Central Freight Association Territory lower 
 than the domestic rates on clay mined in the state of 
 Georgia to the same destinations, was found not to be 
 unjustly discriminatory against the domestic traffic. 
 
 § 166. Use of Terminal Facilities by Permitting- 
 Interchange of Traffic with one Carrier and Denying it 
 to Another. Under the Hepburn Amendment to the 
 
 22. Louisiana Sugar Planters' 24. In re Import and Domestic 
 Ass'n. V. Illinois Cent. R. Co., 31 Rates, 36 I. C. C. 389. 
 
 I. C. C. 311. 25. In re Import and Domestic 
 
 23. Pittsburg Plate Glass Co. v. Rates on Clay, 39 I. C. C. 132. 
 Pittsburgh, C. C. & St. L. Ry. Co., 
 
 13 I. C. C. 87.
 
 <§> KiGj DlSCKlMlNATKJN AS TU KaTKS, ETC. 335 
 
 / 
 
 Interstate Commerce Act, tlie terms '' transportation" 
 and ''railroad" subject to tlie control of the Commis- 
 sion, include all switches, tracks, terminal facilities 
 and all services in connection with the delivery and 
 transfer of interstate freight. The terminal facilities 
 therefore of any railroad used in connection with the 
 receipt and delivery of freight transported in interstate 
 commerce are subject to the provisions of the Act. 
 
 The second clause of section 3 re(|uires all inter- 
 state carriers to afford reasonable and equal facilities 
 for the interchang-e of traffic between their respective 
 lines. This duty is, how^ever, subject to the limitation 
 that no carrier is recjuired to give the use of its tracks 
 or terminal facilities to another carrier engaged in like 
 l)usiness. Common carriers may be compelled to ac- 
 ce])t a car for transportation wlien such a car is offered 
 at a place where the carrier has established a itoint of 
 interchange, provided a reasonable compensation is 
 fixed for the service. 
 
 A railroad company that interclianges carload 
 freight with one connecting carrier within its switching 
 limits and transports it over its own terminals to points 
 of destination tliereon, while denying the same service 
 to another railroad company whose tracks connect with 
 it, is guilty of unjust discrimination, and an order re- 
 quiring it to desist from such a i^ractice by the Com- 
 mission is valid.-" Such an order is not in contra ven- 
 
 26. Pennsylvania Co. v. United the carrier, however, does not rost 
 
 States, 236 U. S. 351, 59 L. Ed. 616. behind that .statutory shield but 
 
 35 Sup. Ct. 370: Louisville & N. R. chooses voluntarily to throw the 
 
 Co. V. United States, 2.S8 U. S. 1, 59 'i'erminals open to many branches 
 
 L. Ed. 1177. 35 Sup. Ct. 696: in of traffic, it to that extent niake.s 
 
 which the court said: "For. Sec- the Yard public. Havins made the 
 
 tion 3 requires Railroad Companies Yard a facility for many purposes 
 
 to furnish equal facilities for the and to many patrons, such railroad 
 
 interchange of traffic between their facility is within he provisions of 
 
 respective lines * * * 'provided Section 3 of the statute which pro- 
 
 that this should not be construed hibits the facility from being used 
 
 as requiring any such common car- in such manner as to discriminate 
 
 rier to give the use of its tracks or against patrons and commodities, 
 
 terminal facilities to another car The carriers cannot say that the 
 
 rier engaged in like business.' If Yard is a facility open for the
 
 336 
 
 Duties to Interstate SiiiprERS. 
 
 [§ ^GG 
 
 tion of the statutory provision forbidding the Commis- 
 sion from compelling a carrier to give the use of its 
 tracks or terminal facilities t-o another carrier for the 
 reason that a requirement to interchange cars does not 
 constitute a "use of the track or terminal facilities" 
 of the other carrier. It is merely a service of trans- 
 ]-)ortation in receiving and forwarding freight to be per- 
 formed on the payment of a reasonable compensation. 
 Xo physical occupancy by running trains or locomotives 
 over the terminal facilities of the other carrier is con- 
 templated by such an order, but only the tender of 
 freight at a point of interchange already established and 
 where the objecting carrier receives the cars of other 
 roads and hauls them to points of delivery over its 
 terminals."^ 
 
 switching of cotton and wheat and 
 lumber but cannot be used as a 
 facility for the switching of coal. 
 Whatever may have been the 
 rights of the carriers in the first 
 instance; whatever may be the 
 case if the Yard was put back un- 
 der the protection of the proviso to 
 Section 3, the Appellants cannot 
 open the Yard for most switching 
 purposes and then debar a particu- 
 lar shipper from a privilege grant- 
 ed the great mass of the public. In 
 substance that would be to dis- 
 criminate not only against the 
 terdering railroad, but also again.~t 
 the commodity which is excluded 
 from a service performed for 
 others." 
 
 27. Pennsylvania Co. v. United 
 States, 214 Fed. 445. in which 
 Hunt, J., said: "The underlying 
 principle is that a common carrier 
 may be required to accept a car 
 for transportation whenever such 
 a car is offered at a place where 
 the common carrier has established 
 a point of interchange, provided 
 always a reasonable compensation 
 is fixed for the service. Here, the 
 
 place where the cars are offere:! 
 not being an arbitrary one, the 
 carrier Pennsylvania Company 
 may not inquire into the owner- 
 ship of the car, nor into the routo 
 over which it has been moved to 
 reach its rails merely to decide 
 whether or not it will transport 
 the car so offered. To hold other- 
 wise would greatly diminish the 
 regulating power of the Inter- 
 state Commerce Commission to 
 treat all carriers as within the 
 letter of the act to regulate com- 
 merce with respect to their dutie.^, 
 to transport. It follows that, 
 where compensation is offered, a 
 practice of hauling the cars of 
 several connecting carriers and ali- 
 solutely refusing to haul the cars 
 of another carrier is a discrimi- 
 nation which, in the interests of 
 the public, may be removed as prop- 
 erly within the power of just and 
 reasonable regulation by the Inter- 
 state Commerce Commission. In- 
 terstate Commerce Commission v. 
 Delaware, L. & W. R. Co.. 220 U. 
 S. 235, 31 Sup. Ct. 392, .5.5 L. Ed. 
 448. The question of reasonable
 
 ^ 167] 
 
 Discrimination as to Katks, etc. 
 
 3:3; 
 
 § 167. Discrimination in Reserving Right to Route 
 Through Shipments Beyond Carrier's Terminal — Former 
 and Present Rule. Piioi- to the amendments of IDOG 
 and ]910, tlie Supreme Court, in reversing an order 
 of tlie Commission,-" held that an initial carrier in re- 
 serving the riglit of routing b<'yond its own terminal 
 and in disregarding the routing instructions of the 
 shipj)er beyond its own line, did not subject the shipper 
 to any undue advantage;'"' but the controlling effect of 
 this decision has been destroyed by the 1906 and 1910 
 amendments to section 15 of the act, which |)rovide that 
 the Commission may after hearing on a complaint or 
 
 compensation is in no way in- 
 volved, and no opinion is passed 
 thereon." 
 
 28. Consolidated Forwarding 
 Co. V. Southern P. Co., 9 I. C. C. 
 182. See also Interstate Commerce 
 Commission v. Southerr Pac. Co., 
 123 Fed. 597. 
 
 29. Southern Pac. Co. v. Inter- 
 state Commerce Commission, 200 
 U. S. 536, 50 L. Ed. 585, 26 Sup. Ct. 
 330. The court in this case was 
 discussing the rights of the in- 
 itial carrier under the common law 
 and before the statutory amend- 
 ment changing the common law 
 as applied to interstate carriers. 
 Said the Court: "It is conceded 
 that the different railroads form- 
 ing a continuous line of road are 
 free to adopt or refuse to adopt 
 joint through tariff rates. The 
 Commerce Act recognizes such 
 right and provides for the filing, 
 with the Commission, of the 
 through tariff rates, as agreed up- 
 on between the companies. The 
 whole question of joint through 
 tariff rates, under the provisions 
 of the act, is one of agreement be- 
 tween the companies, and they may, 
 
 or may not, enter into it, as they 
 may think their interrsts demand. 
 And it is equally plain that an in- 
 
 1 Control C.irrior^ 22 
 
 itial carrier may agree upon joint 
 through rates with one or several 
 connecting carriers, who between 
 each other might be regarded as 
 competing roads. It is also un- 
 doubted that the common carrier 
 need not contract to carry beyond 
 its own line, but may there de- 
 liver to the next succeeding car 
 rier and thus end its responsibil- 
 ity, and charge its local rate for 
 the transportation. If it agrees to 
 transport beyond its own line, it 
 may do so by such lines as it 
 chooses. Atchison, etc. R. R. Co. v. 
 Denver, etc. R. R. Co.. 110 U. S. 
 667; Louisville & Nashville R. R. 
 Co. V. West Coast Naval Stores, etc. 
 Co.. 198 U. S. 483. This right has 
 not been held to depend upon 
 whether the original carrier agreed 
 to be liable for the default of the 
 connecting carrier after the goods 
 are delivered to such connecting 
 carrier. As the carrier is not bound 
 to make a through contract, it can 
 do so upon such terms as it may 
 agree upon, at least so long as they 
 are reasonable and do not other- 
 wise violate the law. In this case 
 the initial carrier guarantees the 
 through rate, but only on condition 
 that it has the routing."
 
 oo8 DuTiEis TO Interstath Shippers. [§ 167 
 
 upon its own initiative without (?omplaint establish 
 through routes and joint rates under limitations there- 
 in prescribed. 
 
 § 168. Discrimination in Refusal of Rail Carriers 
 to Establish Through Routes and Joint Rates with 
 Water Lines. A navigable river is a ])ublic highway, 
 a natural avenue of commerce, and the public interest 
 demands that its advantages be utilized to the fullest 
 extent. ^° The Interstate Commerce Act gives the Com- 
 mission the authority, under the 1910 and 1912 amend- 
 ments, to establish through routes and joint rates not 
 only between rail carriers subject to the Act, but also 
 between rail carriers and water lines when property 
 may be or is transported by common carriers from point 
 to point in the United States by rail and water through 
 the Panama Canal or otherwise. ^^ 
 
 If rail carriers were permitted to choose the particu- 
 lar boat lines with which they associate, to establish 
 through routes and joint rates, they would be able to 
 dictate who shall operate on the water and who shall 
 not, for a boat line which acquires a monoply of the 
 through rail and water traffic would soon be able to 
 drive its competitors out of business. Such a policy 
 would destroy the freedom of competition between boat 
 lines.'^ While the Commission is not required to es- 
 tablish through routes and joint rates without regard 
 to the circumstances of each case, when an application 
 is made therefor, yet any responsible common carrier 
 bv water is, as a rule, entitled to participate in inter- 
 
 ?,0. Decatur Nav. Co., v. Louis- Bowling Green Packet Co., 31 I. 
 
 ville & N. R. Co., 31 I. C. C. 281. C. C. 301; Tampa Board of Trade 
 
 31. Murray, Lighterage & v. Louisville & N. R. Co., 30 T. C. 
 
 Transp. Co. v. Delaware & H. Co.. C. 377; In re advances lumber, 
 
 3.5 L C. C. 388; In re application Oregon and Washington to eastern 
 
 Pennsylvania Co., operation of points, 29 I. C. C. 609; Truckers 
 
 Pennsylvania-Ontario Transp. Co., Transfer Co. v. Charleston & W. 
 
 34 I. C. C. 47; In re application C. Ry. Co., 27 I. C. C. 275; Flour 
 
 Southern P. Co., operation of City Steamship Co. v. Lehigh Val- 
 
 Pacific Mail S. S. Co., 32 I. C. C. ley R. Co., 24 I. C. 179. 
 fi90; Bowling Green Business Men's 32. Pacific Nav. Co. v. Soutliern 
 
 Prnlcctive Ass'n. v. EvHnsville & P Co. 31 I. C. C. 472.
 
 § 1G9J DlSClUiMlNATKKN AS TO HaTES, ETC. 339 
 
 state traffic. A refusal to establish through routes and 
 joint rates or fares with one steamship line while main- 
 taining such relationship witli another water carrier, 
 has frequently been held to be unduly discriminatory 
 
 and a violation of ])ara,grai>li '2 of section 3 of the Act.''"' 
 
 § 169. Exclusive Privileges for Auxiliary Facili- 
 ties at Stations and Terminal Grounds Lawful. While 
 conmion carriers subject to federal control must serve 
 the traveling and shipping public on equal terms and 
 without discriminations or preferences, they do not as- 
 sume, in performing such duties, any obligations to those 
 who are neither ])assengers nor shippers. In fulfilling its 
 duties towards the public, the property of the carrier is 
 subject to a public use, and the Commission may re- 
 quire and control that use to prevent discriminations 
 and preferences towards those who travel or ship mer- 
 chandise over its line. 
 
 Subject, therefore, to the requirement that the rights 
 of the traveling and shipping public are not involved 
 and discriminated against, the public stations, depots, 
 grounds and terminal property of the carriers are their 
 own private property concerning which they may con- 
 tract free from public control. Hence, a carrier may 
 make exclusive arrangements with third parties for the 
 maintenance of facilities at stations that add to the con- 
 venience of the traveling and shipping public, before 
 the transportation has commenced, or after it has been 
 completed.^* Were this right denied the carrier, the 
 
 33. East Shore Development S. Drayage Co. v. Louisville & N. R. 
 S. Co. V. Baltimore & 0. R. Co., 32 Co. 65 Fed. 39. 
 
 I. C. C. 238; Pacific Nav. Co. v. Connecticutt. New York, N. H. 
 
 Southern P. Co. 31 I. C. C. 472: & H. R Co. v. Scovill, 71 Conn. 136. 
 
 Decatur Nav. Co. v. Louisville & 42 L. R. A. 157, 71 Am. St. Rep. 
 
 N. R. Co. 31 I. C. C. 281. 159, 41 Atl. 246. 
 
 34. United States. Chicago, St. Georgia. Kates v. Atlanta Bag- 
 L. & N. O. R. Co. v. Pullman gage & Cab Co., 107 Ga. 636, 46 L. 
 Southern Car Co., 139 U. S. 79. R. A. 431. 34 S. E. 372; Fluker v. 
 35 L. Ed. 97, 11 Sup. Ct. 490: Ex- Georgia Railroad & Banking Co.. 
 press Cases, 117 U. S. 1, 29 L. Ed. 81 Ga. 461, 2 L. R. A. 843, 12 Ann. 
 791. 6 Sup. Ct. 542, 628; St. Louis St. Rep. 328, 8 S. E. 529.
 
 340 
 
 DrriKS TO TXTKKSTATK SHIPPERS. 
 
 [§ 1(59 
 
 grantiug of a permission, for instance, to one person to 
 open a restaurant or a barber shop would operate to 
 permit all others to enjoy the same facilities at the same 
 station, a result palpably absurd and unreasonable. 
 
 Applying these principles, the courts have declared 
 valid a contract whereby a transfer company was per- 
 uiittfd by a carrier to furnish at its passenger station 
 all vehicles necessary for the accommodation of pass- 
 engers from its trains, and excluding all other hackmen 
 and expressmen from the station and depot grounds. ^^ 
 
 Massachusetts. Old Colony R. 
 Co. V. Tripp, 147 Mass. 35, 9 Ann. 
 St. Rep. 661, 17 N. E. 89. 
 
 Minnesota. Godbout v. St. Paul 
 Union Depot Co.. 79 Minn. 188, 47 
 L R. A. 532, 81 N. W. 835. 
 
 New Hampshire. Hedding v. 
 Gallagher, 72 N. H. 377, 64 L. R. A. 
 811, 57 Atl. 225. 
 
 Rhode Island. New York, N. H. 
 & H. R. Co., V. Bork, 23 R. I. 218, 
 49 Atl. 965. 
 
 Virginia. Norfolk & W. R. Co. 
 V. Old Dominion Baggage Co., 99 
 Va. Ill, 50 L. R. A. 722, 37 S. B. 
 784. 
 
 35. Donovan v. Pennsylvania 
 Co., 199 U. S. 279, 50 L. Ed. 192, 
 26 Sup. Ct. 91, in which the Court 
 said: "Applying these principles 
 to the case before us, it would seem 
 to be clear that the Pennsylvania 
 Company had the right — if it was 
 not its legal duty — to erect and 
 maintain a passenger station and 
 depot buildings in Chicago for the 
 accommodation of passengers and 
 shippers as well as for its own 
 benefit; and that it was its duty to 
 manage that station so as to sub- 
 serve, prim.arily, the convenience, 
 comfort and safety of passengers 
 and the wants of shippers. It was 
 therefore its duty to see to it that 
 passengers were not annoyed, dis- 
 turbed or obstructed in the use 
 
 either of its. station house or of 
 the grounds over which such pas 
 sengers, whether arriving or de- 
 parting, would pass. It was to 
 that end — primarily as we may as- 
 sume from the record — that the 
 Pennsylvania Company made an 
 arrangement with a single com- 
 pany to supply all vehicles neces- 
 sary for passengers. We cannot 
 say that that arrangement was 
 either unnecessary, unreasonable 
 or arbitrary; on the contrary, it 
 is easy to see how, in a great city 
 and in a constantly crowded rail- 
 way station, such an arrangement 
 might promote the comfort and 
 convenience of passengers arriving 
 and departing, as well as the ef- 
 ficient conduct of the company's 
 business. The record does not 
 show that the arrangement refer- 
 red to was inadequate for the ac- 
 commodation of passengers. But 
 if inadequate, or if the Transfer 
 Company was allowed to charge 
 exorbitant prices, it was for pas- 
 sengers to complain of neglect of 
 duty by the railroad company and 
 for the constituted authorities to 
 take steps to compel the company 
 to perform its public functions 
 with due regard to the rights of 
 passengers. The question of any 
 failure of the company to properly 
 care for the convenience of pass-
 
 § Hi9J 
 
 DlSCHlMlNATlON AS TO KaTKS. ETC. 
 
 ;;4i 
 
 Similarly the Commission upheld an arrangement by 
 which a carrier gave one auction company the exclusive 
 
 engers was not one that, in any 
 legal aspect, concerned the defend- 
 ants as licensed hackmen and cab- 
 men. It was not for them to 
 vindicate the rights of passengers. 
 They only sought to use the prop- 
 erty of the railroad company to 
 make profit in the prosecution of 
 their particular business. A hack- 
 man, in no wise connected with 
 the railroad company, cannot, of 
 right and against the objections 
 of the company, go upon its 
 grounds or into its station or cars 
 for the purpose simply of solicit- 
 ing the custom of passengers; but, 
 of course, a passenger upon ar- 
 riving at the station, in whatever 
 vehicle, is entitled to have such 
 facilities for his entering com- 
 pany's depot as may be necessary. 
 Here the defendants press the 
 suggestion that they are entitled 
 to the same rights as were ac- 
 corded by special arrangement to 
 the Parmolee Transfer Company. 
 They insist, in effect, that as car- 
 riers of passengers they are en- 
 titled to transact their business at 
 any place which, under the author- 
 ity of law; is devoted primarily to 
 I)ublic uses — certainly at any place 
 open to another carrier engaged 
 in the same kind of business. But 
 this contention, when applied to 
 the present case, cannot be sus- 
 tained. The railroad company 
 was not bound to accord this par- 
 ticular privilege to the defend- 
 ants simply because it had ac- 
 corded a like privilege to the Par- 
 melee Transfer Company; for it 
 had no contractual relations with 
 the defendants, and owned them as 
 hackmen no duty to aid them in 
 their special calling. The defend- 
 ants did not have or profess to 
 
 have any business of their own 
 with the company. In meeting 
 their obligations to the public, 
 whatever the nature of those obli- 
 gations, the defendants could use 
 any property owned by them, but 
 they could not, of right, use the 
 property of others against their 
 consent. In maintaining a high- 
 way, under the authority of the 
 ytate, the first and paramount ob- 
 ligation of the railroad company 
 was, as we have already said, to 
 consult the comfort and conven- 
 ience of the public who used that 
 highway. To that end it could use 
 all suitable means that were not 
 forbidden by law. In its discre- 
 tion it could accept the aid or stip- 
 ulate for the services of others. 
 But, after providing fully for the 
 wants of passengers and shippers, 
 it did not undertake, expressly or 
 by implication, to so use its prop- 
 erty as to benefit those who had 
 no business or connection with 
 it. It is true that by its arrange- 
 ment with the railroad company 
 the Parmelee Company was given 
 an opportunity to control, to a 
 great extent, the business of carry- 
 ing passengers from the Union 
 Passenger Station to other rail- 
 way stations and to hotels or pri- 
 vate houses in Chicago. But in a 
 real, substantial, legal sense, that 
 arrangement cannot be regarded as 
 a monopoly in the odious sense of 
 that word, nor does it Involve an 
 improper use by the railroad com- 
 pany of its property. That ar- 
 rangement is to be deemed, not 
 unreasonably, a means devised for 
 the convenience of passengers and 
 of the railroad company, and as 
 involving such use by the company 
 of its property as is consistent with
 
 342 Duties to Interstate Shippers. [§ 169 
 
 right to auctioneer and sell fruits and vegetables in one 
 of the carrier's warehouses near its freight station, it 
 appearing that the favored companj^ offered its services 
 to all shippers at a uniform rate and without preference 
 or discrimination.^'^ Baggage transfer is either a prior 
 or subsequent facility to the transportation duty of the 
 carrier for the carrier's responsibility ends at the bag- 
 gage room. The granting, therefore, of the exclusive 
 privilege of soliciting on trains and issuing baggage 
 checks to residences, by a carrier, to one baggage trans- 
 fer company, does not subject a competitor to an undue 
 advantage within the meaning of the statute." 
 
 § 170. Distribution of Cars Among Shippers During 
 Time of Shortage Must be Free from Discrimination. 
 
 The Act to Regulate Commerce authorizes the Commis- 
 sion to consider and determine the question of the dis- 
 tribution of cars in times of car shortage as a means 
 of prohibiting ilnjust preferences and undue discrim- 
 inations.^^ The statute requires that cars shall be fairly 
 
 the proper performance of its Sup. Ct. 484; Morrisdale Coal Co. v. 
 
 public duties and its ownership of Pennsylvania R. Co., 230 U. S. 304. 
 
 the property in question. If the 57 L. Ed. 1494, 33 Sup. Ct. 938; 
 
 company by such use of its proper- Mitchell Coal & Coke Co. v. Penn- 
 
 ty also derived pecuniary profit for sylvania R. Co., 230 U. S. 247, 57 
 
 itself, that was a matter of no L. Ed. 1472, 33 Sup. Ct. 916; Union 
 
 concern to the defendants and Pac. R. Co. v. Updike Grain Co.. 
 
 gave them no ground of com- 222 U. S. 215, 56 L. Ed. 171, 32 
 
 plaint." Sup. Ct. 39; Baltimore & O R. Co. 
 
 36. Southwestern Produce Dis- v. United States ex rel. Pitcairn 
 tributers v. Wabash R. Co., 20 I. Coal Co., 215 U. S. 481, 54 L. Ed. 
 C. C. 458. See also Andrews Bro- 292, 30 Sup. Ct. 164; Interstate 
 thers v. Pennsylvania R. Co., 38 Commerce Commission v. Illinois 
 I. C. C. 165. Cent. R. Co., 215 U. S. 452, 54 L 
 
 37. Cosby v. Richmond Trans- Ed. 280, 30 Sup. Ct. 155; Pennsyl- 
 fer Co., 23 I. C. C. 72. vania R. Co. v. Interstate Com- 
 
 38. Pennsylvania R. Co. V. Clark merce Commission, 193 Fed. 81; 
 Bros. Coal Min. Co., 238 U. S. 456, United States ex rel. Pitcairn Coal 
 59 L. Ed. 1406, 35 Sup. Ct. 896; Co. v. Baltimore & O. R. Co., 165 
 Illinois Cent. R. Co. v. Mulberry Fed. 113; Majestic Coal & Coke Co. 
 Hill Coal Co., 238 U. S. 275, 59 L. v. Illinois Cent. R. Co., 162 Fed. 
 Ed. 1306, 35 Sup. Ct. 760; Pennsyl- 810; Logan Coal Co. v. Pennsyl- 
 vania R. Co. v. Puritan Coal Min. vania R. Co., 154 Fed. 497; United 
 Co., 237 U. S. 121, 59 L. Ed. 867, 35 States v. Norfolk & W. R. Co. 74
 
 4 
 
 DlSCHl Ml NATION AS TO KaTES, KTC. 
 
 343 
 
 alloted to shippers, without preference.'" The Act does 
 not, however, define the proper method of distribution 
 during times of car sliortage, and as the question of the 
 proper distribution is administrative in character, the 
 Commission has tlie exclusive jurisdiction to pass upon 
 the reasonal)leness of the rules of a carrier for car 
 distribution.*'' 
 
 C. C. A. 404, 143 Fed. 266; West 
 Virginia Nortliern R. Co. v. United 
 States, 67 C. C. A. 220, 134 Fed. 
 198: United States ex rel. King- 
 wood Coal Co. V. West Virginia 
 Northern R. Co., 125 Fed. 252; 
 Bulali Coal Co. v. Pennsylvania R. 
 (^o.. 20 I. C. C. 52; Jacoby & Co. 
 V. Pennsylvania R. Co., 19 I. C. C. 
 392; Hillsdale Coal & Coke Co. v. 
 Pennsylvania R. Co., 19 I. C. C. 
 .^56; Rail & River Coal Co. v. Balti- 
 more & 0. R. Co., 14 I. C. C. 86; 
 Traer v. Chicago & A. R. Co., lo 
 I. C. C. 451; Royal Coal & Coke Co. 
 V. Southern Ry. Co.. 13 I. C. C. 
 440: Railroad Commission of Ohio 
 V. Hocking Valley Ry. Co., 12 I. 
 C. C. 39S: Thompson v. Pennsyl- 
 vania R. Co., 10 I. C. C. 640; Rich- 
 mond Elevator Co. v. Pere Mar- 
 quette R. Co., 10 I. C. C. 629; Glade 
 Coal Co. v. Baltimore & O. R. Co., 
 10 I. C. C. 226; Parks v. Cincinnati 
 & M. V. R. Co., 10 I. C. C. 47; 
 Hawkins v. Wheeling & L. E. R. 
 Co.. 9 I. C. C. 212. 
 
 39. Pennsylvania R. Co. v. Stine- 
 man Coal Min. Co., 242 U. S. 298, 
 61 L. Ed. 316, 37 Sup. Ct. 118; Penn- 
 sylvania R. Co. V. Sonman Shaft 
 Coal Co., 242 U. S. 120, 61 L. Ed. 
 188, 37 Sup. Ct. 46; Morrisdale 
 Coal Co., v. Pennsylvania R. Co., 
 230 U. S. 304, 57 L. Ed. 1494, 33 
 Sup. Ct. 398. 
 
 40. Illinois Cent. R. Co. v. .Mul 
 berry Hill Coal Co.. 238 U. S. 275, 
 59 L. Ed. 1306. 35 Sup. Ct. 76n; 
 Pennsylvania R. Co. v. Puritan 
 
 Coal Min. Co., 237 U. S. 121, 59 L. 
 Ed. 867, 35 Sup. Ct. 484; Pennsyl- 
 vania R. Co. V. International Coal 
 Min. Co., 230 U. S. 184, 57 L. Ed. 
 1446, 33 Sup. Ct. 893, Ann. Cas. 
 1915A 315; Baltimore & O. R. Co. 
 V. United States ex rel. Pitcairn 
 Coal Co., 215 U. S. 481, 54 L. Ed 
 292, 30 Sup. Ct. 164: Interstate 
 Commerce Commission v. Illinois 
 Cent. R. Co., 215 U. S. 452, 54 L. 
 Ed. 280, 30 Sup. Ct. 155; In Balti- 
 more & O. R. Co. V. United States. 
 supra, the Court said: "Under 
 these circumstances it is apparent, 
 as we have said, that these amend- 
 ments add to the cogency of the 
 reasoning which led to the con- 
 clusion in the Abilene case, that 
 the primary interference of the 
 courts with the administrative 
 functions of the commission was 
 wholly incompatible with the act 
 to regulate commerce. This re- 
 sult is earlier illustrated. A par- 
 ticular regulation of a carrier en- 
 paged in interstate commerce is 
 assailed in the courts as unjustly 
 l)referential and discriminatory. 
 Upon the facts found the complaint 
 is declared to be well founded. 
 The administrative powers of the 
 commission are invoked concern- 
 ing a regulation of like character 
 upon a similar complaint. The com- 
 mission finds, from the evidence 
 before it. that the regulation is 
 not unjustly discriminntnry. 
 Which would prevail? If both, 
 thm discrimination and prefer«^nce
 
 344 Duties to Interstate Shippers. [§ 170. 
 
 In the distribution of coal cars, the commercial as 
 TToll as the physical capacity of a mine should be taken 
 into consideration; physical capacity alone is not a fair 
 and sound basis for rating coal mines for coal distribu- 
 tion.*^ The physical capacity of a mine is determined 
 by the thickness of the coal, the number of rooms in the 
 mine, the capacity of the underground tracks, and the 
 facilities for getting the coal to the surface and from 
 the tipple at the surface into the cars. A fixed value 
 per day is assigned to a man's labor, taking into con- 
 sideration the thickness of the vein of coal upon which 
 the work is done, and the number of places in which 
 a man can work is taken into account, regardless of the 
 number of men employed. Such, in substance, is the 
 method known as the physical capacity of mines. *^ The 
 commercial capacity of a mine is determined by taking 
 the amount of shipments made by a mine during the 
 period of free-car supply, generally from April 1st to 
 August 1st, during the preceding two years. The physi- 
 cal capacity of a mine, the commercial capacity for the 
 first year and the commercial capacity for the second 
 year, expressed in coal tons, are then added together 
 and the sum is divided by three. This is a method com- 
 
 would result from the very prev- record in the case of The Tnter- 
 
 alence of the two methods of pro- state Commerce Commission v. 
 
 cedure. If, on the contrary, the Illinois Central Railroad Company, 
 
 commission was hound to follow ante. p. 452." 
 
 the previous action of the courts, 41. Logan Coal Co. v. Pennsyl- 
 
 then it is apparent that its power vania R. Co., 154 Fed. 497: .Tacoby 
 
 to perform its administrative func- & qq v. Pennsylvania R. Co., 19 
 
 tions would be curtailed, if not j c. C. 392; Hillsdale Coal & Coke 
 
 destroyed. On the other hand, if q^^^ y Pennsylvania R. Co., 19 I. 
 
 the action of the commission was ^ ^ 35^. j^^jj ^ j^.^^^ ^^^^ ^.^ ^ 
 
 to prevail, then the function exer- B^itij^o.^ & O. R. Co.. 14 I. C. C. 
 
 cised by the court would not have ^g. ^^^^^ ^ ^^^.^^^^ ^ ^ ^ ^^ 
 
 been judicial in character since ^.^ ^ ^ ^ Powhatan Coal & 
 
 its final conclusion would be sus^ ^ ^ 
 
 ceptible of being set aside by the ^ ^ 
 
 action of a mere administrative ^■' '■■ ^- '^^ "^• 
 
 body. That these illustrations are 42. Rail & River Coal Co. v. 
 
 not imaginary is established not Baltimore & O. R. Co., 14 I. C. C. 
 
 only by this record, but by the 86.
 
 <§, 171 I DlSCKlMINA rioN AS lO KaTKS, KTC. -U.J 
 
 billing the physical and eonimcrcial capacily, wlilch 
 tlio Commission lias ajjproved/'' 
 
 A rule of the Commission icMiuiiin,^^ lliai cars used 
 by the carrier to haul its own coal as well as i)rivat(' 
 and foreio-n railway fuel cars be taken into account 
 against the distributive share of a coal company receiv- 
 ing them was sustained." The Commission has not at- 
 tempted to ado])t exactly the same system for distribu- 
 tion of cars in the various coal fields of the country for 
 each coal field on a system of railroad has its individual 
 peculiarities, and a plan that would work with entire 
 satisfaction on one road might and doubtless would be 
 unsatisfactory on another road.*'' 
 
 In the distribution of cars for the trans]X)rtation of 
 grain during a shortage, the Commission held that the 
 situation could not be dealt with by a fixed, arbitrary 
 and inelastic regulation but that there should be equali- 
 ty in the distribution of such cars as are available, first, 
 between shipping points, and second, between individuals 
 at each of said points.*^ 
 
 The Commission has frequently decided that all 
 cars, whether individual cars, or owned by the railroad 
 company, or assigned by other railroad companies for 
 fuel, should be treated as an available car equipment 
 as a whole, distril)utable pru rata to shippers desiring 
 their use upon a basis giving each equal facilities with 
 the other.*^ 
 
 § 171. Preferences and Discriminations in Demur- 
 rage and Track Storage Charges. While it is the duty 
 of carriers to transport and deliver freight at destina- 
 tions within a reasonable time, it is also the duty of 
 
 43 HUlsdale Coal & Coke Co. 46. Railroad Com'rs of Iowa v. 
 
 V Pennsylvania R. Co., 19 T. C. C. Chicago. R. I. & P. R. Co.. 29 I. C. 
 
 44. Baltimore & 0. R. Co. v. ^^- Lo^^n Coal Co. v. Pennsyl- 
 
 TTnited States ex rel. Pitcairn Coal 
 
 vania R. Co., 154 Fed. 497; United 
 States ex rel. Pitcairn Coal Co. v. 
 
 Co.. 215 U. S. 481. 54 L. Ed. 292. ^^^nj^^^,, ^ q. R. Co.. 154 Fed. 
 
 30 Sup. Ct. 164. ^Qg. xTnited States v. Norfolk & W'. 
 
 45. In re Mine Ratings, 25 I. C. r. qo.. 74 C. C. A. 404. 143 Fed. 
 
 C. 286. 266; West Virginia Northern R.
 
 3-46 i)uTii:s TO L\ lEKsTATK Shicpkhs. [§ 171 
 
 the consignees to receive and accept the freight w ithiu 
 a reasonable time after delivery. Railroad companies 
 are able to serve the public only when their cars are 
 used for moving freight, and they cannot properly 
 serve the public when their tracks are not available for 
 prompt delivery of freight. 
 
 The shipper who, at a time for demand of trans- 
 portation wlneli taxes the facilities of the carriers, occu- 
 pies a track with cars beyond the free time granted, in- 
 flicts not only a loss upon the carrier but upon other 
 shippers who desire to use the carrier's facilities. To 
 permit one person to use the cars for storage ]3urposes 
 and deny that privilege to another, creates a discrim- 
 ination between shippers.*^ Track storage and demur- 
 rage charges at congested yards are, therefore, lawful 
 and proper,^'-' State courts and Commissions have also 
 approved storage charges in addition to demurrage.^" 
 Track storage charges are justified because they are 
 necessary in order to bring about the prompt release 
 of track space in the interest of the general shipping 
 public at points where business is very active and the 
 track space correspondingly limited, while car demur- 
 rage is assessed for the purpose of a proper regulation 
 of all the car equipment of the carrier.^^ 
 
 Assessment of track storage charges in addition to 
 demurrage at various yards in greater New York was 
 
 Co. V. United States, 67 C. C. A. Murphy Bros. v. New York Cent. 
 
 220, 134 Fed. 198; United States & H. River R. Co., 21 I. C. C. 176: 
 
 ex rel. Kingwood Coal Co. v. West Turnbull Co. v. Erie R. Co., 17 
 
 Virginia Nortiiern R. Co., 125 Fed. I. C. C. 123; Wilson Produce Co. 
 
 252; United States ex rel. Coffman v. Pennsylvania R. Co., 16 I. C. C. 
 
 V. Norfolk & W. Ry. Co., 109 Fed. 116: New York Hay Exch. Ass'n 
 
 831. V. Pennsylvania R. Co., 14 I. C. C. 
 
 48. In re Demurrage Charges, 25 178; Wilson Produce Co. v. Penn- 
 I. C. C. 314; Kehoe & Co. v. sylvania R. Co., 14 T. C. C. 170. 
 Charleston & W. C. Ry. Co., 11 I. 50. Miller v. Mansfield, 112 
 C. C. 166. Mass. 260; Norfolk & W. R. Co. v. 
 
 49. Wholesale Produce Dealers Adams, 90 Va. 393, 22 L. R. A. 530, 
 Ass'n of Brooklyn. New York v. 44 Am. St. Rep. 916, 18 S. E. 673. 
 I.ong Island R. Co., 26 I. C. C. 413; 51. Murphy Bros. v. New York 
 Murphy Bros. v. New York Cent. Cent. & H. River R. Co., 21 I. C 
 & H. River R. Co., 21 I. C. C. 413; C. 176.
 
 V I'M 
 
 DiSCIIl.M INA'I l(»N AS TO liATKS, ETC. 
 
 :u7 
 
 found to be not a discrimination against that city siin])1y 
 bocanso similar assessments were not imposed at other 
 points." The maintenance of higher demurrage charges 
 at points in the State of California than were con- 
 tem]>oraneously maintained in other states, was not an 
 unjust discrimination against California." Upon a 
 complaint charging that the imposition of track storage 
 charges upon certain commodities handled by produce 
 dealers, subjected such commodities and the persons 
 dealing therein to undue prejudice, it developed upon 
 a hearing before the Commission that the complainants 
 used the equipment of the carriers for warehousing 
 purposes to sell the produce to retail dealers direct- 
 ly from the cars, thus avoiding double drayage. The 
 
 52. New York Hay Exch. Ass'n 
 V Pennsylvania R. Co. 14 I. C. C. 
 178. 
 
 .53. In re Demurrage Charges, 
 25 I. C. C. 314, in which the Com- 
 mission said: "In their brief pro- 
 testants argued that the circum- 
 stances and conditions in CaM- 
 fornia are not substantially dif- 
 ferent from those v.hich obtain in 
 other sections of the country 
 where all insist the movement cf 
 the products of the section is 
 heavy during certain portions of 
 the year. Their principal conten- 
 tion, however, is that the imposi- 
 tion of a higher demurrage charge 
 in California than in other states 
 served by respondents, or than in 
 other states of the Union, is in 
 violation of sections 1 and 3 of 
 the Act. and an undue discrim- 
 ination against California and the 
 shippers receivers located therein. 
 Section 1 of the act requires that 
 all charges for any service shall 
 be just and reasonable. The rec- 
 ord in this case, we think con- 
 clusively shows that under the cir- 
 cumstances a dcmurrngp olinrge of 
 
 $T per car per day on interstate 
 shipments in California is not un- 
 reasonable jyer se. Section 3 of the 
 Act prohibits undue or unreason- 
 able preferences or advantage to 
 any person, locality, or particular 
 kind of traffic. Section 2 of the 
 Act prohibits charging to one a 
 greater or less compensation than 
 is charged to another for a like 
 and contemporaneous service un- 
 der substantially smiilar circum- 
 stances and conditions. If it can 
 be said that Section 3 prohibits a 
 higher demurrage charge in Cali- 
 fornia than is assessed in New 
 York, would it not necessarily fol- 
 low that it also prohibits charging 
 a higher rate for transporting a 
 given quantity of freight a given 
 distance in California than is 
 charged for a like service in New 
 York? Clearly the circumstances 
 and conditions connected with the 
 service rendered must be taken 
 Into consideration in determining 
 what is undue or unreasonable 
 preference or charge under Sec- 
 tion 3 of the Act."
 
 348 
 
 Duties to Interstate Shippers. 
 
 [§ ni 
 
 Commission held that under the circumstances, the 
 charges were justified.'^* 
 
 § 172. Unreasonable Compensation to Shippers for 
 Services in Connection with Transportation. Tlie Act 
 provides that if any owner of property transported 
 renders any service connected with such transportation, 
 or furnishes any instrumentality used therein, the car- 
 rier ma}^ compensate the shipper for the service render- 
 ed or the instrumentality furnished in connection with 
 his own shipments. If the amount is reasonable, it is 
 not a prohibited rebate or discrimination even if the 
 carrier does not allow other shippers to render and 
 furnish similar services and instrumentalities and com- 
 pensate them therefore. ^^ But when a carrier employs 
 a shipper to perform a service which is a part of the 
 transportation, the shipper obtains an unreasonable 
 preference and advantage in violation of the statute if 
 the compensation therefor is excessive.^'' 
 
 54. Wholesale Produce Dealers 
 Ass'n of Brooklyn, New York v. 
 Long Island R. Co., 26 I. C. C. 
 413. 
 
 5.5. United States v. Baltimore 
 & O. R. Co., 231 U. S. 274, 58 L. Ed. 
 218, 34 Sup. Ct. 75 Knapp v. Min- 
 neapolis, St. P. & S. S. M. R. Co., 
 ;J3 N. D. 291, 156 N. W. 1019. 
 
 56. Mitchell Coal & Coke Co. v. 
 Pennsylvania R. Co., 38 I. C. C. 
 40, in which the Commission said: 
 "The service over private tracks 
 from the lines and coke ovens of 
 shippers to the rails of the carrier 
 is not now nor was it during the 
 period of the action either com- 
 pelled or prohibited by the statute 
 or by the common law. To furnish 
 it or to withhold it is within the 
 discretion of the defendant; but 
 whatever course is pursued, the 
 statutory inhibition of unjust dis- 
 crimination and unreasonable 
 preference or advantage must be 
 
 observed. In the exercise of this 
 right the defendant elected to 
 furnish the service and therefore 
 its admitted undertaking, so found 
 by the Supreme Court of the 
 United States, was found to trans- 
 port the product of the shippers 
 from their lines and coke ovens at 
 the rate published in its tariffs. 
 If all the shippers of coal and 
 coke were furnished the same 
 character of service and also were 
 required to pay the published 
 tariff rates therefor, the under- 
 taking in itself would not be dis- 
 criminatory, nor would it result 
 in unreasonable preferences or ad- 
 vantage. In order, however, to 
 overcome physical disabilities, 
 such as unusual grades, light rail, 
 and abnormal curvatures the de- 
 fendant employed some of the 
 shippers to perform a part of its 
 undertaking by hauling their prod- 
 ucts over their lines and coke
 
 § 174J DlSCHIMINATlON AS TO KaTKS, ETC. 349 
 
 § 173. Abnormal Division of Joint Rates to Car- 
 rier Unlawful. A railroad <'(»iii|)an\- as a shipper 
 is entitled to the same rights and is subject to the same 
 liabilities as a commercial shipper even when the ship- 
 ment moves in part over tlie rails of such railroad com- 
 pany. It may, therefore, i)articipate in the division of 
 a joint through rate when sliipping its own property; 
 l)ut it is unlawful for a carrier to make sp<^cial and dis- 
 criminatory divisions of joint rates as between an orig- 
 inal or participating carrier and the purchasing carrier. 
 
 Tlio fundamental purpose of the statute was to 
 stamp out all discriminations and concessions and to 
 place all shippers on an equality. If, therefore, one car- 
 rier in the transportation of its own fuel has paid a 
 special and abnormal division of a joint rate, such a 
 metliod is the means of indirectly reducing transporta- 
 tion charges and producing undue discriminations. 
 If the division of such a joint rate is such as to amount 
 to a rebate or discrimination in favor of one carrier as 
 a shipper, the Commission has the power to inquire in- 
 to the unreasonableness of the division and to reduce 
 the amount to tlie carrier-shipper.^' 
 
 § 174. Undue Discriminations in Divisions of Joint 
 Through Rates to Tap Lines or Logging Roads. Oidi- 
 narily the law has no concern with the di^•isio^ of joint 
 
 ovens to its rails, paying to them who received no such allowances 
 
 for this service varying allow- because the defendant carrier, in- 
 
 ances. Even this practice by itself stead of this, either did or was 
 
 would not be discriminatory, nor ready and willing to perform the 
 
 would it result in unreasonable service.'' 
 
 preferences or advantages if the 57. Tap Line Cases, 234 U. S. 
 
 allowances to all shippers who 1, 58 L. Ed. 1185, 34 Sup. Ct. 741; 
 
 perform the service were no more Interstate Commerce Commission 
 
 than sufficient to compensate them v. Baltimore & O. R. Co., 225 U. S. 
 
 for its cost, including a reasonable 32fi, 56 L. Ed. 1107, 32 Sup. Ct. 
 
 profit of the same percentage to 742, Ann. Cas. 1914A 504; In re 
 
 all shippers. If, however, the al- Rates on Railroad Coal and Other 
 
 lowances included appreciable Fuel, 3fi I. C. C. 1; Manufacturers' 
 
 profits of unequal percentages, the Ry. Co. v. St. Louis. I. M. & S. Ry. 
 
 shippers receiving the greater per- Co., 28 I. C. C. 93; In re Company 
 
 centago of profit were given un- ^laterial. 22 I. C. C. 439; In re 
 
 reasonable preferences and rd- Division of Joint Rates, 22 I. C. 
 
 vantages over competing shippers C. 51.
 
 350 OuTiKs TO l.\ J i: H.STAT E Shippees. [§ 174 
 
 rates which carriers make by agreement. They have the 
 right to make such divisions of their joint rates as they 
 see fit, and to raise or lower their divisions at will. But 
 this principle has decided limitations. If the division 
 is such that a rebate or a discrimination of an undue 
 advantage to a sliipper results, the Commission has 
 jurisdiction over the divisions and may reduce the 
 amount which one carrier receives. ^^ In the Tap Line 
 Cases," the Supreme Court, in overruling an order of 
 the Commission,^" held that certain logging roads in 
 Louisiana, Arkansas and Texas were not merely facili- 
 ties of lumber mills but were common carriers within 
 the meaning of the Act, and as such were entitled to 
 participate in joint rates with other common carriers, 
 although most of the property transported consisted of 
 lumber of the mill owners. The court, however, dis- 
 tinctly recognized and ruled that the divisions of such 
 joint rates between the owners of the tap lines and the 
 carriers were under the control of the Commission and 
 that an unjust discrimination therein might be forbidden. 
 Following this decision, the Commission investi- 
 gated the allowances made to certain tap lines and log- 
 ging roads and the divisions of the joint rates were af- 
 fected and a proper amount to the tap line owners was 
 determined upon. The Commission found tliat the di- 
 vision of the joint rates allowed to the tap lines amount- 
 ed to rebates or discriminations in favor of the owners 
 of the tap lines who were also sliip|iers because of the 
 dispro))orti(mate amount allowed in view of the services 
 rendered." 
 
 58. Tap Line Case. 31 I. C. C. Fathauer Co. v. St. Louis, I. M. & 
 490; In re Galveston Wharf S. Ry. Co., 18 I. C. C. 517; Star 
 Charges. 23 I. C. C. 535. Grain & Lumber Co., v. Atchinaon, 
 
 59. United States v. Butler T. & S. F. Ry. Co.. 17 I. C. C. 33S, 
 County R. Co., 234 U. S. 29, 58 L. 14 L C. C. 364; Central Yellow 
 Ed. 1196, 34 Sup. Ct. 748; Tap Pine Ass'n v. Illinois Cent. R. Co., 
 Line Case, 234 U. S. 1, 58 L. Ed. 10 1. C. C. 505; Central Yellow 
 1185, 34 Sup. Ct. 741. Pine Ass'n v. Vicksburg. S. & P. 
 
 60. Tap Line Case, 23 I. C. C. R. Co., 10 I. C. C. 193. 
 
 277; Kaul Lumber Co. v. Central 61. Tap Line Case, 31 I. C C. 
 
 of Georgia Ry. Co., 20 I. C. C. 450; 490.
 
 § 17:> 
 
 I )|SC|H.M I NA rioN AS 'ID liATKS, KTC 
 
 :;:)! 
 
 § 175. Grant of Wharfage Privileges to One 
 Shipper Denied to Others Unlawful. Conniioii cairiery 
 under federal control are required to aeoord to all ship- 
 pers who are entitled to like iroatmont, e(|ual ri<<hts both 
 in the receiving of supplies and the shipment of their 
 products, and a carrier who, under any pretext what- 
 soever, grants to one shipjior an advantage which ho 
 denies to another, violates the spirit and thwarts the 
 l)urpose of the statute. " 
 
 A contract or lease, therefore, by whicli a terminal 
 company gave to an exporter of cotton seed |)roducts 
 a portion of its wharf witliout the payment of wharf- 
 age storage charges while denying the same privileges 
 to other exporters, constituted an undue preference with- 
 in the meaning of the law, although the exporter paid 
 a yearly rental for the use of the pier and the improve- 
 ments thereon." 
 
 62. Castle v. Baltimore & 0. U. 
 Co., 8 I. C. C. 333. 
 
 63. Southern Pac. Terminal Co. 
 V. Interstate Commerce Commis- 
 sion, 219 U. S. 498, 55 L. Ed. 310, 
 31 Sup. Ct. 279. "It is next con- 
 tended," said Mr. Justice IMcKenna, 
 "that the lease to Young under the 
 tacts proven does not constitute an 
 unlawful or undue preference un- 
 der the Interstate Commerce Act. 
 To a certain extent we have con- 
 sidered this contention. An ab- 
 solute advantage to Young cannot 
 be denied. A facility that has en- 
 abled him to acquire practically all 
 the export of cotton seed products 
 must have something in it of ad- 
 vantage which other shippers do 
 not receive, and it would seem to 
 proclaim a power working for his 
 benefit which is not working for 
 others. And yet it is urged that 
 there is a contrariety of opinion 
 about it among cotton seed cake 
 producers and as to whether Young 
 
 is able to dominate the Texas 
 market and to command the for- 
 
 eign trade. The facts, we think, 
 put the matter beyond conjecture 
 or opinion and demonstrate the 
 potency of his situation. That it 
 is a preference, however, is denied; 
 since it is urged that by the agreed 
 statement of facts all cotton seed 
 cake producers 'agree that if there 
 was a general establishment of 
 plants in Galveston, so that a mo- 
 nopoly could not be acquired' by 
 Young, 'it would be of great bene- 
 fit to the cotton seed industry.' 
 Rut it is also agreed that neither 
 the Galveston Wharf Company nor 
 the Terminal Company h-^s soqc^ 
 enough to afford facilities to 'all 
 exporters doing business at Galves- 
 ton' such as Young. And the Com- 
 mission found that as a practical 
 matter other shippers could not be 
 given the same facilities on the 
 same conditions as those granted 
 to him, nor could such facilities be 
 secured on the bay front. It was 
 further found that the Terminal 
 Company had indicated that it is 
 not willing to accord shippers gen-
 
 352 
 
 Duties to Interstate Shippers. 
 
 [§ 175 
 
 Similarly, the practice of a railroad company at its 
 wharves in refusing to deliver at ship-side to vessels 
 other than those belonging to or consigned to a transit 
 company, a corporation owned by and the agent of the 
 railroad company, or to receive at ship-side from such 
 vessels property transported or to be transported in com- 
 merce subject to the Interstate Commerce Act, while 
 delivering like property at ship-side to, and receiving 
 like property at ship-side from vessels consigned to or 
 belonging to the said transit company, was held to be 
 unduly discriminatory and unlawful."* 
 
 In another case it was held by the Commission that 
 a carrier was guilty of undue preference when it denied 
 the use of its wharf and docks to some shippers while 
 permitting such use to favored steamship lines, for 
 when a railroad has a wharf at which its tariffs offer 
 delivery, and at which part of the shipping public is 
 served, but to which it does not give all access, it must 
 make delivery at the same rate at some other wharf 
 in the same terminal."^ 
 
 erally such facilities, and that the 
 situation of its docks with respect 
 to space is sucli that it cannot be 
 so even if it were willing. It may 
 be contended that the patrons of a 
 railroad are obliged to seek or 
 compete for extraordinary facili- 
 ties in its terminals. But, be that 
 as it may, all shippers must be 
 treated alike." 
 
 64. In re Wharfage Facilities at 
 Pensacola, Florida, 27 I. C. C. 252. 
 
 65. Mobile Chamber of Com- 
 merce V. Mobile & 0. R. Co., 23 I. 
 C. C. 417. "We do not regard the 
 Mobile docks," said Commissioner 
 Lane, "of the defendants in any 
 other light than as public termi- 
 nals. These carriers make their 
 rates to apply from point of origin 
 to the ships side at these docks. 
 The necessary implication arising 
 from these facts is that access 
 must be given to these wharves by 
 
 whatever ship the shipper chooses 
 to have his freight carried from 
 the wharf so long as such access 
 may be safely and properly given. 
 A railroad may not have a prefer- 
 red line of steamships to the ex- 
 clusion of other ships. Without 
 doubt it may prefer one line and 
 have more intimate relationship 
 with such line than with others, 
 but its duty as a common carrier 
 by rail cannot be neglected because 
 of such arrangements. It may set 
 aside one or more docks for the 
 use of such allied lines so long as 
 such practice does not conflict with 
 its duty to give delivery at these 
 docks to whomever may apply for 
 the freight properly deliverable to 
 that point. If it chooses to give up 
 its entire dock facilities to some 
 particular line, it may do so, but 
 it must make delivery upon equal 
 terms to other ships at that port,
 
 § 17(i| 
 
 Discrimination as to Ratks, ktc. 
 
 353 
 
 § 176. Unlawful Discriminations and Preferences 
 in Transit Privileges. A transit j^rivilc^e is one where 
 the carrier transports a commodity to a milling or 
 inanufaftiiring ])oint where a commercial process is 
 pertonned and the resulting product is moved on to 
 other destinations at the through rate."" Prior to the 
 amendment of 190(), the extent of the authoi'ity of the 
 Interstate Commerce Commission in regulating transit 
 
 if it has undertaken to deliver the 
 freight it transports at the ships 
 side. As recently stated in Baker- 
 Whiteley Coal Co. v. Baltimore & 
 0. R. R. Co., 188 Fed. 412 'That a 
 railroad company has the right to 
 keep a pier for its own use and 
 for the use of such transportation 
 lines as have contracts with it for 
 transshipment, cannot be denied, 
 provided it offers to the public 
 reasonable facilities elsewhere at 
 equal rates for the receipt of coal 
 shipped from its road to Baltimore 
 to be there transshiped.' In other 
 words, a railroad has certain pri- 
 mary duties which it must dis- 
 charge to the shipping public be- 
 fore it is free to exclude this pub- 
 lic from any of the facilities which 
 it uses or controls in the perfor- 
 mance of its public duties. It need 
 not make a rate to ship-side unless 
 its lines extend there; but, mak- 
 ing such rate, and having such fa- 
 cilities, it must give the shipper 
 access to the terminal to receive 
 the traffic; and it may no more dis- 
 criminate as between shippers at 
 a wharf than it may lawfully dis- 
 criminate as between trucks at a 
 freight shed." 
 
 06. United States v. Louisville 
 & N. R. Co.. 236 U. S. 318. 59 L. 
 Ed. 598, 35 Sup. Ct. 363; United 
 States V. Louisville & N. R. Co., 
 235 U. S. 314, 59 L. Ed. 245, 35 Sup. 
 Ct. lU: Lewis. Leonhardt & Co. 
 v. Southern R. Co., 133 C. C. A. 
 
 237, 217 Fed. 321; Nichols & Cox 
 Lumber Co. v. United States, 129 
 C. C. A. 124, 212 Fed. 588; Cxrand 
 Rapids & I. R. Co. v. United States. 
 129 C. C. A. 113, 212 Fed. 577; In 
 re Advances Grain, Lawrenceburg, 
 Ind., 35 I. C. C. 27; Spiegle & Co. 
 V. Southern Ry. Co., 34 I. C. C. 
 448; In re Advances Transit Rates 
 on Logs and Staves at Alexandria, 
 La. 34 I. C. C. 169; Mixed Car 
 Dealers' Ass'n v. Delaware, L. & 
 W. R. Co., 33 I. C. C. 133; Middle- 
 town Car Co. v. Pennsylvania R. 
 Co., 32 I. C. C. 185; National Cas- 
 ket Co. V. Southern Ry. Co.. 31 I. 
 C. C. 678; Empire Coke Co. v. Buf- 
 falo & S. R. Co., 31 I. C. C. 573: 
 Stock & Sons V. Lake Shore & M. 
 S. Ry. Co., 31 I. C. C. 150; Newark 
 Grain Co. v. Southern P. Co., 30 
 I C. C. 431; Gadow v. Chicago, St. 
 P.. M. & 0. Ry. Co., 29 I. C. C. 457; 
 Wichita Board of Trade v. Abilene 
 & S. Ry. Co., 29 I. C. C. 376; In re 
 Advances Fabrication-in-transit 
 Charges, 29 I. C. C. 70; Clinton 
 Sugar Refining Co. v. Chicago & 
 N. W. Ry. Co., 28 I. C. C. 364; Mem- 
 phis Freight Bureau v. Illinois 
 Cent. R. Co., 27 I. C. C. 1; Spiegle 
 & Co. v. Southern .R. Co.. 25 I. 
 C C. 71: Transit Case, 24 I. C. 
 C, 340, 26 I. C. C. 204, 25 I. C. C. 
 130; In re Wool. Hide & Pelt 
 Rates, 23 I. C. C. 151; In re Sub- 
 stitution of Tonnage, 18 I. C. C. 
 280. 
 
 1 Coutrol L'arrlfis 23
 
 354 Dr'iiKs lo 1 NiKHsi'A'ii: Siiitpkus. |§ ITT) 
 
 privileges was doubtful, but under the Hepburn amend- 
 ment of that date, the reasonableness or discriminatory 
 effect of transit privileges, and all rules and regulations 
 in connection therewith, are now subject to tlio juris- 
 diction of the Connnission. Tn the exercise of its au- 
 thority, rules and regulations susceptible of discrimina- 
 tory or other unlawful a]>plication, may be condemned 
 by the Commission.''' 
 
 The transit ])rivilege is ai)plied to the movement of 
 many commodities. Generally, in its application, the 
 raw^ material pays the local rate into the point of manu- 
 facture. When the manufactured product afterwards 
 goes forward, it is transported upon a rate which would 
 be applied to that product had it originated in its manu- 
 factured state at the point where the raw material was 
 received for transportation."* The essential object of 
 transit privileges is to enable shippers to employ a 
 method of transit which, but for the privilege, would sub- 
 ject material to local rates instead of entitling it to an 
 ultimate through rate. The through rate is applied 
 later upon the theory and the condition that stoppage 
 at the transit point was for some legitimate treatment 
 of material, and that the continuation of the transit 
 desired, is of the same material, its product or equiva- 
 lent, to a through rate destination.*^^ 
 
 Under a transit privilege a shipper may, there- 
 fore, receive the benefit of a through rate from the point 
 of origin of the commodity to the final point of desti- 
 nation instead of being required to pay the rate to the 
 milling or merchandizing i)oint, i)lus the rate from such 
 point, the sum of such rates being generally in excess 
 of the through rate from the first point of origin to 
 the point of final destination.^" "When rates are changed 
 
 07. Transit Case, 26 I. C. C. 212 Fed. 588; Grand Rapids & I. 
 204, 25 I. C.C. 130, 24 I. C. C R. Co. v. United States, 129 C. C. 
 
 340. A. 113, 212 Fed. 577; Lewis, Leon- 
 
 OS. Central Yellow Pine Ass'n 
 V. Vicksburg. S. & P. R. Co., 10 
 ICC 193 
 ' G9. Nichols & Cox Lumber Co. 70- ^ re Milling, in Transit, 17 
 
 V. United States, 129 C. C. A. 124, L C. C. 113. 
 
 hardt & Co. v. Southern R. Co., 
 133 C. C. A. 237, 217 Fed. 321.
 
 § 17()| 1 )|S(|;I.M INA riuX AS TO rjAIKS. KTC '\7)7) 
 
 wlijle tlic commodity it? in a slate of suspended trans- 
 portation at tlie transit point, tlie rate in effect on the 
 date of the lirst movement of tlie shipment from the 
 point of origin should be applied/' If a transit privilege 
 is applied without discrimination, it results in the 
 diffusion of business by giving rival communities the 
 relative advantage to which they are entitled and which 
 can legally be given them in no other way/^' 
 
 It is clearly discriminatory for a carrier to single 
 out one product of grain for example, and withhold a 
 transit privilege from it while granting the same privi- 
 lege at the same place or at some other competitive 
 point, to other products of grain of substantially simi- 
 lar character, value and packing, and which is trans- 
 ported under substantially similar conditions.'' But 
 a carrier may withhold a transit privilege from a pro- 
 duct that is essentially ditferent from the raw material 
 and from other i)roducts of the same raw material which 
 are accorded transit rates. For example, the Commis- 
 sion held that cornstarch did not constitute a like kind 
 of traffic with cornmeal and cornflour, and a denial of 
 the privilege of milling corn into starch under a transit 
 rate did not constitute an unjust discrimination even 
 when the right was given to other industries to mill 
 corn into other uncooked corn products.'* 
 
 Su1)stitutiou at the transit i:>oint of one commodity 
 f'oi- ;ni()tli(4' and the transportation of the substituted 
 connuodity at the transit rate is illegal." Thus, com- 
 mon carriers were found guilty of giving rebates through 
 the device of unlawful substituting lumber at the tran- 
 sit point. ^"^ The rules and regulations of the Southern 
 Railroad Company applicable to transit on lumber to 
 points on its system were found not be be unduly dis- 
 
 71. In ic .Milling in Transit, 17 75. In re Substitution of Ton- 
 I C. C. 113. nage, 18 I. C. C. 280. 
 
 72. In re Wool. Hide & Pelt 76. Nichols & Cox Lumber Co. v. 
 Rates, 23 I. C. C. 151. United States, 129 C. C. A. 124. 
 
 7:^. Douglas & Co. V. Chicago. R. 212 Fed. 588; Grand Rapids & T. 
 I. & P. Ry. Co.. 21 I. C. C. 541. 21 R. Co. v. United States, 129 C. C. 
 I C. C. 97. 16 I. C. C. 232. A. li:?. 212 Fed. 577. 
 
 74. Douglas & Co. v. Illinois 
 Cent. R. Co., 31 I. C. C. 587.
 
 356 Duties to Interstate Shippers. [§ 176 
 
 criminatory but a refusal to apply the transit rate on 
 small shipments of lumber of a particular kind was 
 held to be unreasonable." 
 
 § 177. Compensation for Transit Privileges Not 
 Limited to Actual Cost. The stopping of a commodity 
 in transit for the purpose of treatment or reconsign- 
 ment is one of some benefit to a shipper and involves 
 some service by and expense to the carrier. In an 
 early case the Commission held that carriers violated 
 the statute prohibiting undue preference by charging 
 for the privilege more than what it actually cost them 
 to perform the service incident thereto.^® But on writ 
 of error to the Court of Appeals, the Supreme Court 
 held that the carriers were entitled to compensation 
 in addition to the actual cost.^® ''A carrier," said 
 the Court "may be under no obligations to furnish 
 sleeping or other accommodations to its passengers, 
 but if it does so it is not limited in its charges to 
 the mere cost, but may rightfully make a reason- 
 able profit out of that which it does furnish. Es- 
 pecially is this true when, as here, the privilege is 
 in no sense a part of the transportation, but outside 
 thereof. Whether the conclusion of the commission that 
 the carrier is under no obligations to permit the inter- 
 ruption of the transit is right, and whether it is or is 
 not under such obligation, it is entitled to receive some 
 compensation beyond the mere cost for that which it 
 does. We have been particular to copy the exact lan- 
 guage used by the commission, for in another case be- 
 tween the same plaintiff and other railroad companies, 
 involving the charges in a case of reconsignment of hay, 
 decided on December 20 of the same year (St. Louis 
 Hay & Grain Company v. The Illinois Central Railroad 
 Company et al, 11 I. C C. 486), the commission made 
 an order dismissing the complaint. It is true that the 
 
 77. National Casket Co. v. South- St. Louis Hay & Grain Co., 82 C. 
 ern Ry. Co., 31 I. C. C. 678. C. A. 614, 153 Fed. 728. 
 
 78. St. Louis Hay & Grain Co. 79. Southern R. Co. v. St. Louis 
 V. Mobile & 0. R. Co., 11 L C. C. Hay & Grain Co., 214 U. S. 297, 53 
 90; See also Southern R. Co. v. L. Ed. 1004, 29 Sup. Ct. 678.
 
 § 180J I)rS( RIMINATIOX AS TO IvATKS, KTC 357 
 
 faets aro not i)rocisoly like tliose in tliis ca«o, but at 
 tlie .same tiino the difference in the conclusions of tlie 
 commission is such as seems to suggest that perhai)s on 
 further examination tlie connnission had come to a dif- 
 ferent eonelnsion." 
 
 § 178. Extension of Tranisit Privilege Over Twelve 
 Months Unreasonable — Exceptions Permitted. A iian- 
 sit privilege extending through a period of over twelve 
 months is prima facie unreasonable, but as applied to 
 the creosoting of lumber, a period of eighteen months 
 is not unreasonably long, ])rovided the full local rates 
 on the inbound material are required to be paid.**^ 
 Tariff" rules of carriers limiting to eighteen months 
 the time within which cross ties, creosoted in transit, 
 might be reshipped at the through rates from points of 
 origin to final destination, the Commission hold, were 
 not discriminatory or unreasonable.''' 
 
 § 179, Carriers May Allow Compensation to One 
 Shipper for Transportation Services and Deny Same 
 Privilege to Another. When a carrier employ.s several 
 shippers to perform a part of its undertaking and pays 
 them varying allowances, this practice is not discrimina- 
 tory when the allowances to all of them are no more 
 than sufficient to compensate for the cost, including a 
 reasonable profit of the same percentage to all sliipj)ers. 
 If, however, the allowances include appreciable ju'ofits 
 of unequal percentage, the shippers receiving the great- 
 er percentage of profits are given unreasonable advan- 
 tages and preferences over com])eting shi])])ers/- 
 
 § 180. Contracts Requiring Expedited Services Not 
 Open to All Shippers Invalid. The broad puri)ose of 
 Congress in the enactment of sections 2 and 3 was to 
 compel the assessment of reasonable rates and their 
 uniform application. A special contract, therefore, with 
 one shipper whereby the carrier agreed to expedite the 
 1rans]>ortation of horses by guaranteeing a particMiIni- 
 
 80. Conference Ruling No. 232. Co.. 42 I. C. C. 35. 
 
 81. National Lumber and Creo- 82. Mitchell Coal & Coke Co. v. 
 soting Co. V. Texas & Ft. S. Ry. Pennsylvania R. Co., 38 I. C. C. 40.
 
 358 Duties to Ixtkestatk Shippehs. [§ 180 
 
 connection and a carriage on a particular train at the 
 nsnal published rates, was void in that the shipper was 
 given a preference and an advantage not open to all 
 shippers at the same rate. The purpose of the Inter- 
 state Commerce Act would be defeated if sanction wore 
 given to such special contracts.^' In the case cited, the 
 United States Supreme Court reversed a judgment ob- 
 tained in a state court on a contract under which the 
 shipper claimed the carrier agreed to transport his 
 horses from a point in Illinois to New York on a cer- 
 tain special train. 
 
 § 181. Preferential Rates to Other Carriers as 
 Shippers Prohibited. It is unlawful to apply one rule 
 when a shipment is for a railroad and a different rule 
 for a private individual, if the traffic is like in kind 
 and the circumstances and conditions of transportation 
 are substantially similar. There is no warrant either in 
 the common law or under the statute for the theory that 
 a carrier as a shipper over the lines of another carrier 
 may enjoy or be given a preferred status.** Such a prac- 
 tice cannot be upheld without resulting in unjust discrim- 
 inations which it was the purpose of Congress to abolish 
 and prohibit. But a railroad company, on the other 
 hand, as a .shipper or consignee, is entitled to the same 
 consideration as any commercial shipper or consignee 
 even when the shipment moves partly over its own lines. 
 It, therefore, follows that, in such cases, the carrier as 
 a shipper is entitled to a division of a joint, through 
 
 83. Chicago & A. R. Co. v. Kir- mere & O. R. Co., 23 I. C. C. 181: 
 by, 225 U. S. 155, 56 L. Ed. 1033, In re Company Material, 22 I. C. 
 32 Sup. Ct. 648, Ann. Cas. 1914A C. 439; In re Restricted Rates, 
 501. 20 I. C. C. 426; Hitchman Coal 
 
 84. Mitchell Coal & Coke Co. ^ q^^^ ^q y Baltimore & 0. R. 
 V Pennsylvania R. Co., 181 Fed. ^-.^ ^6 I. C. C. 512, 17 I. C. C. 473; 
 403; Pennsylvania R. Co. v. In- ^^ ^^ Contracts of Express Com- 
 ternational Coal Min. Co., 97 C ^^ ^ ^ ^ ^46; In re 
 C. A. 383, 173 Fed. 1; In re Rates. j^^jj^^^^.^elegraph Contracts, 12 
 Divisions. Rules, etc /.e I. C. C. ^^^ ^^ 
 1; Doran v. Nashville, C. & St. ^ ^ r^ ni 
 L. Ry. Co., 33 I. C. C. 523; Cres- v. Central V. R. Co., 11 I. C. C. 
 cent Coal & Mining Co. v. Balti 104.
 
 § l«^l 
 
 DlSCHlMl NATION AS TO KaTKS, ETC. 
 
 359 
 
 rate; but that (iivisioii, to avoid discriiiiiiiatiuu, must 
 be fixed by the Hanie cousideratioiis which would deter- 
 mine the division upon tlirough commercial shipments 
 
 in which tli<' carrici' luis no intci'cst as a shipper.*'' 
 
 § 182. Foregoing Rules Illustrated and Applied. 
 
 'IMic Supreme Coui'l, for example, iu I'cversiny- a decision 
 ol" the Commerce Court, and in aflirming an order of the 
 Interstate Commerce Commission, iield tiiat the services 
 performed by a carrier in connection with tlie trans[^orta- 
 tion of coal to be used for fuel by railroads as com- 
 ])ared with the services performed by tiieni in connection 
 with the transportation of other coal including "com 
 mercial" coal, were alike and were performed under sub- 
 stantialh similar conditions and circumstances.'" In 
 
 Sfj. In 10 Hates, Uivisiun, Rules, 
 etc., 3G 1. ('. C. 1; 111 re Compuny 
 Material, 22 I. C. C. 439. 
 
 8t). Interstate Commerce Com- 
 mission V. Baltimore & O. R. Co., 
 225 U. S. 326, 56 U Ed. 1107, 32 
 Sup. Ct. 742, Ann. Cas. 1914A 504. 
 Said the Court: "The circum- 
 stances and conditions which may 
 so far be considered as distin- 
 guishing traffics so as to take 
 from different transportation 
 charges the vice of preference 
 have been described by this court. 
 In Wight V. United States, 167 
 U. S. 512, 518, it is said: 'It was 
 the purpose of the section (2) 
 to enforce equality between ship- 
 pers, and it prohibits any rebate 
 or other device by which two ship- 
 pers, shipping over the same line, 
 the same distance, under the same 
 circumstances of carriage, are 
 compelled to pay different prices 
 therefor.' These words are given 
 more precision by the declaration 
 that the phrase, ' under substan- 
 tially similar circumstances and 
 conditions,' as found in section 2, 
 refers to matters of carriage, and 
 does not include competition. And 
 
 this was repeated in Interstate 
 Commerce Commission v. Ala- 
 bama Midland Ry. Co., 168 U. S. 
 144, 161^ loG. The facts in both 
 cases give significance to the rul- 
 ings. In the first case the charges 
 to the shippers were the same, but 
 one was given extra facilities; in 
 the second case the extraneous ef. 
 feet of competition was excluded 
 as an element in the application 
 of the section. There is also ex- 
 ample in Interstate Commerce 
 Commission v. Delaware, L. & W. 
 R. R. Co., 220 U. S. 235. It whs 
 there held that a carrier could not 
 look beyond goods tendered to it 
 for transportation in carload lot 
 'to the ownership of the shipment' 
 as the basis for determining the 
 application of its established ratei. 
 Do the circumstances and condi- 
 tions in this case give a greater 
 power of discrimination and jus- 
 tify the lower charge to railroad- 
 fuel coal? It is admitted that the 
 fact that a railroad is the shipper 
 or consumer is not a circumstance 
 or condition that affects the car- 
 riage, nor can the different uses to 
 which the coal may be put, and it
 
 360 Duties to Interstate Shippebs. [§ 182 
 
 Capital City Gas Co., v. Central V. Ry. Co., cited suprci^ 
 the Commission also held that the maintenance of a rate 
 on coal when intended for "railroad supplies" and main- 
 tenance at the same time of a higher rate between the 
 same points on coal used for other purposes constituted 
 unlawful discrimination. 
 
 In another case^' the Commission held that a rail- 
 road company might lawfully transport men and sup- 
 plies of an express company without reference to any 
 tariffs when they are employed or used in the business 
 of the express company upon the line of that railway, 
 but that the railroad company might not lawfully trans- 
 port men and supplies of the express company when 
 tliey were employed or used in the business of tlie express 
 company at points not on the line of that railroad. In 
 Hitchman Coal & Coke Co. v. Baltimore & 0. R. Co., 
 cited supra, it appeared that the defendant charged 
 rates on coal from a certain district to Cleveland, Ohio, 
 of one dollar per ton when for commercial purposes, 
 ninety-eight cents per ton when for vessel fuel, eighty- 
 eight cents when for fuel cargo and sixty-five cents per 
 ton when for railroad purposes. The Commission held 
 there was no intimation in the Act to Regulate Commerce 
 that a carrier as a shipper might be given a status dif- 
 ferent from or more advantageous than that given to all 
 other shippers. Similarly, in Pennsylvania R. Co. v. 
 International Coal Min. Co., cited supra, the Court af- 
 firmed the judgment of the lower court awarding dam- 
 ages because the plaintiff had been charged the higher 
 
 would seem necessarily that any interest after, transportation? It 
 
 other extraneous condition or cir- must be kept in mind that it is 
 
 cumstance could have no greater not the relation of one railroad 
 
 potency. Once depart from the to another with which we have 
 
 clear directness of what relates to any concern, but the relation of 
 
 the carriage only and we may let a railroad to its patrons, who are 
 
 in considerations which may be- entitled to equality of charges. See 
 
 come a cover for preferences. May Pennsylvania R. R. Co. v. Inter- 
 
 a carrier look beyond the service national Mining Co., 173 Fed. Rep. 
 
 it is called upon to render to the 1" 
 
 attitude and interest of the ship- 87. In re Contracts of Express 
 
 pers before, or their attitude and Companies, 16 I. C. C. 246
 
 § 183] Discrimination as to Kates, etc. 361 
 
 rate on so-called "free coal" tlian others lia<l been 
 (•liar<;-ed on so-called "contract coal." The Court .said: 
 "The law having in view the carriage of freight and 
 equal rates to all, it is clear to us that the words *sub- 
 stanlially similar circumstances and conditions' as used 
 in this sub-section, are those which affect transportation, 
 and not those which involve personal conditions or con- 
 tractual relations between one particular shipper and the 
 carrier, but are such things only as are circumstances 
 of carriage generally." 
 
 But a carrier has the right to transport the employes 
 and materials of a contractor building an extension to 
 its line either free or at reduced rates without being 
 guilty of unjust discrimination. In transportating such 
 character of traffic over its own road, in connection with 
 the extension or improvement of its own line, the rail- 
 road company is not acting in the performance of its 
 duty as a common carrier. Such agreements with con- 
 tractors for free transportation are outside of the policy 
 of the law prohibiting departures from published tar- 
 iffs.«« 
 
 § 183. Storage Regulations Must Be Enforced 
 Without Preference or Discrimination. Any variation 
 from the established and commonly enforced rules of a 
 carrier for the |)rompt removal of goods from freight 
 depots, or for the loading and unloading of cars on rail- 
 way tracks or ])rivate sidings, constitutes an obvious 
 advantage to the shii)per or consignee favored.-'' The 
 public interests therefore require that freight should be 
 removed prom])tly from the carrier's premises, and stor- 
 age regulations should be observed and enforced with- 
 out discrimination.^*' Thus, a rule limiting free storage 
 
 88. Santa Fe, P. & P. R. Co. 90. Commercial E.xchange of 
 V. Grant Bros. Const. Co., 228 U. Philadelphia v. Ry. 38 I. C. C. 
 S. 177, 57 L. Ed. 787, 33 Sup. Ct. 320; Brey v. Pennsylvania R. R., 
 474. 16 I. C. C. 497; New York Hay 
 
 89. American Warehousemen's Exchange Ass'n v. Pennsylvania 
 Ass'n V. Illinois C. R. R., 7 I. C. R. R., 14 I. C. C. 178: Wilson Pro- 
 C. 556. duce Co. v. Pennsylvania R. R., 
 
 14 I. C. C. 170.
 
 362 Dl'TlKS TO 1 X I'KKSTATK SlflPPKHS. [§ 183 
 
 time at Philadelphia to two days was held not to bo 
 unjustly discrimiiialoiy.''^ 
 
 § 184. Haulage by Stage or Wagon from Destina- 
 tion Points not a Dissimilar Circumstance Justifying 
 Lower Rates. In eharginp: hjolicr rates for tlie trans- 
 portation of freight of a like kind to certain destinations 
 for eonsuniption there, than for freight to be forwarded 
 by wagon to other points from the same terminus, car- 
 riers are guilty of unjust discrimination, for the fact that 
 goods after delivery by the carrier are hauled beyond 
 that point in wagons to other towns, does not constitute 
 a dissimilar circumstance in the transportation. Thus, 
 an arrangement by which carriers between St. Tjoiiis and 
 Eureka Springs, ^Vrk., charged less for goods for- 
 warded by wagon from Eureka Springs, Ark., to Harri- 
 son and other towns in Arkansas, than for the same 
 kind of freight from St. Louis to merchants at Eureka 
 Springs, was condemned by the (\)mmission."^ 
 
 The same principle was a])plied by the Commission 
 in another case in which it was held tliat a common 
 carrier may not lawfully make rates to a given point 
 on its line on traffic going beyond by wagon or similar 
 conveyances which are lower than its established rates 
 to that })oint as a final destination.^^ An arrangement of 
 a carri(>r through which passenger fares to Gardner, 
 Montana and return, were lower than for those who went 
 beyond that point l)y stage to Mammoth Hot Sy)rings or 
 through Yelhiw Stone National Park, constituted an un- 
 just discrimination, for a carrier has no right to make 
 one rate for passengers whose journey ends at ils ter- 
 minus and a lower rate for jiassengers who ti'avel boyond 
 Hint ]u)int by stage."* 
 
 § 185. Preparing Cars for Shipment of Commodi- 
 ties for Some Shippers and Refusing Same Service to 
 Others. Where special preparation is reqnin^d to tit a 
 
 91. Commercial Exchange of 9.3. Bayou ('ity Rice Mills v. 
 Philadelphia v. Ry.. 38 I. C. C. 320. Texas & N. O. R. R.. 18 I. C. C 
 
 92. Gary v. Eureka Spring.s Ry., 490. 
 
 7 I. C. C. 286. 94. Wylie v. Northern P. Ry., 
 
 11 I. C. C. 115.
 
 § 180. 
 
 DlSCHlMlXATIoN AS '!( ) KaTKS. ETC 
 
 3G3 
 
 car for the sliipment of a i^articular commodity, the 
 task slioiild ordinarily he perfoimed ])y the ship])er/'' 
 iinh'ss it is a i)art of the transportation facilities defined 
 in the first section of the Act and which it is the duty 
 of a carrier to ))rovide."" Foi', in cases <jf carload freiy:ht, 
 whei-e the loadin": is done i)y the shipi)er, he can ordi- 
 naril>' pci'foi'iii the work iind'c cconoinicall)' than the car- 
 rier. 
 
 But allowances to one shii)])er for the woik of ])r(^- 
 paring the car for a shipment while declining- a similar 
 ])ayment to anotluM', or to pay at one place while refus- 
 in.n' to ]:»ay at another, unless justifying- circumstances 
 and conditions are shown, creates an undue discrimina- 
 tion. For example, the Missouri Pacific Railway Com- 
 l)an}' made allowances foi- lininii; and ))addin*< cars i>re- 
 ])aratory for Hoiii- shipments within switchin;^ limits in 
 St. Louis and refused the same privilege elsewhere. 
 The practice was condemned hy the Commission."^ 
 
 § 186. Grain Elevator Service Must be Open to All 
 Shippers Without Preference. There are two kinds of 
 elevator service in connection with grain, one called 
 transportation elevation and the other commercial ele- 
 vation. The former consists in the passing of the grain 
 through an elevator for the ]nirpose of transferring it 
 from car to car and obtaining its weight and is usually 
 limited to ten days free storage in the elevator. This is 
 a part of the transportation which the carrier may be 
 required to perform under the amendment of 1906.-" 
 Commercial elevation involves various processes in the 
 treatment of the grain itself such as mixing, cleaning, 
 
 95. In re Advances Dunnage 
 Allowances, 30 I. C. C. 539: New- 
 York State Shippers Protective 
 Ass'n V. New York Cent. & H Riv- 
 er R. Co., 30 I. C. C. 437; South- 
 western Missouri Millers' Club v. 
 St. Louis & S. F. R. Co., 26 I. C. 
 C. 245; Davies v. Louisville & N. 
 R. Co., 18 L C. C. 540: National 
 Wholesale Lumber Dealers' Ass'n 
 v. Atlantic Coast Line R. Co., 14 
 L C. C. 154. 
 
 96. Atchison, T. & S. F. R. Co. 
 v. United States, 232 U. S. 199, 58 
 L. Ed. 568, 34 Sup. Ct. 291. 
 
 97. Southwestern Missouri Mil- 
 liers' Club v. St. Louis & S. F. R. 
 Co., 26 I. C. C. 245. 
 
 98. Interstate Commerce Com- 
 mission v. Diffenbaugh. 222 U. S. 
 ■i'2, 56 L. Ed. 83. 32 Sup. Ct. 22.
 
 364 Duties to Interstate Shippees. [§ ISG 
 
 clipping, drying, etc., and is not a part of the duty of 
 the carrier.^^ As the carriers are required to furnish 
 what is termed transportation elevation as distinguished 
 from commercial elevation, they are not required to do 
 so at their own expense. 
 
 The service must however be open to all on e(|ual 
 and reasonable terms. Proper arrangements must be 
 made for furnishing elevation for all shippers, for other- 
 wise the carrier would subject itself to the charge of 
 practicing an unlawful discrimination.^ Having the 
 right and imposed with the duty of furnishing eleva- 
 tion, the carrier has the right to operate its own elevator 
 or may make arrangements with the owner of an elevator 
 for such service." 
 
 § 187. Allowances When Owner of Elevator is 
 Shipper of Grain — Former and Present Rule. Allow- 
 ances by a carrier to an owner of an elevator who was 
 also a shipper of a part of the grain passing through 
 his elevator, were originally condemned by the Inter- 
 state Commerce Commission for the reason that under 
 such circumstances, a person who was both a shipper of 
 grain and the owner of an elevator enjoyed advantages 
 not open to all others in that he was enabled thereby to 
 mix, treat, weigh, clean and inspect his grain in his 
 own elevator. It was held that the allowance pro tanio 
 was a contribution by the carrier to the owned for the 
 cost of securing these commercial benefits, and that it 
 resulted in an undue preference when paid on grain 
 belonging to the owner, unless confined to grain re 
 shipped in ten days and not mixed, treated, weighed 
 and inspected.'' But the Supreme Court, when the order 
 of the Commission in the cases cited came before it, 
 held that allowances to owners of elevators who were 
 also shippers of grain for elevation services were legal, 
 
 99. In re Elevator Allowances, 3. Traffic Bureau of St. Louis 
 
 24 I. C. C. 197. V. Chicago, B. & Q. R. Co., 14 I. 
 
 1. In re Elevator Allowances C C. 317; In re Elevator Allow- 
 by Union Pacific, 12 I. C. C. 85. ances by Union Pacific, 14 I. C. 
 
 2. In re Elevator Allowances by C. 315. 
 Union Pacific, 14 I. C. C. 315.
 
 § ISS] DlSCF^lMINATIOX AS TO HaTES, ETC. 365 
 
 altli()ii,i;li the Kliii)i)ei\s duiiiiK tli<' i)r(K5C'.ss dciiviMl an 
 advaiitajt^e by commoreially treating the grain while in 
 tlie elevator. 
 
 The eonrt furtlier lu'ld tliat the aHowance should 
 not be limited to the actual cost of the elevation but that 
 the owner was entitled to reasonable compensation for 
 the services rendered/ "The ground on wliifli tlie ])ay- 
 ment to owners of grain finally was held (hy llic (Com- 
 mission) to be a rebate," said the Court, "had been 
 considered from the beginning and, as we have said, had 
 been brought to the mind of ('ongress. It is that when 
 the owners of the elevators own the grain init into them 
 they have the o])i)ortunity to ])erform other services to 
 the grain in the way of treatment, or cleaning, clii)i)ing, 
 and mixing the grain, which although not included 
 under the term elevation or jiaid for by the railroad, it 
 is an advantage to them to be able to i)erform at the 
 same time. This advantage is thought to create an 
 undue preference and unjust discrimination. * * * 
 On the contrary tlie act of Congress in terms contem- 
 plates that if the carrier receives services from an owner 
 of property transported, or uses instrumentalities fur- 
 nished by the latter, he shall pay for them. That is 
 taken for granted in Sec. 15; the only restriction being 
 that he shall pay no more than is reasonable, and the 
 only permissive element being that the Commission may 
 determine the maximum in case there is complaint (or 
 now, upon its own motion. Act of June 18, 1910, c. 309, 
 Sec. 12, 36 Stat. 539,551). As the carrier is required to 
 furnish this part of the transportation upon re(iuest he 
 could not be required to do it at his own expense, and 
 there is nothing to prevent his hiring the instrumental- 
 ity instead of owning it." 
 
 § 188. Allowances for Lighterage Services to Ship- 
 per Within Free Delivery Zone not Discriminatory as 
 to Shippers Beyond Zone. Carriers are freciuently com- 
 pelled by geographical and })hysical conditions to estal)- 
 
 4. Interstate Commerce Com- mission v. Diffenbaugh, 222 U. S 
 
 42, 56 L. Ed. 83, 32 Sup. Ct. 22.
 
 366 Duties to Tntekstate Shippers. [§ 188 
 
 lisli limits within which they deliver traffic without ad- 
 ditional charges; for the estahlishment of free delivery 
 districts is a matter within the business discretion of the 
 carrier. They may, therefore, [)ay a jiisi and reasonable 
 compensation to a shi])per for lightering traffic within 
 su(^h zones to their terminals and refuse to ])ay shippers 
 outside of the free delivery zone to the same terminal 
 without being guilty of any unjust discrimination under 
 the statute.^ 
 
 This ])rinciple was established by the national Su- 
 preme Court after an extended litigation commencing be- 
 fore the Commission in 1908 and ending with the final de- 
 cision of the Court in 1913.*^ In this case it appeared 
 that the defendant railroad companies were interstate 
 trunk lines whose freight rail terminals were at the New 
 Jersey shore of the harbor of New York, Transporta- 
 tion of freight into and out of the city of New York 
 was conducted by means of car floats, barges and 
 steam lighters operating between the city and the New 
 Jersey shore. To meet these conditions the carriers with 
 freight terminals on the New Jersey side of the harbor 
 had for many years established a free lighterage ser- 
 vice to and from a defined area along the river front in 
 New York City, the rate into or out of such points being 
 the same as that applicable to the New Jersey rail ter- 
 minals. Within these free zones on the New York side 
 the carriers maintained public freight terminal stations 
 at which they delivered eastbound freight and accepted 
 west -bound freight. Some of these stations were owned 
 solely by one carrier; others were joint depots and some 
 were oi)erated by third persons who managed and oper- 
 ated them under contracts and as agents for the car- 
 riers. One of tlie latter stations was owned and operated 
 by Arbucle Brothers to whom the carriers agreed to pay 
 an allowance for maintaining the station and also for 
 lightering all freight therefrom to the railroad terminals 
 
 5. Federal Sugar Refining Co. v. & 0. R., 231 U. S. 274. 58 L. Ed. 
 Baltimore & O. R. Co., 20 I. C. C. 218, 34 Sup. Ct. 75; Baltimore & 
 200, 17 I. C. C. 40. O. R. Co. v. United States, 200 Fed. 
 
 6. United States v. Baltimore 779.
 
 §l(ScSl Discrimination as io Hatks, etc. 367 
 
 of the New Jer.sey sliore. Aibuele Brothers were large 
 sliippers of sugar and maintained a refinery close to 
 the station. Nearly one-third of the west-bound ship- 
 ments through the station were made hy Arbuele Bro- 
 thers, the remaining two-thirds of tiie tonnage being 
 furnished by the public. For lightering both the west 
 and east-bound freight between the New York station 
 and the New Jersey terminals, Arbucle Brothers re- 
 ceived from the carriers an allowance ranging from 
 three to four and one-fifth cents per hundred pound. 
 The Federal Sugar Refining Company, also a refinery of 
 sugar and a competitor of Arbucle Brotiiers, had a re- 
 finery at Yonkers, New York, adjacent to a pier, and out- 
 side the free lighterage limits established by the car- 
 riers in the harbor of New York. 
 
 This company did not llicrefore enjoy the benefit 
 of the free lighterage service offered by the carriers 
 under their tariffs to shippers at piers within the limits. 
 Since Arbucle Brothers received an allowance on deliv- 
 ering their sugar at the New Jersey terminal and as it 
 was corhpelled, on the other hand, to pay three cents per 
 hundred pounds for having its sugar delivered at the 
 same terminal, the Federal Sugar Refining Company 
 contended that the carriers were subjecting it to an un- 
 lawful discrimination when they declined to give it a 
 small allowance for lightering its sugar to the same 
 place and in the same manner. Under these facts, the 
 Commission held that the services rendered by Arbucle 
 Brothers was purely accessorial in delivering its own 
 sugar at the New Jersey terminal. 
 
 While the Commission recognized that a carricir 
 may lawfully pay the owner of freight for services con- 
 nected with transportation,' it held that the lighterage 
 service was no part of the transportation. The pay- 
 numt of the allowance to Arbucle Brothers and a refusal 
 to allow the Federal Sugar Refining Company compensa- 
 tion for similar services, was held to be an unjust dis- 
 
 7. Interstate Commerce Com- Interstate Commerce Commission 
 mission v. Diffenhaugh. 222 U. S v. Stickney, 21.'i U. S. 98, 54 L. 
 42, 5G L. Ed. 83, 32 Sup. Ct. 22: Ed. 112, 30 Sup. Ct. 66.
 
 368 Duties to Interstate SniprEKs. [^^ 188 
 
 crimination. The Commerce Court and the national Sn- 
 preme Court, liowever, held that the services rendered by 
 Arbncle Brothers were not accessorial but were a part 
 of the transportation from the public receiving station 
 of the carriers in New York to their terminals in New 
 Jersey, and as the carriers were recpiired to furnish the 
 transportation, there was nothing in the statute to pre- 
 vent them from empk^ying others to do the work. The 
 payment to one, under the circumstances, and a refusal 
 to i^ay the other, was not an unjust discrimination be- 
 cause one was situated within the free zone and tlie 
 other beyond. This condition created a dissimilar cir-' 
 cnmstance justifying inequality of treatment. 
 
 § 189. Rebating Part of Freight Rates in Payment 
 for Land for Right of Way. A common carrier subject 
 to the control of the Act may not pay or return to the 
 shipper any part of an interstate freight rate under any 
 pretense whatever. Thus, a contract whereby a car- 
 rier agreed to pa}- a shipper a certain per cent of the 
 rates paid for the shipment of lumber, in payment of 
 land purchased for a right of way, is illegal, although 
 the amount of the rebate was much less than the value 
 of the land.* 
 
 § 190. Assisting One Shipper to Collect Private 
 Charges and Refusing Same Service to Another. A 
 common carrier may not lawfully assist one of its ship- 
 pers to collect his own private charges against a con- 
 signee and, under similar conditions, refuse to perform 
 the same service for another. That the services were 
 voluntary on the part of the carrier and not compulsory 
 does not affect their discriminatory nature. For ex- 
 ample, shipments of freight from Canada were consigned 
 to custom brokers at Newport, Vt., a port of entry, who 
 paid the custom charges and then forwarded the ship- 
 ments to the consignees in the United States. 
 
 An agent of the defendant carrier was also a 
 licensed custom broker and he was permitted to for- 
 
 8. Fourche River Lumber Co. v. Bryant Lumber Co., 230 U. S. 
 
 316, 57 L. Ed. 1498, 33 Sup. Ct. 887.
 
 § 191] DlSCHlMINATlOX AS Id HaTKS, ETC. 369 
 
 ward slii])ments consigned to liiin without proiJaymont 
 of tlx' cliar^ps, an arran^^omont liavin.ij: bcon iiiado l)y 
 wliicli tlie defendant collected custom duties and liis 
 brokerage fees for him on delivery. The defendant 
 cai'rier refused to perform simihir services for anotlier 
 l)roker at the same ])lace. Tlu' Commission held that 
 such a practice amounted to unlawful di.-ciitnination." 
 
 § 191. Discrimination in Demanding Cash Payment 
 of Some Shippers and Extending Credit to Others — Con- 
 flicting Decisions. Under the common law a carrier had 
 the rii^ht to recjuire the i)repayment of char^jes of 
 freight from one shipper and to give credit for such 
 charges to another shipper similarly situated.'" But 
 whether an interstate common carrier is guilty of un- 
 reasonable or undue preference under the Interstate 
 Commerce Act in recjuiring the prepayment of freight 
 charges from one shipper and extending credit to 
 another, similarly situated, is under the decisions of the 
 Federal circuit courts of appeal doubtful, though the 
 Interstate Commerce Commission has indicated that a 
 carrier may extend credit "within reasonable and non- 
 discriminatory limits" but what those limits were, the 
 Commission did not decide." 
 
 The Federal Circuit Court of Appeals for the 
 Eighth Circuit, Judge Hook dissenting, held that a car- 
 rier subject to the Federal statute, had the right to re- 
 (piire ])repayment of charges for transportation from 
 one and to give credit to another shipper similarly sit- 
 uated, such a preference not being unreasonable within 
 
 9. Emery v. Boston & M. R. So., C. C. A. 417, 63 Fed. 775, 26 L. R. 
 38 I. C. C. 636. A. 192; Oregon Short-Line & U. 
 
 10. Atchison, T. & S. F. R. Co. N.Ry. Co. v. Northern Pac. R. Co.. 
 V. Denver & N. 0. R. Co.. 110 U. 9 c. C. A. 409, 61 Fed. 158; Brown 
 S. 667, 28 L. Ed. 291, 4 Sup. Ct. & Brown Coal Co. v. Grand Trunk 
 185; Southern Indiana Exp. Co. v. j^y System, 159 Mich. 565. 29 L. 
 United States Exp. Co., 35 C. C. A. ^ ^ ^^ g^ g^^ ^24 N. W. 528; 
 172. 92 Fed. 1022. 88 Fed. 659; ^^^^^^^ ^^ Richmond & D. R. Co., 
 Gulf, C. & S. Ry. Co. V. Miami S. 
 S. Co.. 30 C. C. A. 142, 86 Fed. 
 407: Little Rock & M. R. Co. v. 
 St. Louis Southwestern Ry. Co., 11 Adams Exp. Co.. 7 I. C. C. 115 
 
 108 N. C. 612, 13 S. E. 137. 
 
 11. Boise Commercial Club v. 
 
 1 Control Carriora 24
 
 370 I)t'tik.s to In'tpir.statk Shippers. [^ 191 
 
 thf meaning of the s-tatute.'^ The (Jirnuit Court of Ay>- 
 f>eals for the Fifth Circuit also held that under the Inter- 
 state Commerce Act a common carrier might demand 
 prepayment from one connecting carrier and not from 
 
 another/' 
 
 On the other hand the Federal Circnir Court of 
 Appeals for the Sixth Circuit decided that a carrier 
 violated the Elkina Act in giving credit to a shipi'>er 
 while denying the same privilege to another, although 
 the other shiyjper did not know of the partiality and 
 and did not demand equal treatment," 
 
 § 192. Deduction from Freight Rat*::s to Pay Ship- 
 per for Building Tie Hoist Invalid. Ti^ie term "rate" 
 as li.sed in the Act meann the net cost to the shipper for 
 the transportation of his property, that is, the net 
 amount the carrier receiyes from the shipi)er and re- 
 tains. In determining the net amount in a given cas^, 
 all money transactions of every kind or character, hav- 
 ing a bearing on, or relation to, any particular instance 
 of transportation, whereby the cost to the shipper is 
 directly or indirectly enhanced or reduced, mngt be taken 
 into consideration. 
 
 Applying this test, a contract between a lumber 
 comy)any and a railroad company by which the former 
 agreed to build a tie hoist on the line of the carrier, in 
 consideration for which the railroad company agreed to 
 transj^ort the ties of the Imnber company at a certain 
 rate, ten x^er cent of which was to be deducted and re- 
 funded to the lumber company in payment for building 
 the hoist until the amount refunded was equal to the 
 cost of construction, was held to be invalid as it gave 
 
 12. Gamble-Robinson Commis- 14. Hocking VaUej R, Co. r, 
 
 Hion Co. V. Chicago k N. W. R. Co., United States, 127 C. C. A. 285. 
 
 94 C. C. A. 217, 168 Fed. 161, 21 U 210 Fed. 7-35; To the same effect 
 
 R. A. (S. H.) 9S2, 16 Ann. Caa. 613. under state laws: WadJey South- 
 
 13. Gulf, C. Sc S. Ry. Co. V. Mi- era R. Co. v. State, 137 Ga. 4&7, 73 
 ami S. S. Co., 30 C. C. A 142, 86 H. E. 741; Adams Exp. Co. v. State. 
 Fed. 407. 161 Ind, 328, *;- '^^ ^: '^^^
 
 <§. 194 J Discrimination as t(j Rates, etc. 371 
 
 the lumber company an nnrliio advantage over oilier 
 shippers.^'' 
 
 § 193. Difference in Rates on Freight Not Justified 
 by Different Methods of Loading. A |>ro vision in lli<' 
 tariff of a cai'ricr (rn'cdiiiii' that coal Ioa(l<'<l into a car 
 from wau'oiis oi- sleds at a side track would be sul).ject to 
 an additional charge of lifty cents per ton, wliih* a sim- 
 ilar charge was not made when cars were loade<l from 
 a ti])])le, was songlit to be ui)held by a carrier on the 
 ground that the discrimination w^as justified by the 
 difference in cost of service; but the Commission held 
 that, regardless of the longer time consumed in loading 
 cars from wagons, the practice was an unlawful dis- 
 crimination against those who did not own tipples. 
 "Making certain charges," said the Commission,'" "for 
 the transportation of coal shipped in car-loads when the 
 car is loaded by tii)ple and exacting a higher charge 
 when it is loaded in some other way, and for that reason, 
 is not justified by difference in cost to the carrier be- 
 tween different methods of loading, or by the other 
 facts appearing in this case, renders the higher rate thus 
 made unreasonable and unduly discriminatory, first, as 
 against complainant, and second, as against all other 
 shippers of coal except those who load by tipple, and 
 constitutes a violation of sections 1 and '.\ of said Act." 
 
 § 194. Carrier "Spotting" Cars for One Shipper 
 and Refusing Same Service to Another Similarly Sit- 
 uated. The obligation of a common carrier concerning 
 the delivery and receipt of car-load freight to and from 
 private sidings and industrial tracks is restricted to the 
 acceptance and delivery at a ]X)int on the siding a suf- 
 ficient distance from the ]^oint of connection with the 
 tracks of the carrier to clear such tracks. The carrier 
 is not required to place or "spot" cars at such points 
 on an industrial railroad that the sliii^per may designate. 
 
 15. Chesapeake & O. R. Co. v 16. Glade Coal Co. v. Baltimore 
 
 Standard Lumber Co.. 98 C. C. A. & 0. R. Co., 10 I. C. C. 226. 
 81, 174 Fed. 107.
 
 372 DuTiE8 TO Interstatp: Shippeks. [§ 194 
 
 But if a railroad company voluntarily undertakes 
 to perform such a service for some sbijipers and refuses 
 to perform the same service for other shippers under 
 substantially similar circumstances, the discrimination 
 is undue. ^' An allowance therefore to certain terminal 
 railroads of $2.50 per car for switching cars to the fur- 
 nace plants of certain companies while denying the same 
 allowance to one terminal company doing similar switch- 
 ing, constituted an undue preference. ^^ 
 
 § 195. Trap Car Service Not Unlawful If Practiced 
 Without Discrimination. For the purpose of eliminat- 
 ing the cost of drayage and lessening the congestion in 
 freight stations, carriers frequently furnish shippers on 
 private sidings empty cars which are loaded with less- 
 than-carload shipments and then are hauled to local 
 freight or transfer stations where the shipments are as- 
 sorted and placed in other cars to be forwarded to their 
 respective destinations. 
 
 Conversely inbound freight is frequently delivered 
 in the same waj^ from the freight stations to private 
 sidings. When such cars were loaded to a prescribed 
 limit, it appeared in evidence in an investigation before 
 the Commission that the carriers usually made no 
 charge for this special service in receiving and deliver- 
 ing less than carload shipments. This practice is known 
 as the trap or ferry car service, and, when given to 
 shippers without any undue discrimination or prefer- 
 ence, is not unlawful.^'-' 
 
 17. Mitchell Coal & Coke Co. v. within the discretion of the de- 
 Pennsylvania R. Co, 38 I. C. C. fendant; but which ever course is 
 40, in which the Commission said: pursued the statutory prohibition 
 "The service over private tracks of unjust discrimination and un- 
 from the lines and coke ovens of reasonable preference or advan- 
 shippers to the rails of the car- tage must be observed." 
 rier is not now nor was it during 18. Buffalo Union Furnace Co. 
 the period of the action either v. Lake Shore & M. S. Ry. Co., 21 
 compelled or prohibited by the I C. C. 620. 
 
 statute or by common law. To 19. Trap or Perry Car Service 
 
 furnish it or to withhold it is Charges, 34 I. C. C. 516.
 
 CHAPTER X 
 
 Unlawful Preferences in Rates and Practices Be- 
 tween Cities, Communities and Localities 
 
 Sec. 196. Preferences Between Cities and Localities Under the Com- 
 mon Law Not Forbidden. 
 
 Sec. 197. Equality Between Communities under Similar Circumstanc3s 
 and Conditions Required. 
 
 Sec. 198. When Higher Rates to One Point Than to Another are Un- 
 justly Discriminatory. 
 
 Sec. 199. All Localities Entitled to Non-Discriminatory Rates. 
 
 Sec. 200. Undue Prejudice Between Localities Resulting from Differ- 
 ent Interstate and Intrastate Rates — Shreveport Case. 
 
 Sec. 201. Every City and Locality Entitled to Benefit of Natural Ad- 
 vantages. 
 
 Sec. 202. Rates to One Locality Per 8e Reasonable, Unlawful if Anoth- 
 er Locality is Prejudiced Thereby. 
 
 Sec. 203. Basing Point System of Rate Making-Legal but Subject to 
 Control of Commission. 
 
 Sec. 204. Discriminations and Preferences Prouuced by Competition 
 Between Localities not Undue or Unreasonable. 
 
 Sec. 205. Limitation Upon Competition in Determining Whether Dis- 
 crimination is Unjust or Preference Undue. 
 
 Sec. 206. Difference in Amount of Traffic Between Localities Similarly 
 Situated no Justification for Discriminatory Rates and 
 Fares. 
 
 Sec. 207. Carrier not Guilty of Discrimination Between Localities 
 When it Does not Participate in Rates to Favored Point. 
 
 Sec. 208. Discrimination Between Different Coal Fields Served by 
 Different Carriers not Unlawful. 
 
 Sec. 209. Discrimination in the Establishment and Maintenance of 
 Group Rates. 
 
 Sec. 210. Different Rates in Opposite Directions Over Same Lines Not 
 Discriminatory. 
 
 Sec. 211. Discrimination in Absorbing Switching Charges at One Point 
 and Refusing at Another. 
 
 Sec. 212. Discrimination Through Joint Rates Between Two lx)cali- 
 ties Similarly Situated Prohibited, When. 
 
 Sec. 213. Differentials Between Atlantic Coast Cities Legitimately 
 Based upon Competitive Relations. 
 
 Sec. 214. Maintaining Higher Rates on Branch Line Parallel to Main 
 Line Serving Same Territory. 
 
 Sec. 215. Proportional Part of Through Rate Lower Than Local Rates 
 Between Same Points Not Discriminatory. 
 
 Sec. 216. Rebilling and Reshipping Privilege at Nashville on Grain 
 From Ohio River to Southeastern Points Discriminatory. 
 
 (373)
 
 374 Duties to Tntkrstatk Siiii>i'kks. [§ 19G 
 
 Sec. 217. Differential Between Cities on Opposite Banks of Rivers 
 
 Crossed by Expensive Bridges. 
 Sec. 2 IS. Carriers Unduly Favoring Industries on Their Own Lines 
 
 as Against Competitors on Other Lines. 
 Sec. 219. Stopping Carload Shipments at Points Kii Route to Finish 
 
 Loading Discriminatory, When. 
 
 § 196. Preferences Between Cities and Localities 
 Under the Common Law Not Forbidden. Neiihor undci' 
 the common law, nor under the English statute upon 
 which the Interstate Commerce Act was largely based, 
 was discrimination of carriers between cities and inde- 
 pendent communities forbidden. The word "locality" 
 does not appear in the ecpiality clause of the English 
 Act of 1854 upon which Section 3 was modeled. A 
 shipper under the common hiw, hiid the right to deniaiid 
 a reasonable rate, but what the carrier charged another 
 shipper in another locality did not conceru him. One 
 locality had no legal right to complain of the rates 
 charged to shippers of another community. 
 
 This absolute freedom from governmental control 
 in the practice of discrimination between cities led to 
 many serious abuses, and the carriers had, prior to the 
 adoption of the Act to Regulate Commerce, the |)ower to 
 make and unmake cities by granting preferential rates 
 to one city over another. Equal treatment between 
 localities similarly situated is, therefore, a distinct A- 
 merican doctrine forced upon the carriers in the passage 
 of Section 3 largely because of the arbitrary and un- 
 reasonable preferences practiced by them in the days 
 of immunity from federal control. 
 
 § 197. Equality Between Communities under Simi- 
 lar Circumstances and Conditions Required. The per- 
 vading ijrinciple of sections 2 and 3 is ecjuality for all 
 communities and jDersons under substantially similar 
 circumstances and conditions. This rule demands such 
 an adjustment of rates that shall not discriminate unduly 
 in favor of the business of some localities and prove 
 destructive to the same pursuits in other localities, and 
 prohibits carriers from imposing excessive rates where 
 the absence of competition affords opportunity to do so,
 
 § V.l\)\ J'hefkhkni'Es J5et\vi-:i:n J^ocalitiks. o7.j 
 
 and thus unfairly stimulate favored conunimities at the 
 expense of others/ Thus, wliere it ai)i)eared that a car- 
 rier owning a line between the Dakotas and Milwaukee, 
 operated two routes between Minneapolis and Milwau- 
 kee, a rate of 7^ cents per hundred jtounds on wheat 
 to points on one of these routes, and a rate ol" 1.") cents 
 per hundred pounds to points on the other route, was 
 iield to unduly favor the cities on the former route. - 
 
 § 198. When Higher Rates to One Point Than to 
 Another are Unjustly Discriminatory. Mere proof that 
 the rates to one locality are higher than to anothci- 
 locality, does not establish undue preference or unjust 
 discrimination under the statute. It must be further 
 shown that the general condition of transportation and 
 the circumstances surrounding the traftic are substanti- 
 ally similar and that such a relationshi]) exists between 
 llie two localities that the commerce of one is adversely 
 affected, and the commerce of the other is materially 
 benefited, because of a higher rate to one than to the 
 other. Applying this principle, the Commission held 
 that there was a closer geographical and economic re- 
 lation between the cities of A.storia, Or., and Seattle 
 and Tacoma, Wash., than was reflected in the tariffs of 
 the carriers to l)oth points and a discontinuance of the 
 discrimination was ordered.^ 
 
 § 199. All Localities Entitled to Non-Discrimina- 
 tory Rates. l^]very locality is entitled to not only a rea- 
 sonable rate l)ut a rate that is non-discriminatory. A 
 carrier does not fulfill its obligations under the law lt\- 
 giving the community a reasonable rate. It must view 
 its rates as a whoh^ and must abstain from effecting 
 
 1. Daniels v. Chicago, R. I. & Trade of Farmington v. Chicago. 
 
 P. Ry. Co., 6 I. C. C. 458; Page v. M. & St. P. Ry. Co.. 1 I. C. C. 215. 
 
 Delaware. L. & W. R. Co., 6 1. II. C. R. 608. 
 
 C. C. 148; :Manufacturers and Job- 2. Board of Trade of Farming- 
 
 bers' Union of Mankato v. IMinne- ton v. Chicago, M. & St. P. Ry. 
 
 apolis & St. L. Ry. Co.. 4 I. C. C. Co., 1 I. C. C. 215. 1 I. C. R. 608. 
 
 79: Tn re Chicago. St. P. & K. C. 3. City of Astoria v. Spokane, 
 
 Rv., 2 I. C C. 231: Board of P. & S. Ry. Co., 38 I. C. C. 16.
 
 376 Duties to Interstate Shippees. [§ 199 
 
 thereby any change or preference to one community over 
 anotlier, Tvhich do not arise necessarily out of the trans- 
 portation advantages wliich one has over the other.* 
 
 § 200. Undue Prejudice Between Localities Result- 
 ing from Different Interstate and Intrastate Rates — 
 Shreveport Case. Notwithstanding the provision of Sec- 
 tion 1 excluding the application of the statute to the 
 transportation of property wholly within one state and 
 not shipped to another state or foreign country, Con- 
 gress has the power to control strictly intrastate rates 
 even when established by state authority, when those 
 rates result in an unjust discrimination or undue pref- 
 erence against interstate traffic, and, by the passage 
 of sections 2 and 3, it has lawfully delegated to the 
 Interstate Commerce Commission the power to forbid 
 such injurious discriminations; for the language of these 
 two sections is sweeping enough to embrace all the dis- 
 criminations of the sort described therein which it was 
 within the power of Congress to condemn. 
 
 There is no exception or qualification with respect 
 to an unreasonable discrimination against interstate 
 traffic produced by the relation of intrastate to inter- 
 state rates as maintained by the carriers. The statute 
 applies to all interstate railroads and makes unlawful 
 every act which operates to the undue prejudice of any 
 locality.^ The case cited is known as the Shreveport 
 case and marks an epoch in the regulation of interstate 
 rates. It appeared in the order and decision of the 
 Commission in that case*' that the interstate rates from 
 Shreveport, I^a., to Dallas, Tex., and intermediate points 
 on the line of the defendant carrier were very much 
 higher in proportion to distance than the state rates 
 maintained by the carrier from Dallas, Tex., to the same 
 intermediate points in the state of Texas. For example, 
 the rate on farm wagons from Shreveport, La., to Mar- 
 
 4. Railroad Commission of Ne- v. United States, 234 U. S. 342, 58 
 vada V. Southern P. Co., 21 I. C. C. L. Ed. 1341, 34 Sup. Ct. 833. 
 
 329. 6. Mereditli v. St. Louis S. W. 
 
 5. Houston, B. & W. T. R. Co. Ry. Co., 23 I. C. C. 31.
 
 § 200] Preferences Between Localitiks. 377 
 
 sliall, Tex., a distanco of forty-two miles, was fifty-six 
 cents per hinidi-ed pounds, wliile the rate from Dallas to 
 Marshall, a distance of one liundred forty-seven miles, 
 was only thirty-six cents. 
 
 Under such an adjustment of freight rates, due to 
 the low intrastate rates, Shreveport was severely handi- 
 cai)i)ed in its coni])etition with Dallas for the trade of the 
 intervening territory, most of which was situated in the 
 state of Texas. It appeared that operating conditions 
 were substantially the same throughout the entire line 
 and in both directions between these two cities. The 
 question presented to the Supreme Court was, therefore, 
 whether such a rate situation would constitute undue 
 l)rejudice to Shreveport and undue preference to Dallas 
 within the meaning of the third section of the Act. 
 "Here, the Commission expressly found," said Mr. Jus- 
 tice Hughes, "that unjust discrimination existed under 
 substantially similar conditions of transportation and 
 the inquiry is whether the Commission had power to 
 correct it. We are of. the opinion that the limitation of 
 the proviso in section one does not apply to a case of 
 this sort. The Commission was dealing with the re- 
 lation of rates injuriously affecting, through an un- 
 reasonable discrimination, traffic that was interstate. 
 
 "The question was thus not simply one of trans- 
 ])ortation that was 'wholly within one State.' These 
 words of the proviso have appropriate reference to ex- 
 clusively intrastate traffic, separately considered; to the 
 regulation of domestic commerce, as such. The powers 
 conferred by the act are not thereby limited where inter- 
 state commerce itself is involved. This is plainly the 
 case when the Commission finds that unjust discrim- 
 ination against interstate trade arises from the relation 
 of intrastate to interstate rates as maintained by a car- 
 rier subject to the act. Such a matter is one with which 
 Congress alone is competent to deal, and, in view of the 
 aim of the act and the comprehensive terms of the provi- 
 sions against unjust discrimination, there is no ground 
 for holding that the authority of Congress was unexer- 
 cised and that the subject was thus left without govern- 
 mental regulation.
 
 378 Duties to Interstate Shippers. {}l 200 
 
 '*It is urged that tlie practical construction of the 
 statute has been tlie other way. But, in assailing tlie 
 order, tlie appellants ask us to override the construc- 
 tion which has been given to the statute by tlie authori- 
 ty chai'ged with its execution, and it cannot be said 
 that the earlier action of llie Commission was of such a 
 controlling character as to ]u-eclude it from giving effect 
 to the law. The Commission, having before it a ])lain 
 case of unreasonable discrimination on the part of 
 interstate carriers against interstate trade, carefully 
 examined the question of its authority and decided that 
 it had the power to make this remedial order. The Com- 
 merce Court sustained the authority of the Commission 
 and it is clear that we should not reverse the decree un- 
 less the law has been misapplied. This we cannot say; 
 on the contrary, we are convinced that llie authority of 
 the Commission was adequate."' 
 
 § 201. Every City and Locality Entitled to Bene- 
 fit of Natural Advantages. Carriers are neither required 
 nor permitted to undertake by a'djustment of rates or 
 otherwise to impair or neutralize the natural commer- 
 cial advantages resulting from location or other favor- 
 able condition of one territory in order to put another 
 territory on an equal footing with it in a common mark- 
 et.^ Each locality is entitled to the benefit of its natural 
 
 7. An order of the Interstate 42, 56 L. Ed. 83, 32 Sup. Ct. 22; 
 Commerce Commission compelling Blodgett-Milling Co. v. Chicago, M. 
 carriers to remove discrimination & St. P. Ry., 23 I. C. C. 448; Red 
 against interstate commerce by River Oil Co. v. Texas & P. Ry., 
 raising intrastate fares and rates, 23 I. C. C. 438; Sioux City Termi- 
 must be definite as to the territory nal Elevator Co. v. Chicago, M. & 
 or points to which it applies and St. P. Ry., 2.'! I. C. C. 98; In re 
 must conform to a high standard Meat Rates, 22 I. C. C. 160; Elk 
 of certainty. American Exj). Co. Cement & Lime Co. v. Baltimore & 
 V State ex rel. Caldwell, 244 U. 0. R. R., 22 I. C. C. 84; Carstens 
 S. 617, 61 L. Ed. 1352, 37 Sup. Ct. Packing Co. v. Northern P. Ry., 
 656; Illinois Cent. R. Co. v. Pub- 22 I. C. C. 77; East St. Louis Cot- 
 lie Utilities Commission, 245 U. ton Oil Co. v. St. Louis & S. F. 
 
 ' S. 493, 62 L. Ed. , 38 Sup. Ct. R. R., 20 I. C. C. 37: Freight Bu- 
 
 204. reau of Cincinnati v. Cincinnati, N. 
 
 8. Interstate Commerce Com- O. & T. P. Ry., 6 I. C. C. 195, 4 I. 
 mission v. Diffenbaugh, 222 U. S C. R. 592; Raworth v. Northern
 
 § 20-2 1 
 
 I'kei'khknces Ijktwkkn Localities. 
 
 379 
 
 advantages," and if this results in prejudice to one and 
 an advantage to another, it is not an undue prejudice 
 forbidden by the statute. It is not the duty of the Com- 
 mission to equalize natural advantages between locali- 
 ties through the adjustment of tariff rates.'" A dis- 
 advantage in location is a burden which in the very 
 nature of things the merchants and s;liippers of a com- 
 munity must always bear.'^ 
 
 § 202. Rates to One Locality I'cr Sr Reasonable, 
 Unlawful if Another Locality is Prejudiced Thereby. 
 If rates are relatively unjust, so that an undue preference 
 accrues under them to one locality, and an undue preju- 
 dice results to another locality, the law is violated 
 although the higher rates are not in themselves un- 
 reasonable. The fact that rates are 2^ei\ se reasonable 
 
 p. R. R., 5 I. C. C. 234, 3 I. C. R. 
 857; James & Mayer Buggy Co. v. 
 Cincinnati, N. 0. & T. P. Ry., 4 
 I. C. C. 744, 3 I. C. R. 682. 
 
 9. Douglass & Co. v. Illinois C. 
 R. R., 31 I. C. C. 587; Page Milling 
 Co. V. Norfolk & W. Ry., 30 I. C. 
 C. 605; Hormel & Co. v. Chicago, 
 M. & St. P. Ry., 30 I. C. C. 98; 
 Wichita Business Ass'n v. Atchi- 
 son, T. & S. F. Ry., 30 I. C. C 
 15; Curry & Whyte Co. v. Duluth 
 & I. R. R. R.. 30 I. C. C. 1: Hughes- 
 Creek Coal Co. V. Kanawha & M 
 Ry.. 29 T. C. C. 671; Atlanta 
 Freight Bureau v. Nashville, C. & 
 St. L. Ry., 29 I. C. C. 476; In re 
 advances Kansas-California Flour 
 Rates, 29 I. C. C. 459; In re Ad- 
 vances Lumber. Arkansas etc., to 
 Iowa, 29 I. C. C. 1; Mississippi 
 River Case. 28 I. C. C. 47; Com- 
 mercial Club of Duluth V. Balti- 
 more & O. R. R., 27 I. C. C. 639; 
 Board of Trade of Chicago v. Chi- 
 cago & A. R. R., 27 I. C. C. 530; 
 Topeka Traffic .\ss'n v. Alabama & 
 v. Ry., 27 I. C. C. 428; In re 
 Wheat and Flour Rates, Missouri 
 River-Illinois, 27 I. C. C. 286; West 
 
 Virginia Rail Co. v. Baltimore & 
 
 0. R R., 26 I. C. C. 622; National 
 Refrigerator & Butchers' Supply 
 Co. v. St. Louis, I. M. & S. Ry., 26 
 
 1. C. C. 524; Meridian Fertilizer 
 Factory v. Vicksburg, S. & P. Ry., 
 26 I. C. C. 351; Wichita Falls Sys- 
 tem Joint Coal Rate Cases, 26 I. 
 C. C. 215; Greenbaum Co. v. Ches- 
 apeake & O. Ry., 25 I. C. C. 352; 
 Globe Milling Co. v. Chicago, M. 
 & St. P. Ry.. 24 I. C. C. 594. 
 
 10. Board of Trade of Kansas 
 City, Missouri v. St. Louis & S. 
 F. R. Co., 32 I. C. C. 297; Slider 
 V Southern Ry., 24 I. C. C, 312; 
 Oklahoma Portland Cement Co. v. 
 Missouri, K. & T. Ry., 24 I. C. C. 
 158; In re Salt Rates, 10 I. C. C. 
 148. 
 
 11. San Toy Coal Co. v. Akron, 
 C. & Y. Ry., 34 I. C. C. 93; North- 
 ern Pine I\Ifrs. Ass'n. v. Chicago & 
 N. W. Ry., 33 I. C. C. 360; Lebanon 
 Commercial Club v. Louisville & 
 N. R. R., 28 I. C. C. 301; In re 
 Furniture Rates in Northwest, 2(5 
 I. C. C. 655; Saginaw Board v. 
 Grand Trunk Ry., 17 I. C. C. 128.
 
 380 
 
 Di'TTKS TO Interstate Sitippehs. 
 
 [§ 202 
 
 does not prove that they may not be llnla^Yful on other 
 gToimd^J. For example, the Commisgion fonnd the rates 
 for the transportation of bitmninons coal in car-loads 
 from Kanawha and New River Districts in West Vir- 
 ginia to Culpeper and Manassas, Va. to be reasonable, 
 but on comparison witli lower rates to Alexandria, Va., 
 and Wasliington, D. C, the rates to Culpeper and Manas- 
 sas were held to be nndnly discriminatory.^" 
 
 § 203. Basing Point System of Rate-Making Legal 
 but Subject to Control of Commission. The system 
 of making rates upon certain basing lines or points is 
 not illegal. ^'^ Under this system, rates for certain sec- 
 tions of the country are established by fixing a certain 
 rate to the basing point and to other stations in the same 
 group by adding the local rate from the basing point." 
 Thus the rate adjustment between the east and the west 
 is built upon basing lines at the Mississippi River and 
 at the Missouri River. 
 
 The Ohio River crossings form a similar basing line 
 on traffic to and from the south-east; but it must not 
 be assumed that a basing line for rates may be estab- 
 lished and be made an impassible barrier for through 
 rates, or that cities or markets located at or on such 
 basing lines have any inviolable possession of, or hold 
 upon the right to distribute traffic to or from the terri- 
 tory lying beyond. ^^ 
 
 12. Bennett & Son v. Chesapeake 
 & O. R. Co., S8 I. C. C. 310. 
 
 13. Interstate Commerce Com- 
 mission V. Clyde S. S. Co., 181 U. 
 S. 29, 45 L. Ed. 729, 21 Sup. Ct. 
 512; Interstate Commerce Commis- 
 sion V. Alabama Midland R. Co., 
 168 U. S. 144, 42 L. Ed. 414, 18 Sup 
 Ct. 45. 
 
 14. Appalachia Lumber Co. v. 
 Louisville & N. R. Co., 25 L C. C. 
 193; Suffern Grain Co. v. Illinois 
 Cent. R. Co., 22 I. C. G. 178; Colum- 
 bia Grocery Co. v. Louisville & N. 
 R. Co., 18 I. C. C. 502; Kansas 
 City Transp. Bureau v. Atchison T. 
 
 & S. F. Ry. Co., 15 I. C. C. 498; 
 Randolph Lumber Co. v. Seaboard 
 Air Line Ry. Co., 1.3 I. C. C. 601. 
 
 15. Greenbaum Co. v. LouisviPe 
 & N. R. Co.. 31 I. C. C. 699; Ameri- 
 can Coal & Supply Co. v. Chicago 
 & N. W. R. Co., 30 I. C. C. 492; 
 City of Montezuma, Georgia, v. 
 Central of Georgia Ry. Co., 28 L 
 C C. 280; Taylor Dry Goods Co. v. 
 Missouri P. Ry. Co., 28 I. C. C. 205; 
 LaGrange Chamber of Commeroe 
 V. Atlanta & W. P. R. Co., 28 I. C. 
 C. 178; Board of Trade of Carroll- 
 ton, Georgia v. Central of Georgia 
 Ry. Co., 28 I. C. C. 154; Interior
 
 §20,'!] PhKFKHKNCKS [^KTWKKN T.ftCAI.ITIKS. 381 
 
 'V\\v IJiiitod States Siipn-me Court lias held tliat 
 rates tixed n])()n l)asin<i^ ])oiiits are not exempt fioiii r('<<u- 
 lation if unreasonable or discriminatory. An order, 
 therefore, of the Interstate Commerce Commission re- 
 ducing the class rates from the Atlantic sea-i»orts to 
 cities on the Missouri River by reducing that part of the 
 through rate which applied to the haul between the Miss- 
 issii)pi and Missouri "Rivers was sustained, and the court 
 held that the Commission did not thereby artificially 
 divide up the country into freight zones tributary to 
 given trade and manufacturing centers/" "Let us see, 
 therefore," said the Court, "u])on what grounds the Com- 
 mission proceeded. The Commission is accused by the 
 railroad companies of attempting to substitute an arti- 
 ficial system of ratemaking for a long-established system, 
 and to protect or foster particular localities of produc- 
 tion and distribution. Certain remarks of the Commis- 
 sion are cited to support the charge. We think the 
 charge puts out of view all else that was said l)y the 
 Commission, puts out of view the comprehensive con- 
 sideration the Commission took as exhibited in the ex- 
 plicit declaration made after quoting the local class 
 rates between the rivers in cents per hundred pounds, 
 that 'these are the rates that are added to the rates up 
 to the Mississippi River crossings to make up the through 
 rates from the Atlantic seaboard to the Missouri River 
 cities.' Are these rates, as so used, and the through rates 
 resulting therefrom, unwari'antably high or unduly dis- 
 criminatory or unjustly prejudicial? Can they be 
 changed without doing injustice elsewhere? 
 
 "We think the charge also puts out of view the dis- 
 claimers of such purpose in the answer of the Commis- 
 sion in its report to Congress, and its insistence that 
 it is constrained by the law to act only on complaint to 
 it and that it is open at all times to be appealed to, to 
 
 Iowa Cities Case, 28 I. C. C. 64; 218 U. S. 88, 54 L. Ed. 946, 30 Sun. 
 
 Spiegle V. Southern Ry. Co., 25 I. Ct. 651; Interstate Commerce Com- 
 
 C. C. 71; Klndel v. New York, N. mission v. Chicago, B. & Q. R. Co., 
 
 H. & H. R. Co., 15 I. C. C. 555. 218 U. S. 113, 54 L. Ed. 959, 30 Sup. 
 
 16. Interstate Commerce Com- Ct. 660. 
 mission v. Chicago R. I. & P. R. Co.
 
 382 Duties to Interstate Shippees. [§ 203 
 
 redress the grievances any shipper or locality may have. 
 Xor did the Commission ignore or underestimate the 
 manner in which the lines of railroads had been ex- 
 tended or the sj'stem of rates or ratemaking which had 
 resulted. That is the system of making rates upon cer- 
 tain basing lines or points. Eates 'break' at such points, 
 it was proved as a result of building independent lines 
 westward. In other words, lines of railroads were built 
 to certain cities from the East, seeking such cities, it 
 may be, because of their natural situation and facilities, 
 and other independent lines building westward, each 
 line fixing its own rates or uniting according to cir- 
 cumstances in joint rates. It is the observance of such 
 points that give and maintain, as we understand the 
 contention of the railroads, to certain cities 'the equal 
 op]^ortunity in the distribution of merchandise with the 
 merchants in the East, and with the merchants to the 
 West of said cities, so far as their business is affected 
 by trade rates.' That this was carefully considered is 
 manifest, for the Commission resisted the argument 
 which was made against basing rates on such points." 
 
 § 204. Discriminations and Preferences Produced 
 by Competition Between Localities not Undue or Un- 
 reasonable. Subject to the limitation of Section 4 of 
 the Act,^' that no carrier shall charge a higher rate for 
 a shorter distance than for a longer distance over the 
 same route in the same direction, for like kind of prop- 
 erty, without the authorization of the Interstate Com- 
 merce Commission, discriminations and preferences 
 between localities produced by competition, whether, 
 by water or by railroad, are not undue or unreasonable 
 under the y)rovisions of Section 3;'^ though com- 
 petition between shippers when the provisions of Sec- 
 tion 2 apply thereto, is not a dissimilar circumstance 
 
 17. Section 79, supra. sion, 181 U. S. 1, 45 L. Ed. 719, 
 
 18. Interstate Commerce Com 21 Sup. Ct. 516; Louisville & N. R. 
 mission v. Clyde S. S. Co. 181 U. S. Co. v. Behlmer, 175 U. S. 648, 44 
 29, 45 L. Ed. 729, 21 Sup. Ct. 512; L. Ed. .309, 20 Sup. Ct. 209; Inter- 
 East Tennessee, V. & G. Ry. Co. state Commerce Commission v. 
 V Interstate Commerce Commis- Alabama Midland R. Co., 168 U. S.
 
 § 204] 
 
 PrEFEKENCES I>K'I'\V|;kN T.OCAIJI IKS. 
 
 383 
 
 justifying a different rate or c ha roc.''-' A i)rerereuce 
 in rates in favor of a competitive locality, is not "undue" 
 within tlie meaiiiiio- of Section 3. Carriers may, tliere- 
 fore, in fixing tlieir own rates take into account coni- 
 ])etition witli other carriers provided only that the com- 
 l)etition is genuine and not a mei'e pr(?tense.-'' 
 
 Coni]i)etition which is real and substantial and exer- 
 cises a potential influence on rates to a particular point, 
 brings into play a i)reference, but not an undue prefer- 
 ence arising from the voluntary and wrongful act of the 
 carrier.'^ The mere fact of competition, no matter 
 what its extent or character, does not necessarily re- 
 lieve the carrier of the restraint imposed upon it by the 
 provisions of Section 3;" but competition of controlling 
 force cannot be ignored by the Commission in determin- 
 ing whether an advantage in rate at the competitive 
 l)oint is undue or is only chargeable to the carrier be- 
 cause invohuitarily made.-" Ocean comj>etition is also 
 
 144, 42 L. Ed. 414, 18 Sup. Ct. 45; 
 Texas & P. R. Co. v. Interstate 
 Commerce Commission, 162 U. S. 
 197, 40 L. Ed. 940, 16 Sup. Ct. 666; 
 Cincinnati, N. 0. & T. P. R. Co. v. 
 Interstate Commerce Commission, 
 162 U. S. 184, 40 L. Ed. 935, 16 
 Sup. Ct. 700; Interstate Commerce 
 Commission v. Baltimore & O. R. 
 Co., 145 U. S. 263, 36 L. Ed. 699, 
 12 Sup. Ct. 844; Interstate Com- 
 merce Commission v. Cincinnati, 
 P. & v. R. Co., 124 Fed. 624; In 
 re Class and Commodity Rates to 
 Texas v. Missouri, K. & T. Ry. Co., 
 11 I. C. C. 238. 
 
 19. Wight V. United States, 167 
 U. S. 512, 42 L. Ed. 258, 17 Sup. 
 Ct. 822. 
 
 20. Interstate Commerce Com- 
 mission V. Diffenbaugh, 222 U. S. 
 42, 56 L. Ed. 83, 32 Sup. Ct, 22; 
 Interstate Commerce Commission 
 V Chicago Great Western R. Co., 
 209 U. S. 108, 52 L. Ed. 705, 28 Sup. 
 Ct. 493; Interstate Commerce 
 Commission v. Detroit, G. H. & M. 
 
 Ry. Co., 167 U. S. 633, 42 L. Ed. 
 30G, 17 Sup. Ct. 986; Coke Pro- 
 ducers Ass'n V. Baltimore & 0. R. 
 Co., 27 I. C. C. 125; Chamber of 
 Commerce of Newport News v. 
 Southern Ry. Co., 23 I. C. C. 345; 
 Colorado Coal Traffic Ass'n v. 
 Atchison, T. & S. F. Ry. Co., 18 
 I C. C. 572; Columbia Grocery Co. 
 V. Louisville & N. R. Co., 18 I. C. 
 Q. 502; Chamber of Commerce of 
 Chattanooga v. Southern Ry. Co., 
 10 I. C. C. 111. 
 
 21. East Tennessee, V. & G. Ry. 
 Co. V. Interstate Commerce Com- 
 mission, 181 U. S. 1, 45 L. Ed. 719. 
 21 Sup. Ct. 516. 
 
 22. Louisvile & N. R. Co. v. 
 Behlmer. 175 U. S. 648. 44 L. Ed. 
 309, 20 Sup. Ct. 209; Chamber of 
 Commerce of Newport News v. 
 Southern Ry. Co., 23 I. C. C. 345: 
 Planters' Gin and Compress Co. v. 
 Yazoo & M. V. R. Co., 16 I. C. C. l-U. 
 
 23. Sioux City Terminal Eleva- 
 tor Co. V. Chicago. M. & St. P. Ry. 
 Co.. 23 I. C. C. 98.
 
 384: Duties to Interstate Shippers. [§ 204 
 
 a circumstance to be considered in determinino- whether 
 difTerences in rates are unduly preferential."* 
 
 § 205. Limitation Upon Competition in Deter- 
 mining Whether Discrimination is Unjust or Preference 
 Undue. While the courts and the Commission in the 
 cases cited in the foregoing* j^aragraph clearly held that 
 preferences and discriminations produced by competition 
 are not unjust or undue within the meaning of Section 
 3, the Supreme Court in Louisville & N. R. Co. v. Behl- 
 mer,"^ recognized that the competitive rule is subject to 
 tlie important qualifications which were summarized by 
 the court as follows: 
 
 "It follows that whilst the carrier may take into 
 consideration the existence of competition as the produc- 
 ing cause of dissimilar circumstances and conditions, 
 his right to do so is governed by the following prin- 
 ciples; First. The absolute command of the statute that 
 all rates shall be just and reasonable, and that no undue 
 discrimination be brought about, though, in the nature 
 of things, this latter consideration may in many cases 
 be involved in the determination of whether competi- 
 tion was such as created i substantial dissimilarity of 
 condition. Second. That the competition relied upon 
 be, not artificial or merely conjectural, but material and 
 substantial, thereby operating on the question of trafific 
 and rate-making the right in every event to be only 
 enjoyed with a due regard to the interest of the public, 
 after giving full weight to the benefits to be conferred 
 on the place from whence the traffic moved as well as 
 those to be derived by the locality to which it is to be 
 delivered." 
 
 § 206. Difference in Amount of Traffic Between 
 Localities Similarly Situated no Justification for Dis- 
 criminatory Rates and Fares. While carriers may make 
 
 24. Texas & P. Ry. Co. v. Inter- Pittsburgh, C. C. & St. L. Ry. Co., 
 state Commerce Commission, 162 18 I. C. C. 87. 
 
 U. S. 197, 40 L. Ed. 940, 16 Sup. Ct. 25. Louisvile & N. R. Co. v. 
 
 666; Pittsburgh Plate Glass Co. v. Behlmer, 175 U. S. 648, 44 L. Ed. 
 
 309, 20 Sup. Ct. 209. 
 
 i
 
 § 207] Pkefeeknces Between Localitiks. 385 
 
 lower rates to eompetitive points than are made to inter- 
 mediate noncompetitive points, they are not at liberty 
 in the selection of these basing: points to determine that 
 one town shall have the benefit of a lower rate and that 
 another town shall not, when the means of competition 
 and the snrroiuidin.i;- conditions do not materially differ.^" 
 A difference in the amount of passen,ii:er traffic be- 
 tween two cities similarly situated will not justify a 
 difference in the fares between tlic two points, and, sim- 
 ilarly, the fact that one city is more imi)ortant from a 
 commercial standpoint, than another, does not entitle it 
 to lower rates. For example, the extension of terminal 
 rates to Santa Clara, San Jose and Marysville, California, 
 on west-bound trans-continental traffic, and the refusal 
 to extend such rates to Santa Rosa, a city similarly 
 situated, was held not to be justified because the amount 
 of traffic to Santa Rosa was not as great as to the other 
 cities.'' A refusal to grant excursion fares from Toledo, 
 Ohio, to Hamburg, Michigan, a summer resort, while 
 maintaining and granting such fares from Toledo to 
 Whitmore Lake and Lakeland, other resorts similarly 
 situated, constituted an unjust discrimination, and the 
 fact that Hamburg was not as popular as a resort as 
 the others did not debar it from equal treatment under 
 the law.=^« 
 
 § 207. Carrier not Guilty of Discrimination Be- 
 tween Localities When it Does not Participate in Rates 
 to Favored Point. A charge of discrimination cannot 
 be sustained by a locality against a carrier that does not 
 serve that locality either directly by its own route or 
 by joint arrangement with other railroads ;'"• for the 
 pi'ohibition of Section 3 is directed against unjust dis- 
 crimination or undue preference arising from the volun- 
 tary act of the carrier, and does not include acts that 
 are the result of conditions beyond its control.''" 
 
 26. Board of Trade of Dawson. 28. Beach v. Ann Arbor R. Co., 
 Georgia, v. Central of Georgia Ry., 26 I. C. C. 410. 
 
 8 I. C. C. 142. 29. St. Louis. I. M. k S. Ry. Co. 
 
 27. Santa Rosa Traffic Ass'n v. v. United States, 217 Fed. 80. 
 Southern P. Co., 24 I. C. C. 46, 29 30. East Tennessee, V. & G. Ry. 
 I. C. C. 65. ^0. V. Interstate Commerce Com- 
 
 1 Control Carriers lin
 
 386 
 
 Duties to Interstate Shippers. 
 
 [§ 207 
 
 Upon a complaint that a carrier discriminated 
 against tlie port of New York and unduly preferred 
 the port of Montreal, it appeared in evidence that the 
 carrier had no voice in making rates to Montreal and 
 did not participate in the movement of the commodity 
 involved to that port, and hence, the Commission lield, 
 there was no undue discrimination as there was no 
 participation by the carrier directly or indirectly in 
 the establishment of the rate to Montreal. ^^ The test 
 of discrimination is the ability of one of the carriers 
 participating in two through routes to put an end to 
 the discrimination by its own act.^- 
 
 § 208. Discrimination Between Different Coal 
 Fields Served by Different Carriers not Unlawful. The 
 
 provisions of Section 3 condemning discriminations 
 and preferences between localities apply to different 
 rates by one road or set of roads serving two competing 
 points, but a discrimination resulting from rates be- 
 tween two different coal fields served by different groups 
 of lines, does not fall within the condemnation of the 
 statute.^^ 
 
 mission, 39 C. C. A. 413, 99 Fed. 
 52; Partridge & Sons Co. v. Penn- 
 sylvania R. Co., 26 I. C. C. 484; 
 East Tennessee, V. & G. Ry. Co. 
 V. Interstate Commerce Commis- 
 sion. 181 U. S. 1, 45, L. Ed. 719. 
 21 Sup. Ct. 516, in which Mr. 
 Chief Justice White said: "The 
 prohibition of the third section, 
 when that section is considered in 
 its proper relation, is directed 
 against unjust discrimination or 
 undue preference arising from the 
 voluntary and wrongful act of the 
 carriers complained of as having 
 given undue preference, and does 
 not relate to acts the result of con- 
 ditions wholly beyond the control 
 of such carriers. And special at- 
 tention was directed to this view 
 in the Behlmer case, in the passage 
 which we have previously ex- 
 cerpted. To otherwise construe 
 
 the statute would involve a de- 
 parture from plain language, and 
 would be to confound cause with 
 effect." 
 
 31. New York Produce Exchange 
 v. New York Cent. & H. River R. 
 Co., 32 I. C. C. 212. 
 
 32. In re Grain, St. Louis & 
 East St. Louis, 30 I. C. C. 696; 
 Coke Producers Ass'n of Connells- 
 ville Region v. Baltimore & O. R. 
 Co., 27 I. C. C. 125; Ashland Fire 
 Brick Co. v. Southern Ry. Co., 22 
 I. C. C. 115. 
 
 33. Wickwire Steel Co. v. New 
 York Cent. & H. River R. Co., 30 
 I. C. C. 415; In re advances Cali- 
 fornia-Nevada Lumber Rates, 28 I. 
 C. C. 313; In re Coal Rates to 
 Davenport, Iowa, 26 I. C. C. 140; 
 In re Coal Rates on Chesapeake & 
 O. Ry. Co., 22 I. C. C. 604.
 
 <§> 210] Preferknces Bktwkkn Locaijtiks. 387 
 
 § 209. Discrimination in the Establishment and 
 Maintenance of Group Rates. The ('oininissioii lias 
 often considered and passed upon the propriety of group 
 rates. While tlie grouj) or zone priiK'i])le is often of 
 mutual advantage to shippers and carriers and will not 
 ordinarily be disturbed if the rates are reasonable and 
 non-diseriiiiiiiatory, yet the relative situation of con- 
 tiguous i)oints cannot be wholly disregarded in rate 
 making without incurring the risk of creating unjust 
 discrimination or advantage to the favored points."** 
 
 In the application of group rates a discrimination 
 of necessity arises between the near and far edge of 
 the group, but the Commission has generally held that 
 this discrimination is not undue.^^ There must be some 
 point, liowever, at which the extension or application of 
 the rate must stop, and whether this extension consti- 
 tutes undue or unjust discrimination must 1)p dctorTiiincd 
 from all the facts of each case.''' 
 
 § 210. Different Rates in Opposite Directions Over 
 Same Lines Not Discriminatory. The fact that rates 
 or fares over a line in one direction between two points 
 are materially higher than the rates or fares in an op- 
 posite direction does not establish unjust discrimination; 
 for all the surrounding facts and circumstances must 
 be taken into consideration to determine whether the 
 discrimination is undue. 
 
 Dil^erences in grades, a preponderating movement 
 of empty cars in one direction, a greater volume of 
 freight in one direction than the other and other con- 
 ditions may justify a difference in rates over the same 
 line between the same points." For example, a rate 
 
 34. Hammerschmidt & Franzen 30 I. C. C. 71; Muskogee Traffic 
 Co. V. Chicago & N. W. Ry. Co., 30 Bureau v. Atchison, T. & S. F. 
 I. C. C. 71; Bovaird Supply Co. v. Ry., 17 I. C. C. 169; Mitchell v 
 Atchison, T. & S. F. Ry., 13 I. C. Atchison, T. & S. F. Ry., 12 I. C 
 C. 56. C. 324; Desel-Boettcher Co. v 
 
 35. Southwestern Missouri Mil- Kansas City S. Ry. Co., 12 I. C. C 
 lers' Club v. Missouri, K. & T. Ry., 220; Imperial Coal Co. v, Pitts 
 22 I. C. C. 422. burgh & L. E. R. Co., 2 I. C. C. 618 
 
 36. Hammerschmidt & Franzen 37. Interstate Commerce Com 
 Co. V. Chicago & N. W. Ry. Co., mission v. Louisville & N. R. Co.,
 
 388 Duties to Interstate Shippees. [§ 210 
 
 of sixty-two cents per Inmdred pounds on freig'ht west- 
 bound between Philadeli)hia, Fn., and Fort Wayne, Ind. 
 in comparison with a rate of forty-three cents per hun- 
 dred ponnds east-bonnd was held not to be an unreason- 
 able discrimination.''- A charge of $2.00 more for a 
 passenger ticket from Boston, Me., to Janesville, Wis., 
 than for a ticket from Janesville, to Boston was not an 
 unjust discrimination.^^ In another case, the Commis- 
 sion held that rates on certain commodities from Seat- 
 tle and Tacoma, Wash., to Portland, Ore., were not un- 
 justly discriminatory as compared with the rates from 
 Lime and Gypsum, Ore., to Portland, and Puget Sound 
 points, but the existence of rates east-bound in some 
 instances twice as high as those for substantially the 
 same distance west-bound was found not to be justified.*'' 
 
 § 211. Discrimination in Absorbing Switching 
 Charges at One Point and Refusing at Another. The 
 
 practice of absorbing or refusing to absorb switching 
 charges must not only be reasonable but non-discrim- 
 inatory.*^ In cases where the traffic moves from the 
 same points of origin and the switching charge is ab- 
 sorbed in the one case and not in the other, there is a 
 violation of Section 2, and the existence or absence of 
 competition in one or the other, does not constitute a 
 substantial dissimilarity of circumstances. Even as 
 to traffic moving from different points of origin, to which 
 Section 3 may be applicable, competitive conditions are 
 
 118 Fed. 613; Pacific Coast Gyp- T. & S. P. Ry. Co., 6 I. C. C. 85, 
 
 sum Co. V. Oregon Washington R. 4 I. C. R. 385. 
 
 R. & Nav. Co., 30 I. C. C. 135; 38. Weil Bros. & Co. v. Penn- 
 
 HuU Vehicle Co. v. Southern Ry. sylvania R. Co. 11 I. C. C. 627. 
 
 Co., 28 I. C. C. 619; Wilburine Oil 39. MacLoon v. Boston & M. R. 
 
 Works V. Pennsylvania R. Co. 18 Co.. 9 I. C. C. 642. 
 
 I. C. C. 548; Littell v. St. Louis 40. Pacific Coast Gypsum Co. v. 
 
 S. W. Ry. Co., 18 I. C. C. 187; Oregon-Washington R. R. & Nav. 
 
 Phillips Co. V. Grand Trunk W. Co., 30 I. C. C. 135. 
 
 Ry. Co., 11 I. C. C. 659; Weil Bros. 41. Board of Trade of Chicago, 
 
 & Co. V. Pennsylvania R. Co., 11 Illinois v. Atchison. T. & S. F. Ry. 
 
 I. C. C. 627; Hewins v. New York. Co., 29 I. C. C. 438; In re Advances 
 
 N. H. & H. R. Co., 10 I. C. C. 221; Switching, Chicago, minois, 28 I. 
 
 MacLoon v. Boston & M. R. Co., 9 C. C. 677; In re Advances on Ice, 
 
 I C. C. 642; Duncan v. Atchison, 24 I. C. C. 660.
 
 § 212] Preferences Between Localities. 389 
 
 not always control I in,i2: in <l('t<'nniiiin,i!: tlic existence of 
 dissiiiiilar conditions/- 
 
 Applying these rules, the Commission, in the case 
 cited, held tliat tlie imi^osition of switching charges on 
 interstate carload freight at Richmond, Va., while at 
 the same time no charge of a like character was imposed 
 at Norfolk, Va., on the same traffic, constituted undue 
 discrimination against consignees and consignors of 
 freight at Richmond."' But the failure of railroad com- 
 panies with terminals at Chicago to ahsorb charges on 
 grain delivered to industries in that city off of their 
 lines while absorbing such charges on other commodities 
 having no competitive relation therewith, did not consti- 
 tute an undue preference." 
 
 § 212. Discrimination Through Joint Rates Between 
 Two Localities Similarly Situated Prohibited, When. 
 An undue discrimination against one locality may be 
 effected as well by a joint rate as by a one-line rate, 
 and a carrier tliat is a party to a joint rate is no less 
 responsible when the undue discrimination under such 
 a rate can be controlled by it, than it would be under 
 similar circumstances under its own one-line rate.*^ 
 If any carrier participates in a joint rate over the terri- 
 tory affected, and is in such position that it may join 
 in such rates or decline to do so, it is then liable for the 
 discrimination which may result from its action in join- 
 
 42. Chamber of Commerce of 29 I. C. 438; See also Board of 
 Richmond, Virginia, v. Seaboard Trade of Chicago v. Chicago & A. 
 Air Line Ry., 31 I. C. C. 552. R. R., 27 I. C. C. 530; Wholesale 
 
 43. The Commission based its Fruit & Produce Ass'n v. Atchi- 
 ruling on its former decisions in ^^^^ rp ^ g p ^^ ^ ^r, j ^ ^ 
 the following cases: Duncan & Co. ^^g. j^jj^^j, ^ ^^^^ york. N. H. & 
 V Nashville, C. & St. L. Ry.. a ^ j^ ^ ^^ j ^ ^ 4„2; Railroad 
 I. C. C. 186; Cattle Raisers' Ass'n 
 of Texas v. Chicago, B. & Q. R. R- 
 
 12 I. C. C. 507; City Council of 
 
 _,. Tvi:oo^„^i D R^r 19 45. Patridge & Sons Co. V. Penn- 
 
 Atchison V. IMissourl P. Ky., i^ 
 
 J (^ (^ jjj sylvania R. R., 26 I. C. C. 484; 
 
 44. Board of Trade of Chicago. Rates from Wallensburg Coal 
 Illinois V. Atchison. T. & S. F. Ry.. Field. 26 I. C. C. 85. 
 
 Commission of Kentucky v. Louis- 
 ville & N. R. R., 10 L C. C. 173.
 
 390 Duties to Init.rstatk Shippkks. [§212 
 
 ing" witli tlio otlior earriors iti tlio rlisenininatory rate 
 or re^'nlation.**"' 
 
 Bnt this principle has no application nnless Iho 
 traffic from both ,2:ron]is of origin is necessarily trans- 
 ported to destination by the same connecting carrier 
 or carriers, and where it is possible for the carrier to 
 pnt an end to the discrimination by the exercise of 
 its power to refuse to enter into preferential joint or 
 proportional rates.*^ The test of discrimination is the 
 ability of one of the carriers participating in the two 
 through routes to put an end to the discrimination by 
 its own act/^ 
 
 § 213. Differentials Between Atlantic Coast Cities 
 Legitimately Based upon Competitive Relations. Rail- 
 way companies are not prohibited by the third section 
 from preferring one locality to another unless that 
 preference amounts to an undue or unreasonable one. 
 A preference, without a legitimate excuse, would be 
 in and of itself undue and unreasonable. But the Com- 
 mission has often held that the differentials between 
 Boston, New York, Philadelphia and Baltimore are 
 legitimately based upon the competitive conditions be- 
 tween the various carriers serving these ports.*^ 
 
 46. In re Grain, St. Louis and ville region v. Baltimore & O. R. 
 East St. Louis, 30 I. C. C. 696; R., 27 I. C. C. 125; Ashland Fire 
 Memphis Freight Bureau, 28 I. C. Brick Co. v. Southern Ry., 22 I. C. 
 C. 543; Coke Producers' Ass'n of C. 115; Indianapolis Freight 
 Connellsville region v. Baltimore Bureau v. Cleveland, C. C. & St. 
 & O. R. R., 27 I. C. C. 125: Scott L. Ry., 16 I. C. C. 56. 
 
 Paper Co. v. Pennsylvania R. R., 48. Hughes Creek Coal Co. v. 
 
 26 I. C. C. 601; Ashland Fire Brick Kanawha & M. Ry., 29 I. C. C. 671; 
 
 Co. V. Southern Ry., 26 I. C. C. Coke Producer's Ass'n of Connells- 
 
 195, 22 I. C. C. 115; Rates from ville region v. Baltimore & O. R. 
 
 Wallensburg Coal Field, 26 I. C. C. R., 27 I. C. C. 125. 
 
 85; Southern Furniture Mfg. Ass'n 49. In re Import Rates, 27 I. C. 
 
 v. Southern Ry., 25 I. C. C. 379; C. 245; Chamber of Commerce of 
 
 Indiana Steel & Wire Co. v. Chi- New York v. New York Cent. & H. 
 
 cago, R. I. & P. Ry., 16 I. C. C. River R. Co., 27 I. C. C. 238; 
 
 155. Chamber of Commerce of New 
 
 47. Tn re Grain, St. Louis and York v. New York Cent. & H. River 
 East St. Louis. 30 I. C. C. 096; R. Co., 24 I. C. C. 674, 24 I. C. C. 
 Coke Producers' Ass'n of Connells- 55; In re Import Rates. 24 I. C. 3.
 
 § 2]'.V\ I'liKKKRENCES I >K'I\V HEX T.()( AMTIES. .391 
 
 In the case of Cliaml)er of Commerce of the State 
 of New York v. New York Cent. & H. River R. Co.,'''* 
 comi)hiinants, mercliants of New York City, allep^ed that 
 the carriers maintained rates, differentials and charj<es 
 to and from the city and port of New York on import 
 and export traffic having destination or origin in so- 
 called "differential territory," tliat is, territory bound- 
 ed on the noith by the Great Lakes and a line drawn 
 west from Chi(*aii,o, 111., to Diil)U(|ue, la., and on the cast 
 by a line drawn from l^ittsbnrii-, Pa., to Buffalo, New 
 York, on the south by the Ohio River and on the west 
 by the Mississippi River, wliicli were unjustly discrim- 
 inatory a.i^ainst New York and unduly preferential to 
 Boston, Philadelphia and Baltimore. Taking Chicaico 
 as a representative point, it appeared in evidence that 
 the all-rail and lake-and-rail rates on expoi't and do- 
 mestic traffic were lower to Philadelphia and Baltimore 
 than to New York, but the export rate from New York 
 and Boston was the same. The Commission held that 
 the carriers should maintain to these ports throu.^h 
 routes and joint rates so that there might be the freest 
 movement of traffic without the necessity of reshipment, 
 and that the carriers serving New York might partici- 
 pate in the movement of traffic to and from Philadeli)liia 
 and Baltimore under competitive rates while maintain- 
 ing at the same time higher rates to and from New York. 
 
 The Commission therefore held that differentials 
 under New York on all-rail and lake-and-rail export 
 shi])ments from differential territory to Baltimore should 
 not exceed 8 cents per hundred pounds, and to Philadel- 
 phia should not exceed 2 cents per hundred pounds on the 
 classes of the commodities other than grain, flour and 
 iron articles, and that the differentials under New York 
 
 78, 24 I. C. C. 678; In the Matter 50. Chamber of Commerce of the 
 
 of Differential Freight Rates, 11 I. State of New York v. New Yor!: 
 
 C. C. 13; Toledo Produce Exchange Cent. & H. River R. Co., 24 I. C. C. 
 
 V. Lake Shore & M. S. Ry. Co., 5 55. 24 I. C. C. 674, 27 I. C. C. 238. 
 
 I C. C. 166, 3 I. C. R. 830; Cham- See also companion case: In re 
 
 her of Commerce of Boston v. Lake Import Rates, 24 I. C. C. 78, 24 
 
 Shore & M. C. Ry. Co., 1 I. C. C. I. C. C. 678, 27 I. C. C. 245. 
 4:16, 1 T. C. R. 756.
 
 392 Duties to Interstate Shippers. [§ 213 
 
 on all-rail and lake-and-rail sliipments of grain shonld 
 not exceed 1.5 cents y>qv hundred pounds to Baltimore 
 and 1 cent to Philadelphia, and that the differential 
 under New York on all-rail and lake-and-rail export 
 sliipments of flour shonld not exceed 2 cents per hundred 
 pounds to Baltimore and 1 cent per hundred pounds to 
 Philadelphia, and that as to all such traffic, the export 
 rates to and the import rates from Boston should not 
 be lower than the rates to and from New York. 
 
 § 214. Maintaining- Higher Rates on Branch Line 
 Parallel to Main Line Serving Same Territory. A rail- 
 road company operating two parallel lines of railroad 
 serving the same territory, one a main line and the other 
 a branch, is justitied in maintaining rates not shown to 
 be unreasonable per se on the branch line while main- 
 taining materially lower rates on the main line for like 
 distances to meet cross-country competition of an inde- 
 pendent parallel line. For example, the rates on cattle 
 and hogs from cities in Nebraska on the Holdrege- 
 Cheyenne branch of the Chicago, Burlington & Quincy 
 Railroad to St. Joseph, Missouri, were found to be 
 higher than rates from the cross-country cities situated 
 on the main line of the same company. It appeared that 
 the rates on the main line were lower because of cross- 
 country competition of the Rock Island and Union Pacitic 
 railroad companies. The Commission held that the 
 carrier was justified in maintaining lower rates on the 
 main line because of the competition with the other 
 independent railroads." 
 
 § 215. Proportional Part of Through Rate Lower 
 Than Local Rates Between Same Points Not Discrim- 
 inatory. In the absence of a justifying explanation, a 
 through rate in excess of the sum of the locals, applica- 
 ble to the same traffic, over the same route, is an un- 
 reasonable rate." In fact, as a rule, the through rate 
 
 51. Nebraska State Railway Compress Co. v. Yazoo & M. V. R. 
 
 Commission v. Chicago, B. & Q. R. C, 16 I. C. C. 131. 
 
 Co., 36 I. C. C. 218, following a 52. Winona Carriage Co. v. 
 
 similar ruling in Planters' Gin & Pennsylvania R. Co., 18 I. C. C.
 
 § 1M(5| 
 
 Pheferkncp:s P>K'j\vi:r,x Locautiks. 
 
 393 
 
 should be less tliaii tlio sum of tlic local iat<'.'"' A car- 
 rier may, tlierefoic, accc])! and receive a smaller sum 
 for its ])roi)ortioii of a tlirouj;li rate than the charges 
 for llic transportation of the same comnio(li1>' ])etween 
 the same ])oints.''^ ^Tho. conditions and circumstances 
 attendin<>: the transportation of through traflic are dis- 
 similar from those affecting purely local tiaffic, and 
 hence a difference in the rales between local and through 
 traflic is not an undue discrirnination.'"'' 
 
 § 216. Rebilling and Reshipping Privilege at 
 Nashville on Grain From Ohio River to South Eastern 
 Points Discriminatory. The ])ractice of carriers in 
 granting a rebilling or reshipping privilege on ship- 
 ments of grain and grain products at Nashville, Tenn., 
 when transi)orted from the Ohio and Mississippi River 
 crossings to south eastern points in Georgia and adjoin- 
 ing states, while denying the same privilege at Atlanta 
 
 334; Milburn Wagon Co. v. Lake 
 Shore & M. S. Ry. Co., 18 I. C. C. 
 144; White Bros. v. Atchison, T. 
 & S. F. Ry. Co., 17 I. C. C. 288; 
 Kindel v. New York, N. H. & H. 
 R. Co.. 15 I. C. C. 555: Laning- 
 Harris Coal & Grain Co. v. St. 
 Louis & S. F. R. Co., 13 L C. C. 
 148. 
 
 53. Washington Milling Co. v. 
 Norfolk & W. Ry. Co., 27 L C. C. 
 546; Lumbermen's Exch. of St. 
 Louis V. Anderson & S. R. R. Co . 
 24 I. C. C. 220; Bluefield Shippers' 
 Ass'n V. Norfolk & \V. Ry. Co., 22 
 L C. C. 519; Railroad Commission 
 of Nevada v. Nevada-California- 
 Oregon Ry. Co.. 22 L C. C. 20^; 
 Montgomery Freight Bureau v. 
 Western Ry. of Alabama, 14 L C. 
 C. 150; Coffeyville Vitrified Brick 
 & Tile Co. V. St Louis & S. F. R. 
 Co.. 12 1. C. C. 498: Hilton Lumb-r 
 Co. v. Wilmington & W. R. Co., 9 
 L C. C. 17: Railroad & Warehouse 
 Commission of Missouri v. Eureka 
 Springs Ry. Co., 7 I. C. C. 69. 
 
 54. Parsons v. Chicago & N. W. 
 Ry. Co., 11 C. C. A. 489, 63 Fed. 
 903; New Pittsburgh Coal Co. v. 
 Hocking Valley Ry. Co., 26 I. C. 
 C. 121; Board of Trade of Wichita 
 v Atchison. T. & S. F. R. Co., 25 
 L C. C. 625; Southwestern Ship- 
 pers' Traffic Ass'n v. Atchison^ T. 
 & S. F. Co., 24 L C. C. 570; South- 
 ern Illinois Millers' Ass'n v. Louis- 
 ville & X. R. Co., 23 1. C. C. 672: 
 Ottumwa Commercial Ass'n v. Chi- 
 cago, B. & W. R. Co., 17 I. C. C. 
 413; Bascom Co. v. St. Louis, I. M. 
 & S. Ry. Co., 17 I. C. C. 354; 
 Greater Des Moines Committee v. 
 Chicago, R. I. & P. Ry. Co., 17 I. 
 C. C. 54. 
 
 55. Chicago, M. & St. P. R. Co. 
 v. Tompkins. 176 U. S. 167, 44 L. 
 Ed. 417. 20 Sup. Ct. 336; Texas "; 
 P Ry. Co. V. Interstate Commerce 
 Commission. 162 U. S. 197, 40 L. 
 Ed. 940. le Sup. Ct. 666; Union 
 Pac. Ry. Co. v. United States, 117 
 U. S. 355. 29 L. Ed. 920, 6 Sup. Ct. 
 772.
 
 394 Duties to Interstate Shippehs. [§ 21G 
 
 and other cities similarly situated, was, by the Commis- 
 sion, held to be a violation of Section 3 of the Act,'*'' and 
 by the Supreme Court to be a violation of Section 4 pro- 
 hibiting carriers from charging a lesser rate for a longer 
 than for a shorter haul without the consent of the Inter- 
 state Commerce Commission." This rebilling or re- 
 shipping privilege accorded at Nashville resulted in 
 prolonged litigation before the Commission and the 
 courts. 
 
 Under the privilege so granted, tlie through rates 
 from the Ohio and Mississippi River crossings to the 
 ultimate destination points south east of Nashville were 
 applied. The grain was shipped into Nashville where 
 it was unloaded, elevated or sacked, and, at some time 
 within six months, it was reshipped on to points in the 
 south-east. The net freight charge for the entire move- 
 ment was based on the through rate from the crossings 
 to the final destination. For example, a shipment mov- 
 ing from Evansville, Ind., to Atlanta, Ga., paid the local 
 rate to Nashville, and then the local rate from Nash- 
 ville to Atlanta. As the through rate from Evansville 
 to Atlanta was lower that the sums of the locals, 
 the difference between the through rate and the combi- 
 nation was paid back to the shipper after final delivery. 
 
 Upon the complaint of shippers at Atlanta and 
 other Georgia cities not favored with the same privilege, 
 the Commission, upon its first hearing, condemned the 
 practice altogether, and held that the reshi])ping ])i'iv- 
 ilege and the application of rates thereunder obtaininu' 
 at Nashville, was an illegal device by which grain and 
 grain products were transported at less than the tarifT 
 rate applicable thereto."* But the Commission post- 
 poned the effective date of its order entered pursuant 
 to the first report so that it might institute a country- 
 wide investigation of the practice involved. After a hear- 
 ing, the Commission decided that its order abolishing 
 
 56. Duncan & Co. v. NashviUe, & N. R. Co., 235 U. S. 314, 59 L. 
 C. & St. L. Ry. Co., 16 I. C. C. 590, Ed. 245, 35 Sup. Ct. 113. 
 
 21 I. C. C. 186, 35 I. C. C. 477. 58. Duncan & Co. v. Nashville, 
 
 57. United States v. Louisville C. & St. L. Ry. Co., 16 I. C. C. 
 
 590.
 
 § 1'17| PriKI'KRKNCES ReTWKEN LOCALITIKS. 395 
 
 the resliippiiii^- privilcf^o was too strict.^' Thereafter, 
 ill tlic NasliviUc case, tlio Commission delivered a sup- 
 plemental report holding- lliat tlic ])ra(',tic(' of ^rantin;^ 
 tlie reshipping privilege at Nashville, while refusing 
 it to Atlanta and other eomplaining cities, was an undue 
 and unreasonable preference to Nashville, in violation 
 of the statute.''" 
 
 In a suit thereafter to annul the order of the Inter- 
 state Commerce Commission, the Commerce Court held 
 that the granting of the reship])ing privilege at Nash- 
 ville was not an undue discrimination within the mean- 
 ing of the law, but was the result of and was justified 
 by competition of water lines on the Cumberland Rivei- 
 from the Ohio River crossings."^ On appeal to the 
 United States Supreme Court, the judgment of the Com- 
 merce Court was reversed and the cause was remanded 
 for a decree to be entered in harmony with the opinion 
 of the court without prejudice to the rights of the car- 
 rier to apply to the Commission to be relieved from the 
 operation of the provisions of Section 4. Thereafter, 
 the Commission made the same finding of facts and held 
 that the granting of the privilege to Nashville and a 
 denial of it to other cities, was unlawful/'" 
 
 § 217. Differential Between Cities on Opposite 
 Banks of Rivers Crossed by Expensive Bridges. While 
 two cities lying on different sides of a large river may 
 be so closely related as to form in a broad sense one 
 industrial and commercial community, yet when trans- 
 portation of interstate freight or passengers is affected 
 through the performance of additional carriage over 
 expensive bridges that involve a very substantial ad- 
 ditional outlay of capital, they do not form one com- 
 munity for transportation and rate-making purposes.®^ 
 
 59. In re Substitution of Ton- 63. In re advances Lumber, 
 
 nage, 18 I. C. C. 280. sourthern points to Ohio River 
 
 GO. Duncan & Co. v. Naishville, crossings, 34 I. C. C. 652; Illinois 
 
 C. & St. L. Ry. Co., 21 I. C. C. 186. Coal Cases, 32 I. C. C. 659; Metrop- 
 
 61. Louisville & N. R. Co. v. olis Commercial Club v. Illinois 
 United States. 197 Fed. 58. Cent. R. Co.. 30 I. C. C. 40; Board 
 
 62. Duncan & Co. v. Nashville, of Trade of Paducah, Kentucky, v. 
 C. & St. L. Ry. Co., 35 I. C. C. 477. Illinois Cent. R. Co., 29 I. C. C.
 
 396 Duties to Interstate Shippers. [§ 217 
 
 Because of the great cost of siicli structures, a 
 bridge has been regarded as adding a constructive mile- 
 age to the carrier's line for which an additional charge 
 may be exacted.*'* For example, in Norman Lumber 
 Co. V. Louisville & N. R. Co.,"'* the maintenance of rates 
 from Louisville, Ky., to central freight association terri- 
 tory one cent higher than rates from Cincinnati, Ohio, 
 to equidistant points, and conversely rates from equi- 
 distant southeastern territory to Louisville one cent 
 less than those contemporaneously maintained to Cincin- 
 nati and other points on the north side of the Ohio River, 
 were held to be non-discriminatory because of the bridge 
 crossing. In other words, the Commission held that 
 Louisville ought not to be considered on the north bank 
 of the river for inbound shipments and on the south 
 bank of the river for outbound shij^iments. 
 
 In the consideration of another complaint, the Com- 
 mission found that a differential of twenty cents per 
 ton in favor of East St. Louis, 111., as against St. Louis, 
 Mo., on shipments of coal from certain districts in the 
 state of Illinois was reasonable.*"' Lower rates to Coun- 
 cil Bluffs, Iowa, from points in Iowa than from the same 
 places to Omaha, Neb., across the Missouri River, were 
 also upheld, the existence of an expensive bridge over 
 the river creating a dissimilar circumstances.*'^ 
 
 § 218. Carriers Unduly Favoring Industries on 
 Their Own Lines as Against Competitors on Other Lines. 
 The exercise of a carrier's rate-making power is arbi- 
 trary and discriminatory when it seeks to retain for 
 
 593; Norman Lumber Co. V. Louis- 64. Railroad Commission of 
 
 ville & N. R. Co., 29 I. C. C. 565, Iowa v. Illinois Cent. R. Co., 20 I. 
 
 22 I. C. C. 239; Manufacturers and C. C. 181. 
 
 Merchants' Ass'n of New Albany, 65. Norman Lumber Co. v. 
 
 Indiana v. Aberdeen & A. R. Co., Louisville & N. R. Co., 29 I. C. C. 
 
 24 I. C. C. 331; Railroad Com- 5G5 
 
 mission of Iowa v. Illinois Cent. 06. Illinois Coal Cases, 32 I. C 
 
 R. Co., 20 I. C. C. 181; Commercial C. 659. 
 
 Club of Omaha v. Chicago & N. W. 67. Commercial Club of Omaha 
 
 Ry. Co., 7 I. C. C. 386; Freight v Chicago & N. W. Ry. Co., 7 I. 
 
 Bureau of Cincinnati v. Cincin- C C. 386. 
 
 nati, N. 0. & T. P. Ry. Co., 7 I. 
 
 C. C. 180.
 
 § 210] Preferences Ijktwken Localitiks. 397 
 
 itself a market at ])oints on its line for tlie sole benefit 
 of producino- points also on its own line to the exclusion 
 of all others. 
 
 An attempt to restrict traffie to movements be- 
 tween ])oints on its own line is never justifi<'d."* 
 Thus, joint rates on lumber from points in Texas and 
 Louisiana by way of the ori.i?inal lines and the Santa Fe 
 to points on the lines of the Santa Fe system in Okla- 
 homa were found to be unjustly discriminatory to the 
 extent that they exceeded rates in effect from other 
 points on the Santa Fe system in Texas and Tjouisiana to 
 the same points of destination.''" Likewise, joint rates 
 on lumber from Leesville, La., by way of the Kansas 
 City Southern railroad and the Santa Fe system to points 
 on the latter road in Oklahoma higher than contempora- 
 neous rates maintained from competitive jioints on the 
 Santa Fe in Louisiana, were lu^ld to be unjustly disciim- 
 inatory.^° 
 
 § 219. Stopping Carload Shipments at Points En 
 Route to Finish Loading Discriminatory, When. The 
 service of stopping carload shipments in transit for the 
 purpose of finisliing loading or to partially unload is 
 of great value not only to the shippers immediately con- 
 cerned in the transportation, but to the carriers as well, 
 through the better utilization of their equipment.'^ In 
 the case cited, the Commission refused to authorize the 
 discontinuance of such a practice by carriers in central 
 freiglit association and western classification territories; 
 but it appeared in that case, however, that the service 
 was not restricted to particular stations. 
 
 A rule of western carriers permitting the sto])ping 
 of cars of livestock for additional loading at a charge 
 of $2.00 per car was withdrawn by the carriers, and 
 the Commission, upon a general investigation of the 
 
 68. Nona MiUs Co. v. Kansas v. Te.xas & N. O. R. Co., 42 I. C. C. 
 City S. Ry. Co., 39 I. C. C. 125; In 88. 
 
 re advances Lumber, Texas, etc., 70. Nona Mills Co. v. Kansas 
 
 to Oklahoma, etc., 28 I. C. C. 471; City S. Ry. Co., 39 I. C. C. 125. 
 
 Star Grain & Lumber Co. v. Atchi- 71. In re Stopping Cars in Tran- 
 
 son, T. & S. F. Ry. Co., 14 I. C. C. sit to Complete Loading, 36 I. C. 
 
 364. C. 130. 
 
 69. Luther & Moore Lumber Co.
 
 398 Duties to Interstate Shippers. [§ 219 
 
 subject, held that the discontinnance of the service as 
 it then existed, was proper. It appeared that the ship- 
 pers took advantage of the opportunity to load or un- 
 load by substituting tonnage and thus defeat the lawful 
 rate. The carriers also urged that the stopping of live- 
 stock in transit to complete the load disarranged the 
 train schedules and resulted in serious delays. ^^ Subse- 
 quently one of the defendant carriers in the Hoyt case 
 re-established the service of stopping cars of hogs to 
 finish loading at only nine stations on its line, one of 
 them being Winona, Minn. Upon the complaint of a 
 packing company at Winona alleging that such a prac- 
 tice was discriminatory in that the transit service was 
 not general and open to all on equal terms at all sta- 
 tions, the Commission ordered the carrier to desist from 
 the practice unless similar transit service was main- 
 tained at all stations on the line." 
 
 72. Hoyt & Bergen v. Chicago Chicago & N. VV. Ry. Co., 42 I. C. 
 & N. W. Ry. Co., 32 I. C. C. 319. C. 189. 
 
 73. Interstate Packing Co. v.
 
 CHAPTER XI 
 
 Uni^will J*ui<:fehenck oh Aiaa.n tack to pAinicrLAH 
 Kinds of Traffic 
 
 Sec. 220. Unreasonable Preferences to any Particular Description of 
 
 Traffic. 
 Sec. 221. Passage of Statute Prohibiting Discriminations Stimulated 
 
 Movement for a More Uniform Classification. 
 Sec. 222. Duty of Commission When Classification is Used to Kffect 
 
 Unjust Discrimination. 
 Sec. 223. Controlling Considerations in Making Classifications of 
 
 Freight. 
 Sec. 224. Discriminations and Preferences in the Classifications of 
 
 Commodities. 
 Sec. 225. Differential Between Raw Material and Manufactured Proc!- 
 
 ucts— Grain and Flour, Livestock and Meats, Etc. 
 Sec. 226. Differential between Carload and Less than Carload Rates 
 
 Lawful. 
 Sec. 227. Relation Between Carload and Less Than Carload Rates 
 
 Must not be Excessive. 
 Sec. 228. Application of Carload Rates to Carload Lots when Goods 
 
 Belong to Several Owners. 
 Sec. 229. Wheat and Coarse Grain Not "Like Traffic" Requiring Same 
 
 Rate. 
 Sec. 230 Different Uses to which Commodity is Put, No Justification 
 
 For Different Rates. 
 Sec. 231. .Justifiable Discrimination Between Shipments of Oil in Bar- 
 rels and in Tank Cars. 
 Sec. 232. Relationship of Rates on Lumber and Lumber Products 
 
 Must be Free From Discrimination. 
 Sec. 233. Differentials Between Similar Commodities .Justified by Dif 
 
 ferent Conditions and Circumstances Affecting Transpor- 
 tation — Lumber and Logs. 
 Sec. 234. Lower Rates on Returned Shipments Illegal Except When 
 
 Refused by Consignees. 
 
 § 220. Unreasonable Preferences to any Particu- 
 lar Description of Traffic. The statute also proliibits 
 any undue or unreasonable jireference or advantage 
 to any particular description of trafllic in any respect 
 whatsoever. For convenience in making transportation 
 rates and charges, freight is arranged and put into dif- 
 ferent classes according to the expense of carriage, 
 bulk, value, risk, competition, and other considerations 
 
 (399)
 
 400 Duties to Interstatp: Shippers. [§ 220 
 
 affecting the cost and value of tlie transportation ser- 
 vice. 
 
 Notwithstanding the repeated efforts of the Inter- 
 state Commerce Commission to secure nniformiiy in 
 classification thronghont the country, different classi- 
 fications have been and are still maintained in various 
 sections of the country and frequently articles classed 
 together in one section are placed in separate classes 
 in another section of the country. Since the enact- 
 ment of the Act to Regulate Commerce, the number of 
 separate classifications has been steadily reduced, and 
 hundreds of articles are given one and the same rate 
 by being placed in one class. Without an arrange- 
 ment classifying the freight into classes, the carriers 
 would be compelled to fix a rate on each one of the 
 several hundred thousand articles carried by them. The 
 prevention of undue preference against particular kinds 
 of traffic, therefore, requires the proper classification 
 of freight. 
 
 § 221. Passage of Statute Prohibiting Discrimina- 
 tions Stimulated Movement for a More Uniform Classi- 
 fication. The prohibition of unjust discriminations by 
 the passage of the Act to Regulate Commerce stim- 
 ulated a movement for uniformity in classification of 
 freight. At the time of the passage of the statute, there 
 was great confusion in the traffic situation because of 
 the multiplicity of classifications. Often two or more 
 classifications were in effect on one road. One carrier 
 had, in 1883, nine different classifications in effect for 
 traffic originating on its own line. Upon the adoption 
 of the Interstate Commerce Act, the first important 
 step to secure greater uniformity in classification was 
 begun by the establishment of the official classification 
 which was generally adopted throughout the territory 
 north of the Ohio and Potomac rivers and east of a 
 line drawn from Chicago to St. Louis and the junction 
 of the Mississippi and Ohio rivers. During the year 
 1889, practically all the railroads operating through the 
 territory from Chicago, St. Louis and the Pacific Coast 
 adopted what is now known as the Western Classifica-
 
 ^ 222.1 
 
 rNLAWKi'L Preferences to Traffic. 
 
 401 
 
 tioTi, and, in llio same yoar, all llio farriers sontli of ilic 
 Ohio River and east of the Mississii)pi Kiver adopted 
 the classification now known as the Southern classifi- 
 cation. There are, therefore, at the ])resent time, tliree 
 great classifications, the Official, Western and Southern, 
 subject to some exception sheets and commodity rates 
 of the individual lines and also a limited use of certain 
 state classificjitions, transcontinental tariifs, and the 
 Canadian classification. Sometimes these classifications 
 overlap. Freight shipped from a point in one territory 
 to a point in another is sometimes governed by the 
 classification of the place of destination and at other 
 times by the classification of the ])oint of origin.^ 
 
 § 222. Duty of Commission When Classification 
 is Used to Effect Unjust Discrimination. The classifi- 
 cation of an article of freight may be used as a device 
 to eifect an unjust discrimination in violation of the 
 statute. For example, a rate upon a commodity may 
 be increased by changing its classification. When the 
 classification of an article is so used by a carrier, it 
 is the duty of the Commission to revise the classification 
 so that the abuse may be corrected. This power of the 
 Commission extends to joint as well as individual classi- 
 fications.^ 
 
 1. In re Western Classification, 
 25 I. C. C. 442. 
 
 2. Cincinnati, H. & D. R. Co. 
 V. Interstate Commerce Commis- 
 sion, 206 U. S. 142, 51 L. Ed. 995: 
 27 Sup. Ct. 648. The Court said: 
 "This brings us to the final con- 
 tention made on behalf of the 
 railway companies, viz., that the 
 order of the Commission was not 
 lawful, because not within the 
 power conferred by the act of 
 Congress. This is, we thinx. 
 largely disposed of by what we 
 have previously said as to the 
 nature and scope of the investiga- 
 tion which the Commission was 
 authorized to make and the redress 
 
 which it was empowered to give 
 irrespective of the particular char- 
 acter of the complaint by which 
 its power may have been previous- 
 ly invoked. Whatever might be 
 the rule by which to determine 
 whether an order of the Commis- 
 sion was too general where the 
 case with which the order dealt 
 involved simply a discrimination 
 as against an individual or a 
 discrimination or preference in 
 favor of or against an individual 
 or a speciiic commodity or com- 
 modities or localities, or as ap- 
 plied to territory subject to dif- 
 ferent classifications, and we think 
 it is clear that the order made 
 
 1 Coiiti-i'l Ciirrii'i^
 
 402 Duties to Interstate Shippers. [§ !223 
 
 § 223. Controlling Considerations in Making Clas- 
 sifications of Freight. Many rules liave been recognized 
 and adopted by the Commission in the classification of 
 freight for shipment. ''Some of the rules, and in fact 
 most of them, testified to by the witnesses in this case," 
 said the Commission in an early case,^ ''in regard to 
 the controlling considerations in the making of classifi- 
 cations of freight, are such as have been recognized by 
 the Commission. For example, that a reasonable, fair 
 and just difference may be made in proportion to quanti- 
 ty hauled of the same article in a full carload and in 
 less than carload lots, and the respective rates charged 
 upon each according to weight, is a i)rin('i])Ie that has 
 been often recognized by the Commission. That a rate 
 maker may and in fact should take into consideration, as 
 shown by the evidence in this case, such controlling 
 conditions, in preparing a classification, as bulk and 
 space occupied, the weight of the article as compared 
 with its dimensions, its value, whether it can be so 
 loaded into a car as to make a full carload, and whether 
 as a matter of fact it is hauled in carloads as well as in 
 less than carloads, are each and all true. But the mere 
 fact that one article, for example, sewing machines, is 
 shipped 'in greater quantities' than surgical chairs, 
 when each as a rule is shipped in less than carload quan- 
 tities, and of no large difference in bulk, weight and 
 value, and of no appreciable difference in expense of 
 handling and of hauling, that this alone should consti- 
 tute in itself any reason why the former should enjoy 
 
 in this case was within the com- territory, and created discrimi- 
 petency of the Commission, in view nations and preferences among 
 of the nature and character of the manufactures and shippers of the 
 wrong found to have been commit commodity and between localities 
 ted and the redress which that in such territory, we think the 
 wrong necessitated. Finding, as Commission was clearly within 
 the Commission did, that the clas- the authority conferred by the act 
 sification by percentage of common to regular commerce in directing 
 soap in less than carload lots the carriers to cease and desist 
 operating throughout Official Clas- from further enforcing the clas- 
 sification territory, brought about sification operating such results." 
 a general disturbance of the rela- 3. Harvard Co. v. Pennsylvania 
 lions previously existing in that Co., 3 I. C. R. 257, 4 I. C. C. 212.
 
 § 224] L^Ni^vwiri. I'i'.kferences to Tisafkic. 403 
 
 lower rates or classification than the latter, merely 
 for the reason that they arc shii)i)ed 'in p:reater quanti- 
 ties,' is a doctrine to wliich we cannot ^ive our assent. 
 In such a case mere quantity, not measured by a recog- 
 nized unit of quantity ada])ted to carria,e:e and lesseninu" 
 the exi)ense of handling- and cairiaji^e, cannot be allow- 
 ed to affect rates in the transportation of property. 
 The small dealer is entitled to just and reasonable rates 
 on his i)r()duct, as much so as many and large dealers, 
 and any discrimination between them in rates based 
 u])on the idea that the one class of persons makes many 
 shipments while the other makes but few is unjust and 
 unreasonable under the provisions of the Act to Regu- 
 late Commerce. Tt is a discrimination in favor of one 
 kind of traffic as against another in the vital matter of 
 rates, and is unlawful." 
 
 § 224. Discriminations and Preferences in the Clas- 
 sification of Commodities. Freight classification is 
 based upon the relationship which commodities bear 
 to each other in such respects as character, use, bulk, 
 weight, value, tonnage or volume, risk, cost of carriage, 
 ease of handling, and controlling conditions caused by 
 competition.* But the classification of property must 
 be based upon a real distinction from a transportation 
 standpoint.^ Competition may be taken into considera- 
 tion in classifying freight within proper limitations 
 not only between carriers but also between commodities 
 
 4. Cincinnati, H. & D. R. Co. v. 78; Page v. Delaware, L. & W. R. 
 
 Interstate Commerce Commission, Co., 6 I. C. C. 548; Coxe Bros. & 
 
 206 U. S. 142, 51 L. Ed. 995, 27 Co. v. Lehigh VaUey R. Co., 4 I. C. 
 
 Sup. Ct. 648; Fels & Co. v. Penn- C. 535; Harvard Co. v. Pennsyl- 
 
 sylvania R. Co., 23 I. C. C. 483, vania R. Co., 4 I. C. C. 212; Warner 
 
 25 I. C. C. 154; Forest City Freight v. New York Cent. & H. River R. 
 
 Bureau v. Ann Arbor R. Co., 18 Co., 4 I. C. C. 32; Thurber v. New 
 
 I. C. 0. 205; Metropolitan Paving York Cent. & H. River R. Co., 3 
 
 Brick Co. v. Ann Arbor R. Co., I. C. C. 473; Pyle & Sons v. East 
 
 17 I. C. C. 197; Proctor & Gamble Tennessee, V. & G. R. Co., 1 I. C. 
 
 Co. v. Cincinnati, H. & D. Ry. Co., C. 465. 
 
 9 I. C. C. 440; Myer v. Cleveland, 5. Stowe-Fuller Co. v. Pennsyl- 
 
 C. C. & St. L. Ry. Co., 9 I. C. C. vania Co., 12 I. C. C. 215.
 
 404 Duties to Interstate Shippees. [§ 224 
 
 produced in different sections of the country.^ In deter- 
 mining what freight rates should be borne by different 
 commodities an attempt should be made to obtain a 
 fair relation between those commodities, and a classifi- 
 cation which directly ignores all considerations of this 
 kind or which directly fails to give due weight to such 
 considerations, is unjust and unreasonable.^ 
 
 Under the amendment of 1910 to Section 1 of the 
 Act, it is made the duty of all common carriers subject to 
 federal control to establish, observe and enforce just 
 and reasonable classifications of property for trans- 
 portation, and just and reasonable regulations and prac- 
 tices affecting classifications, and every unjust and un- 
 reasonable classification is prohibited and declared to 
 be unlawful. At the same time Section 15 of the Act 
 was so amended as to provide that if, after full hearing, 
 the Commission should be of the opinion that any indivi- 
 dual or joint classification is unjust, unreasonable, un- 
 justly discriminatory or unduly preferential, it shall 
 be authorized to determine and prescribe just, fair and 
 reasonable individual or joint classifications, and to 
 make an order that the carrier shall adopt the classifi- 
 cations so prescribed. 
 
 Even before the passage of this amendment, the Su- 
 preme Court had held that the Commission had the 
 power, in the public interest, to consider the whole sub- 
 ject of classification and the operation thereof, so as to 
 prohibit undue preferences and unjust discriminations.^ 
 In the last case cited, it appeared that the carriers ad- 
 vanced soap in carload lots from the sixth to the fifth 
 class, and in less than carload lots from the fourth to the 
 third class. Shortly thereafter less than carload rates 
 on soap were again changed to twenty per cent less 
 than third class but not less than fourth class. Proctor 
 & Gamble Co. filed a complaint before the Commission 
 because of this increase against several carriers in of- 
 
 6. Metropolitan Paving Brick 8. Cincinnati, H. & D. R. Co. v. 
 Co. V. Anil Arbor R. Co., 17 I. C. Interstate Commerce Commission, 
 C. 197. 206 U. S. 142, 51 L. Ed. 995, 27 Sup. 
 
 7. Myer v. Cleveland, C. C. & St. Ct. 648. 
 L. Ry. Co.. 9 I. C. C. 78.
 
 § 225] Uxr^vwiaji. Preferences to Traffic. 405 
 
 ficial classification territory. The Commission held 
 that .sinc(! the cai'riei-s had vohintaiily carried less than 
 carload shipments of soap at fourth class rates for ten 
 years previously, a presumption arose that such a clas- 
 sification was reasonable, and an order was entered re- 
 (juiring the carriers to cease and desist from enforcing? 
 the twenty per cent less than the third class rates on 
 less than carload soa]) and from chai\i'in,£^ the complain- 
 ant higher than fourtli class rates upon shi]mients of that 
 commodity. The carriers did not observe the order until 
 the Supreme Court upheld the decision of the Commis- 
 sion." Prior to the amendment of 1906 which gave 
 the Commission power to prescribe the rate for the fu- 
 ture, the Commission had nevertheless repeatedly as- 
 serted and exercised the power to order and change any 
 classification.^" 
 
 § 225. Differential Between Raw Material and 
 Manufactured Products — Grain and Flour, Livestock 
 and Meats, Etc. There is no rule of law requiring car- 
 riers to fix the same rate on the manufactured product 
 as on the raw material from which it is made;^^ but 
 generally the manufactured products bear higher rates 
 of transportation than the raw material because there 
 is ordinarily a substantial difference between the value 
 
 9. Proctor & Gamble Co. v. Cin- R. Co., 209 U. S. 108, 52 L. Ed. 705, 
 cinnati, H. & D. Ry. Co., 9 I. C. C. 28 Sup. Ct. 493; In re Kansas- 
 440. See also Fels & Co. v. Penn- California Flour Rates, 32 I. C. C. 
 sylvania R. Co., 23 I. C. C. 483, 602; Stuarts Draft Milling Co. v. 
 25 I. C. C. 154, in which it was Southern Ry. Co., 31 I. C. C. 623; 
 held that less than carload ship- In re Kansas-California Flour 
 ments of soap should take fourth Rates, 29 I. C. C. 459; Arizona 
 class rate and reparation was Corporation Commission v. Arl- 
 directed. zonu & X. W. Ry. Co.. 29 1. C. C. 
 
 10. Harvard Co. V. Pennsylvania 424; State of Iowa v. Atlantic 
 Ry. Co., 2 I. C. C. 122, 2 I. C. R. 81; Coast Line R. Co., 24 I. C. C. 134; 
 Hurlburt v. Lake Shore & M. S. In re Grain Product Rates, 21 I. 
 Ry. Co., 2 I. C. C. 122, 2 I. C. R. 81: C C. 22; Howard Mills Co. v. 
 Reynolds v. Western New York & Missouri P. Ry. Co., 12 I. C. C. 258; 
 P. Ry. Co., 1 I. C. C. 393, 1 I. C. R. In re Corn and Corn Products, 11 
 685. I. C. C. 212, 11 L C. C. 220; Board 
 
 11. Interstate Commerce Com- of R. R. Com'rs of Kansas v. Atchi- 
 mission v. Chicago Great Western son, T. & S. F. Ry., 8 I. C. C. 304;
 
 406 Duties to Interstate Shippees. [§ 225 
 
 of the Olio and that of the otlier.^- Tn one case the 
 Siii)reiiie Court held that a liigher rate for the shipment 
 of livestock than for the transportation of packing- 
 honse prodncts and dressed meats was not an unjust 
 discrimination.^^ 
 
 There is no inflexible requirement that the rates 
 upon grain and the products of grain should be, under 
 all circumstances, the same, and the carriers may, in 
 just regard to their own interests to meet special con- 
 ditions, vary these rates within narrow limits/* Thus, 
 in the case last cited, a rate of tifty-five cents per hun- 
 dred pounds on wheat and a rate of sixty-five cents 
 per hundred pounds on flour between points in Kansas 
 and California was held to be discriminatory, but the 
 Commission decided that a difference of seven cents 
 would not be discriminatory.^^ At the same time the 
 Commission held that the differential on corn meal 
 shipped from Missouri River points to Texas destina- 
 tions should not be more than three cents per hundred 
 pounds above the rate on corn between the same points." 
 The Commission, in passing upon the relation between 
 flour and grain rates in another case said." "The 
 question of proper relation of flour and grain rates is 
 not new. We have heretofore considered it from many 
 angles and with respect to various sections of the coun- 
 try and have always had regard for the situation ex- 
 isting in the particular territory involved and treated 
 the question according to the special circumstances 
 and conditions present in each case. That is to say, 
 
 Kauffman Milling Co. v. Missouri Oil Co. v. St. Louis & S. F. R. Co., 
 
 P. Ry. Co., 4 I. C. C. 417, 3 I. C. R. 20 I. C. C. 37. 
 
 400; Bates v. Pennsylvania R. Co., 13. Interstate Commerce Com- 
 3 I. C. C. 435, 2 I. C. R. 715. mission v. Cliicago Great Western 
 12. Knight Woolen Mills v. R. Co., 209 U. S. 108, 52 L. Ed. 
 Chicago & N. W. Ry. Co., 32 I. C. 705, 28 Sup. Ct. 493. 
 C. 490; In re advances Grain Rates 14. Howard Mills Co. v. Mis- 
 in C. F. A. territory, 28 I. C. C. souri P. Ry. Co., 12 I. C. C. 258. 
 549; In re advances Brooms to 15. In re Corn and Corn Prod- 
 Colorado, 28 I. C. C. 310; McClung ucts, 11 I. C. C. 212. 
 & Co. V. Southern Ry. Co., 23 I. C. 16. In ro Corn and Corn Prod- 
 C. 414; Electric Malting Co. v. ucts, 11 I. C. C. 220. 
 Atchison, T. & S. F. Ry. Co., 23 17. Stuarts Draft Milling Co. v. 
 I. C. C. 373; East St. Louis Cotton Southern Ry. Co., 31 I. C. C. 623.
 
 § '2-i)\ rxLAwiri, I*i{i:fkhknc'ks TO TitAKiic 407 
 
 we liavo not attomptod to lay down any fixed rule to 
 ^•overn in all eases l)nt have in some instanees approved 
 equal rates on flour and wheat, in others have upheld 
 uniform spreads and in others varying spreads. The 
 arguments made in the instant ease are also familiar, 
 sug^-estin.ii' the broad ]irin('ii)l(' "f the applieation of 
 higher rates on manufactured piodnds than on law 
 materials; llie fad that flour is general l>' rccognizod 
 to he moi-e valuable than wheat, that it does not load 
 so heavil_\, is subject to greater risk of loss and damage 
 in ti'ansit, and has a wider general distribution; the 
 nuiinteuance by carriers in some localities of like or 
 equal rates on all grain or grain products and the natur- 
 al advantage to the mill located where the grain is pro- 
 duced." 
 
 § 226. Differential between Carload and Less than 
 Carload Rates Lawful. A lower rate for a carload than 
 for less than a carload upon the same article even when 
 transported over the same line, in the same direction 
 and for the same distance does not constitute either 
 an unjust discrimination or an undue ])reference.'- 
 But the difference between the two iat<'s must be 
 reasonable and should ])e determined ])rimarily by 
 the carrier with due regard to the just interest of all.^^ 
 The diiference in the rates embodies the assumption that 
 the carload is the unit of shipment and rests ui)on the 
 difference which exists between the cost of service in the 
 case of a carload shipment by one consignor to one con- 
 
 18. Duncan v. Atchison, T. & S. the facts established by the testi- 
 F. R. Co., 6 I. C. C. 85; Thurber mony declared to be unreasonable. 
 V. New York Cent. & H. River R. That testimony was voluminou.s 
 Co., 3 I. C. C. 473, 2 I. C. R. 742. and related, among other things, 
 
 19. Business Men's League of to the average cost of handling 
 St. Louis V. Atchison, T. & S. F. and loading the freight in car- 
 R. Co., 9 L C. C. 318; Duncan v. loads and less than carloads, re- 
 Atchison, T. & S. F. R. Co., 6 L spectively, and of its transporta- 
 C. C. 85, in which the Commission tion. unloading and delivery; to 
 said: "The differences between the the relative earnings from carloads 
 rates for carloads and less than and less than carloads; to the re- 
 carloads on the grocery articles in lative number and tonnage of car- 
 question in that case were under loads and less than carloads; to
 
 408 Duties to Interstate Shippers. [§ 228 
 
 signee and that occasioned by a shipment in one car of 
 many packages by various consignors to various con- 
 signees. 
 
 The dissimilar conditions which exempt the appli- 
 cation of the statute are the increased cost of loading, 
 unloading, billing and collecting for several small ship- 
 ments in one car. "Reasons that are substantial," said 
 the Commission in another case,^° "exist for making the 
 rate lower per barrel in car load lots than in less than 
 car load quantities. The cost of service is very con- 
 siderably less in the case of shipments in car load lots 
 than in less than car load quantities. We have had oc- 
 casion to pass upon this frequently, but the evidence 
 here requires us to do so again. The shipment by the 
 car load goes direct to destination. It is loaded by the 
 shipper and is unloaded by the consignee. The freight 
 in it does not stop at the way stations to be handled in 
 parcels to different consignees along the line. Only one 
 bill of lading is made. It requires but one entry upon 
 the way bill. The time occupied in transporting it 
 to destination is far less than in the case of a shipment 
 in less than car load quantities. There is but one col- 
 lection of charges for freight. All of these reasons apply 
 with the same force whether the shi]:)ment be in a tank 
 or in barrel shipments in car load lots. 
 
 "Where the shipment is made in less than car load 
 quantities a separate receipt or bill of lading has to be 
 given to every shipper for his parcel. A separate entry 
 of every item has to be made on the way bill The 
 shipment is by a local freight train which stops at every 
 station for which there is a package of freight. The 
 freight has to be taken out in parcels and delivered at 
 
 the movement of empty cars over whether the difference in the cost 
 the lines of the carriers complain- of service and other conditions in- 
 ed against, and to the cost of cident to the two modes of ship- 
 many of the articles in question to j^jg^t jg go great as to justify a 
 the seaboard jobbers and the ^^^^ ^^^ j^^g ^^^^^ carloads more 
 profit arising from the business. ^^^^ ^.^j^^ ^^ ^^^^ ^g ^j^^^ on ear- 
 
 In the present cases there is no 
 
 loads. ' 
 
 20. I 
 
 caiioad" raVesT' 'it "is questionable S. R. Co., 2 I. C. C. 90, 2 I. C. R. 67. 
 
 xt. j-ec ^ loaas. ' 
 
 proof except as to the difference ^ , o, p tm 
 
 between the carload and less than 20. Scofield v. Lake Shore & M.
 
 § 227] Unlawful Preferences to Traffic. 409 
 
 oaoh of tliese stations. Tlie frei.i^lit is loadod and un- 
 loaded by the railroad coni])any. Tliere are as many 
 collections of cliarp^es for freiiciil as tliere are different 
 parcels. The time occupied in transporting it is usually 
 from two to three times as lon^' as in the case of a car 
 load shipment — according to distance. It occupies a 
 whole car, and for the vacant space in that car the com- 
 pany is receivino^ no compensation. There is also a con- 
 siderable element of dan.iicr attending- the handliiiij^ of 
 barrel oil in small lots which are unloaded b\- llic car- 
 rier and stand in the local station houses, whereas car 
 load lots are usually unloaded by the consi«2:nee at a 
 distance from the depot buildin<;- and immediately re- 
 moved from the premises of the railroad company. All 
 these facts show that a reasonable difference can and 
 should justly be made between shipments in car load 
 lots and less than car load (|uantities." 
 
 § 227. Relation Between Carload and Less Than 
 Carload Rates Must Not Be Excessive. Interstate car- 
 riers are required to establish a just relation between 
 carload and less than carload rates in accordance with 
 some consistent principle throughout the classsification 
 and the rate schedule which is constructed upon it. An 
 excessive difference between the carload and less than 
 carload rates on the same commodity results in an undue 
 preference to the carload shij^iier.-^ The respective 
 rates on carload and less than carloads must not be 
 relatively unreasonable." In Business Men's League 
 V. Atchison, T. & S F. Ry. Co., cited in the notes, the 
 Commission held that in the adjustment of carload and 
 less than carload rates from the middle west to the 
 Pacific Coast, a differential between the carload and 
 less than carload of fifty per cent of the carload rate 
 was prima jticic excessive. 
 
 21. In re Western Classifica- St. Louis v. Atchison. T. & S. F. 
 
 tion, 25 I. C. C. 442; Thurber v. Ry. Co., 9 I. C. C. 318: Duncan v. 
 
 New York Cent. & H. River R. Co., Atchison, T. & S. F. Ry. Co. 6 
 
 3 I. C. C. 473. I. C. C. 85. 
 
 22 Business Men's League of
 
 410 Duties to Interstate Shippers. [§ 228 
 
 § 228. Application of Carload Rates to Carload Lots 
 when Goods Belong to Several Owners. Ownership can- 
 not be a test as to the applicability of rates, for diver- 
 sity of ownership does not differentiate the service tlie 
 carrier gives. Unless there is a diiference in the con- 
 dition of carriage there can be no diiference iti charges 
 under Section 2. The carrier deals with the shipment 
 that is tendered, not with its ownersliip, or its ultimate 
 use. It deals with the shipper who tenders it, not with the 
 owner of the property or the last and most remote per- 
 son to whom it is distributed. 
 
 The provisions of the statute aimed at discrimina- 
 tions and preferences do not permit a carrier to deny 
 the use of a rate published by distinguishing between 
 those olTering shipments for transportation. When, 
 therefore, similar packages belonging to several owners 
 are bulked and offered for shipment in carload lots under 
 one bill of lading from a single consignor to a single 
 consignee, the carrier cannot legally charge a greater 
 sum for the transportation than if the packages all be- 
 longed to one person. ^^ The discrimination denounced 
 by the statute refers to the character of the article 
 shipped and the carriage, but not to the title of the 
 goods. The cost of carrying a "bulked shipment" is 
 not greater than when the same amount of freight is 
 carried at the instance of a single owner. 
 
 The conflict indicated in the note between the deci- 
 sions of the Interstate Commerce Commission and the 
 lower federal courts was settled in a decisive opinion 
 by the United States Supreme Court. ^* Chief Justice 
 White, speaking for the Court, said: "The contention 
 that a carrier when goods are tendered to him for trans- 
 portation can make the mere ownership of the goods 
 
 23. Export Shipping Co. v. merce Commission, 166 Fed. 499; 
 Wabash R. Co., 14 I. C. C. 437; Lundquist v. Grand Trunk West- 
 California Commercial Association ern Ry. Co., 121 Fed. 915. 
 V. Wells, Fargo & Co., 14 I. C. C. 24. Interstate Commerce Com- 
 422; Buckeye Buggy Co. v. Cleve- mission v. Delaware, L. & W. R. 
 land, C. C. & St. L. Ry. Co., 9 I. Co., 220 U. S. 235, 55 L. Ed. 448, 
 C. C. 620; Contra: Delaware, L. 31 Sup. Ct. 392. 
 & W. R. Co. V. Interstate Com- 
 
 1
 
 §228] Unlawkii. ruEKERENCES TO Traffic. 411 
 
 the test of tlio duly to oarry, or, what is e(|uivaleiit, 
 may discriminate in lixinj:: the cliarge for carriers, not 
 upon an\ diiference inhciin.i;- in the ^oods oi- in tlie cost 
 of the service I'endcrcd in transporting: them, l)ut upon 
 the mere circumstance that tlie shipper is or is not tlie 
 real owner of the p^oods is so in conflict witli the obvious 
 and elementary duty resting- upon a carrier, and so de- 
 structive of the rig-lits of shii)i)ers as to demonstrate the 
 unsoundness of the proposition by its mere statement. We 
 say tliis because it is impossil)]e to conceive of any ra- 
 tional theory by which such a right could be justified 
 consistently either with the duty of the carrier to trans- 
 port or of the rig-ht of a shipper to demand transporta- 
 tion. This must be, since nothing in the duties of a 
 common carrier by the remotest implication can be held 
 to imply the power to sit in judgment on the title of 
 the prospective shipper who has tendered goods for 
 transportation. In fact, the want of foundation for the 
 assertion of such a power is so obvious that in the 
 argument at l)ar its existence is not directly contended 
 for as an original proposition, but is deduced by im- 
 plication from the supposed effect of some of the pro- 
 visions of the second section of the act to regulate com- 
 merce. In substance, the contention is that as the section 
 forbids a carrier from 'charging a greater or less com- 
 ]iensation for any service rendered or to be rendered 
 in the transportation of persons or property, * * * 
 than it charges, demand, collects or receives from any 
 other person or persons for doing for him or them a like 
 and contemporaneous service in the transportation of a 
 like kind of traffic under substantially similar circum- 
 stances and conditions,' authority is to be implied for 
 basing a charge for transportation upon ownership or 
 non-ownership of the goods tendered for carriage, upon 
 the tlieory that such ownership or non-ownership is a 
 dissimilar circumstance and condition within the mean- 
 ing of the section. But this argument, in every con- 
 ceivable aspect, amounts only to saying that a provision 
 of the statute which was ])lainly intended to prevent 
 inequality and discrimination has resulted in bringing 
 about such conditions. Moreover, the unsoundness of
 
 412 Duties to Interstate Shippers. [^ 228 
 
 the coiiteiition is demonstrated by authority. It is not 
 open to question that the provisions of Section 2 of the 
 act to regulate commerce was substantially taken from 
 Section 90 of the English Railway Clauses Consolidation 
 Act of 1845, known as the Equality Clause. Texas & 
 Pac. Railway v. Interstate Com. Com., 162 U. S. 197, 
 222. Certain also is it that at the time of the passage 
 of the act to regulate commerce that clause in the Eng- 
 lish act had been construed as onl}" embracing circum- 
 stances concerning the carriage of the goods and not 
 the person of the sender, or, in other words, that the 
 clause did not allow carriers by railroad to make a 
 difference in rates because of differences in circumstances 
 arising either before the service of the carrier began 
 or after it was terminated. It was therefore settled in 
 England that the clause forbade the charging of a high- 
 er rate for the carriage of goods for an intercepting or 
 forwarding agent than for others. Great Western R. 
 Co. V. Sutton, 1869— L. R. 4 H. L. 226; Evershed v. 
 London & N. W. Ry. Co., 1878—3 App. Cas. 1029, and 
 Denaby Main Colliery Co. v. Manchester, etc., Ry. Co., 
 1885 — 11 App. Cas. 97. And it may not be doubted that 
 the settled meaning which was affixed to the English 
 Equality Clause at the time of the adoption of the act 
 to regulate commerce applies in construing the second 
 section of that act, certainly to the extent that its inter- 
 pretation is involved in the matter before us. Wight 
 V. United States, 167 U. S. 512; Interstate Commerce 
 Commission v. Alabama M. R. Co., 168 U. S. 144, 166." 
 
 § 229. Wheat and Coarse Grain Not "Like Traffic" 
 Requiring Same Rate. If inequality results from the ex- 
 action of a special late from one shipper and a different 
 rate from another, upon like traffic contemporaneously 
 transported under similar circumstances, the law is vio- 
 lated. However, it has been held, that wheat, on the 
 one hand, and rye, oats and other coarse grain, on the 
 other, do not constitute "like traffic" within the 
 meaning of the statute so that a different charge for 
 their contemi^oraneous transportation is not violative of 
 Section 2. A proportional rate, therefore, on wheat
 
 § 230] Unlawful Preferencks to Traffic. 413 
 
 from Minneapolis and Diiliitli, ]\Iinn., to Chicago is not 
 unjustly discriminatory because a higher rate obtains 
 on coarse grains between the same points." But the 
 Commission held that all-rail rate on wheat from Min- 
 neapolis to New York in excess of rates contempora- 
 neously a])plicable on flour between the same points sub- 
 jected a mill owner at Lockporl in Xew York to an undue 
 prejudice.-'' 
 
 § 230. Different Uses to which Commodity is Put, 
 No Justification For Different Rates. Inti^rstate (carriers 
 by railioad and all other coiinnon carriers subject to 
 federal control are ])rohibited from basing a rate for 
 trans])ortation u])on the consideration of the use to which 
 the conunodity is i)ut. Tariffs, therefore, which provide 
 for higher rates on the same commodity, when based 
 upon the different uses made of the commodity after 
 the transportation is completed, are illegal.'" P'or ex- 
 ample, higher rates on coke for foundries than for* 
 furnaces were condemned by the Commission.-* In 
 another case, it appeared that a carrier concurrently 
 maintained two rates upon nitrate of soda, one when for 
 use as a fertilizer and another without restriction as to 
 use. The practice of thus differentiating rates was con- 
 
 25. Board of Trade of Chicago Carter White Lead Co. v. Norfolk 
 V. Chicago & A. R. Co., 27 I. C. C. & W^ Ry., 21 I. C. C. 41; In e 
 530. Restricted Rates, 20 I. C. C. 426; 
 
 26. Federal Milling Co. v. Min- Anaconda Copper Min. Co. v. Chi- 
 neapolis, St. P. & S. S. M. Ry. Co., cago & E. R. R., 19 L C. C. 592. 21 
 27 L C. C. 696. 1. C. C. 41; Metropolitan Paving 
 
 27. In re advances paper from Crick Co. v. Ann Arbor R. R., 17 
 Manitowoc, etc., 28 I. C. C. 305; I. c. C. 197; Sligo Iron Store Co. 
 Wisconsin Steel Co. v. Pittsburgh v. Atchison, T. & S. F. Ry., 17 I. 
 & L. E. R. R.. 27 I. C. C. 152; Coke c. C. 139; Douglas & Co. v. Chi- 
 Producers' Ass'n of Connellsville cago, R. I. & P. Ry., 16 I. C. C. 
 region v. Baltimore & 0. R. R., 27 232; Stowe-Fuller Co. v. Pennsyl- 
 I. C. C. 125; Arkansas Fertilizer ^^^.^ ^^ ^^ I. C. C. 215: Capital 
 Co. V. St. Louis, I. M & S. Ry ^.^^, ^^^ ^^ ^ ^^^^^^^ ^, ^^ 
 25 I. C. C. 645; St. Louis Blast j q n 104 
 
 Furnace Co v. Louisville & N. R. 
 
 R 25 I C C. 545; Virginia- 28. Coke Producers' Ass'n of 
 
 Carolina Chemical Co. v. Atlantic Connellsville Region v. Baltimore 
 
 Coast Line R. R., 22 T. C. C. 394; & 0. R. R., 27 I. C. C. 125.
 
 41-4 Duties to Interstat?: Shippers. [§ 230 
 
 demnod.-'-' But a different rate on ^'smithing" coal than 
 on ordinary bitmninons coal, is proper as there is a real 
 difference in the value of the commodities trans- 
 ported.^" 
 
 § 231. Justifiable Discrimination Between Ship- 
 ments of Oil in Barrels and in Tank Cars. When a com- 
 mon carrier transi)orted oil in barrels and also in tank 
 cars and the use of the tank cars was limited to a cer- 
 tain class of shippers, the Commission held, in an early 
 case,''^ that a charge for the barrel package in barrel 
 shipments and a failure to charge likewise for the tank 
 shipments, resulting in increasing the cost of transport- 
 ing oil by barrels, on like quantities of oil, was an un- 
 just discrimination. But the United States Supreme 
 Court, on appeal in the same case, held that there was 
 no preference or discrimination in charging a higher 
 rate for the barrel shipments than for shipments in tank 
 cars. It appeared, however, in this case that the ship- 
 pers had made no demand for tank cars and could not 
 have used them in any event on account of not having 
 facilities for unloading the oil at destination points.^^ 
 
 § 232. Relationship of Rates on Lumber and Lum- 
 ber Products Must be Free From Discrimination. When 
 the same rate is applied to lumber and lumber products 
 in one territory, carriers are guilty of unjust discrimina- 
 tion in maintaining and charging a differential in the 
 rates on these respective classes of traffic in another ter- 
 ritory unless the difference in treatment of the same prod- 
 ucts in different territories is clearly established. In 
 other words, carriers should effect uniformity in treat- 
 ment in the classification of lumber and lumber prod- 
 
 29. Fort Smith Traffic Bureau v. 31. Independent Refiners' Ass'n 
 St. Louis & S. F. R. R., 13 I. C. C. v Western New York & P. R. Co., 
 6.51. 4 I. C. R. 162, .5 I. C. C. 416. 
 
 30. Sligo Iron Store Co. v. Union 32. Penn Refining Co. v. Wes- 
 P. R. R., 19 I. C. C. 527; Sligo tern New forlt & P. R. Co., 208 U. 
 Iron Store Co. v. Atchison, T. & S. 208, 52 L. Ed. 456, 28 Sup. Ct. 
 S. F. Ry., 17 I. C. C. 139. 268.
 
 § 233] IIni^wful Preferences to Traffic. 415 
 
 ucts tlirou<i:lioiit llie country.'' Tii Hie case cited, com- 
 plainants, manufacturers of sasli and doors, located in 
 Wisconsin, Iowa and Illinois, contended that the rehi- 
 tion of sash and door rates to lumber rates should Ix' 
 the same ui)on the movements of either i)roducts to 
 points in central freight association and trunk line ter- 
 ritories as the relationship of such rates from the mills 
 of their comi)etitors on the Pacific Coast, and that tlie 
 lack of uniformity in the relationship caused unlawful 
 discrimination and preference. It appeared that the 
 comi)lainants paid rates on their products which were 
 liiglier that the rate on lumber, while the Pacific Coast 
 manufacturers paid rates on their products which were 
 the same as the rates on lumber. The Commission held 
 that the charge of unjust discrimination in so far as the 
 discrimination arose from the unequal treatment of lum- 
 ber and lumber products, especially sash and doors, in 
 the competing territories, had been established. 
 
 § 233. Differentials Between Similar Commodities 
 Justified by Different Conditions and Circumstances Af- 
 fecting Transportation — Lumber and Logs. A differ- 
 ential between similar commodities is often justifiable 
 because of the different circumstances and conditions 
 affecting the transi)ortation of the commodities. For 
 example, the Commission found that a higher rate on 
 poles and piling than on lumber, from Portland, Or., 
 to San P'rancisco, was not discriminatory.-'' Such higher 
 rates were upheld because it appeared that poles and 
 piling could only be loaded on one kind of equi]mient, 
 fiat cars; that such a condition necessitated a large 
 north-bound movement of empty cars whereas lumber 
 could be loaded on ])ractically every kind of a car; that 
 lumber loads were heavier than piling and that because 
 of heavy grades and sharp curves, loads of poles and 
 piling shift and recpiire readjustment, thereby causing 
 
 33. Anson, Gilkey & Hurd Co. v. in which the Commission reversed 
 Southern P. Co., 33 I. C. C. 332. its former opinion reported in 22 
 
 34. California Pole & Piling Co. I. C. C. 507. 
 V. Southern P. Co., 27 ^ C. C. 6G9,
 
 416 Duties to Interstate Shippers. [§ 233 
 
 additional expense for inspection and labor wliicli did 
 not obtain to the same extent upon cars of lumber. 
 
 § 234. Lower Rates on Returned Shipments Illegal 
 Except When Refused by Consignees. Under the ac- 
 cepted interpretation of Section 2 of the Interstate Com- 
 merce Act, a carrier subject to federal control, is for- 
 bidden to make a difference in charge for services rend- 
 ered contemporaneously and under like conditions of car- 
 riage. The transportation, for instance, of a consign- 
 ment of goods from St. Louis to Chicago does not differ 
 in any respect from the transportation of another lot of 
 similar freight between the same points simply because 
 the latter consignment had been previously shipi)ed 
 from Chicago to St. Louis. The circumstances and con- 
 ditions attending the two shipments are identical. Hence, 
 there can ordinarily be no justification for a lower rate 
 on return shipments; for the fact that freight has been 
 shipped once and paid one rate, should not be taken 
 into consideration in fixing charges for a distinct and 
 subsequent transaction or shipment of the same freight, 
 whether the transportation be backward or forward.^' 
 The Commission has, therefore, repeatedly condemned 
 lower rates on return shipments as being discriminatory 
 except in cases where the freight has been refused by 
 the consignee. In the latter case, the return movement 
 is essentially a continuation of the going movement and 
 may therefore be accorded lower than standard rates. 
 A provision in the tariffs that goods shipped in closed 
 packages may enjoy return- shipment rates if tendered 
 to the carrier by the consignees within ten days, has 
 been approved. The Commission considered this pro- 
 vision a slight departure from the legal theory involved, 
 
 35. Alabama & V. Ry. Co. v. Miss- Farmers' Elevator Co. v. Chicago 
 
 issippi R. R. Commission, 203 U. G. W. Ry. Co., 10 I. C. C. 650; 
 
 S. 496, 51 L. Ed. 289, 27 Sup. Ct. James & Abbott v. East Tennessee, 
 
 163; Bigbee & Warrior Rivers V. & G. Ry. Co., 3 I. C. C. 225, 
 
 Packet Co. v. Mobile & O. R. Co., 2 I. C. R. 604. 
 60 Fed. 545; Cannon Falls
 
 § 234] Unl.v\v1''ul Phkfehences to Traffic. 417 
 
 but deemed it essential so tliat the rule applying lower 
 rates on refused consignments, might be workable in 
 practice. ^° 
 
 36. Red River Oil Co. v. Texas & N. W. Ry., 23 I. C. C. 432; In re 
 & P. Ry. Co., 23 I. C. C. 438; Min- Returned SliiiJinents. 19 I. C. S. 
 neapolis Traffic Ass'n v. Chicago 409. 
 
 1 Coutr.il I'lirritTs L*7
 
 CHAPTER XII 
 
 Unjust Discrimination and Unlawful Peefeeence in 
 Passengee Service 
 
 Sec. 235. Federal Statute Includes Passenger as Well as Freight Trans- 
 portation. 
 
 Sec. 236. Carrying Personal Baggage of Passengers Free Not Undue 
 Discrimination. 
 
 Sec. 237. Collection of Additional Fare on Trains From Passengers 
 Without Tickets not Unlawful. 
 
 Sec. 238. Discrimination Between White and Colored Passengers Un- 
 lawful. 
 
 Sec. 239. Lower Rates to Settlers Unlawful. 
 
 Sec. 240. Control of Commission over Preference in Mileage, Excur- 
 sion and Commutation Passenger Tickets. 
 
 Sec. 241. Legality of Sale of Tickets for Number of Persons at Less 
 Rate Than for a Single Passenger — Party Rate Case. 
 
 Sec. 242. But Party Rate Tickets Cannot be Limited to Particular 
 Classes of Persons. 
 
 Sec. 243. Distinction Between Wholesale Rates in Passenger and 
 Freight Traffic. 
 
 Sec. 244. Regulations Governing Commutation Tickets Must Not be 
 Discriminative Between Classes of Persons. 
 
 Sec. 245. Discrimination in Trans-Continental Passenger Fares as Af- 
 fecting Intermediate Localities. 
 
 § 235. Federal Statute Includes Passenger as Well 
 as Freight Transportation. The words of the Act ' ' any 
 common carrier or carriers engaged in the transportation 
 of passengers or property wholly by railroad," etc., 
 clearly indicate that a common carrier engaged in the 
 interstate transportation of either and not necessarily of 
 both, is subject thereto.^ The statute prohibiting unjust 
 discriminations and undue preferences, therefore, applies 
 to the tansportation of passengers in interstate com- 
 merce as well as to freight traffic.^ 
 
 1. Louisville & N. R. Co. v. Mot- way & Bridge Co., 17 I. C. C. 239; 
 
 tley, 219 U. S. 467, 55 L. Ed. 297, Ligon v. St. Louis & S. F. R. Co., 
 
 31 Sup. Ct. 265, 34 L. R. A. (N. S.) 184 Mo. App. 187, 168 S. W. 647. 
 671; Omaha & C. B. St. Ry. Co. v. 2. Interstate Commerce Com- 
 
 Interstate Commerce Commission, mission v. Baltimore & O. R. Co., 
 
 191 Fed. 40; West End Improve- 145 U. S. 263, 36 L. Ed. 699, 12 
 
 ment Club v. Omaha & C. B. Rail- Sup. Ct. 844; Interstate Commerce 
 
 (418)
 
 § 2'M \ DiscKiMiNA'iioN I.N Passkn(jer Skrvice. 419 
 
 § 236. Carrying Personal Baggage of Passengers 
 Free Not Undue Discrimination, 'l^ic lnt<'rsta1i' Com 
 .merce Act does not I'oihid all disci-iininations, but only 
 tlioso wliicli ai"o undue. Such discrimination tlicicforc 
 as may be involved in the carrying of ])ersonal ba,Lr^^a<i:(' 
 of a passenger without extra cliarge is not undue and 
 the i)ractice is therefore lawful.'' In the case cited, it 
 appeared that the complainant was a manufacturer who 
 sent out traveling salesmen carrying sample trunks 
 weighing about 1250 ])ounds. The railroad company 
 treated these trunks as baggage, deducted 150 pounds 
 and collected an excess charge for the balance. It was 
 contended that it was illegal for the carrier to accord 
 free transportation for any amount of baggage for the 
 reason that if the carrier charged for all baggage trans- 
 ported, the rates on excess baggage could thereby be 
 reduced, but the Commission held that there was noth- 
 ing illegal in the free transi)()rtation of a certain amount 
 of personal baggage. 
 
 § 237. Collection of Additional Fare on Trains 
 From Passengers Without Tickets not Unlawful. In 
 the absence of a prohibiting statute, a carrier nuiy law- 
 fully prescribe and enforce a rule requiring passengers 
 who have the opportunity aiul who neglect to purchase 
 tickets at stations before embarking on trains, to pay 
 additional fare on the trains if proper conveniences and 
 facilities are furnished them for procuring tickets.* A 
 regulation, therefore, in a i»assenger tariff re(|uiring con- 
 
 Commissioa v. Baltimore & O. R. 4. Georgia. Phillips v. South- 
 Co., 43 Fed. 37; In re Regulation em Ry. Co., 114 Ga. 284, 40 S. E. 
 Governing Sale of Commutation 268; Coyle v. Southern Ry. Co.. 
 Tickets, 17 I. C. C. 144; Hewins v. 112 Ga. 121, 37 S. E. 163; Central 
 New York, N. H. & H. R. Co., 10 Railroad & Banking Co. v. Strick- 
 I C. C. 221; Cist v. Michigan Cent. land. 90 Ga. 562, IG S. E. 352; 
 R. Co., 10 I. C. C. 217; Elvey v. Georgia Southern & F. R. Co. v. 
 ininois Cent. R. Co.. 2 I. C. R. 804, Asmore, 88 Ga. 529, 16 L. R. A. 
 3 I. C. C. 652; Heard v. Georgia 53, 15 S. E. 13. 
 R. Co., 1 I. C. R. 719, 1 I. C. C. Indiana. Sage v. Evansville & T. 
 428. H. R. Co., 134 Ind. 100. 33 N. E. 
 3. Herbeck-Demer Co. v. Baltl- 771 ; Lake Erie & W. R. Co. v. 
 more & 0. R. Co., 17 I. C. C. 88. :\iays, 4 Ind. App. 413, 30 N. E. 
 
 1106.
 
 420 Duties to Interstate Shippers. [§ 237 
 
 ductors to collect fares on trains from passengers with- 
 out tickets by adding twenty-five cents to single trip 
 rates, was held to be non-discriminatory as to a pass- 
 enger who was compelled to pay.'' 
 
 § 238. Discrimination Between White and Colored 
 Passengers Unlawful. The right of a carrier to segre- 
 gate white and colored passengers has been established 
 by the controlling decisions of the United States Su- 
 preme Court." The separation, therefore, of white and 
 colored passengers paying the same fare is not unlawful 
 if cars and accommodations equal in all respects are 
 furnished to both and the same care and protection of 
 passengers is observed.^ If a railroad company provides 
 certain facilities and accommodations for the first-class 
 passengers of the white race, like accommodations must 
 be jDrovided for colored passengers of the same class.^ 
 
 § 239. Lower Rates to Settlers Unlawful. In the 
 
 transportation of passengers' carriers are performing a 
 public duty and are subject to the rules of law which 
 require absolute impartiality to all, when the circum- 
 stances and conditions are substantially the same. The 
 fact that their own interests may be joromoted to some 
 
 Maine. State v. Goold, 53 Maine, 6. McCabe v. Atchison, T. & S. 
 
 279. F. R. Co., 235 U. S. 151, 59 L. Ed. 
 
 Missouri, Cross v. Kansas City, 169, 35 Sup. Ct. 69; Chesapeake & 
 
 Ft. S. & M. Ry. Co., 56 Mo. App. O. R. Co. v. Com., 179 U. S. 388, 
 
 664. 45 L. Ed. 244; 21 Sup. Ct. 101; 
 
 Mississippi. Rivers v. Kansas Plessy v. Ferguson, 163 U. S. 537, 
 
 City, M. & B. R. Co., 8C Miss. 571, 41 L. Ed. 256, 16 Sup. Ct. 1138; 
 
 38 So. 508. Louisville, N. O. & T. Ry. Co. v. 
 
 North CaroUna. Ammons v. State, 133 U. S. 587, 33 L. Ed. 784, 
 
 Southern R. Co.. 138 N. C. 555, 3 10 Sup. Ct. 348: Hall v. De Cuir, 
 
 Ann. Cas. 886, 51 S. E. 127, 140 95 U. S. 485, 24 L. Ed. 547. 
 N. C. 196. 52 S. E. 731. 7. Gaines v. Seaboard Air Line 
 
 Texas. Mills v. Missouri. K. & T. Ry. Co., 16 I. C. C. 491; Cozart v. 
 
 Ry. Co. of Texas, 94 Tex. 242, 55 Southern Ry. Co., 16 I. C. C. 236; 
 
 L. R. A. 497, 59 S. W. 874. Heard v. Georgia R. Co., 1 I. C. C. 
 
 Vermont. Stephen v. Smith, 29 428, 1 I. C. R. 719. 
 Vt 160. 8. Edwards v. Nashville, C & 
 
 5. Sidman v. Ricbmond & D. R. St. L. Ry. Co., 12 I. C. C. 247. 
 Co.. 2 I. C. R. 766. 3 I. C. C. 512.
 
 § 240] Discrimination in Passenger Service. 4:il 
 
 exl(;nt ])y swerving- from this rule cannot Ix- regarded 
 as suflicient to \Yarraiit a dc'i)artuie fioiii tlic obvious 
 language of the state. In enforcing this piinciphi, tlie 
 Interstate Commerce Commission lield tliat a carrier 
 liad no right to sell tickets to prospective settlers near 
 its lines at rates lower than tickets were sold to the 
 general pul)lic between the same points."' But in another 
 case, the Commission held that there was nothing il- 
 legal in the action of a railroad company in granting 
 lower rates to immigrants riding in immigrant cars and 
 declining to give the same rates to other ])assengers for 
 whom dii'ferent cars and trains were furnished.'" Said 
 the Commission: 
 
 "In the case ])efore us we have a class of persons 
 readily distinguishable from the general i)ublic and so 
 far constituting a special class that up to the time when 
 they are received u])()n the cars they are subject to ex- 
 ceptional regulations for reasons which, being accepted 
 as a basis of legislation, must be deemed sufficient. This 
 special class of persons are given accomodations es- 
 sentially different to those provided for others, in cars 
 specially set apart for their use, and which are commonly 
 made up into trains by themselves and returned to the 
 seaboard empty. The service is thus seen to be special, 
 and the rates charged correspond to it. We cannot say 
 that under such circumstances the classing them by 
 themselves on the rate sheets is either illegal or wrong- 
 ful." 
 
 § 240. Control of Commission over Preference in 
 Mileage, Excursion and Commutation Passenger Tickets. 
 While Section 22 of the Interstate Commerce Act pro- 
 vides that nothing in the statute shall ])revent the is- 
 suance of mileage, excursion or commutation passenger 
 tickets, the Commission has nevertheless control over 
 such fares. If any element of discrimination is involved 
 in the construction of commutation fares or any pref- 
 
 9. Smith V. Northern P. Ry. Co., Cent. & H. River R. Co.. 2 I. C. C. 
 1 I. C. C. 208. 338, 2 I. C. R. 210. 
 
 10. Savery & Co. v. New York
 
 422 Duties to Interstate SHiprERS. [§ 240 
 
 orences result from them as between individuals or lo- 
 calities, the Commission has the power to intervene to 
 redress the wrong." For example, the issuance of 1,000 
 mile tickets to commercial travelers at Twenty Dollars 
 while at the same time the public was required to pay 
 Twenty-five Dollars was held to be an unjust discrim- 
 ination, as commercial travelers were not a privileged 
 class, and a rate reasonable for them was also reasonable 
 for others to pay/'' But where railroad companies volun- 
 tarily established special excursion rates from points in 
 California to the national convention of two political 
 parties in Minneapolis and Chicago not limited to the 
 delegates but open to the general public, it was hold 
 that the same carriers were not guilty of undue prefer- 
 ence in withholding open excursion rates to Omalia 
 where a convention of a third national party was held 
 a mouth later.^^ 
 
 § 241. Legality of Sale of Tickets for Number of 
 Persons at Less Rate Than for a Single Passenger — 
 Party Rate Case. An unjust discrimination within the 
 meaning of the statute is practiced when the carrier 
 charges or receives directly from one person a greater 
 or less compensation than from another, or accomplishes 
 the same thing indirectly by means of a special rate, 
 rebate or other device; but, in either case, it must be for 
 a like and contemporaneous service in the transporta- 
 tion of a like kind of traffic under substantially same 
 circumstances and conditions. 
 
 In one of the early complaints before the Commis- 
 sion, it developed that the Baltimore and Ohio Railroad 
 Company sold "party rate tickets" whereby parties of 
 ten or more persons traveling together on one ticket 
 were transported over its lines at two cents per mile per 
 capita when single passengers traveling over its road 
 for the same distance, were required to pay three cents 
 
 11. In re Commutation Rate of St. Louis v. Missouri P. Ry. 
 Case, 21 I. C. C. 428. Co., 1 I. C. C. 156, 1 I. C. R. 393. 
 
 12. Larrison v. Chicago & G. T. 13. Cator v. Southern P. Co., 
 Ry. Co., 1 I. C. C. 147, 1 I. C. R. 6 I. C. C. 113, 4 I. C. R. 497. 
 369. See also Associated Grocers
 
 § 241 I DisciMMixATiox IN Passenger Service. 42.'] 
 
 per mile, '^riic railroad eoiiiitany, before the Commission, 
 contended that it was lawful to make a charge per cai>ita 
 for ])ersons traveling on party rate tickets lower than 
 the charge for a single passenger making one trip be- 
 tween the same points because the character, circum- 
 stances and conditions of the service were substantially 
 different, and the making of such a lower charge for 
 parties of ten or more subjected no person to any undue 
 or uiireas()iial)le preference or advantage. The evidence 
 disclosed that the party rate tickets were used princii)al- 
 ly by theatrical companies but the carrier offered the 
 same rates on the same terms to the public at large. The' 
 Commission, however, held that the sale of party tickets 
 for rates lower than contemporaneous rates for single 
 passengers was illegal.^* But on an appeal from the order 
 of the Commission, the Circuit Court and the national 
 Supreme Court decided that the practice did not con- 
 stitute an illegal discrimination or an' undue preference 
 for the reason that there was not a substantial identity 
 of circumstances and of services accompanied by a par- 
 tiality resulting in an undue advantage to one or an un- 
 due prejudice to the other.^^ "These tickets then being 
 within the connuutation principle of allowing reduced 
 rates in consideration of increased mileage," said the 
 Court, "the real question is, whether this operates as 
 an undue or unreasonable preference or advantage to 
 this particular description of traffic, or an unjust dis- 
 crimination against others. If, for example, a railway 
 
 14. Pittsburg, C. & St. L. Ry. circumstances and conditions. In 
 V. Baltimore & O. R. R., 3 I. C. C. respect to passenger traffic, the 
 465, 2 I. C. R. 729. positions of the respective persons, 
 
 15. Interstate Commerce Com- or classes, between whom differ- 
 mission v. I altimore & 0. R. Co. ences in charges are made, must 
 145 U. S. 263, 3G L. Ed. 699, 12 compared with each other, and 
 Sup. Ct. 844; Interstate Commerce ti^g^e must be found to exist sub- 
 Co., 43 Fed. 37, in which Judge „,„„,. , . , ... « -^ .. , . 
 
 . ; ..r^ .., • XI- stantial identity of situation and of 
 Jackson said: To come within the . , , . 
 . ,.,... o ., i- ,1, J,, service accompanied bv irregular- 
 inhibition of said sections, the dii- " 
 
 ferences must be made under like *t>' ^"d Partially resulting in un- 
 
 conditions; that is, there must bo ^"6 advantage to one. or undue 
 
 contemporaneous service in the disadvantage to the other, in order 
 
 transportation of like kinds of to constitute unjust discrimlna- 
 
 traffic under substantially the same tion."
 
 424 Duties to Interstate Shippers. [§ 241 
 
 makes to the ]niblic g'enerally a certain rate of freight, 
 and to a pai'tienhir individual residing in tlie same town 
 a reduced rate for the same class of goods, this may 
 operate as an undue preference, since it enables the 
 favored party to sell his goods at a lower price than 
 his competitors, and may even enable him to obtain 
 a complete monopoly of that business. Even if the same 
 reduced rate be allowed to every one doing the same 
 amount of business, such discrimination may, if carried 
 too far, operate unjustly upon the smaller dealers en- 
 gaged in the same Inisiness, and enable the larger ones 
 to drive them out of the market. The same result, how- 
 ever, does not follow from the sale of a ticket for a 
 number of passengers at a less rate than for a single 
 i:)assenger; it does not operate to the prejudice of the 
 single passenger, who cannot be said to be injured by 
 the fact that another is able in a particular instance 
 to travel at a lesst rate than he. If it operates injurious- 
 ly toward any one it is the rival road, which has not 
 adopted corresponding rates; but, as before observed, 
 it was not the design of the act to stifle competition, nor 
 is there any legal injustice in one person procuring a 
 particular service cheaper than another. If it be law- 
 ful to issue these tickets, then the Pittsburg, Chicago 
 and St. Louis Railway Company has the same right to 
 issue them that the defendant has, and may compete 
 with it for the same traffic; but it is unsound to argue 
 that it is unlawful to issue them because it has not seen 
 fit to do so. Certainly its construction of the law is not 
 binding upon this court. The evidence shows that the 
 same amout of business done by means of these party- 
 rate tickets is very large; that theatrical and operatic 
 companies base their calculation of profits to a certain 
 extent upon the reduced rates allowed by railroads; and 
 that the attendance at conventions, political and religi- 
 ous, social and scientific, is, in a great measure, determ- 
 ined by the ability of the delegates to go and come at 
 a reduced charge. If these tickets were withdrawn, the 
 defendant road would lose a large amount of travel, 
 and the single-trip passenger would gain absolutely noth- 
 ing. If a case were presented upon the ground that it
 
 *^ '24'A\ DiscitiMixATioN IN ] ^^ssK^;(;J•;K Skhvice. 425 
 
 was not intended for tlie use of tlie ^^eneial piihlic, l)ut 
 solely for tlieairical li'oiijx's, tJK're would be much ^n'cater 
 reason for holding- lliat the latter were favored with an 
 undue i)reference or advantage.'"" 
 
 § 242. But Party Rate Tickets Cannot be Limited 
 to Particular Classes of Persons. After the decision of 
 the United States Sui)renie Court holding- that the sale 
 of i)arty rate tickets did not constitute a discrimination 
 in violation of the statute, many railroads filed tariffs 
 limiting- the ])arty rates to ])articular classes of persons 
 such as theatrical, concert, baseball and other like organ- 
 izations traveling- together on one i)arty ticket for the 
 l)urpose of giving public entertainments. Such a limita- 
 tion on the issuance of party tickets was held to be an 
 unjust discrimination under the statute; for there can be 
 no dissimilarity or justification in charging more in 
 transporting a i)arty of ten persons l)e]onging to an 
 amusement company than for transporting the same 
 number of persons of any occupation when carried in 
 the same car, at the same time and between the same 
 points.^' In another case a carrier permitting the use 
 of party rate tickets to amusement companies was found 
 guilty of unjust discrimination when it refused to trans- 
 port a party of detectives under the same arrange- 
 ments.^® 
 
 § 243. Distinction Between Wholesale Rates in 
 Passenger and Freight Traffic. The United States Su- 
 preme Court in the Party Rate case very carefully 
 pointed out the distinction between wholesale rates in' 
 passenger tickets and in freight. Discriminations based 
 solely on the amount of freight shipped by two shi]>i->ers 
 under similar conditions are illegal; for it would enable 
 the large and favored shipper to sell his goods at a low^- 
 er ])rice than his competitor and thus enable him to ob- 
 
 16. Koch Secret Service v. 17. In re Party Rate Tickets. 
 
 Louisville & N. R. R., U I. C. C. 12 I. C. C. 95. 
 
 523; Field v. Southern Ry.. 13 I. 18. Koch Secret Service v. 
 
 C- C. 298. Louisville & N. R. Co., 13 L C. C. 
 
 523.
 
 426 Duties to Interstate Shippers. [§ 243 
 
 tain a comparative monopoly.^^ That one man is a large 
 shipper, and another a small one, will not justify the 
 carrier in making a difference in freight rates if the 
 commodity is of a like kind and is shipped nnder sim- 
 ilar circnmstances."'* 
 
 The fluctuating views of the courts on this question 
 disappeared to a large degree after the strong and force- 
 ful opinion of the Commission in Providence Coal Co. 
 V. Providence & W. R. Co.,^' in which Commissioner 
 Cooley said: "But when a question of rebates or dis- 
 counts is under consideration, it might be misleading 
 to consider them in the light of the principles which 
 merchants act upon in the case of wholesale and retail 
 transactions. There is a very manifest difficulty in 
 applying those principles to the conveniences which com- 
 mon carriers furnish to the public, a difficulty which 
 springs from the nature of the duty which such carriers 
 owe to the public. That duty is one of entire partiality 
 of service. The merchant is under no corresponding 
 duty, and may make his rules to suit his own interest, 
 and discriminate as he pleases. There is no occasion 
 to enlarge upon this now. A discrimination such as 
 the offer and its acceptance by one or more dealers 
 would create, must have a necessary tendency to des- 
 troy the business of small dealers. Under the evidence 
 in the case it appears almost certain that this destruc- 
 tion must result, the margin for profit on wholesale 
 dealings in coal being very small. The discrimination 
 is therefore necessarily unjust within the meaning of 
 the law. It cannot be supported by the circumstance 
 that the offer is open to all; for although made to all, 
 it is not possible that all should accept. Moreover, in 
 testing such a discrimination we must consider the 
 principle by which it must be supported; and the princi- 
 ple which would support a 30,000 ton limitation would 
 
 19. Rickards v. Atlantic Coast field v. Lake Shore & M. S. Ry., 2 
 
 Line R. Co., 23 L C. C. 239; Ana- L C. C. 90, 2 L C. R. 67. 
 
 conda Copper Min. Co. v. Chicago 20. United States v. Tozer, 39 
 
 & E. R. R., 19 I. C. C. 592; Car- Fed. 369; Kinsley v. Buffalo, N. 
 
 stens Packing Co. v. Oregon Short Y. & P. R. Co., 37 Fed. 181. 
 
 Line R. Co., 17 I. C. C. 324; Sco- 21. 1 I. C. C. 107, 1 I. C. R. 363.
 
 § 24o| J)is<Kj.MixVATiON IN Passenger Service. 427 
 
 support one of 50,000 or 100,000 eciually well; the quan- 
 tity named would be arbitrary in any case. It mi^lit 
 easily be so high as practicably to be open to the largest 
 dealer only. A railroad company, if allowed to do so, 
 might in this way hand /)ver the whole trade on its road 
 in some necessary article of commerce to a single deal- 
 er; for it might at will make the discount o(|ual to or 
 greater than the ordinary ])rofit in the trade; and com- 
 petition by those who could not get the discount would 
 obviously be taken out of the question. So extreme a 
 case would not, however, be needful to show the in- 
 admissibility of such a discount as is here offered; the 
 injustice would be equally manifest if several dealers 
 instead of one were able to accept the oifer. A railroad 
 company has no right, by any discrimination not ground- 
 ed in reason, to put any single dealer, whether a large 
 dealer or a small dealer, to any such destructive disad- 
 vantage. In what is said about this we do not mean to be 
 understood as intimating that the defendant is not saved 
 something in cost and in labor by having the coal car- 
 ried by it received in large quantities by single consign- 
 ees. On the contrary, we readily agree that its service 
 for large dealers is somewhat less in proportion to quan- 
 tity of freight transported than is the like service per- 
 formed for small dealers. We also agree that defendant 
 may therefore seem to have an interest in restricting 
 its dealings so far as possible to large dealers. But 
 this is an interest that can only be consulted and acted 
 u])on in strict subordination to the rules of law; and one 
 of the most important of those rules is that in any dis- 
 crimination between dealers justice, if not a paramount 
 consideration, shall at least be kept in view. The car- 
 rier cannot regard its own interests exclusively — if it 
 could, it might at pleasure, by methods easily available, 
 drive all small dealers off its line, and center the whole 
 trade in a few hands. The state of things that would 
 result might be altogether for its interest and conven- 
 ience, since it would then have fewer customers to deal 
 with and fewer transactions for the same aggregate 
 trade; but the wrong would be flagrant. The case sug- 
 gested is more extreme than the one before us, but the
 
 428 Duties to Interstate Shippers. [^ 243 
 
 wrong is sufficiently palpable here. And without fur- 
 ther comment on tliis branch of the case it will be suf- 
 ficient to repeat that when the defendant makes an offer 
 of discount or rebate based on the 30,000 ton limit, the 
 limitation is unreasonable and unlawful, because neces- 
 sarily resulting in unjust discrimination. There is noth- 
 ing in the showing in this case to justify the fixing of 
 a limitation as the ground of rebate at any specified 
 quantity; and therefore if the discount is paid to one 
 dealer, the payment will be evidence of the right of all 
 other dealers to a like and proportionate discount." 
 
 § 244. Regulations Governing Commutation Tickets 
 Must Not be Discriminative Between Classes of Persons. 
 Carriers subject to the statute have no right to fix dif- 
 ferent rates for the transportation of persons over the 
 same line, between the same points under substantially 
 similar circumstances and conditions. An arrangement, 
 therefore, by which a railroad company oifers monthly 
 commutation tickets to pupils who attend schools of a 
 certain kind or class and specifically excludes pupils 
 attending various other kinds of schools from the ben- 
 efit thereof, is unjustly discriminatory. 
 
 But carriers may lawfully offer and sell commuta- 
 tion tickets to all children or young persons between 
 certain stated ages. Such a regulation will provide de- 
 sired rates for school pupils and will not exclude other 
 children traveling under substantially similar conditions 
 for the purpose of securing other lines of instruction, 
 or on other missions. It will also protect against the 
 use of such tickets by adults. A railroad company has 
 no right to inquire into the mission, errand or business 
 of a passenger as a condition for fixing the transporta- 
 tion rate which such passenger shall pay.^^ 
 
 § 245. Discrimination in Trans-Continental Pass- 
 enger Fares as Affecting Intermediate Localities. Pass- 
 enger fare adjustments ova^r different routes between im- 
 portant cities and localities may not only operate to 
 
 22. In re Regulations Govern- ing Sale of Commutation Tickets 
 
 to School Children, 17 I. C. C. 144.
 
 § 245] Discrimination in Passenger Service. 429 
 
 the prejudice of passengers but may also unduly i)re- 
 judice intermediate communities and localities between 
 the two points when libeial stop-over privileges are 
 accorded. Thus, in Public Service Commission of Wash- 
 ington and others vs the Trans-Continental Carriers," 
 it appeared in evidence that there were three different 
 routes between Chicago, 111. and San Francisco, the 
 northern through Seattle and Portland, the central 
 through Ogdeu and the southern through El Paso and 
 New Orleans. The all-year excursion fare on the south- 
 ern route was $110 for the round tri]) and over the 
 northern route, $128 for the round trip. 
 
 A similar differential between the two routes was 
 found to exist in summer tourist excursion fares. The 
 complainants, representing cities and communities in 
 the states of Oregon and Washington, urged that the 
 higher fares on the northern route operated to the un- 
 due prejudice and disadvantage of localities served by 
 the northern carriers in Washington and Oregon, and 
 that the lower fares available to travelers on the central 
 and southern routes gave an undue preference and ad- 
 vantage to localities served by the carriers participating 
 in those routes. Upon a consideration of all the facts, 
 the Commission held that both the all-year excursion 
 passenger fare and the summer tourist excursion fares 
 from Chicago to San Francisco applicable in either 
 direction by way of Seattle, Wash., or Portland, Or., 
 to the extent that they exceeded the corresponding fares 
 in effect in either direction by New Orleans and El Paso 
 were unduly prejudicial to the localities served by the 
 northern carriers. 
 
 23. Public Service Commission of Washington v. Alabama & Vicks- 
 
 burg Ry. Co., 42 I. C. C. 54.
 
 CHAPTER XIII. 
 
 Filing and Publication of Interstate Rates, and 
 Effect Thereof 
 
 Sec. 246. Publicity and Permanency of Rates and Cliarges of Com- 
 mon Carriers at Common Law. 
 
 Sec. 247. Publication, Certainty and Stability of Rates Necessary to 
 Eliminate Rebates and Discriminations. 
 
 Sec. 248. The Act to Regulate Commerce on Publicity of Rates and 
 Adherence Thereto. 
 
 Sec. 249. Purpose of Congress in the Passage of the Provisions of Sec- 
 tion 6 of the Act. 
 
 Sec. 250. Publication and Piling of all Rates, Fares and Charges for 
 Interstate Transportation Mandatory. 
 
 Sec. 251. Necessary Steps to Put Rates Legally in Force — Posting not 
 Essential. 
 
 Sec. 252. What the Schedules of Rates, Pares and Charges Filed with 
 the Commission Must Contain. 
 
 Sec. 253. Privileges or Facilities Furnished Shippers and Not Speci- 
 fied in Tariffs Unlawful. 
 
 Sec. 254. Regulations Concerning Baggage of Interstate Passengers 
 Must be Published. 
 
 Sec. 255. Demurrage Charges on Interstate Shipments Must be Filed 
 with Commission. 
 
 Sec. 256. No Charges in Rates, Fares and Charges Permitted Without 
 Thirty Days Notice to the Commission. 
 
 Sec. 257. Carriers Prohibited from Departing to any Extent from 
 Published Schedules of Rates and Charges Filed with 
 Commission. 
 
 Sec. 258. Foregoing Rule Equally Applicable to Transit and Special 
 Services Provided in Tariffs. 
 
 Sec. 259. Forwarders are Shippers within Statute Prohibiting Re- 
 funds from Published Rates and Charges. 
 
 Sec. 260. Oral Contracts or Special Arrangements for Interstate Trans- 
 portation Contravening Published Schedules Unlawful. 
 
 Sec. 261. Shippers and Passengers Conclusively Presumed to Have 
 Knowledge of Published Schedules of Rate^, Fares and 
 Charges. 
 
 Sec. 262. Courts Bound by Published Rates and Charges Until Set 
 Aside by Commission. 
 
 Sec. 263. Carriers Must Collect the Scheduled Rates and Charges foi 
 Interstate Transportation. 
 
 Sec. 264. Illustrative Cases Wherein the Foregoing Rule was Applied 
 and Enforced. 
 
 Sec. 265. Defense of Estoppel to Actions Against Shippers for Under- 
 charges. 
 
 (430)
 
 § 24GJ Filing and I^uhlication of Kates. 4.">1 
 
 Sec. 266. Penalty for Making Erroneous Quotation of Rate When 
 Shipper is Damaged Thereby. 
 
 Sec. 267. In Actions to Collect Scheduled Rate.s Counterclaims for 
 Damages to Goods Prohibited. 
 
 Sec. 268. Damages Not Recoverable for Failure to Post Rates at Sta- 
 tions. 
 
 Sec. 269. Rule Stated in Foregoing Paragraph Illustrated in Adjudi- 
 cated Cases. 
 
 Sec. 270. Shipper May Recover Damages for Collection cf Rate in 
 Excess of that Fixed by Schedule. 
 
 Sec. 271. Nothing but Money May be Lawfully Received for Transpor- 
 tation of Either Passengers or Property. 
 
 Sec. 272. Acceptance of Promissory Notes in Payment for Freight 
 Charges Unlawful. 
 
 Sec. 273. Separately Established Rates must be Published in Ab- 
 sence of Joint Rates over Through Route. 
 
 Sec. 274. When Through Rate is Made up of Sum of Locals, Rates in 
 ElTect on Date of Shipments Apply. 
 
 Sec. 275. Departure from Published Tariffs Permitted in Performance 
 of Private Duties by Carriers. 
 
 Sec. 276. Rates for Passage of Vehicles on Railroad Ferries Must be 
 Filed. 
 
 § 246. Publicity and Permanency of Rates and 
 Charges of Common Carriers at Common Law. While 
 at coinmon law excessive rates and unjust discrimina- 
 tions between shippers under similar circumstances 
 were prohibited, there were no requirements as to the 
 publicity of rates and charges for transportation, and 
 no method of enforcing any i)ermanency and stability 
 in rate schedules. A fixed standard of charge which all 
 shippers could ascertain did not exist. Carriers, there- 
 fore, could change their rates of transportation at pleas- 
 ure and without i)ublic notilication. The obligation of 
 publicity and stability in rates was not recognized and 
 the shippers were, therefore, without tlie proper means 
 of judging whether the charges for railroad service were 
 reasonable or just. Under this regime constant disturb- 
 ances of rates were common and merchants were often 
 unable to execute long-time contracts with any assurance 
 as to what the rate would continue to be. 
 
 § 247. Publication, Certainty and Stability of 
 Rates Necessary to Eliminate Rebates and Discrimina- 
 tions. One of the chief objects of the Act to Regulate
 
 432 Duties to Interstate Shippers. [§ 247 
 
 Commerce was the suppression of discriminations and 
 preferences between shippers and localities. Publicity 
 of rates is a strong factor in the correction of the evils 
 of unjust discriminations, extortion and unlawful pref- 
 erences; for, by this means, a record, open to public in- 
 spection, may be kept of rates as they actually exist, 
 A shipper can ascertain for himself what the rates are, 
 and he can also determine what the cost of transporta- 
 tion will be to his competitor. A system of rates, open 
 to all, and fixed and certain so that all shippers might 
 ascertain from the tariff just what the rate is, is far 
 more equitable than a system of special contracts and 
 arrangements so prevalent before the Interstate Com- 
 merce Act was passed. A taritf filed and published 
 which the carrier is required to adhere to and which 
 cannot be changed without proper notice to the shipping 
 public, is an effective, if not, in fact, the only method of 
 securing transportation service to the public on equal 
 terms. 
 
 Stability and permanency of rates are of the high- 
 est importance to every shipper because without ad- 
 vance knowledge of the rate, business contracts would 
 possess too many elements of chance. In addition, the 
 foundation of efficient regulation and supervision of 
 rates rests in lawfully established and published charges. 
 These factors in the correction of the evils of railroad 
 transportation were recognized by the Cullom Commit- 
 tee in its report to Congress recommending the passage 
 of the bill which later became the Interstate Commerce 
 Act. The committee said:^ "In the judgment of the 
 committee one of the chief purposes of any legislation for 
 the regulation of inter-State commerce should be to se- 
 cure the fullest publicity, both as to the charges made 
 by common carriers and as to the manner in which their 
 business is conducted. The business of a common car- 
 rier concerns practically the whole public, and the car- 
 rier exercises in some respects a jmblic function. The 
 
 1. Senate Report No. 46, 49th Congress, 1st Session, Part 1, Page 
 
 198.
 
 § 248J Filing and I'uijlkjatkjx of Kates. 433 
 
 ])eople rififlitly feel that its charges should be public 
 and open to all alike, and that they should be fully in- 
 formed as to its financial condition, its methods of oper- 
 ation, and the net results of its business, to the end tliat 
 an intellii^-ent jud,i!:ment may be formed as to whether 
 the charges made, which are in the nature of a tax 
 upon commerce and industry, are reasonable and equita- 
 bly adjusted. They ri,e:htfully demand the o])])ortunity to 
 jn'ocure this information, and it is believed that the 
 methods of regulation suggested by tlic conimitlcc in the 
 accomi)anying bill will provide the means by which such 
 information can best and most readily be obtained. It 
 is agreed by all who have given the subject of railroad 
 regulation attention that the maintenance of stable aixl 
 reasonably uniform rates is of the lirst importance and 
 greatly to be desired. Neither result, it is also agreed, 
 can be secured without i)ublicity, which is the surest 
 and most etfective preventive of unjust discrimination. 
 Whenever rates are fluctuating and not alike to all, it 
 is the rule that some portions of the commercial com- 
 munity obtain secret advantages over the remainder. 
 When unjust discriminations are practiced by the carrier, 
 success in business depends more upon favoritism (if 
 nothing worse) than upon intelligence, integrity, and 
 enteri)rise. The effect iiS demoralizing in the extreme. 
 Business is conducted upon a false basis, false standards 
 of commercial honor are erected, and a i)remium is of- 
 fered to corruption. Worst of all, the advantages of 
 unjust discrimination are, as a rule, enjoyed by those 
 who least need outside aid, and the inevitable effect of 
 this indefensible practice is to build up the larger deal- 
 er and crush out the smaller, to foster monopoly, and, 
 in short, to encourage the existing tendency, already 
 too strong, towards the concentration of capital and the 
 control of commerce in the hands of the few." 
 
 § 248. The Act to Regulate Commerce on Publicity 
 of Rates and Adherence Thereto. The duties and obli- 
 gations of carriers under federal control as to the print- 
 ing, liling and i)ublication of their rates, fares and charg- 
 es for all transportation service within the terms of the 
 
 1 Coiiti'il Carriers 2S
 
 -to-t Duties to Interstate Shippers. [§ 248 
 
 statute, too-other with the requirements as to the obser- 
 vance of the rates and charges so iixed, and the nnlaw- 
 fnlness of any deviations therefrom, are set forth in 
 Section 6 of the Act. Tlie provisions contained therein, 
 with the rights of shippers and the liabilities of car- 
 riers thereunder, will be discussed in this chapter. No 
 section of the act has been more frequently amended 
 than this one. The entire section was recast and rewrit- 
 ten in its passage as a part of the Hepburn Act of 1906. 
 The decisions of the courts construing the provisions 
 of Section 6 should be considered in the light of these 
 amendments. Many of the rulings of the Commission 
 and the courts are now obsolete because of the changes 
 made in the form of amendments. From 1889 to 1906 
 advances in rates were permitted on ten days public 
 notice, and reductions on three days notice. 
 
 Under the Hepburn Act of 1906, no changes can 
 be made except after thirty days notice, but the Com- 
 mission is empowered to modify this requirement upon 
 good cause shown. The Hepburn Act also requires the 
 schedules filed with the Commission to show not only 
 the terminal charges and rules and regulations which 
 affect rates as required by the original act, but also 
 storage, icing and all other charges which the Commis- 
 sion might require, and all privileges and facilities 
 granted or allowed as well as the value of any service 
 rendered to a passenger or shipper. The original Act 
 jorohibited all carriers from receiving a greater or less 
 compensation than the rate on file; the Hepburn Act 
 prohibits carriers from receiving a greater or less or 
 different compensation.^ The last four paragraphs of 
 Section 6 were added by an amendment in 1910. 
 
 2. See Louisville & N. R. Co. v. greater or less or different com- 
 Mottley, 219 U. S. 467, 55 L. Ed. pensation' for the transportation 
 297, 31 Sup. Ct. 265, 34 L.. R. \. of persons or property, or for any 
 (N. S.) 671, in which the court service in connection therewith, 
 said: "But the act of June 29, than the rates, fares and charges 
 1906 made a material addition to specified in the tariff filed and in 
 the words of the ad of 1887; for, effect at the time. We cannot sup- 
 it expressly prohibited any car- pose that this change was without 
 rier, unless otherwise provided, to a dislinct purpose on the part of 
 demand, collect or receive 'a Congress. The words 'or differ-
 
 § 249 
 
 Filing and Publication of Rates, 
 
 435 
 
 § 249. Purpose of Congress in the Passage of the 
 Provisions of Section 6 of the Act. Tlie purpose of 
 Congress in the enactment of the iJiovisions of Section 
 G was to re<]uire (Mjual and unifoini treatment to all 
 shippers by charging but one rate to all for similar ser- 
 vices, being the rate hied with the Commission and 
 
 ent,' looking at the context, cannot 
 be regarded as superfluous or 
 meaningless. We must have re- 
 gard to all the words used by Con- 
 gress, and as far as possible give 
 effect to them. Market v. Holt- 
 man, 101 U. S. 112, 115. The his- 
 tory of the acts relating to com- 
 merce shows that Congress, when 
 introducing into the act of 1906 
 the word 'different,' had in mind 
 the purpose of curing a defect in 
 the law and of suppressing evil 
 practices under it by prohibiting 
 the carrier from charging or re- 
 ceiving compensation except as in- 
 dicated in its puhlishcd tariff. 11th 
 Ann. Rep. Interstate Com. Com., 
 141; 19th lb. 78, 15; 40 Cong. Rec. 
 Pt. 7, p. 6608; lb. 6617; lb. 7428, 
 7434; Rept. of Confer. Com. 40 
 Cong. Rec. 9522; 42 Cong. Rec. 
 Pt. 2, p. 1746. In our opinion, af- 
 ter the passage of the commerce 
 act the railroad company could 
 not lawfully accept from Mottley 
 and wife any compensation 'dif- 
 ferent' in kind from tl at mention- 
 ed in its published schedule of 
 rates. And it cannot be doubted 
 that the rates or charges specified 
 in such schedule were payable on- 
 ly in money. They could not be 
 paid in any other way, without 
 producing the utmost confu.sion 
 and defeating the policy establish- 
 ed by the acts regulating com- 
 merce. The evident purpose of 
 Congress was to establish uniform 
 rates for transportation, to give 
 all the same opportunity to know 
 
 what the rates were as well as to 
 have the equal benefit of them. To 
 that end the carrier was required 
 to print, post and file its schedules 
 and to keep them open to public 
 inspection. No change could be 
 made in the rates embraced by the 
 schedules except upon notice to 
 the Commission and to the pulilic. 
 But an examination of the sched 
 ules would be of no avail and would 
 not ordinarily be of any prac- 
 tical value if the published rates 
 could be disregarded in special or 
 particular cases by the acceptance 
 of property of various kinds, and 
 of such value as the parties im- 
 mediately concerned chose to put 
 upon it, in place of money for the 
 services performed by the carrier. 
 That money only was receivable 
 for transportation is the basis up- 
 on which the Interstate Commerce 
 Commission has proceeded; for, in 
 one of its Conference Rulings 
 (207) issued in 1909, the Commis- 
 sion held that nothing but money 
 could be lawfully received or ac- 
 cepted in payment for transporta- 
 tion, whether of passengers or 
 property, for any service connected 
 therewith, it being the opinion of 
 the Commission that the prohibi- 
 tion against the charging or col- 
 lecting a greater or less or (lifer- 
 ent compensation than the estab- 
 lished rates or fares in effect at 
 the time precludes the acceptance 
 of service, property or other pay- 
 ment in lieu of the amount speci- 
 fied in the published schedules."
 
 436 
 
 Duties to Interstate Shippers. 
 
 [§ 249 
 
 l)iil)lislied as required by the statute;^ to establish uni- 
 form rates for transportation so that all might have 
 the same opportnnit}' to know what tlie rates are as 
 well as to have the equal benefit of them, by means of 
 printing, posting, filing and keeping open to public in- 
 spection the schedules of the carriers;* to secure to the 
 public knowledge of the rates to be charged for services 
 rendered;^ to prevent departures from schedules and 
 rates filed with the Commission through oral agree- 
 ments, special contracts or other devices;*^ to make the 
 public tariff rate binding on shippers and carriers alike ;^ 
 to prohibit all means that might be resorted to, to ob- 
 tain or receive concessions and rebates from the fixed 
 rates duly posted and published;^ to suppress unjust 
 discriminations, undue preferences and secret agreements 
 as to interstate rates by requiring that such rates be es- 
 tablished in a manner calculated to give them publicity, 
 
 3. Atchison, T. & S. F. R. Co. v. 
 Robinson, 233 U. S. 173, 58 L. Ed. 
 901, 34 Sup. Ct. 556; Pennsylvania 
 R. Co. V. International Coal Min. 
 Co., 230 U. S. 184, 57 L. Ed. 1446, 
 33 Sup. Ct. 893, Ann. Cas. 1915A 
 315; Santa Fe, P. & P. Ry. Co. v. 
 Grant Bros. Const. Co., 228 U. S. 
 177, 57 L. Ed. 787, 33 Sup. Ct. 474; 
 Illinois Cent. R. Co. v. Henderson 
 Elevator Co., 226 U. S. 441, 57 L. 
 Ed. 290, 33 Sup. Ct. 176; Chicago & 
 A. R. Co. V. Kirby, 225 U. S. 155, 
 56 L. Ed. 1033, 32 Sup. Ct. 648, 
 Ann. Cas. 1914A 501; Chicago, I. 
 & L. R. Co. V. United States, 219 
 U. S. 486, 55 L. Ed. 305, 31 Sup. 
 Ct. 272; New York Cent. & H. 
 River R. Co. v. United States, 
 212 U. S. 500, 53 L. Ed. 624, 29 
 Sup. Ct. 309; Armour Packing Co. 
 V. United States, 209 U. S. 56, 52 
 L. Ed. 681, 28 Sup. Ct. 428; Texas 
 & P. R. Co. V. Abilene Cotton Oil 
 Co., 204 U. S. 426, 51 L. Ed. 553, Z7 
 Sup. Ct. 350, 9 Ann. Cas. 1075; 
 Texas & P. R. Co. v. Mugg, 202 U. 
 S. 242, 50 L. Ed. 1011, 26 Sup. Ct. 
 
 628; New York, N. H. & H. R. 
 Co. v. Interstate Commerce Com- 
 mission, 200 U. S. 361, 50 L. Ed. 
 515, 26 Sup. Ct. 272; Gulf, C. & S 
 F. Ry. Co. V. Hefley, 158 U. S. 98, 
 39 L. Ed. 910, 15 Sup. Ct. 802. 
 
 4. Louisville & N. R. Co. v. 
 Mottley, 219 U. S. 467, 55 L. Ed. 
 297, 31 Sup. Ct. 265, 34 L. R. A. 
 (N. S.) 671; Union Pac. R. Co. v. 
 Goodridge, 149 U. S. 680, 37 L. Ed. 
 896, 13 Sup. Ct. 970. 
 
 5. Schultz-Hansen Co. v. South- 
 ern P. Co., 18 I. C. C. 234. 
 
 6. Kansas City Southern R. Co. 
 v Carl, 227 U. S. 639, 57 L. Ed. 
 683, 33 Sup. Ct. 391. 
 
 7. Great Northern R. Co. v. O'- 
 Connor, 232 U. S. 508, 58 L. Ed. 
 703, 34 Sup. Ct. 380, 8 N. C. C. A. 
 53. 
 
 8. Armour Packing Co. v. Unit- 
 ed States, 209 U. S. 56, 52 L. Ed. 
 681, 28 Sup. Ct. 428; New York, 
 N. H. & H. R. Co. v. Interstate 
 Commerce Commission, 200 U. S. 
 361, 50 L. Ed. 515, 26 Sup. Ct. 272.
 
 § 25r)] 
 
 Filing and Publication of Kates. 
 
 437 
 
 to make llicni inflexible while in force and to eause them 
 to be unalterable except in the mode prescribed,'' and 
 to secure uniformity, reasonableness and certainty of 
 all charges for services/" 
 
 § 250. Publication and Filing of all Rates, Fares 
 and Charges for Interstate Transportation Mandatory. 
 Under the provisions of Section G of tlie Act," every 
 common carrier subject to the provisions of the Act, is 
 recpiired to print, keep open to public inspection and 
 file with the Commission schedules showing all rates, 
 fares and charges for transportation between points on 
 its own route and between points on its own route and 
 points on the route to any other carrier by railroad, 
 pipe line or water, when a through route and joint rate 
 have been established.'^ If no joint rate is established, 
 then the several carriers are recjuired to i)ub]ish sepa- 
 rately established rates, fares and charges applying to 
 the through transportation.'-* 
 
 9. Kansas City Southern R. Co. 
 V. C. H. Albers Commission Co., 
 223 U. S. 573, 56 L. Ed. 556, 32 
 Sup. Ct. 316. 
 
 10. Louisville & N. R. Co. v. 
 Dickerson, 112 C. C. A. 295, 191 
 Fed. 705. 
 
 11. Appendix A, infra. 
 
 12. United States v. Union Stock 
 Yard & Transit Co. of Chicago, 226 
 U. S. 286, 57 L. Ed. 226, 33 Sup. Ct. 
 83; Interstate Commerce Commis- 
 sion V. United States ex rel. Hum- 
 boldt S. S. Co., 224 U. S. 474, 56 
 L. Ed. 849, 32 Sup. Ct. 556; Unit- 
 ed States V. Miller. 223 U. S. 599. 
 56 L. Ed. 568, 32 Sup. Ct. 323; 
 Parsons v. Chicago & N. W. Ry. 
 Co., 167 U. S. 447. 42 L. Ed. 231, 17 
 Sup. Ct. 887; United States v. 
 Grand Trunk Ry. Co. of Canada, 
 225 Fed. 283; Standard Oil Co. of 
 Indiana v. United States, 90 C. C. 
 A. 364, 164 Fed. 376; Chicago & A. 
 Ry. Co. V. United States, 84 C. C. 
 
 A. 324, 156 Fed. 558, 26 L. R. A. 
 (N. S.) 551; Aransas Pass. Chan- 
 nel & Dock Co. V. Galveston, H. & 
 S. A. Ry. Co., 27 I. C. C. 403; Au- 
 gusta & S. S. S. Co. V. Ocean S. S. 
 Co. V. Savanah, 26 I. C. C. 380; In 
 re Restricted Rates, 20 I. C. C. 426; 
 Milburn Wagon Co. v. Lake Shore 
 & M. S. Ry. Co., 18 I. C. C. 144; 
 Wabash R. Co. v. Priddy, 179 Ind. 
 483, 101 N. E. 724; Hunter v. St. 
 Louis & S. F. R. Co., 167 Mo. App. 
 624, 150 S. W. 733. 
 
 13. Kansas City Southern R. Co. 
 V C. H. Albers Commission Co., 
 223 U. S. 573, 56 L. Ed. 556, 32 
 Sup. Ct. 316; Platten Produce Co. 
 V. Chicago & N. W. Ry. Co., 25 I. 
 C. C. 30; Eagle Pass Lumber Co. 
 V. National Rys. of Mexico, 25 I. 
 C. C. 5; St. Louis Blast Furnace 
 Co. V. Virginian Ry.. 24 I. C. C. 
 360; Cleveland, C. C. & St. L. R. 
 Co. V. Hayes, 181 Ind. 87. 102 N. 
 E. 34. 103 N. E. 839; Wabash R.
 
 438 
 
 Duties to Interstate Shippers. 
 
 [§ 250 
 
 No carrier, unless otherwise provided by statute, 
 is permitted to engage or participate in the transporta- 
 tion of passengers or property as defined in the Act, un- 
 less the rates, fares and charges upon which the same 
 are transported have been filed and published in ac- 
 cordance with the Act.^* All carriers are prohibited 
 from charging, demanding, collecting or receiving a 
 greater or less or different compensation for such trans- 
 portation or for any service connected therewith, be- 
 tween points named in the tariffs, than the rates, fares 
 and charges which are specified in the tariffs filed and 
 in effect.'^ The statute also prohibits carriers from re- 
 
 Co. V. Priddy, 179 Ind. 483, 101 N. 
 E. 724; Robinson v. Louisville & 
 N. R. Co., 160 Ky. 235, 169 S. W. 
 831; Pecos & N. T. Ry. Co. v. 
 
 Porter, Tex. Civ. App. , 
 
 156 S. W. 267. 
 
 14. Cincinnati, N. 0. & T. P. Ry. 
 Co. V. Rankin, 241 U. S. 319, 60 L. 
 Ed. 1022, 36 Sup. Ct. 555, L. R. A. 
 1917A 265; Texas & P. R. Co. v. 
 American Tie & Timber Co., 234 
 U. S. 138, 58 L. Ed. 1255, 34 Sup. 
 Ct. 885; Santa Fe, P. & P. R. Co. 
 Co. V. Grant Bros. Const. Co., 228 
 U. S. 177, 57 L. Ed. 787, 33 Sup. 
 Ct. 474; J. H. Hamlen & Sons v. 
 Illinois Cent. R. Co., 212 Fed. 324; 
 United States v. Illinois Terminal 
 R. Co., 168 Fed. 546; Wisconsin 
 Cent. R. Co. v. United States, 94 
 C. C. A. 444, 169 Fed. 76; Hamp- 
 ton Mfg. Co. V. Old Dominion S. 
 S. Co., 27 I. C. C. 666; Maxwell 
 V. Wichita Falls & N. W. Ry. Co., 
 20 I. C. C. 197; Beekman Lumber 
 Co. V. Louisville Ry. & Nav. Co., 
 19 I. C. C. 343; Star Grain & Lum- 
 ber Co. V. Atchison, T. & S. F. R. 
 Co., 17 I. C. C. 338. 
 
 15. United States. Pennsyl- 
 vania R. Co. v. International Coal 
 Min. Co., 230 U. S. 184, 57 L. Ed. 
 1446, 33 Sup. Ct. 893, Ann. Cas. 1915 
 A 315; Chicago, I. & L. R. Co. v. 
 
 United States, 219 U. S. 486, 55 L. 
 Ed. 305, 31 Sup. Ct. 272; Louisville 
 & N. R. Co. V. Mottley, 219 U. S. 
 467, 55 L. Ed. 297, 31 Sup. Ct. 265, 
 34 L. R. A. (N. S.) 671; Armour 
 Packing Co. v. United States, 209 
 U. S. 56, 52 L. Ed. 681, 28 Sup. Ct. 
 428; Cleveland, C, C. & St. L. R. 
 Co. V. Hirsch, 123 C. C. A. 145, 204 
 Fed. 849; Louisville & N. R. Co. 
 V. Dickerson, 112 C. C. A. 295, 191 
 Fed. 705; Chicago, B. & Q. R. Co. 
 V Feintuch, 112 C. C. A. 126, 191 
 Fed. 482; United States v. Penn- 
 sylvania R. Co., 153 Fed. 625; 
 United States v. Wood, 145 Fed. 
 405; In re Commutation, Mileage 
 & Excursion Tickets, 23 I. C. C. 95; 
 Dietz Lumber Co. v. Atchison, T. 
 & S. F. R. Co., 22 L C. C. 75; Ford 
 Co. v. Michigan Cent. R. Co., 19 
 I. C. C. 507; Blinn Lumber Co. 
 v. Southern P. Co., 18 I. C. C. 430; 
 Old Dominion Copper Mining & 
 Smelting Co. v. Pennsylvania R. 
 Co., 17 I. C. C. 309; Brooks Co. v. 
 Rutland R. Co., 16 I. C. C. 479. 
 
 Alabama. Southern Ry. Co. v. 
 Harrison, 119 Ala. 539, 24, 43 L. 
 R. A. 385, 72 Am. St. Rep. 936, z4 
 So. 552. 
 
 Georgia. Central of Georgia R. 
 Co. v. O'Neill Mfg. Co., 19 Ga. 
 App. 490, 91 S. B. 877.
 
 § 251] 
 
 KiLixc; AM) Pri'.i.icATioN OF Rates. 
 
 439 
 
 fuiidin<^' or rcniittiiii;- in any manner oi- liy any device 
 any portion of tlie rates, fares and cliar^cs so specified, 
 or extending to any slii])per or facility in the transj)orta- 
 tion of passengers or property except such as are speci- 
 fied in tlie tariffs.'" 
 
 § 251. Necessary Steps to Put Rates Legally in 
 Force — Posting not Essential. Wliile the statute re- 
 quires tiie carrier, in addition to printing and filing with 
 the Commission its schedules of rates and charges, to 
 keep copies of the schedules so filed, posted in two pub- 
 lic and conspicious places in every station where freight 
 and passengers are received for interstate trans])orta- 
 tion in sucli form as to ))e accessible to the i)ublie, the 
 posting of the scliedules is not a condition i)recedent 
 to the establishment and putting in force the tariffs of 
 rates; for the duty of posting two copies in each station 
 
 Indiana. Baltimore & O. S. W. 
 R. Co. V. New Albany Box & Bas- 
 ket Co., 48 Ind. App. 647, 94 N. 
 E. 906, 96 N. E. 28. 
 
 Louisiana. Louisiana Ry. & Nav. 
 Co. V. Holly, 127 La. 615, 53 So. 
 882. 
 
 Massachusetts. New York, N. 
 H. & H. R. Co. V. York & Whitney 
 Co., 215 Mass. 36, 102 N. E. 366. 
 
 Missouri. St. Louis Southern R. 
 Co. V. Texas v. Spring River Stone 
 Co., 169 Mo. App. 109, 154 S. W. 
 465. 
 
 New Mexico. Pecos Valley & N. 
 E. R. Co. V. Harris, 14 N. M. 410, 
 94 Pac. 951. 
 
 Pennsylvania. Crane R. Co. v. 
 Central R. of New Jersey, 248 Pa 
 333, 93 Atl. 1076; Central R. Co. 
 of New Jersey v. Mauser, 241 Pa. 
 603, 49 L. R. A. (N. S.) 92, 88 Atl. 
 791. 
 
 16. United States. Lehigh Val- 
 ley R. Co. V. United States, 243 U. 
 S. 444, 61 L. Ed. 839, 37 Sup. Ct. 
 434; Fourche River Lumber Co. 
 
 V. Bryant Lumber Co., 230 U. S. 
 316, 57 L. Ed. 1498, 33 Sup. Ct. 
 887; Kansas City Southern R. Co. 
 V. Carl, 227 U. S. 639, 57 L. Ed. 
 683, 33 Sup. Ct. 391; Chicago, I. & 
 L. R. Co. V. United States, 219 U. 
 
 5 486, 55 L. Ed. 305, 31 Sup. Ct. 
 272; New York Cent. & H. River 
 R. Co. V. United States, 212 U. S 
 500, 53 L. Ed. 624, 29 Sup. Ct. 309; 
 Johnson-Brown Co. v. Delaware, L. 
 
 6 W. R. Co., 239 Fed. 590; United 
 Stftes V. Lehigh Valley R. Co., 222 
 Fed. 685; Illinois Cent. R. Co. v 
 Segari & Co., 205 Fed. 998; Taen- 
 zer & Co. V. Chicago, R. I. & P. R. 
 Co., 112 C. C. A. 153, 191 Fed. 543; 
 St. Louis Blast Furnace Co. v. Vir- 
 ginian Ry. Co., 24 I. C. C. 360: 
 Boise Commercial Club v. Adams 
 E.\p. Co., 17 I. C. C. 115. 
 
 Iowa. McManus v. Chicago Great 
 Western R. Co., 156 la. 359. 136 N. 
 W. 769. 
 
 Kentucky. Louisville & N. R. 
 Co. V. Allen. 152 Ky. 145, 153 S. 'V. 
 198.
 
 •i4U Duties to Interstate Shippers, [^ 251 
 
 is only required as a method of affording special facili- 
 ties to the public for ascertaining the rates actually in 
 force/' 
 
 Under the statute, posting and publication are es- 
 sentially distinct; one means the printing of the schedul- 
 es, filing them with the Commission and keeping them 
 open to public inspection, while the other is a method 
 of permitting the public to ascertain the lawful rates 
 so fixed. A shipper was indicted for violation of the 
 Interstate Commerce Act, the indictment alleging that 
 he knowingly accepted a rebate whereby property was 
 transported in interstate commerce "at a less rate than 
 that named in the tariffs published -and filed by such 
 carrier as is required by said Act." There was no fur- 
 ther allegation in the indictment that the schedules and 
 tariffs alleged to have been violated were posted in the 
 manner required by law. The sufficiency of the indict- 
 ment being raised by demurrer, the question was pre- 
 sented for decision whether the compliance with the 
 requirements of the Act as to posting of tariffs in sta- 
 tions and depots was a condition precedent to the es- 
 tablishment of the tariff. The trial court sustained 
 the demurrer ;^^ but on appeal to the Supreme Court, the 
 decision of the lower court was reversed. "It is the 
 contention of the defendants," said Mr. Justice Van 
 Devanter for the Court, '^ "that a tariff is not published 
 
 Mississippi. Illinois Cent. R. 33 Sup. Ct. 391; Kansas City 
 
 Co. V. Holman, 106 Miss. 449, 64 Southern R. Co. v. C. H. Albers 
 
 So. 7. Commission Co., 223 U. S. 573, 56 
 
 New York. Houseman v. Fargo, L. Ed. 556, 32 Sup. Ct. 316; Unit- 
 
 124 N. Y. Supp. 1086. ed States v. Miller, 223 U. S. 599, 
 
 North Dakota. Smith v. Great 56 L. Ed. 568, 32 Sup. Ct. 323; 
 
 Northern R. Co., 15 N. D. 195, 107 Texas & P. R. Co. v. Cisco Oil Mill, 
 
 N. W. 56. 204 U. S. 449, 51 L. Ed. 562, 27 Sup. 
 
 Washington. Cowley v. Northern ct. 358; United States v. Standard 
 
 Pac. R. Co., 68 Wash. 558, 41 L. Qil Co., 170 Fed. 988. 
 
 R. A. (N. S.) 559, 123 Pac. 998^ ,3 ^^.^^^ g^^^^^ ^ ^^^ 
 
 17. Berwind-White Coal Min. Co. , 
 
 V. Chicago & E. R. Co., 235 U. S. ^ ^ " " 
 
 371. 59 L. Ed. 275, 35 Sup. Ct. 131; ^^- United States v. Miller, 223 
 
 Kansas City Southern R. Co. v. U. S. 599, 56 L. Ed. 568, 32 Sup. 
 
 Carl, 227 U. S. 6.39, 57 L. Ed. 683, Ct. 323.
 
 § 252] FiiJXG AND Publication of Kates. 441 
 
 in the .sciiso in wliicli tlic act nsos tliat torin nnless print- 
 ed copies are 'kept posted in two pnl)li(' and eonspieuons 
 places in every depot,' etc., and it was this contciilK.ii 
 that prevailed in the Cirenit Court. Hut, in our oi)in- 
 ion, it is not sound. Pul)li('ati<)n and ]H)stinu- in the sense 
 of the act are essentially distinct. 'IMiis is the import 
 of the provision that the iccpiirements relatin.i; to 'i)ul)- 
 lisiung, posting- and filing' may he modilied hy the com- 
 mission in special circumstances, for if i)ubiishing in- 
 cluded i)()sting, mention of the latter was unnecessary. 
 And from all the i)i()visi()ns on the subject it is evident 
 that the publication intended consists in promulgating 
 and distributing the tariff in ])rinted form preparatory 
 to putting it into effect, while the posting is a continu- 
 ing act enjoined upon the carrier, while the tariff re- 
 rnains operative, as a means of affording special facili- 
 ties to the public for ascertaining the rates in force 
 thereunder. In other words, publication is a step in es- 
 tablishing rates, while posting is a duty arising out of 
 the fact that they have been established. Obviously, 
 therefore, posting is not a condition to making a tarift" 
 legally operative. Neither is it a condition to the con- 
 tinued existence of a tariff once legally established. If 
 it were, the inadvertent or mischievous destruction or 
 removal of one of the posted copies from a depot would 
 disestablish or suspend the rates, a result which evi- 
 dently is not intended by the act, for it provides that 
 rates once lawfully established shall not be changed 
 otherwise than in the mode prescribed. Like views of 
 the posting clause were expressed in Texas and Pecitic 
 Railway Co. v. Cisco Oil Mill, 204 U. S. 449, and upon 
 further consideration we perceive no reason for depart- 
 ing from them. See also Kansas City Southern Rail- 
 way Co. V. Albers Commission Co., ante, p. 573." 
 
 § 252. What the Schedules of Rates, Fares and 
 Charges Filed with the Commission Must Contain. Sec- 
 tion 6 further provides that the schedules so printed, 
 filed and ])ublished must state the i)lace between which' 
 property and passengers will be carried, shall contain 
 the classification of freight in force, shall contain sepa-
 
 442 
 
 Duties to Interstate Shippers, 
 
 [§ 252 
 
 rately all terminal charges, storage charges, icing charg- 
 es and all other charges which the Commission may re- 
 quire,-" shall include all privileges or facilities granted 
 or allowed,-^ and any rules or regulations which in any 
 wise affect, change or determine any part of or the ag- 
 gregate of such rates, fares and charges, or the value 
 
 20. Swift & Co. V. Hocking Val- 
 ley R. Co., 243 U. S. 281, 61 L. Ed. 
 722, 37 Sup. Ct. 287: Berwind- 
 White Coal Min. Co. v. Chicago & 
 E. R. Co., 235 U. S. 371, 59 L. Ed. 
 275, 35 Sup. Ct. 131; Interstate 
 Commerce Commission v. Atchi- 
 son, T. & S. F. R. Co., 234 U. S. 
 294 U. S. 294, 58 L. Ed. 1319, 34 
 Sup. Ct. 814; Proctor & Gamble 
 Co. V. United States, 225 U. S. 282, 
 56 L. Ed. 1091, 32 Sup. Ct. 761; 
 Interstate Commerce Commission 
 
 V Stickney, 215 U. S. 98, 54 L. Ed. 
 112, 30 Sup. Ct. 66; Interstate 
 Commerce Commission v. Chicago, 
 
 B. & Q. R. Co., 186 U. S. 320, 46 L. 
 Ed. 1182, 22 Sup. Ct. 824; Inter- 
 state Commerce Commission v. De- 
 troit. G. H. & M. Ry. Co., 167 U. 
 S. 633, 42 L. Ed. 306, 17 Sup. Ct. 
 986; Cudahy Packing Co. V. Grand 
 Trunk Western R. Co., 131 C. C. 
 A. 401, 215 Fed. 93; Knudsen-Fer- 
 guson Fruit Co. v. Chicago, St. P. 
 M. & d. R. Co., 79 C. C. A. 483, 149 
 Fed. 973; Walker v. Keenan, 19 
 
 C. C. A. 668, 73 Fed. 755; Mixed 
 Car Dealers Ass'n v. Delaware, L. 
 & W. R. Co., 33 I. C. C. 133; Wil- 
 son Bros. V. Delaware, L. & W. R. 
 Co., 25 I. C. C. 11; Proctor & Gam- 
 ble Co. V. Cincinnati, H. & D. Ry. 
 Co., 19 I. C. C. 556; Leonard v. 
 Chicago. M. & St. P. Ry. Co., 12 
 I C. C. 492: Cudahy Packing Co. 
 
 V Chicago & N. W. Ry. Co., 12 I. 
 C. C. 446; Shiel & Co. v. Illinois 
 Cent. R. Co., 12 I. C. C. 210; Black- 
 man V. Southern Ry. Co.. 10 I. C. 
 C 352; Central Yellow Pine Ass'n 
 
 V. Vicksburgh, S. & P. R. Co., 10 
 I. C. C. 193; Pennsylvania Millers' 
 State Ass'n v. Philadelphia & R. 
 Ry. Co., 8 I. C. C. 531; Erie R. 
 Co. V. Wanaque Lumber Co., 75 N 
 J L. 878, 69 Atl. 168; New York 
 Cent. & H. River R. Co. v. Gen- 
 eral Elec. Co., 83 N. Y. Misc. 529, 
 146 N. Y. Supp. 322. 
 
 21. Mitchell Coal & Coke Co. v. 
 Pennsylvania R. Co., 230 U. S. 247, 
 57 L. Ed. 1472, 33 Sup. Ct. 916; 
 Chicago & A. R. Co. v. Kirby, 225 
 U. S. 155, 56 L. Ed. 1033, 32 Sup. 
 Ct. 648, Ann. Cas. 1914A 501; 
 United States v. Erie R. Co., 209 
 Fed. 283; Elwood Grain Co. v. St. 
 Joseph & G. I. R. Co., 121 C. C. A. 
 153, 202 Fed. 845; Langdon v. 
 Pennsylvania R. Co., 194 Fed. 486; 
 Kern & Sons v. Chicago, M. & St. 
 P. Ry. Co., 40 I. C. C. 552; Sulz- 
 berger & Sons v. Minneapolis, St 
 P. & S. S. M. R. Co., 40 I. C. C. 
 173; Industrial Railways Case, 29 
 I. C. C. 212; Beaumont & G. N. 
 R. Co. V. Atchison, T. & S. F. R. 
 Co., 24 I. C. C. 161; Liberty Mills 
 V. Louisville & N. R. Co., 23 I. C. 
 C. 182; Associated Jobbers of Los 
 Angeles v. Atchison, T. & S. F. Ry. 
 Co., 18 I. C. C. 310; Schultz-Han- 
 sen Co. V. Southern P. Co., 18 I. 
 C. C. 234; Kile & Morgan Co. v. 
 Deepwater Ry., 15 I. C. C. 235; 
 Folmer & Co. v. Great N. R. Co, 
 15 I. C. C. 33; Gulf & S. I. R. Co. 
 v. Laurel Cotton Mills, 91 Miss. 
 166, 45 So. 982; Bergin v. Mis- 
 souri, K. & T. Ry. Co.. Tex. 
 
 Civ. App. , 150 S. W. 1184.
 
 § 252J 
 
 FiLiN(j AMj Publication of Kates. 
 
 443 
 
 of the service rendered lo the passenger, shippf-r or 
 consif^nee.^^ 
 
 The schedules are r(M|uiied to be ])laiiily printed in 
 large type and copies for the use of the piil)li(' are re- 
 quired to be kept ])osted in two public and conspicuous 
 l)]aces in every station or office of each carrier where 
 either passengers or freight are received for transporta- 
 tion, and in such foi'm that they shall be accessible to 
 the public and be conveniently insi)ected. These ])rovi- 
 sions apply to all traffic, transportation and facilities 
 defined by the Act. Common carriers receiving freight 
 in the United States to be carried through a foreign 
 country to any other place in the United States are re- 
 quired also in like manner to comply with the foregoing 
 provisions. Carriers who are parties to any joint tariff 
 other than the one filing the same, are required to file 
 with the Commission such evidence of concurrence there- 
 
 22. Loomis v. Lehigh Valley R. 
 Co., 240 U. S. 43, 60 L. Ed. 517, C6 
 Sup. Ct. 228; Boston & M. R. Co. 
 V. Hooker, 233 U. S. 97, 58 L. El. 
 868, 34 Sup. Ct. 526, L. R. A. 1915B 
 450, Ann. Cas. 1915D 593; United 
 States V. Baltimore & O. R. Co., 231 
 U. S. 274, 58 L. Ed. 34 Sup. Ct. 75; 
 Mitchell Coal & Coke Co. v. Penn- 
 sylvania R. Co.. 230 U. S. 247, 57 
 L. Ed. 1472, 33 Sup. Ct. 916; Adams 
 Exp. Co. V. Croninger, 226 U. S. 
 491, 57 L. Ed. 314, 33 Sup. Ct. 148, 
 44 L. R. A. (N. S.) 257; Union 
 Pac. R. Co. V. Updike Grain Co., 
 222 U. S. 215, 56 L. Ed. 171, 32 
 Sup. Ct. 39; Interstate Commerce 
 Commission v. Diffenbaugh, 222 U. 
 S. 42, 56 L. Ed. 83, 32 Sup. Ct. 22; 
 Southern Cotton Oil Co. v. Central 
 of Georgia R. Co., 142 C. C. A. 627, 
 228 Fed. 335; Louisville & N. R. 
 Co. V. Dickerson, 112 C. C. A. 295, 
 191 Fed. 705; Farmers' Coopera- 
 tive Ass'n V. Chicago, B. & Q. R. 
 
 Co., 34 I. C. C. 60; Red River Oil 
 Co. V. Texas & P. Ry. Co., 23 I. 
 C. C. 438; California Pole & Pil- 
 ing Co. V. Southern P. Co., 22 I. 
 C. C. 507; Crescent Coal & Mining 
 Co. V. Baltimore & 0. R. Co., 20 
 I. C. C. 559; Riter v. Oregon Short 
 Lino R. Co., 19 I. C. C. 443; An- 
 derson Clayton & Co. v. Chicago, 
 R. I. & P. Ry. Co., 18 I. C. C. 340; 
 Duluth Log Co. V. Chicago, St. P. 
 M. & O. Ry. Co., 16 I. C. C. 38; Gen- 
 eral Elec. Co. V. New York Cent. 
 & H. River R. Co., 14 I. C. C. 237; 
 National Wholesale Lumber L^eal- 
 ers' Ass'n v. Atlantic Coa.st Line R. 
 Co., 14 I. C. C. 154; Victor Fuel 
 Co. v. Atchison, T. & S. F. Ry. Co.. 
 14 L C. C. 119; Spillers & Co. v. 
 Louisville & N. R. Co., 8 I. C. C. 
 364; Suffern Hunt & Co. v. Indi- 
 ana, D. & W. R. Co., 7 I. C. C. 255; 
 Nebraska Transfer Co. v. Chicago, 
 B. & Q. R. Co., 90 Neb. 488, 134 N. 
 W. 163.
 
 444 Duties to Interstate Shippees. [§ 252 
 
 in or aceoptanee thereof as may be required or approved 
 by the Commission.-^ 
 
 § 253. Privileges or Facilities Furnished Shippers 
 and Not Specified in Tariffs Unlawful. All carriers snl)- 
 ject to the statute who extend to any shipper or person 
 any privile.ii'e or facility in the transportation of property 
 under federal control, except such as are specified in 
 the tariffs on tile with the Interstate Commerce Com- 
 mission, violate the provisions of Section 6.^* When, 
 therefore, the conditions of liability while the goods 
 are retained after notice of arrival at a terminal point 
 are stipulated in the bill of lading under the regulations 
 filed with the Interstate Commerce Commission, those 
 conditions are controlling as to the liability of the car- 
 rier and the parties cannot substitute therefor a special 
 agreement not specified in the tariffs.-^ An allowance 
 by a common carrier to the owners of an elevator on its 
 line of $1.75 per car on all grain received at the elevator 
 from stations on the line of the carrier and unloaded 
 into the elevator, was held to be unlawful, as it was not 
 published in the tariffs of the carrier and a similar al- 
 lowance was not made to other owners of elevators sim- 
 ilarly situated.-*' All allowances made to shippers, even 
 though reasonable in amount, are unlawful rebates un- 
 less published in the tariffs." 
 
 § 254. Regulations Concerning Baggage of Inter- 
 state Passengers Must be Published. As the act re- 
 quires all common carriers subject thereto to file with 
 the Commission all rules and regulations which in any 
 
 23. In re Coal Rates on Stony 25. Southern Ry. Co. v. Pres- 
 Fork Branch, 26 I. C. C. 168; Edi- cott, 240 U. S. 632, 60 L. Ed. 836, 
 son Portland Cement Co. v. Dela- 36 Sup. Ct. 469. 
 
 ware, L. & W. R. Co., 22 I. C. C. 26. Elwood Grain Co. v. St. 
 
 382. 
 
 24. Atchison, T. & S. F. R. Co. 
 V. Robinson, 233 U. S. 173, 58 L. 
 Ed. 901, 34 Sup. Ct. 556; Chicago 
 & A. Ry. Co. V. Kirby. 225 U. S. Co., 194 Fed. 486; United States 
 155, 56 L. Ed. 1033, 32 Sup. Ct. 648, v. Chicago & A. Ry. Co., 148 Fed. 
 Ann. Cas. 1914A 501. 646. 
 
 Joseph & G. I. R. Co., 121 C. C. A. 
 153, 202 Fed. 845. 
 
 27. Langdon v. Pennsylvania R.
 
 § 254] Filing and I*ublication of Rates. 445 
 
 wise chan^o, affect or dotcnniiie any ]»art or tlie a^^re- 
 gate of the rates, fares or eliarges, or llic value of any 
 service rendered to any passenger, rules and regulations 
 concerning the baggage of interstate j)ass('ngers are with- 
 in the terms of tiie statute.-' In the Hooker case, cited, 
 it appeared that the schedules of the carriers filed with 
 the Interstate Conmicrce Commission contained a provi- 
 sion that the liability for personal baggage should not 
 exceed $100 in value for a passenger presenting a full 
 ticket unless a greater value was declared and stii)u- 
 lated by the owner and excess charges thereon paid 
 at the time of checking the baggage. The Supreme 
 Judicial Court of Massachussetts permitted a recovery 
 for the actual value of the baggage, a sum greatly in 
 excess of the limitation fixed in the schedule. That court 
 held that the limitation in the schedule was no part of 
 the passenger rate or tariff, and that knowledge of the 
 limitation in such regulations must be brought home 
 to the shipper and assented to by him;'^ but this de- 
 cision, on writ of error, was reversed by the United 
 States Supreme Court which held that the baggage limi- 
 tation on file with the Interstate Commerce Commis- 
 sion was binding upon a passenger without regard to 
 his knowledge. Said the Court: ''It is to be observed 
 that the schedules are required to state, among other 
 things, in naming certain charges, 'all other charges 
 which the Commission may require, all privileges or 
 facilities granted or allowed and any rules or regulations 
 which in any wise change, affect, or determine any 
 part or the aggregate of such aforesaid rates, fares, 
 and charges, or the value of the service rendered to the 
 passenger, shipper, or consignee.' The question then 
 is did the limitation as to liability for baggage based 
 upon the requirement to declare its value when more 
 than $100 was to be recovered come within that provi- 
 sion. It seems to us that the ordinary signification of 
 
 28. Boston & M. R. Co. v. Hook- 29. Hooker v. Boston & M. R. 
 
 er, 233 U. S. 97, 58 L. Ed. 868. 34 R., 209 Mass. 598, Ann. Cas. 1912B 
 
 Sup. Ct. 526, L. R. A. l9l5B 450, 669, 95 N. E. 945. 
 Ann. Cas. 1915D. 593.
 
 44G Duties to Interstate Shippers. [§ 254 
 
 tho terms used in the act would cover sucli require- 
 ments as are here made for tlie amount of recovery for 
 baggage lost by tlio carrier. It is a regulation which 
 fixes and determines the amount to be charged for the 
 carriage in view of the resi)onsibility assumed, and it 
 also affects the value of the service rendered to the 
 passenger. Such requirements are spoken of, in deci- 
 sions dealing with them, as regulations; as, a common 
 carrier 'may prescribe regulations to protect himself 
 against imposition and fraud, and fix a rate of charges 
 proportionate to the magnitude of the risks he may 
 liave to encounter.' York Co. v. Central E. R., 3 Wall. 
 107, 112. 'It is undoubtedly competent for carriers 
 of passengers, by specific regulations, distinctly brought 
 to the knowledge of the passenger, which are reasonable 
 in their character and not inconsistent with any statute 
 or their duties to the public, to protect themselves 
 against liability, as insurers, for baggage exceeding a 
 fixed amount in value, except upon additional com- 
 pensation, proportioned to the risk. And in order that 
 such regulations may be practically effective and the 
 carrier advised of the full extent of its responsibility, 
 and, consequently, of the degree of precaution neces- 
 sary upon its part, it may rightfully require, as a condi- 
 tion precedent to any contract for the transportation of 
 baggage, information from the passenger as to its value; 
 and if the value thus disclosed exceeds that which the 
 passenger may reasonably demand to be transported 
 as baggage without extra compensation, the carrier, at 
 its option, can make such additional charge as the risk 
 fairly justifies.' Railroad Co. v. Fraloff, 100 U. S. 24, 
 27." * * * This conclusion is further strengthened 
 by the action of the Interstate Commerce Commission, 
 in requiring by its Tariff Circular No. 15-A, entitled 
 'Regulations Governing the Construction and Filing of 
 Freight Tariffs and Classification and Passenger Fare 
 Schedules,' effective April 15, 1908, and in force at the 
 time of the loss here in question, that: '34. Tariffs 
 shall contain, in the order named (g) Rules and regula- 
 tions which govern the tariff, the title of each rule or 
 regulation to be shown in bold type. Under this head
 
 § 254] P'lLINd AND I^UBLICATION OF RaTES. 447 
 
 all of the rules, regulations, or conditions which in any 
 way affect th(^ fares named in the tariff shall l)e entered. 
 
 * * * These rules shall include * * * the gener- 
 al baggage regulations, and also schedule of excess-hag- 
 gage rates, unless such excess-baggage rates are shown in 
 tariff' in connection with the fares.' This reciuirenicnt is a 
 practical interijrctation of the law by the administrative 
 body having its enforcement in charge, and is entitled 
 to weight in construing tlui act. The act of June 18, 
 1910 (c. 309, 3fi Stat. 5:39, 54f)), defining, in Sec. ], the 
 duties of carriers to make just and reasonable regula- 
 tions affecting, among other things, the carrying of 
 personal, sami)le and excess baggage, may be noted in 
 passing. This statute was before the Commission in a 
 case involving such regulations. Regulations Restrict- 
 ing the Dimensions of Baggage, 26 I. C. C. 292. Con- 
 cerning it the Commission, by Clark, Chairman, said 
 (p. 293): 'Prior to June 18, 1910, the act to regulate 
 Commerce contained no specific provision relating to the 
 interstate transi)ortation of baggage, except in connec- 
 tion with the issuance of joint interchangeable mileage 
 tickets. The Commission had, however, under authority 
 of section 6, required carriers to publish and file their 
 general baggage regulations and their schedules of ex- 
 cess-baggage rates. Section 1 was amended on the date 
 named, the amendment, in so far as it is material, read- 
 ing as follows: 'It is hereby made the duty of all com- 
 mon carriers subject to the provisions of this act to es- 
 tablish, observe, and enforce * * * j^gt r^^^i reason- 
 able regulations and practices affecting classifications, 
 
 * * * the manner and method of presenting, mark- 
 ing, packing, and delivering property for transportation, 
 the facilities for transportation, * * * the carrying 
 of personal, sample and excess baggage.' And it is 
 to be observed that the Commission considers its re- 
 quirement with reference to including baggage regula- 
 tions in the tariff schedules, (juoted above, as adequate, 
 for the same provisions appear in its current circular. 
 We are therefore of the opinion that the re(iuirement 
 published concerning the amount of the liability of the 
 defendant based upon additional payment where bag-
 
 448 Duties to Intebstate Shippers. [§ 254 
 
 gage was declared to exceed $100 in value was determi- 
 native of the rate to be charged and did affect the ser- 
 vice to be rendered to the passenger, as it fixed the price 
 to be paid for the service rendered in the particular 
 case, and was, therefore, a regulation within the mean- 
 ing of the statute." 
 
 § 255. Demurrage Charges on Interstate Ship- 
 ments Must be Filed with Commission. The statute 
 requires the published tariff to show everything in the 
 way of terminal regulations which in any way affects 
 the cost of the service rendered by the carrier.^" All 
 terminal and storage charges are specifically required 
 to be separately stated in the tariffs. The term "trans- 
 portation" in Section 1 of the Act includes all services 
 in connection with the receipt and delivery of property 
 transported. Demurrage, being a charge for the deten- 
 tion of a car because of the use of the car and track 
 until unloaded, is a terminal charge and is required 
 to be filed with the Commission. ^^ 
 
 § 256. No Changes in Rates, Fares and Charges 
 Permitted Without Thirty Days Notice to the Com- 
 mission. It is further provided in Section 6 that no 
 change shall be made in the rates, fares and charges or 
 joint rates, fares and charges which have been filed and 
 published by any common carrier in compliance with 
 the Act, except after thirty days notice to the Com- 
 mission and to the public, which shall plainly state the 
 changes proposed to be made in the schedule then in 
 force and the time when the changed rates, fares or 
 charges will go into effect, and the proposed changes 
 must be done by printing new schedules or be plainly 
 indicated upon the schedules in force at the time and 
 kept open for public inspection. The Commission may, 
 however, in its discretion, for good cause shown, allow 
 
 30. United States v. Standard H. & H. R. Co., 151 Fed. 694; Peale, 
 Oil Co., 148 Fed. 719. Peacock & Kerr v. Central -R. of 
 
 31. Lehigh Valley R. Co. v. New Jersey, 18 I. C. C. 25; Wilson 
 United States, 110 C. C. A. 513. 188 Produce Co. v. Pennsylvania R. Co., 
 Fed. 879; Mitchie v. New York, N. 14 I. C. C. 170.
 
 § 257] P'lLiNG AND Publication of Rates. 449 
 
 changes upon loss than the thirty days notice required 
 and may modify the requirements of the law in respect 
 to publisliing, posting and filing of tariffs either in 
 particular instances or by general order aijplicable to 
 special or peculiar circumstances and conditions. '^^ The 
 Commission is also authorized to prescribe the form in 
 which the schedules required shall be kept open to pub- 
 lic inspection. Any schedule that does not provide a 
 given lawful notice of its effective date may be rejected 
 by the Commission. A refusal or failure to comply 
 with any regulation adopted or any order made by the 
 Commission under the provisions of Section 6 subjects all 
 carriers to a penalty of $500 for each offense and $25 for 
 each days continuance of the offense. 
 
 § 257. Carriers Prohibited from Departing to any 
 Extent from Published Schedules of Rates and Charges 
 Filed with Commission. The rates and fares, both joint 
 and separate, for interstate transportation, the terminal, 
 storage, transit, demurrage, icing, and other charges re- 
 quired to be published by the Commission, all the privi- 
 leges and facilities granted and allowed by carriers, 
 and the rules and regulations which affect, change or 
 determine any part of the rates or fares, or the value 
 of any service rendered to any shipper, passenger or 
 consignee, published and filed with the Commission as 
 required by the provisions of Section 6, are binding upon 
 all and are conclusive as to the rights of all interested 
 parties unless attacked in a direct proceeding for that 
 purpose before the Interstate Commerce Commission. ^^ 
 
 32. Acme Cement Plaster Co. v. Coal Min. Co., 238 U. S. 456, 59 L. 
 St. Louis & S. F. R. Co., 22 I. C. Ed. 1406, 35 Sup. Ct. 896; Louis- 
 C. 283. ville & N. R. Co. v. United States, 
 
 33. O'Keefe v. United States, 238 U. S. 1, 59 L. Ed. 1177, 35 Sup. 
 240 U. S. 294, 60 L. Ed. 651, 36 Ct. 696; Pennsylvania R. Co. v. 
 Sup. Ct. 313; Loomis v. Lehigh Puritan Coal Min. Co., 237 U. 3. 
 Valley R. Co., 240 U. S. 43, 60 L. 121, 59 L. Ed. 867, 35 Sup. Ct. 484; 
 Ed. 517, 36 Sup. Ct. 228; Dayton Louisville & N. R. Co. v. Maxwell, 
 Coal & Iron Co. v. Cincinnati, N. 2:^7 U. S. 94, 59 L. Ed. 853, 35 Sup. 
 O. & T. P. R. Co., 239 U. S. 446, Ct. 494, L. R. A. 1915E 665; Texas 
 60 L. Ed. 375, 36 Sup. Ct. 137: & P. R. Co. v. American Tie & 
 Pennsylvania R. Co. v. Clark Bros. Timber Co., 234 U. S. 138, 58 L. 
 
 1 L'tiiitiDl t'nnii-1-s 29
 
 450 
 
 DrTiEs TO Interstate Shippers. 
 
 [§ 257 
 
 A carrier cannot depart to any extent from the pub- 
 lished schedules on file without incurring the drastic 
 penalties prescribed by the statute;^* for, under the 
 Interstate Commerce Act, the rate of the carrier duly 
 filed is the only lawful charge, and deviation from it is. 
 not permitted upon any pretext. This rule is undeniably 
 strict and it obviously works hardship in many case's 
 but it embodies the policy which has been adopted by 
 Congress in the regulation of interstate transportation 
 of freight and passengers in order to prevent unjust 
 discriminations.-'^ Whenever a schedule rate for trans- 
 
 Ed. 1255, 34 Sup. Ct. 885; 
 Atchison, T. & S. F. R. Co. v. 
 United States, 232 U. S. 199,, 58 
 L. Ed. 568, 34 Sup. Ct. 291; Simp- 
 son V. Shepard, 230 U. S. 352, 57 
 L. Ed. 1511, 33 Sup. Ct. 729, 48 L. 
 R. A. (N. S.) 1151, Ann. Cas. 1916A 
 18; Interstate Commerce Commis- 
 sion V. Louisville & N. R. Co., 227 
 U. S. 88, 57 L. Ed. 431, 33 Sup. 
 Ct. 185; Illinois Cent. R. Co. v. 
 Henderson Elevator Co., 226 U. 
 S. 441, 57 L. Ed. 290, 33 Sup. Ct. 
 176; Proctor & Gamble v. United 
 States, 225 U. S. 282, 56 L. Ed. 
 1091, 32 Sup. Ct. 761; Interstate 
 Commerce Commission v. Union 
 Pac. Co., 222 U. S. 541, 56 L. Ed. 
 308, 32 Sup. Ct. 108; Interstate 
 Commerce Commission v. Chicago, 
 R. I. & P. R. Co., 218 U. S. 88, 54 
 L. Ed. 946, 30 Sup. Ct. 651; M. C. 
 Kiser Co. v. Central of Georgia Ry. 
 Co., 236 Fed. 573; St. Louis South- 
 western Ry. Co. V. United States, 
 234 Fed. 668; Northern Pac. R. 
 Co. V. Pacific Coast Lumber Man- 
 ufacturers' Ass'n, 91 C. C. A. 39, 
 165 Fed. 1. 
 
 34. Phillips V. Grand Trunk W. 
 R. Co., 236 U. S. 662, 59 L. Ed. 771, 
 35 Sup. Ct. 444; United States v. 
 Union Stock Yard & Transit Co., 
 226 U. S. 286, 57 L. Ed. 226, 33 
 Sup. Ct. 83; Chicago & A. R. Co. 
 
 V Kirby, 225 U. S. 155, 56 L. Ed. 
 1033, 32 Sup.. Ct. 648, Ann. Cas. 
 1914A 501; Chicago, I. & L. R. Co. 
 V. United States, 219 U. S. 486, 55 
 L. Ed. 305, 31 Sup. Ct. 272; Louis- 
 ville & N. R. Co. V. Mottley, 219 
 U. S. 467, 55 L. Ed. 297, 31 Sup. Ct. 
 265, 34 L. R. A. (N. S.) 671; 
 Armour Packing Co. v. United 
 States, 209 U. S. 56, 52 L. Ed. 681, 
 28 Sup. Ct. 428; New York, N. H. 
 & H. R. Co. V. Interstate Commerce 
 Commission, 200 U. S. 361, 50 L. 
 Ed. 515, 26 Sup. Ct. 272; Chicago 
 & N. W. Ry. Co. V. William S. Stein 
 Co., 233 Fed. 716; Cleveland, C, 
 C. & St. L. R. Co. v. Hirsch, 123 
 C. C. A. 145, 204 Fed. 849; Taenzer 
 & Co. v. Chicago, R. I. & P. R. Co., 
 112 C. C. A. 153, 191 Fed. 543. 
 
 35. United States. Cincinnati, 
 N. O. & T. P. R. Co. v. Rankin, 
 241 U. S. 219, 60 L. Ed. 1022, 36 
 Sup. Ct. 555, L. R. A. 1917A 265; 
 United States v. Union Mfg. Co., 
 240 U. S. 605, 60 L. Ed. 822, 36 
 Sup. Ct. 420; New York, P. & N. 
 R. Co. V. Peninsula Produce Exch. 
 of Maryland, 240 U. S. 34, 60 L. 
 Ed. 511, 36 Sup. Ct. 230, L. R. A. 
 191 7A 193; Louisville & N. R. Co. 
 V. Maxwell, 237 U. S. 94, 59 L. Ed. 
 853, 35 Sup. Ct. 494, L. R. A. 1915E 
 665; Boston & M. R. Co. v. Hooker, 
 233 U. S. 97, 58 L. Ed. 868, 34 Sup.
 
 § 257] 
 
 Filing and Publication of Kates. 
 
 451 
 
 portation or a cliar^o for any spi-vicc loiulcivd slii]»pprs 
 in connection with intcrslatc tratlic is i)iit into ctTcct hv 
 
 Ct. r)26, L. R. A. 1915R 4r)0. Ann. 
 Cas. IdUiD 593; Chicago, R. I. & 
 P. R. Co. V. Cramer, 232 U. S. 490, 
 58 L. Ed. G97, 34 Sup. Ct. 383; 
 Mitchell Coal & Coke Co. v. Penn- 
 sylvania R. Co.. 230 U. S. 247, 57 
 L. Ed. 1472, 33 Sup. Ct. 916; St. 
 Louis Southwestern R. Co. v. 
 Burckett, 229 U. S. 603, 57 L. Ed. 
 1347, 33 Sup. Ct. 773; Missouri, 
 K. & T. R. Co. V. Harriman, 227 
 U. S. 657, 57 L. Ed. 690, 33 Sup. 
 Ct. 397; Kansas City Southern R. 
 Co. V. Carl, 227 U. S. 639, 57 L. Ed. 
 683, 33 Sup. Ct. 391; Kansas City 
 Southern R. Co. v. C. H. Albers 
 Commission Co., 223 U. S. 573, 50 
 L. Ed. 556, 32 Sup. Ct. 316; Pull- 
 man Co. V. State ex rel. Coleman, 
 216 U. S. 56, 54 L. Ed. 378, 30 
 Sup. Ct. 232; Western U. Tel. Co. 
 V State ex rel. Coleman, 216 U. S. 
 1, 54 L. Ed. 355, 30 Sup. Ct. 19C; 
 New York Cent. & H. River Co. v. 
 United States. 212 U. S. 500, 53 
 L. Ed. 624, 29 Sup. Ct. 309; Texas 
 & P. R. Co. V. Abilene Cotton Oil 
 Co., 204 U. S. 426, 51 L. Ed. 553, 
 27 Sup. Ct. 350. 9 Ann. Cas. 1075; 
 Texas & P. R. Co. v. Musg. 202 U. 
 S. 242, 50 L. Ed. 1011, 26 Sup. Ct. 
 628; Gulf. C. & S. F. R. Co. v. 
 Hefley, 158 U. S. 98, 39 L. Ed. 910, 
 15 Sup. Ct. 802; Alabama Great 
 Southern R. Co. v. George H. Mc- 
 Fadden & Bros., 232 Fed. 1000; 
 Central R. of New Jersey, v. United 
 States, 143 C. C. A. 569, 229 Fed. 
 501; Hocking Valley R. Co. v. 
 United States, 127 C. C. A. 285, 210 
 Fed. 735; Illinois Cent. R. Co. v. 
 S. Segari & Co., 205 Fed. 998; 
 United States v. Philadelphia & 
 R. Ry. Co.. 184 Fed. 543; Gamble- 
 Rohinson Commission Co. v. Chi- 
 cago & N. W. R. Co., 94 C. C. A. 
 217, 168 Fed. 161, 21 L. R. A. (N. 
 
 S.) 982, 16 Ann. ('as. 613; Chicago, 
 
 B. & Q. R. Co. V. United States. 85 
 
 C. C. A. 194, 157 Fed. 830. 
 Alabama. Seaboard Air Line R. 
 
 Co. V. Patrick, 10 Ala. App. 341, 
 65 So. 437; Central of Georgia R. 
 Co. V. Birmingham Sand & Brick 
 Co., 9 Ala. App. 419, 64 So. 202; 
 Northern Alabama R. Co. v. Wilson 
 Mercantile Co.. 9 Ala. App. 269, 63 
 So. 34; Central of Georgia R. Co. v. 
 Patterson, 6 Ala. App. 494, 60 So. 
 465; Louisville & N. R. Co. v. Mc- 
 Mullen, 5 Ala. App. 662, 59 So. 683; 
 Southern Ry. Co. v. Harrison, 119 
 Aa. 539, 43 L. R. A. 385, 72 Ann. 
 St. Rep. 936, 24 So. 552. 
 
 Colorado. Atchison. T. & S. F. R. 
 Co. V. Bowman. 61 Colo. 477. 158 
 Pac. 814. 
 
 Georgia. Central of Georgia R. 
 Co. V. Curtis, 14 Ga. App. 716, 
 82 S. E. 318; Charleston & W. C. R. 
 Co. V. Thompson, 13 Ga. App. 528, 
 80 S. E. 1097; Atlantic Coast Line 
 R. Co. V. Thomasville Live Stock 
 Co., 13 Ga. App. 102, 78 S. E. 1019; 
 Georgia R. R. v. Creety, 5 Ga. App. 
 424, 63 S. E. 528; Savannah, F. & 
 W. Ry. Co. V. Bundick, 94 Ga. 775, 
 21 S. E. 995. 
 
 Indiana. Cleveland, C. C. & St. 
 L. R. Co. V. Talge Mahogany Co., 
 
 Ind. . 112 N. E. 890: St. 
 
 Louis Southwestern R. Co. v. J. S. 
 Patterson Const. Co., 181 Ind. 304, 
 104 N. E. 512; Wabash R. Co. v. 
 Priddy. 179 Ind. 483, 101 N. E. 724; 
 Baltimore & O. S. W. R. Co. v. 
 New Albany Box & Basket Co., 48 
 Ind. App. 647, 94 N. E. 906, 96 N. 
 E. 28; Terre Haute & L. R. Co. v. 
 Erdel. 158 Ind. 344, 62 N. E. 706. 
 
 Iowa. Cedar Rapids Fuel Co. v. 
 
 Illinois Cent. R. Co., Iowa 
 
 , 160 N. W. 353.
 
 452 
 
 Duties to Interstate Shippees. 
 
 [^ 257 
 
 publication iu the form and manner as required by the 
 statute, it thereby becomes the legal rate or charge 
 
 Kansas. Chicago, R. I. & P. R. 
 Co. V. Theis, 96 Kan. 494, 152 Pac. 
 619; Christl v. Missouri Pac. R. 
 Co., 92 Kan. 580, 141 Pac. 587; 
 Metz V. Missouri Pac. R. Co.. 90 
 Kan. 463, 135 Pac. 578; Oregon R. 
 & Nav. Co. V. Thisler, 90 Kan. 5* 
 132 Pac. 539; Schenberger v. Union 
 Pac. R. Co., 84 Kan. 79, 33 L. R. 
 A. (N. S.) 391, 113 Pac. 433; Chi- 
 cago, R. I. & P. Ry. Co. V. Hubbell, 
 54 Kan. 232, 38 Pac. 266. 
 
 Kentucky. Robinson v. Louis- 
 ville & N. R. Co., 160 Ky. 235, 169 
 S. W. 831; Louisville & N. R. Co. 
 V. Coquillard Wagon Works' As- 
 signees, 147 Ky. 530, 144 S. W. 
 1080; Chesapeake & O. R. Co. v. 
 Maysville Brick Co., 132 Ky. (543, 
 116 S. W. 1183. 
 
 Louisiana. Louisiana Ry. & Nav. 
 Co. V. Holly, 127 La. 615, 53 So. 
 883; Foster, Glassel Co. v. Kansas 
 City Southern R. Co., 121 La. 1053, 
 46 So. 1014. 
 
 Minnesota. Victor Produce Co. 
 V. Western Transit Co., 135 Minn. 
 121. 160 N. W. 248. 
 
 Missouri. Foster Lumber Co. v. 
 Atchison, T. & S. F. R. Co.. 270 
 Mo. 629, 194 S. W. 281; Sunderland 
 Bros. Co. v. Baltimore & O. S. W. 
 R. Co., 196 Mo. App. 471, 190 S. 
 W. 650; Mott Store Co. v. St. Louis 
 & S. F. R. Co., 184 Mo. App. 50, 
 168 S. W. 322; Dunne & Grace v. 
 St. Louis & S. W. R. Co., 166 Mo. 
 App. 372, 148 S. W. 997; Sutton 
 V. St. Louis & S. F. R. Co., 159 
 Mo. App. 685, 140 S. W. 76; Drey 
 & Kahn Glass Co. v. Missouri Pac. 
 R. Co., 156 Mo. App. 178, 136 S. 
 W. 757; Ward v. Missouri Pac. Ry. 
 Co., 158 Mo. 226, 58 S. W. 28; Ger- 
 ber V. Wabash R. Co., 63 Mo. App. 
 145; Southern Wire Co. v. St.Louis 
 
 Bridge & Tunnel R. Co., 38 Mo. 
 App. 191. 
 
 New Hampshire. Clough & Co. 
 V. Boston & M. R. R., 77 N. H. 222, 
 Ann. Cas. 1915B 1195, 90 Atl. 863. 
 
 New Jersey. Kells Mill & Lum- 
 ber Co V. Pennsylvania R. Co., 89 
 N. J. L. 490, 98 Atl. 309; Spada v. 
 Pennsylvania R. Co., 86 N. J. L. 
 187, 92 Atl. 379. 
 
 New Mexico. Enderstein v. Atch- 
 ison, T. & S. F. R. Co., 21 N. M. 
 548, 157 Pac. 670; Pecos Valley & 
 N. E. R. Co. V. Harris, 14 N. M. 410, 
 94 Pac. 951. 
 
 New York. Greenwald v. New 
 York Cent. & H. River R. Co.., 95 
 N. Y. Miss. 122, 159 N. Y. Supp. 
 15; Pennsylvania R. Co. v. MogI, 
 71 N. Y. Misc. 412, 128 N. Y. Supp. 
 643; Baltimore & O. R. Co. v. La 
 Due, 128 N. Y. App. Div. 594, 112 
 N. Y. Supp. 964. 
 
 North Carolina. Virginia-Caro- 
 lina Peanut Co. v. Atlantic Coast 
 Line R. Co., 166 N. C. 62, 82 S. 
 E. 1. 
 
 North Dakota. Knapp v. Min- 
 neapolis, St. P. & S. S. M. R. Co., 
 34 N. D. 466, 159 N. W. 81. 
 
 Ohio. Erie R. Co. v. Steinberg, 
 94 Ohio St. 189, L. R. A. 1917B 
 787, Ann. Cas. 1917E 661, 113 N. 
 E. 814. 
 
 Oklahoma. Missouri, K. & T. R. 
 Co. V. Walston, 37 Okla. 517, 133 
 Pac. 42. 
 
 Pennsylvania. Carr v. Pennsyl- 
 vania R. Co., 88 N. J. L. 235, 96 
 Atl. 588; United States Horse Shoe 
 Co. V. American Exp. Co., 250 Pa. 
 527, 95 Atl. 706; Central R. Co. of 
 New Jersey v. Mauser, 241 Pa. 603, 
 49 L. R. A. (N. S.) 92, 88 Atl. 791. 
 
 South Carolina. Southern Ry. 
 Co. V. Wilmont Oil Mills, 105 S. C.
 
 § 258] Filing and Publication of Ratks. 453 
 
 which all shijipers are bound to pay and all carriers 
 are required to collect.''" Such published rates and 
 charges may be unlawful because exorbitant or discrim- 
 inatory in violation of sections 1 and 3 of the Act, but 
 they remain the legal rates and charges until set aside 
 by the Commission.'^ 
 
 § 258. Foregoing Rule Equally Applicable to Tran- 
 sit and Special Services Provided in Tariffs. The prin- 
 cii)le that a rate, when pu))lished, is binding upon both 
 carrier and shipper and cannot be departed from, except 
 and until it has been, in due course, found by the Com- 
 mission to be unlawful, governs also all transit and other 
 special services provided in the taritfs of carriers. They, 
 too, must be enforced in accordance with their terms, 
 and when provisions therein are free and clear from 
 ambiguity, no agreement between the shipper and the 
 carrier assigning another meaning to them may lawfully 
 be substituted. The Interstate Commerce Commission 
 will not sanction a departure from their plain meaning 
 
 51, 89 S. E. 476; Saunders v. At- Virginia. Atlantic Coast Line R. 
 
 lantic Coast Line R. Co., 101 S. Co. v. Virginia Mfg. Co., 119 Va. 
 
 C. 11, 85 S. E. 167. 5. 89 S. E. 103; Southern R. Co. v. 
 
 Tennessee. Louisville & N. R. Wilcox, 99 Va. 394, 39 S. E. 144. 
 
 Co. V. Hobbs, 136 Tenn. 512, 190 36. See cases cited under note 
 
 S. W. 461; Louisville & N. R. Co. 35, supra. 
 
 V. Montgomery, 136 Tenn. 171, 188 37. Texas & P. R. Co. v. Abilene 
 
 S. W. 1146; Roberts v. Nashville, Cotton Oil Co., 240 U. S. 426, 51 
 
 C. & St. L. R. Co., 135 Tenn. 48, L. Ed. 553, 27 Sup. Ct 350, 9 Ann. 
 
 185S. W. 69; Rather & Co. v. Nash- Cas. 1075; Texas & P. Ry. Co. v. 
 
 ville, C. & St. L. R. Co., 131 Tenn. Mugg, 202 U. S. 242, 50 L. Ed. 1011, 
 
 289, 174 S. W. 1113. 26 Sup. Ct. 628; Gulf, C. & S. F. 
 
 Texas. Pecos & N. T. Ry. Co. v. Ry. Co. v. Hefley, 158 U. S. 98, 39 
 
 Hall, Tex. Civ. App. , L. Ed. 910, 15 Sup. Ct. 802; Franke 
 
 189 S. W. 535; Atchison, T. & S. F. Grain Co. v. Illinois Cent. R. Co.. 
 
 Ry. Co. v. Smyth, Tex. Civ. 27 I. C. C. 625; Crescent Coal & 
 
 App. , 189 S. W. 70; Wichita Mining Co. v. Chicago & E. L R. 
 
 Falls & W. Ry. Co. of Texas v. Co.. 24 I. C. C. 149; Church v. 
 
 Asher, Tex. Civ. App. , Minneapolis & St. L. Ry. Co., 14 
 
 171 S. W. 1114; Texas & P. R. Co. S. D. 443, 85 N. W. 1001. In Franke 
 
 v. Leslie, 62 Tex. Civ. App. 380, Grain Co. v. Illinois Cent. R. Co.. 
 
 131 S. W. 824. supra, the case of Kiel Wooden- 
 Vermont. Fitzgerald v. Grand ware Co. v. Chicago, M. & St. P. 
 
 Trunk R. Co., 63 Vt. 169, 13 L. R. Ry. Co., 18 I. C. C. 242, was dis- 
 
 A. 70, 22 Atl. 76. approved.
 
 454 Duties to Intebstate Shippers. [^ 258 
 
 imtil, in a proper proceeding and upon a proper record, 
 such rules have been found to be unlawful under the 
 Act.'' 
 
 § 259. Forwarders are Shippers within Statute Pro- 
 hibiting Refunds from Published Rates and Charges. Tlie 
 statute prohibits all carriers from refunding or remitting 
 in any manner or by any device any portion of their pub- 
 lished rates, fares or charges. An allowance to a ship- 
 per of a percentage upon the freight shipped by him 
 over the line of a carrier as an inducement to ship over 
 that line is unlawful.'^ Forwarders of freight who ship 
 goods in their own name, for others, are shippers within 
 the meaning of this statute.*" An arrangement, there- 
 fore, between a carrier and a firm engaged in the busi- 
 ness of forwarding freight in its own name for others 
 by which the forwarder was paid a commission on all 
 the commodities shipped over the carrier's line, is a 
 violation of the statute.*^ 
 
 Such allowances are not for "transportation ser- 
 vices" within the meaning of Section 15 of the Act; 
 nor are they within the rule that a carrier has the right 
 to employ persons to solicit business and to pay them 
 for such work. When such payments for the solicitation 
 of business are made to a shipper, they constitute un- 
 lawful rebates and concessions condemned by the law. 
 "Any payment made by a carrier to a shipper," said 
 Mr. Justice Holmes in Lehigh V. R. Co. v. United 
 States, cited supra, "in consideration of his shipping 
 goods over the carrier's line comes within the i)rohibit- 
 ing words. It is true, no doubt, that George W. Sheldon 
 & Company in the performance of the services for 
 which it is paid, maintains offices here and abroad, ad- 
 
 38. Peters MiU Co. v. Chicago, 53; Interstate Commerce Commis- 
 B & Q. R. Co., 38 I. C. C. 245. gion v. Delaware, L. & W. R. Co., 
 
 39. Wight V. United States. 167 22O U. S 235, 55 L. Ed. 448, 31 
 U. S. 512, 42 L. Ed. 258, 17 Sup. 
 
 Ct. 822. ^P- 
 
 40. Great Northern R. Co. v. 41. Lehigh Valley R. Co. v. 
 O'Connor, 232 U. S. 508, 58 L. Ed. United States, 243 U. S. 444, 61 L. 
 703, 34 Sup. Ct. 380, 8 N. C. C. A. Ed. 839, 37 Sup. Ct. 434.
 
 '^ 260] Filing and Publication of Iiates. 455 
 
 vertisos tho railroad, solicits traffic for it, does various 
 other useful things, and, in short, we assume, benefits 
 the road and earns its money, if it were allowable to 
 earn money in that way. It is true also that in Inter- 
 state Commerce Commission v. F. H. Peavey & Co., 222 
 U. S. 42, 56 L. Ed. 83, 32 Sup. Ct. 22, an owner of 
 property transported was held entitled, under sec. 15 of 
 the Act to Regulate Commerce, to an allowance for 
 furnishing a part of the transportation that the carrier 
 was bound to furnish. So Union P. R. Co. v. Updike 
 Grain Co., 222 U. S. 215, 56 L. Ed. 171, 32 Sup. Ct. Rep. 
 39, and United States v. Baltimore & 0. R. Co., 231 U. 
 S. 274, 58 L. Ed. 218, 34 Sup. Ct. Rep. 75. But that 
 case goes to the verge of what is i)ermitted by the act. 
 The services rendered by George W. Sheldon & Com- 
 pany, although in a practical sense 'connected with such 
 transportation,' were not connected with it as a neces- 
 sary part of the carriage,— were not 'transportation 
 service,' in the language of Union P. R. Co. v. Updike 
 Grain Co.,^222 U. S. 215, 220, 56 L. Ed. 171, 173, 32 Sup. 
 Ct. Rep. 39, — and, in our opinion, were not such ser- 
 vices as were contemplated in the Act of June 29, 1906, 
 chap. 3591, sec. 4, 34 Stat, at L. 589, Comp. Stat. 1913, 
 sec. 8583, amending sec. 15 of the original act. On the 
 other hand, the allowance for them falls within the 
 plain meaning of sec. 2 of the Act of 1906, to which we 
 referred above. ' ' 
 
 § 260. Oral Contracts or Special Arrangements for 
 Interstate Transportation Contravening Published Sched- 
 ules, Unlawful. As the statute forbids all carriers from 
 refunding or remitting in any manner or by any device 
 any portion of the scheduled rates, or extending to any 
 shipper any privilege or facility except such as are 
 specified in the established tariffs filed with the Com- 
 mission, all contracts or special arrangements as to 
 interstate shipments in conflict with or in contravention 
 of the schedules, rules and regulations thus standardized 
 and filed, are unlawful.*- Shippers as well as carriers 
 
 42. United States. Southern R. Ed. 836, 36 Sup. Ct. 469; Atchison, 
 Co. V. Prescott, 240 U. S. 632, 60 L. T. & S. F. R. Co. v. Moore. 233
 
 456 
 
 Duties to Interstate Shippers. 
 
 [§ 260 
 
 are required to take notice of tlie tariffs on file, and as 
 long as they remain operative they are conclusive as to 
 the rights of all parties. To give effect to oral agree- 
 ments and to maintain their supremacy over the pub- 
 
 U. S. 182, 58 L. Ed. 906, 34 Sup. 
 Ct. 558: Atchison, T. & S. F. R. 
 Co. V. Robinson, 233 U. S. 173, 58 
 L. Ed. 901, 34 Sup. Ct. 556; Great 
 Northern R. Co. v. O'Connor, 232 
 U. S. 508, 58 L. Ed. 703, 34 Sup. 
 Ct. 380, 8 N. C. C. A. 53; Kansas 
 City Southern R. Co. v. Carl, 227 
 U. S. 639, 57 L. Ed. 683, 33 Sup. 
 Ct. 391; Wells, Fargo & Co. v. 
 Neiman-Marcus Co., 227 U. S. 469, 
 57 L. Ed. 600, 33 Sup. Ct. 267; 
 United States v. Union Stock Yard 
 & Transit Co. of Chicago, 226 U. 
 S. 286, 57 L. Ed. 226, 33 Sup. Ct. 
 83; Chicago & A. R. Co. v. Kirby, 
 225 U. S. 155, 56 L. Ed. 1033, 32 
 Sup. Ct. 648, Ann. Cas. 1915A 
 501; American Exp. Co. v. United 
 States, 212 U. S. 522, 53 L. Ed. 635. 
 29 Sup. Ct. 315; J^ewis. Leonhardt 
 & Co. V. Southern R. Co., 133 C. C. 
 A. 237, 217 Fed. 321: Crdahy Pack- 
 ing Co. V. Grand Trunk Western 
 R. Co., 131 C. C. A. 401, 215 Fed. 
 93; Engemoen v. Chicago, St. P., 
 M. & 0. R. Co.. 127 C. C. A. 426. 
 210 Fed. 896; Duplan Silk Co. v. 
 American & Foreign Marine Ins. 
 Co., 124 C. C. A. 18, 205 Fed. 724; 
 Clegg V. St. Louis & S. F. R. Co., 
 122 C. C. A. 273, 203 Fed. 971; 
 Atchison, T. & S. F. Ry. Co. v. 
 Kinkade, 203 Fed. 165; Elwood 
 Grain Co. v. St. .Joseph & G. I. R. 
 Co., 121 C. C. A. 153, 202 Fed. 845; 
 Taenzer & Co. v. Chicago, R. I. & 
 P. R. Co., 112 C. C. A. 153, 191 
 Fed. 543; Chesapeake & O. Ry. Co. 
 V Standard Lumber Co., 98 C. C. 
 A. 81, 174 Fed. 107; Chicago & A. 
 R. Co. V. United States, 84 C. C. A. 
 324, 156 Fed. 558, 26 L. R. A. (N. 
 S.) 551; Crowell & Spencer Lum- 
 
 ber Co. V. Texas & P. Ry. Co., 17 
 I C. C. 333; Hood & Sons v. Del- 
 aware & H. Co., 17 I. C. C. 155; 
 Swift & Co. V. Chicago & A. R. Co., 
 16 I. C. C. 420. 
 
 Alabama. Northern Alabama R. 
 Co. V. Wilson Mercantile Co., 9 Ala. 
 App. 269, 63 So. 34; Central oi 
 Georgia R. Co. v. Patterson, 6 
 Ala. App. 494, 60 So. 465. 
 
 Arkansas. St. Louis, I. M. & S. 
 R. Co. V. Faulkner, 111 Ark. 430, 
 164 S. W. 763. 
 
 Indiana. Wabash R. Co. v. Prid- 
 dy. 179 Ind. 483, 101 N. E. 724. 
 
 Massachusetts. New York. N. H. 
 & H. R. Co. V. York & Whitney Co., 
 215 Mass. 36, 102 N. E. 366. 
 
 Missouri. Morrison Grain Co. v. 
 IMissouri Pac. R. Co., 182 Mo. App. 
 339. 170 S. W. 404. 
 
 New Hampshire. Clough & Co. 
 V. Boston & M. R. R.. 77 N. H. 222, 
 Ann. Cas. 1915B 1195, 90 Atl. 863. 
 
 Pennsylvania, United States 
 Horse Shoe Co. v. American Exp. 
 Co., 250 Pa. 527, 95 Atl. 706; 
 Central R. Co. of New Jersey v. 
 Mauser, 241 Pa. 603, 49 L. R. A. 
 (N. S.) 92. 88 Atl. 791. 
 
 South Carolina. Jordan v. South- 
 ern R. Co.. 100 S. C. 284, 84 S. E. 
 871. 
 
 Tennessee. Roberts v. Nashville. 
 C. & St. L. R. Co., 135 Tenn. 48. 
 185 S. W. 69. 
 
 Texas. St. Louis, I. M. & S. Ry. 
 
 Co. V. West Bros., Tex. Civ. 
 
 App. , 159 S. W. 142. 
 
 Virginia. Southern R. Co. v, 
 Wilcox, 99 Va. 394, 39 S. E. 144. 
 
 Washington. Southern Pac. Co. 
 V. Frye & Bruhn 82 Wash. 9. 143
 
 § 260] Filing and Pubu cation of Rates. 
 
 457 
 
 lislied Pfliediiles, would defeat the principle of equal 
 treatment to all shippers, one of the puri)oses of the 
 Interstate Commerce Act. 
 
 It is the duty of a carrier to collect the regularly 
 established and published rates and to obser^^e all the 
 regulations Hied with the Commission, and it is the cor- 
 responding obligation of a shipper to pay such rates 
 and to adhere to such regulations, regardless of any 
 understanding, agreement or any other act of the part- 
 ies.*' For example, a contract for the transportation of 
 
 43. United States. Dayton Coal 
 & Iron Co. V. Cincinnati, N. 0. & 
 T. P. R. Co., 239 U. S. 446, 60 
 L. Ed. 375. ;>6 Sup. Ct. 137; Kansas 
 City Southern R. Co. v. C. H. 
 Albers Commission Co., 223 U. S. 
 573, 56 L. Ed. 556, 32 Sup. Ct. 316; 
 Macon Grocery Co. v. Atlantic 
 Coast Line R. Co., 215 U. S. 501, 
 54 L. Ed. 300, 30 Sup. Ct. 184; 
 Hocking Valley R. Co. v. Lack- 
 awanna Coal & Lumber Co., 140 C. 
 C A. 408, 224 Fed. 930; Union 
 Pac. R. Co. V. American Smelting 
 & Refining Co., 121 C. C. A. 182, 202 
 Fed. 720. 
 
 Alabama. Central of Georgia R. 
 Co. V. Southern Ferro Concrete Co., 
 193 Ala. 108, 68 So. 981; Central 
 of Georgia R. Co. v. Birmingham 
 Sand & Brick Co., 9 Ala. App. 419, 
 64 So. 202: Southern Ry. Co. v. 
 Harrison. IIP Ala. 539, 43 L. R. A. 
 385, 72 Ann. St. Rep. 936, 24 So. 
 552. 
 
 Arkansas. St. Louis & S. F. Ry. 
 Co. V. Ostrander, 66 Ark. 567, 52 
 S. W. 435; Kizer v. Texarkana & 
 Ft. S. Ry. Co., 66 Ark. 348, 50 S. 
 W. 871. 
 
 Georgia. Central of Georgia It. 
 Co. V. Curtis. 14 Ga. App. 716, 82 
 S. E. 318; Brantley Co. v. Ocean 
 S S. Co., 5 Ga. App. 844, 63 S. E. 
 1129; Raleigh & G. R. Co. v. Swan- 
 .s;on, 102 Ga. 754. 39 L. R. A. 275. 
 28 S. E. 601; Savannah. F. & W. 
 
 Ry. Co. V. Bundick, 94 Ga. 775, 21 
 S. E. 995. 
 
 Indiana. Baltimore & O. S. W. 
 R. Co. V. New Albany Box & Basket 
 Co., 48 Ind. App. 647, 94 N. E. 906, 
 96 N. E. 28. 
 
 Indian Territory. Missouri, K. 
 & T. Ry. Co. V. Bowles, 1 Indian T. 
 250, 40 S. W. 899. 
 
 Iowa. Coad v. Chicago, St. ?., 
 M. & O. R. Co., 171 Iowa 747, 154 
 N. W. 396; Lanner v. Wabash R. 
 Co., 131 Iowa 405, 108 N. W. 759. 
 
 Kansas. Oregon R. & Nav. Co. 
 V. Thisler, 90 Kan. 5, 133 Pac. 539; 
 Chicago, R. I. & P. Ry. Co. v. Hub- 
 bell, 54 Kan. 232, 38 Pac. 266. 
 
 Kentucky. Louisville & N. R. 
 Co. V. Coquillard Wagon Works' 
 Assignees, 147 Ky. 530, 144 S. W, 
 1080. 
 
 Louisiana. Foster, Glassel Co. v. 
 Kansas City Southern R. Co., 121 
 La. 1053, 46 So. 1014. 
 
 Maine. Johnson v. New York. N. 
 H. & H. R. R., Ill Me. 263, 88 Atl. 
 988. 
 
 Mississippi. Gulf & S. I. R. Co. 
 V Laurel Cotton Mills, 91 Miss. 
 166. 45 So. 982. 
 
 Missouri. Dunne & Grace v. St. 
 Louis & S. W. R. Co.. 166 Mo. App. 
 372. 148 S. W. 997; Sutton v. St. 
 Louis & S. F. R. Co.. 159 Mo. App. 
 685, 140 S. W. 76; Gerber v. Wa- 
 bash R. Co., 63 Mo. App. 145.
 
 458 
 
 Duties to Interstate Shippers. 
 
 [§ 260 
 
 livestock to a market within a limited time, when not 
 anthorized or provided for by the published tariffs of 
 the carrier, is void.** Similarly a verbal contract with 
 an agent of a railway company for the transportation 
 of race horses on a certain train, which was in conflict 
 with the schedules and regulations of the carrier, pub- 
 lished as required by Section 6, was held to be in- 
 valid.*^ In another case,*"^ a shipper sued an interstate 
 
 New Hampshire. Clough & Co. 
 
 V Boston & M. R. R., 77 N. H. 222. 
 Ann. Cas. i915B 1195, 90 Atl. S63. 
 
 New Mexico. Pecos Valley & N. 
 E. R. Co. V. Harris, 14 N. M. 410, 
 94 Pac. 951. 
 
 New York. Pennsylvania R. Co. 
 V. Titus, 216 N. Y. 17, L. R. V. 
 1916E 1127, 109 N. E. 857; Penn- 
 sylvania R. Co. V. Titus, 78 N. Y. 
 Misc. 347, 138 N. Y. Supp. 325; 
 Houseman v. Fargo, 124 N. Y. 
 Supp. 1086; Baltimore & O. R. Co. 
 
 V La Due, 128 N. Y. App. Div. 594, 
 112 N. Y. Supp. 964. 
 
 North Carolina, Virginia-Caro- 
 lina Peanut Co. v. Atlantic Coast 
 Line R. Co., 166 N. S. 62, 82 S. 
 
 E. 1; Yorke Furniture Co. v. 
 Southern R. Co., 162 N. C. 138, 78 
 S. E. 67. 
 
 North Dakota. Smith v. Great 
 Northern R. Co., 15 N. D. 195, 107 
 N. W^ 56. 
 
 Oklahoma. Atchison, T. & S. F. 
 
 Ry. Co. V. Ehret, Okla. , 
 
 152 Pac. 1107; St. Louis & S. F. R. 
 
 Co. V. Pickens, Okla. , 
 
 151 Pac. 1055; Atchison, T. & S. 
 
 F. R. Co. V. Bell, 31 Okla. 238, 38 
 L. R. A. (N. S.) 351, 120 Pac. 987; 
 Atchison, T. & S. F. R. Co. v. 
 Holmes, 18 Okla, 92, 90 Pac. 22. 
 
 Pennsylvania. Crane R. Co. v. 
 Philadelphia & R. R. Co., 253 Pa. 
 246, 97 Atl. 1055; Central R. Co. 
 of New Jersey v. Mauser, 241 Pa. 
 
 603, 49 L.R.A. (N.S.) 92, 88 Atl. 791. 
 
 South Carolina. Hardaway v. 
 Southern R. Co., 90 S. C. 475. Ann. 
 Cas. 1913D 266, 73 S. E. 1020. 
 
 South Dakota. Melody v. Great 
 Northern Co., 25 S. D. 606, 30 L. 
 R. A. (N. S.) 568, Ann. Cas. 1912C 
 727, 127 N. W. 543; Church v. 
 Minneapolis & St. L. Ry. Co., 14 
 S. D. 443, 85 N. W. 1001. 
 
 Tennessee. Roberts v. Nashville, 
 C. & St. L. R. Co., 135 Tenn. 48 
 185 S. W. 69. 
 
 Texas. Texas & P. Ry. Co. v. 
 
 Dickson Bros., Tex. Civ. App. 
 
 , 167 S. W. 33; Texas & P. Ry. 
 
 Co. v. Clark, 4 Tex. Civ. App. 611, 
 23 S. W. 698. 
 
 Virginia. Southern R. Co. v. 
 Wilcox, 99 Va. 394, 39 S. E. 144. 
 
 Washington. Fisher v. Great 
 Northern R. Co., 49 Wash. 205, 95 
 Pac. 77. 
 
 44. Engemoen v. Chicago, St. P., 
 M. & 0. R. Co., 127 C. C. A. 426, 
 210 Fed. 896. 
 
 45. Atchison, T. & S. F. R. Co. 
 V. Robinson, 233 U. S. 173, 58 L. 
 Ed. 901, 34 Sup. Ct. 556, in which 
 the court said: "The Supreme 
 Court of the State in this case af- 
 firmed the instruction of the trif^l 
 court upon which the case was 
 given to the jury and held that 
 the oral contract was binding un- 
 less it was affirmatively shown 
 that the written agreement, based 
 upon the filed schedules, was
 
 § 2(J()| l''lLI.\(; AMI I'riW.lCAIluX (IK IiATES. 459 
 
 can-ifM' for tlie violation of a sp(*<'ial contract made witli 
 him whereby the carrier a^'reed to exi)edite a slii])T]ient 
 by making- connections witli a particuhir ti-ain, for the 
 I'c^iihirly estal)lished rates a])i)lyin<i: to all sliijjments. 
 in coiidemninii' such s))ecial arran<i,'ements not o])en 
 to all shii)])ers on like tcniis, the court said:*' ''The 
 imi)lied agreement of a common carrier is to carry safely 
 and deliver at destination within a reasona>)le time. It 
 is otherwise when the action is for a breach of a con- 
 tract to carry witliin a |»articuh\r time, oi- to make a 
 particular connection, or to carry by a ])articular train. 
 The railroad comi)any, by its contract, l^ecame liable 
 for the consequence of a failure to transi)ort according 
 to its terms. Evidence of diligence would not excuse. 
 If the action had been for the common-law carrier lia- 
 bility, evidence that there had been no unreasonable 
 delay would be an answer. But the company, by enter- 
 ing into an agreement for expediting the shipment, 
 came under a liability different and more burdensome 
 than would exist to a shipper who made no such special 
 contract. P^or such a special service and higher respon- 
 sibility it might clearly exact a higher rate. But to do 
 so it must make and publish a rate open to all. This 
 was not done. The shipper, it is also plain, was con- 
 tracting for an advantage which was not extended to 
 all others, both in the undertaking to carry so as to 
 give him a ]iarticular expedited service, and a remedy 
 
 brought to the knowledge of the effect of such filed schedules and 
 
 shipper and its terms assented to the duty of the shipper to take 
 
 by him. This ruling ignored the notice of the terms of such rates 
 
 terms of shipment set forth in the and the obligation to be bound 
 
 schedules and permitted recovery njereby in the absence of the ex- 
 
 upon the contract made in- vioU- .optional circumstances to which 
 
 tion thereof in a case where there 
 
 was no proof that there was an 
 
 attempt to violate the published 
 
 rates by a fraudulent agreement 
 
 showing rebating or false billing ^*^^-^' ^^ ^"P- ^t. 648. Ann. Cas. 
 
 of the property, and no circum- 1914A 501. 
 
 stances which would take the casv? 47. See also Lewis, Leonhardt & 
 
 out of the rulings heretofore made Co. v. Southern R. Co., 133 C. C. A. 
 
 by this court as to the binding 237, 217 Fed. 321. 
 
 we have referred." 
 
 4(i. Chicago & A. R. Co. v. 
 Kirby. 225 U. S. 155, 56 L. Ed.
 
 460 
 
 Duties to Intekstate Shippers. 
 
 [§ 260 
 
 for delay not due to negligence. An advantage ac- 
 corded by special agreement which affects the value of 
 the service to the shipper and its cost to the carrier 
 should be published in the tariffs, and for a breach of 
 such a contract, relief will be denied, because its al- 
 lowance without such publication is a violation of the 
 act. It is also illegal because it is an undue advantage 
 in that it is not one open to all others in the same situa- 
 tion." 
 
 § 261. Shippers and Passengers Conclusively Pre- 
 sumed to Have Knowledge of Published Schedules of 
 Rates, Fares and Charges. All shippers and passengers 
 are charged with notice of the schedules of rates, fares, 
 charges and regulations duly published and on file with 
 the Interstate Commerce Commission.** The rates so 
 
 48. United States. Southern R. 
 Co. V. Prescott, 240 U. S. 632, 60 
 L. Ed. 836, 36 Sup. Ct. 469; Louis- 
 ville & N. R. Co. V. Maxwell 237 
 U. S. 94, 59 L. Ed. 853, 35 Sup. 
 Ct. 494, L. R. A. 1915E 665; Ber- 
 wind-White Coal Min. Co. v. Chi- 
 cago & E. R. Co., 235 U. S. 371, 
 59 L. Ed. 275, 35 Sup. Ct. 131; 
 Boston & M. R. Co. v. Hooker, 
 233 U. S. 97, 58 L. Ed. 868, 34 Sup. 
 Ct. 526, L. R. A. 1915B 450, Ann. 
 Cas. 1915D 593; Kansas City 
 Southern R. Co. v. Carl, 227 U. 
 S. 639, 57 L. Ed. 683, 33 Sup. Ct. 
 391; Illinois Cent. R. Co. v. Hen- 
 derson Elevator Co., 226 U. S. 441. 
 57 L. Ed. 290, 33 Sup. Ct. 176; 
 Chicago & A. R. Co. v. Kirby, 225 
 U. S. 155. 56 L. Ed. 1033, 32 Sup. 
 Ct. 648, Ann. Cas. 1914A 501; New 
 York Cent. & H. River R. Co. v. 
 United States, 212 U. S. 500, 53 
 L. Ed. 624, 29 Sup. Ct. 309; Tex- 
 as & P. R. Co. V. Abilene Cotton 
 Oil Co., 204 U. S. 426, 51 L. Ed. 
 553, 27 Sup. Ct. 350, 9 Ann. Cas. 
 1075; Texas & P. R. Co. v. Mugg, 
 202 U. S. 242, 50 U Ed. 1011, 26 
 
 Sup. Ct. 628; Great Lakes Coal 
 and Dock Co. v. Seither Transit 
 Co., 136 C. C. A. 110, 220 Fed. 28; 
 Storm Lake Tub & Tank Factory 
 V. Minneapolis & St. L. R. Co., 
 209 Fed. 895; Taenzer & Co. v. 
 Chicago, R. I. & P. R. Co., 112 C. 
 C. A. 153, 191 Fed. 543; Morris- 
 dale Coal Co. V. Pennsylvania R. 
 Co., 176 Fed. 748; United States 
 V. Great Northern R. Co., 157 Fed. 
 288; Van Patten v. Chicago, M. & 
 St. P. Ry. Co., 81 Fed. 545; Franke 
 Grain Co. v. Illinois Cent. R. Co., 
 27 I. C. C. 625; Pole Stock Lum- 
 ber Co. V. Gulf & S. I. R. Co., 26 
 I. C. C. 451; Wisconsin Lime & 
 Cement Co. v. Cleveland, C. C. & 
 St. L. Ry. Co., 25 I. C. C. 366; 
 Johnson v. Atchison, T. & S. F. R. 
 Co., 25 I. C. C. 207; Humboldt 
 Steamship Co. v. White Pass & Y. 
 R. Co., 25 I. C. C. 136; Faribault 
 Furniture Co. v. Chicago G. W. 
 R. Co., 25 I. C. C. 40; Crescent 
 Coal & Mining Co. v. Chicago & 
 E. R. Co., 24 I. C. C. 149; Foll- 
 mer & Co. v. Bellingham B. & B. 
 C. R. Co., 21 I. C. C. 617; Running
 
 § 261] 
 
 Filing and Pubijcation of Rates, 
 
 461 
 
 filed and promul^atod become the lawful established 
 rates and are as binding as though they had been pre- 
 scribed by statute. The carrier must collect the lawful 
 rate so fixed, and the shipper is compelled to pay it. A 
 passenger's and shipper's knowledge of the scheduled 
 rates and fares is conclusively presumed, and actual want 
 of notice of the schedule is no defense to an action for 
 the lawful rate.^'' In the leading case of Texas «fc P. K. 
 
 V Chicago, St. P., M. & O. Ry. Co., 
 19 I. C. C. 565; Blinn Lumber 
 Co. V. Southern P. Co., 18 L C. C. 
 430; Snyder-Malone-Donahue Co. 
 V. Chicago, B. & Q. R. Co., 18 I. 
 C. C. 498; Williamette Pulp & 
 Paper Co. v. Northern P. Ry. Co., 
 18 I. C. C. 388; Laning-Harris 
 Coal & Grain Co. v. St. Louis & 
 S. F. R. Co., 15 I. C. C. 37; Whit- 
 comb V. Chicago & N. W. Ry. Co., 
 15 I. C. C. 27. 
 
 Alabama. Southern Ry. Co. v. 
 Harrison, 119 Ala. 539, 43 L. R. 
 A. 385, 72 Am. St. Rep. 936, 24 
 So. 552. 
 
 Arkansas. St. Louis, I. M. & S. 
 R. Co. V. Faulkner, 111 Ark. 430, 
 164 S. W. 763. 
 
 Georgia. Central of Georgia R. 
 Co. V. Curtis, 14 Ga. App. 716, 82 
 S. E. 318. 
 
 Indiana. Cleveland, C, C. & St. 
 Ij. Ry. Co. V. Talge Mahogany Co., 
 Ind. , 112 N. E. 890. 
 
 Iowa. Herminghausen v. Adams 
 Exp. Co., 167 Iowa 230, 149 N. 
 W. 234. 
 
 Kansas. Christl v. Missouri Pac. 
 R. Co., 92 Kan. 580, 141 Pac. 587. 
 
 Kentucky. Robinson v. Louis- 
 ville & N. R. Co.. 160 Ky. 235, 169 
 S. W. 831: Louisville & N. R. Co. 
 V. Allen, 152 Ky. 145. 153 S. W. 
 198. 
 
 Missouri. Sloop v. Delano. 182 
 Mo. App. 299. 170 S. W. 385. 
 
 New York. Pennsylvania R. Co. 
 V. Titus, 158 N. Y. App. Div. 880, 
 142 N. Y. Supp. 1134. 
 
 Oklahoma. St. Louis & S. F. R. 
 
 Co. V. Pickens, Okla. , 151 
 
 Pac. 1055. 
 
 Oregon. ZoUer Hop Co. v. South- 
 ern Pac. Co., 72 Or. 262, 143 Pac. 
 931; Baldwin Sheep & Land Co. 
 V. Columbia R. Co., 58 Or. 285. 
 114 Pac. 469. 
 
 South Carolina. Hurdaway v. 
 Southern R. Co., 90 S. C. 475, Ann. 
 Cas. 1913D 266, 73 S. E. 1020. 
 
 Texas. Wardlow v. Andrews, 
 
 Tex. Civ. App. , 180 S. 
 
 W. 1161; Pacific Exp. Co. v. Ross, 
 
 Tex. Civ. App. , 154 S. 
 
 W. 340. 
 
 49. Reno v. Wholesale Liquor 
 Store v. Southern P. Co., 23 I. C. 
 C. 516; McLean Lumber Co. v. 
 Louisville & N. R. Co., 22 L C. 
 C 349; Ohio Iron & Metal Co. v. 
 Wabash R. Co., 18 I. C. C. 299; 
 Interstate Remedy Co. v. Ameri- 
 can Exp. Co., 16 I. C. C. 436; 
 Gough & Co. V. Illinois Cent. R. 
 Co., 15 I. C. C. 280; Poor Grain 
 Co. v. Chicago, B. & Q. R. Co., 12 
 I. C. C. 469. In Poor v. Chicago. B. 
 & Q. R. Co., supra, a case fre- 
 quently cited on this point, the 
 Commission said: "A carrier is 
 required by law to published the 
 rate and also clearly to indicate 
 the route over which the published 
 rate is applicable. When so pub- 
 lished the rate named and the 
 route designated stand as the law, 
 binding as well upon the shipper 
 as upon the carrier. A schedule 
 of rates publislied in the manner
 
 4(i2 Duties to Interstate Shippers. [§ 2G1 
 
 Co. V. J\Iuii-,u," the Supreme (V)iut, in discussing the ef- 
 fect of a sliii)pei's ignorance of tlio published rates, and 
 quoting from another opinion, said: "Tlie clear effect 
 of the decision was to declare that one who has obtained 
 from a common carrier transportation of goods from 
 one State to another at a rate, specified in the bill of 
 lading, less than the published schedule rates filed witli 
 and approved by the Interstate Commerce Commission, 
 and in force at the time, whether or not he knew that 
 the rate obtained was less than the schedule rate, is not 
 entitled to recover the goods, or damages for their de- 
 tention, ui)on the tender of payment of the amount of 
 charges named in the bill of lading, or of any sum less 
 than the schedule charges; in other words, that what- 
 ever may be the rate agreed upon, the carrier's lien on 
 the goods is, by force of the act of Congress, for the 
 amount fixed by the published schedule of rates and 
 charges, and this lien can be discharged, and the con- 
 signee can become entitled to the goods, only by the 
 payment, or tender of payment, of such amount. Such 
 is now the supreme law, and by it this and the courts 
 of all other States are bonnd." 
 
 § 262. Courts Bound by Published Rates and 
 Charges Until Set Aside by Commission. The rates and 
 charges fixed in the schedules for interstate and foreign 
 transportation by carriers subject to the Act and all 
 rules and regulations affecting the rates, fares and 
 charges on file with the Commission and duly published, 
 are binding upon all federal and state courts as well as 
 upon the shippers and carriers. The Interstate Com- 
 
 provided by law speaks with equal fulfilling the law's requirements; 
 authority to the shipper and to in either event the carrier must 
 the carrier, and both are equally collect and the shipper must pay 
 chargeable with notice of the rate the rate as published for the route 
 and of the route over which the over which the shipments actual- 
 rate is made applicable. A mis- ly move. This general rule is 
 take by a carrier in responding to founded not only on the strict 
 any inquiry by a shipper, either language of the law but also upon 
 as to the rate or as to the route, a sound public policy." 
 will relieve neither the one nor 50. 202 U. S. 242. 50 L. Ed. 
 the other from the obligation of lull, 26 Sup. Ct. 628.
 
 § 2(52 J FlLIN(; AND PUHLICATIOX OF KaTES. 
 
 463 
 
 merce Commission ijosscsscs, imder tlio statute, tlio ex- 
 clusive jjower to determine i)rimarily tiie reasonable- 
 ness of the rates and diaries published in the schedules, 
 and without such a preliminary determination ))y the 
 Conunission, the courts have no jurisdiction to pass ui)on 
 the reasonableness of interstate rates and cliarges.**' 
 Actions for damages, thci<'fore, without a ]>rior tinding 
 h\ the Interstate Commerce Commission, cannot be 
 maintained in the courts foi' the exaction of an unreason- 
 
 51. Pennsylvania R. Co. v. 
 Stineman Coal Min. Co., 242 U. S. 
 298. 61 L. Ed. 316, 37 Sup. Ct. 118; 
 Louisville & N. R. Co. v. Ohio 
 Valley Tie Co., 242 U. S. 288, 61 L. 
 Ed. 305, 37 Sup. Ct. 120; Loomis 
 V. Lehigh Valley R. Co., 240 U. 
 S. 4:?, 60 L. Ed. 517, 36 Sup. Ct. 
 228; Pennsylvania R. Co. v. Clark 
 Bros. Coal Min. Co., 238 U. S. 4o6, 
 59 L. Ed. 1406, 35 Sup. Ct. 806; 
 Illinois Cent. R. -Co. v. Mulberry 
 Hill Coal Co. 238 U. S. 275, 59 L. 
 Ed. 1306, 35 Sup. Ct. 760; Penn- 
 sylvania R. Co. v. Puritan Coal 
 Min. Co., 237 U. S. 121, 59 L. Ed. 
 867, 35 Sup. Ct. 484; Meeker v. 
 Lehigh Valley R. Co., 236 U. S. 
 412, 59 L. Ed. 644, 35 Sup. Ct. 328, 
 Ann. Cas. 1916B 691: Texas & P. 
 R. Co. V. American Tie & Timber 
 Co., 234 U. S. 138, 58 L. Ed. 1255, 
 :H Sup. Ct. 885: Baer Bros. Mer- 
 cantile Co. V. Denver & R. G. R. 
 Co.. 233 U. S. 479, 58 L. Ed. 1055, 
 34 Sup. Ct. 641; Boston & M. R. 
 Co. V. Hooker, 233 U. S. 97, 58 
 L. Ed. 868, 34 Sup. Ct. 526. L. R. 
 A. 1915B 450. Ann. Cas. 1915D 593; 
 A.tchison. T. & S. F. R. Co. v. 
 United States, 232 U. S. 199, 58 L. 
 Ed. 568. 34 Sup. Ct. 291; Morris- 
 dale Coal Co. v. Pennsylvania R. 
 Co., 230 U. S. 304, 57 L. Ed. 1494, 
 33 Sup Ct. 938: Mitchell Coal & 
 Coke Co. v. Pennsylvania R. Co., 
 230 U. S. 247, 57 L. Ed. 1472, 33 
 Sup. Ct. 916; United States v. Pa- 
 
 cific & A. Ry. & Nav. Co., 228 U. 
 S. 87, 57 L. Ed. 742, 33 Sup. Ct. 
 44.']; Savage v. Jones, 225 U. S. 
 501, 56 L. Ed. 1182, 32 Sup. Ct. 
 715; Interstate Commerce Com- 
 mission v. Union Pac. R. Co., 222 
 U. S. 541, 56 L. Ed. 308, 32 Sup. Ct. 
 108; Robinson v. Baltimore & O. 
 R. Co., 222 U. S. 506, 56 L. Ed. 
 288, 32 Sup. Ct. 114; Interstate 
 Commerce Commission v. Chicago, 
 R. I. & P. R. Co., 218 U. S. 88, 54 
 L. Ed. 946, 30 Sup. Ct. 651; Bal- 
 timore & 0. R. Co. V. United States 
 ex rel. Pitcairn Coal Co., 215 U. 
 S. 481, 54 L. Ed. 292. 30 Sup. Ct. 
 164; Texas & P. R. Co. v. Abilene 
 Cotton Oil Co., 204 U. S. 426, 51 L. 
 Ed. 553, 27 Sup. Ct. 350, 9 Ann. 
 Cas. 1075; Lehigh Valley R. Co. 
 v._ Meeker, 128 C. C. A. 311, 211 
 Fed. 785; Lehigh Valley R. Co. 
 V. Clark. 125 C. C. A. 235. 207 Fed. 
 717; Atlantic Coast Line R. Co. v. 
 Macon Grocery Co.. 92 C. C. A. 
 114. 166 Fed. 206; Meeker v. Le- 
 high Valley R. Co.. 162 Fed. .154; 
 Howard Supply Co. v. Chesapeake 
 & 0. Ry. Co., 162 Fed. 188: Ameri- 
 can Union Coal Co. v. Pennsyl- 
 vania R. Co., 159 Fed. 278: Van 
 Patten v. Chicago, M. & St. P. Ry. 
 Co., 81 Fed. 545: Wickwire Steel 
 Co. V. New York Cent. & H. River 
 R. Co.. 27 I. C. C. 168: St. Louis 
 Southwestern R. Co. v. .1. S. Pat- 
 terson Const. Co., 181 Ind. 304, 104 
 N. E. 512.
 
 464 Duties to Inteestate Shippers. [§ 262 
 
 able rate on an iiiterstate shipment if the rate charged 
 was in fact that fixed in the schedule published in con- 
 formity with the provisions of Section 6. The published 
 rate is controlling until found to be unreasonable by the 
 Interstate Commerce Commission in an appropriate pro- 
 ceeding before that body. 
 
 The necessity of having one tribunal to determine 
 the question of the reasonableness of a rate appears 
 evident; for, otherwise, the rate to be collected would 
 be subject to the conflicting judgments of numerous 
 juries as expressed in their verdicts in the various courts 
 of the country. To permit the rates charged for inter- 
 state shipments to depend upon the verdicts of juries 
 in the courts, would defeat one of the purposes of the 
 Act, that is, one rate to all shippers for similar serv- 
 ices. Uniformity and equality could not be secured by 
 separate suits before separate courts involving the rea- 
 sonableness of a rate and practice. The evidence 
 might vary, and of course the verdict would vary with 
 the result that one shipper would succeed before one jury 
 and another fail before a different jury where the rea- 
 sonableness of the same rate or practice was involved. 
 Different verdicts would occasion inequality between 
 two shippers.''^ 
 
 52. Robinson v. Baltimore & 0. gate complaints and to order the 
 
 R. Co., 222 U. S. 506, 56 L. Ed. correction of any non-conformity 
 
 288, 32 Sup. Ct. 114, in which the to those standards by an appropri- 
 
 court said: "For the purpose of ate change in schedules and by due 
 
 preventing unreasonable charges, reparation to injured persons, 
 
 unjust discriminations and undue When the purpose of the act and 
 
 preferences, a system of establish- the means selected for the ac- 
 
 ing, maintaining and altering rate complishment of that purpose are 
 
 schedules and of redressing inju- understood, it is altogether plain 
 
 ries resulting from their enforce- that the act contemplated that 
 
 ment was adopted whereby publici- such an investigation and order by 
 
 ty would be given to the rates, the designated tribunal, the Inter- 
 
 their application would be obli- state Commerce Commission, 
 
 gatory and uniform while they re- should be a prerequisite to the 
 
 mained in effect, and the matter right to seek reparation in the 
 
 of their conformity to prescribed courts because of exactions under 
 
 standards would be committed an established schedule alleged to 
 
 primarily to a single tribunal be violative of the prescribed stan- 
 
 clothed with authority to investi- dards. And this is so, because the
 
 <§ 262] Filing and Pubucation of Rates. 
 
 465 
 
 Hence, Congress placed tlie duty of passin<< upon 
 the reasonableness of the scheduled rates and charges 
 
 existence and exercise of a right 
 to maintain an action of that char- 
 acter, in the absence of such an 
 investigation and order, would be 
 repugnant to the declared rule 
 that a rate established in the 
 mode prescribed should be 
 deemed the legal rate and obliga- 
 tory alike upon carrier and ship- 
 per until changed in the manner 
 provided, would be in derogation 
 of the power expressly delegated 
 to the Commission, and would be 
 destructive of the uniformity and 
 equality which the act was desig- 
 nated to secure. In the case of 
 Texas and Pacific Railway Co. v. 
 Abilene Cotton Oil Co., 204 U. S. 
 426, 440, where such a right was 
 asserted and denied, it was said 
 by this court: 'Indeed the recog- 
 nition of such a right is wholly in- 
 consistent with the administrative 
 power conferred upon the Commis- 
 sion and with the duty, which the 
 statute casts upon that body, of 
 seeing to it that the statutory re- 
 quirement as to uniformity and 
 equality of rates is observed. 
 Equally obvious is it that the ex- 
 istence of such a power in the 
 courts, independent of prior ac- 
 tion by the Commission, would 
 lead to favoristism, to the enforce- 
 ment of one rate in one jurisdic 
 tion and a different one in another, 
 would destroy the prohibitions 
 against preferences and discrimi- 
 nation, and afford, moveover, a 
 ready means by which through 
 collusive proceedings, the wrongs 
 which the statute was intended to 
 remedy could be successfully in- 
 flicted. Indeed no reason can be 
 perceived for the enactment of 
 the provision endowing the admin- 
 
 istrative tribunal, which the act 
 created, with power, on due proof, 
 not only to award reparation to a 
 particular shipper, but to com- 
 mand the carrier to desist from 
 violation of the act in the future, 
 thus compelling the alteration of 
 the old or the filing of a new sched- 
 ule, conformably to the action of 
 the Commission, if the power was 
 left in courts to grant relief on 
 complaint of any shipper, upon the 
 theory that the established rate 
 could be disregarded and be treat- 
 ed as unreasonable, without refer- 
 ence to previous action by the 
 Commission in the premises. This 
 must be, because, if the power ex- 
 isted in both courts and the Cora- 
 mission to originally hear com- 
 plaints on this subject, there 
 might be a divergence between the 
 action of the Commission and the 
 decision of a court. In other 
 words, the established schedule 
 might be found reasonable by the 
 Commission in the first instance 
 and unreasonable by a court act- 
 ing originally, and thus a conflict 
 would arise which would render 
 the enforcement of the act impos- 
 sible.' It is true, as was urged in 
 argument, that in that case the 
 complaint against the established 
 rate was that it was unreasonable, 
 while here the complaint is that 
 the rate was unjustly discrimina- 
 tory. But the distinction is not 
 material. The power of the Com 
 mission over the two complaints is 
 the same, one is as likely to become 
 the subject of diverging opinions 
 and conflicting decisions as is the 
 other, and if a court, acting origi 
 nally upon either, were to sustain 
 it and award reparation, the con- 
 
 1 ConLrol Carriors .10
 
 4()(^ Duties to Interstate Shippees. [§ 262 
 
 on the Commission exclusively so that a uniform stand- 
 ard might be fixed and followed. This principle was 
 first pronounced by the Supreme Court in 1907."'' In 
 the case cited, suit was brought in a court of the state 
 of Texas to recover, because of an exaction by a carrier, 
 on an interstate shipment, of an alleged unreasonable 
 rate although the rate charged was that stated in the 
 schedules duly filed and published in accordance with 
 the provisions of section 6, The court held that the 
 relief prayed for was inconsistent with all the provisions 
 of the Interstate Commerce Act since by that act the 
 rates, as filed, were controlling until they had been de- 
 clared to be unreasonable by the Commission on a com- 
 plaint made to that body. It was pointed out that any 
 other view would give rise to inextricable confusion, 
 would create unjust preferences and undue discrimina- 
 tions, and would frustrate the purposes of the Act. 
 
 § 263. Carriers Must Collect the Scheduled Rates 
 and Charges for Interstate Transportation. A strict ad- 
 herence to the published rates and charges is absolutely 
 essential to avoid discriminations and preferences be- 
 tween shippers. Neither estoppel, ignorance of the ship- 
 per nor a mistake of the carrier's agent can defeat the 
 prime purpose of the law that the shipper must pay and 
 the carrier must collect the lawful published rate.'^* 
 
 fusing anomaly would be presented sence of an appropriate finding and 
 
 of a rate being adjudged to be vio- order of the Commission. Texas 
 
 lative of the prescribed standards and Pacific Railway Co. v. Abilene 
 
 and yet continuing to be the legal Cotton Oil Co., supra, pp. 442, 446." 
 
 rate, obligatory upon both carrier 53. Texas & P. R. Co. v. Abilene 
 
 and shipper. Of course, the provl- Cotton Oil Co.. 204 U. S. 426, 51 
 
 sion in section 22, as also the pro- L. Ed. 553, 27 Sup. Ct. 350. 9 Ann. 
 
 vision in section 9, must be read Cas. 1075. 
 
 in connection with other parts of 54. United States. Dayton Coal 
 the act and be interpreted with & Iron Co. v. Cincinnati, N. O. & 
 due regard to its manifest pur- T. P. R. Co., 239 U. S. 446, 60 L. 
 pose, and, when that is done, it Ed. 375, 36 Sup. Ct. 137; Louis- 
 is apparent that neither provision ville & N. R. Co. v. Maxwell, 237 
 recognizes or implies that an ac- U S. 94, 59 L. Ed. 853, 35 Sup. Ct. 
 tion for reparation, such as is here 494, L. R. A. 1915E 665; Armour 
 sought, may be maintained in any Packing Co. v. Untied States, 20J 
 court, Federal or state, in the ab- U. S. 56, 52 L. Ed. 681, 28 Sup. Ct.
 
 § 2()3| 
 
 Filing and Pi'blicatiox of Rates. 
 
 4G7 
 
 Hence, an erroneous (|uotation of a rat<' l)y an a,a:ent of 
 a carrier to a prospective patron hinds neitlicr sliipix-r 
 nor carrier as both are presumed in law to know the 
 (U)rrect rate." Wliile Ihis ruh' often results in undue 
 
 428; Alabama Great Southern R. 
 Co. V. George H. McFadden & 
 Bros., 232 Fed. 1000; Van Patten 
 
 V Chicago, M. & St. P. Ry. Co.. 81 
 Fed. 545. 
 
 Georgia. Seaboard Air-Line Ry. 
 Co. V. Luke. 19 Ga. App. lOd. 90 S. 
 E. 1041. 
 
 Indiana. Cleveland, C, C. & St. 
 L. Ry. Co. V. Talge Mahogany Co., 
 Ind. . 112 N. E. 890. 
 
 Iowa. Herminghausen v. Adams 
 Exp. Co., 167 Iowa, 230, 149 N. W. 
 234. 
 
 Kansas. Atchison, T. & S. F. Ry. 
 Co. V. Superior Refining Co., 83 
 Kan. 732. 112 Pac. 604. 
 
 New York. Pennsylvania R. Co. 
 
 V Titus, 156 N. Y. App. Div. 830, 
 142 N. Y. Supp. 43; Pennsylvania 
 R. Co. V. Titus, 78 N. Y. Misc. 347. 
 138 N. Y. Supp. 325; Baltimore & 
 O. R. Co. V. La Due. 128 N. Y. App. 
 Div. 594, 112 N. Y. Supp. 964. 
 
 South Dakota. Great Northern 
 Ry. Co. V. Loonan Lumber Co., 25 
 S. D. 155, 125 N. W. 644. 
 
 Texas. Wichita Falls & W. Ry 
 
 Co. of Texas v. Asher, Tex. 
 
 Civ. App. , 171 S. W. 1114. 
 
 Washington. Cceur d'Alene & S. 
 R. Co. V. Union Pac. Co.. 49 Wash. 
 244, 95 Pac. 71. 
 
 55. United States. Illinois Cent. 
 R. Co. V. Henderson Elevator Co.. 
 226 U. S. 441, 57 L. Ed. 290, 33 
 Sup. Ct. 176; Armour Packing Co. 
 V. United States, 209 U. S. 56, 52 
 L Ed. 681, 28 Sup. Ct. 428; Ham- 
 len & Sons v. Illinois Cent. R. Co., 
 212 Fed. 324; Union Pac. R. Co. 
 
 V American Smelting & Refining 
 Co., 121 C. C. A. 182. 202 Fed. 
 720; Chesapeake & O. R. Co. v. 
 
 Hawkins, 98 C. C. A. 44.3, 174 Fed. 
 .-j97, 26 L. R. A. (N. S.) 309. 
 
 Alabama. Central of Georgia R. 
 Co. V. Birmingham Sand & Brick 
 Co.. 9 Ala. App. 419, 64 So. 202. 
 
 Arkansas. St. Louis, I. M. & 3. 
 R. Co. V. Wolf, 100 Ark. 22, Ann. 
 Ca.s. 1913C 1384, 139 S. W. 536. 
 
 Georgia. Central of Georgia R. 
 Co. V. Curtis, 14 Ga. App. 716, 82 
 S. E. 318; Raleigh & G. R. Co. v. 
 Swanson, 102 Ga. 754, 39 L. R. A. 
 275, 28 S. E. 601. 
 
 Iowa. Herminghausen v. Adams 
 Exp. Co., 167 Iowa 230, 149 N. W. 
 234; McManus v. Chicago Great 
 Western R. Co.. 156 Iowa 350, 136 
 N. W. 769. 
 
 Kansas. Schenberger v. Union 
 Pac. R. Co., 84 Kan. 79, 35 L. R. 
 A (N. S.) 391, 113 Pac. 433. 
 
 Kentucky. Louisville & N. R. 
 Co. V. Allen, 152 Ky. 145, 153 S. 
 W. 198; Chesapeake & 0. R. Co. 
 V. Maysville Brick Co., 132 Ky. 
 G43, 116 S. W. 1183. 
 
 Louisiana. Louisiana Ry. & Nav. 
 Co. v. HoUy, 127 La. 615, 53 So. 
 882. 
 
 Massachusetts. New York, N. H. 
 & H. R. Co. V. York & Whitney Co.. 
 215 Mass. 36, 102 N. E. 366. 
 
 Missouri. Sunderland Bros. Co. 
 V. Baltimore & 0. S. W. R. Co.. 
 196 Mo. App. 154. 190 S. W. 650: 
 Sloop V. Delano. 182 Mo. App. 299, 
 170 S. W. 385; Sutton v. St. Louis 
 & S. F. R. Co.. 159 Mo. App. 685. 
 140 S. W. 76. 
 
 New York. Pennsylvania R. Co. 
 V Titus, 216 N. Y. 17, L. R. A. 1916 
 E 1127, 109 N. E. 857. 
 
 North Carolina. Virginia Caro- 
 lina Peanut Co. v. Atlantic Coast
 
 ■4-68 Duties to Interstate Shippers. [§ 263 
 
 hardship to a shipper who honestly and in good faith 
 relies upon the statement of a carrier's agent as to the 
 rate applicable to his shipment, its enforcement on the 
 whole is beneficial in that it prevents all means of evad- 
 ing the published rate by pleading ignorance as an ex- 
 cuse. 
 
 The mistake of a carrier's agent, if binding upon 
 the carrier, would afford opportunities for fraud and 
 would tend to destroy the uniform operations of the 
 published tariff. ''For past experience shows that bill- 
 ing clerks and other agents of carriers might easily be- 
 come experts in the making of errors and mistakes in 
 the quotation of rates to favored shippers, while other 
 shippers, less fortunate in their relations with carriers 
 and whose traffic is less important, would be compelled 
 to pay the higher published rates. Stability and equal- 
 ity of rates are more important to commercial inter- 
 ests than reduced rates. It was instability and in- 
 equality that were the special evils to be remedied; it 
 was the possibility that one shipper, in one way or 
 another, whether by mistake or otherwise, could, and 
 actually did, get a lower rate than another shipper that 
 led to more stringent legislation. That evil the present 
 
 Line R. Co., 166 N. C. 62, 82 S. Pennsylvania. Central R. Co. of 
 
 E. 1. New Jersey v. Mauser, 241 Pa. 603, 
 
 Oklahoma. Atchison, T. & S. F 
 
 Ry. Co. V. Ehret, Okla. 
 
 152 Pac. 1107; St. Louis & S. F, 
 
 R. Co. V. Pickens, Okla. 
 
 151 Pac. 1055; St. Louis & S. F 
 
 49 L. R. A. (N. S.) 92, 88 Atl. 791. 
 Texas. Wardlow v. Andrews, 
 
 Tex. Civ. App. , 180 S. 
 
 W. 1161; Wichita Falls & W. Ry. 
 
 Co. of Texas v. Asher, Tex. 
 
 R. Co. V. Walton-Chandler Lumber Civ. App. , 171 S. W. 1114; 
 
 Co., 44 Okla. 452, 145 Pac. 340 
 
 Texas & P. R. Co. v. Leslie, 62 Tex. 
 
 Atchison, T. & S. F. R. Co. v. Bell, ^jy ^pp. 380; 131 S. W. 824. 
 31 Okla. 238, 38 L. R. A. (N. S.) Vermont. Fitzgerald v. Grand 
 
 351, 120 Pac. 987; Atchison, T. & ^j.^^^^ ^ ^ 53 y^ ^69, 13 L. R. 
 S. F. R. Co. V. Holmes, 18 Okla. 92, 
 90 Pac. 22. 
 
 Oregon. ZoUer Hop Co. v. South- 
 ern Pac. Co., 72 Or. 262, 143 Pac. V- ^rye & Bruhn, 82 Wash. 9. 143 
 931; Baldwin Sheep & Land Co. Pac. 163; Fisher v. Great North- 
 V. Columbia R. Co., 58 Or. 285, 114 ern R. Co., 49 Wash. 205, 95 Pac. 
 Pac. 469. 77. 
 
 A. 70, 22 Atl. 76. 
 Washington. Southern Pac. Co.
 
 § 264] FiuNG AND Publication of Rates. 469 
 
 amended statute meets in substantially the lan<(uage 
 of the previous legislation.'"^" 
 
 § 264. Illustrative Cases Wherein the Foregoing 
 Rule was Applied and Enforced. The i)iinei|)l(; enunci- 
 ated in the foregoing paragraph was applied by the 
 courts under the following circumstances: a station 
 agent erroneously (juoted a rate of sixty-eight cents 
 per hundred pounds on oranges when the rate on file 
 was sixty-eight cents per crate of eighty pounds. The 
 shipper paid the rate quoted and two months later the 
 carrier discovered the mistake and brought suit for the 
 difiference. A recovery was permitted, the court stating 
 that a rate was not the subject matter of a contract 
 when filed and published with the Commission;" an 
 agent's mistake in quoting a rate of sixty-eight dollars 
 on a carload of baskets between two points in different 
 states when in fact the published rate in the schedules 
 filed with the Commission was $114.00, did not bar the 
 carrier from recovering the lawful rate. The act of the 
 agent, it was held, did not create an estoppel against 
 the carrier and prevent it from collecting the full legal 
 rate;^^ a shipper, relying upon the statement of an agent 
 that the rate on wheat from a station in Kansas to a 
 point in Texas was thirty-one cents per hundred pounds, 
 shipped two cars, but on delivery, a rate of forty-two 
 cents per hundred pounds was collected, that being the 
 rate published and filed. In an action for damages 
 against the carrier for the agent's false statement, a 
 recovery was denied because the published rate control- 
 led ;°® in an action by a carrier for undercharge for a 
 shipment from Columbus, Ga., to Birmingham, Ala., 
 due to the failure of the carrier's agent to collect the 
 lawful rate, the shipper pleaded a counterclaim alleging 
 damages for the failure of the carrier to post the rates 
 
 56. Poor Grain Co. v. Chicago, 48 Ind. App. 647, 94 N. E. 906, 96 
 B. & Q. R. Co., 12 I. C. C. 418. N. E. 28. 
 
 57. Georgia R. R. v. Creety, 5 59. Schenberger v. Union Pac. 
 Ga. App. 424, 63 S. E. 528. R. Co., 84 Kan. 79, 33 L. R. A. (N. 
 
 58. Baltimore & 0. S. W. R. Co. S.) 391, 113 Pac. 433. 
 V. New Albany Box & Basket Co.,
 
 470 l^UTIES TO IXTERSTATK SHIPPERS. [§ 264 
 
 ill its station, but the coiut held that tlie defendant had 
 no rig-lit of action against the carrier, irrespective of 
 whether the lawful rate was posted or not;"*" an inter- 
 state carrier, fifteen months after a delivery of a ship- 
 ment of peaches, discovered that the consignee was not 
 charged the correct rate and brought an action for the 
 balance. The error was due to a mistake in computing 
 the freight charges. It was held that a recovery against 
 the consignee was proper;''' in another case it was held 
 that an error of an agent in showing the shii)per the 
 wrong tariff sheet did not prevent the collection of the 
 lawful rate;"^ in one case it was held that after a ship- 
 per had voluntarily paid the rate called for in the ship- 
 ing contract, the carrier could not thereafter recover 
 the difference between the contract rate and the sched- 
 uled rate for the reason that both shipper and carrier 
 were presumed to know the published rate and an agree- 
 ment to carry at less than the published rate was illegal 
 and therefore both parties were in pari delicto and a 
 recovery for the difference could not be had,^^ but this 
 decision is contrary to the controlling decisions of the 
 federal courts in construing the Interstate Commerce 
 Act.*'* 
 
 § 265. Defense of Estoppel to Actions Against 
 Shippers for Undercharges. The defense of waiver or 
 estoppel is not available in actions by common carriers 
 against shippers for undercharges. Thus, where a ship- 
 per paid one sum for the transportation of goods from a 
 point in one state to a point in another and thereafter 
 the carrier discovered that the proper charges had not 
 
 60. Central of Georgia R. Co. Elevator Co., 22G U. S. 441, 57 L. 
 V Birmingham Sand & Brick Co., Ed. 290, 33 Sup. Ct. 176. 
 9 Ala. App. 419, 64 So. 202, in 61. Pennsylvania R. Co. v. Ti- 
 
 . . , ^, , .,^, a, T^„,- tus, 216 N. Y. 17, L. R. A. 1916E 
 
 which the court cited St. Louis ' ' 
 
 ^ ^ . T. r, o 1 ^. 1127, 109 N. E. 857. 
 
 Southwestern R. Co. v. Burckett, ' 
 
 62. Sloop V. Delano, 182 Mo. 
 
 229 U. S. 603, 57 L. Ed. 1347, 33 ^^^ 299, 170 S. W. 385. 
 
 Sup. Ct. 773; Kansas City South- gg southern Pac. Co. v. Frye & 
 
 em R. Co. v. Carl, 227 U. S. 639, Bruhn, 82 Wash. 9, 143 Pac. 163. 
 
 57 L. Ed. 683, 33 Sup. Ct. 391; II- 64. See cases in notes to preced- 
 
 linois Cent. R. Co. v. Henderson ing section.
 
 § 265] Filing and Publication of Rates. 471 
 
 been collected and that a balance was due, the shij^per 
 could not set up as a defense the delay of the carrier 
 in collecting the balance due and the fact that the ])ur- 
 chasers of the ^oods had become insolvent so that the 
 freight charges could not be collected from them."'' "Ap- 
 pellant has cited ne authority," said the court, "holding 
 that esto])pel as a defen.'se could be pleaded against a 
 demand for the charges lixed by law for an interstate 
 shipment; nor has any authority, on an analogous prin- 
 ciple been cited; nor have we found any which would 
 justify us in so holding. The nearest approach to an 
 authority holding in effect that estoppel will lie in cases 
 of the character here under consideration is Yazoo & 
 M. V. R. R. Co. V. Zemurray, 238 Fed. 789, 151 C. C. A. 
 639. But in that case the court expressly stated that 
 no feature of any interstate commerce law was involved, 
 and the case was controlled by the statute of limitations. 
 To hold that the carrier can do indirectly that which 
 it cannot do directly is wholly inconsistent with the 
 letter and the spirit of that part of the Interstate Com- 
 merce Act, and its various amendments, regulating inter- 
 state rates of common carriers. In L. & N. R. R. Co. v. 
 Maxwell, 237 U. S. 94, 35 Sup. Ct. 494, 59 L. Ed. 853, 
 L. R. A. 1915E, 665, plaintiff sued for the difference in 
 the price of some passenger tickets from Nashville, 
 Tenn., to Salt Lake City as fixed by the Interstate Com- 
 merce Commission and the price sold at by plaintiff. 
 Judgment went for defendant in the state courts of 
 Tennessee, and the case was taken to the Supreme Court 
 of United States by writ of error. In reversing the 
 case Mr. Justice Hughes said: 'Under the Interstate 
 Commerce Act, the rate of the carrier duly filed is the 
 only lawful charge. Deviation from it is not permitted 
 upon any pretext. Shippers and travelers are charged 
 with notice of it, and they as well as the carrier must 
 abide by it, unless it is found by the commission to be 
 unreasonable. Ignorance or misquotation of rates is not 
 
 65. Bush V. Keystone Driller Co., Mo. App. 199 s. W. 
 
 597.
 
 472 Duties to Interstate Shippers. [^ 265 
 
 an excuse for payine: or charging either less or more 
 than the rate filed. This rule is undeniably strict, and 
 it obviously may work hardship in some cases, but it 
 embodies the policy which has been adopted by Con- 
 gress in the regulation of interstate commerce in order 
 to prevent unjust discrimination.' Central of Georgia 
 Ry. Co. V, Birmingham Sand & Brick Co., 9 Ala. App. 
 419, 64 South. 202, is directly to the point. There an 
 error was made in estimating freight on interstate ship- 
 ments, and suit brought for the difference between the 
 lawful rate and the amount collected. The defense was 
 facts tending to establish estoppel; as in the instant 
 case. The court in that case held that estoppel would 
 not lie, and in disposing of the matter used this lan- 
 guage, which we think clearly reflects the spirit of the 
 act of Congress regulating interstate rates: 'The neces- 
 sary effect of all these decisions, construing and apply- 
 ing the Interstate Commerce Act, when considered to- 
 gether is, in our opinion, that the carrier cannot, by any 
 act, estop itself frjom exacting the lawful freight rate. 
 If the carrier could so estop itself, then it would lie 
 within the carrier's power, by purposely putting itself 
 in a position where it could not exact the lawful rate 
 of a shipper it desired to favor, to render nugatory one 
 of the main designs of the act, the prevention of dis- 
 crimination between shippers; and for the law to coun- 
 tenance the doctrine of estoppel in cases like this is for 
 the law to say through the courts that the carrier is 
 estopped from doing what the statute mentioned plainly 
 requires that it must do — collect the lawful rate in all 
 cases, and nothing greater and nothing less, by any 
 means or device whatsoever. We cannot escape the 
 conclusion that Congress impliedly intended by the act 
 mentioned to deny to consignors and consignees the de- 
 fense of estoppel when sued by the cai'rier for the law- 
 ful rate, since such a defense is entirely inconsistent 
 with and destructive of the purposes of the act.' It 
 follows from the above and foregoing that the defense 
 of estoppel in our judgment is not available in the 
 instant case, and that the trial court was correct in 
 sustaining plaintiff's demurrer to that portion of the
 
 <§ 2(iG] P^'iLiNc AND Publication of Ratios. 473 
 
 answer ])leadin<»- estoppel, and in sustaining the objection 
 of })laintiff's offering to }>rove that tlie letter and spirit 
 of tlie Interstate Commeree Act, re^iilatin.i^ interstate 
 rates, could be side-stepped and avoided l)y pleading 
 estopj)el as in counterclaim or set-otT, and in ])rincii)le 
 we can see no dilference in the ultimate eifeet. " 
 
 § 266. Penalty for Making Erroneous Quotation of 
 Rate When Shipper is Damaged Thereby. Tlie Inirden 
 of placing upon a shipj^er the duty of ascertaining for 
 himself at his |)eril, the scheduled rate, and to suffer 
 the financial consequences if, relying upon the carrier, 
 the agent should erroneously quote a lower rate to him, 
 presented a situation that seemed irremediable; for, if 
 redress were allowed the shipper for an erroneous quo- 
 tation of a rate, it would open a way for the allowance 
 of secret rebates in such a manner as to be practical ly 
 not provable in criminal proceedings. On the other 
 liand, many shippers, owing to inexperience, and the 
 complexity and voluminousness of railroad tariffs, are 
 unable to determine and ascertain a rate covering parti- 
 cular shipments. But a carirer's agent, skilled and ex- 
 perienced in the business, should be able to know the 
 scheduled rate. 
 
 For the ])urpose of compelling carriers to exercise 
 greater care in the quotation of rates, the amendment of 
 1910 to Section 6 was passed. "^ This amendment pro- 
 
 66. "Upon first thought, it that he can obtain from the agent 
 shocks one's sense of fairness to of the carrier negligently, has no 
 know that the requirements of the remedy against the carrier to en- 
 law are such that the shipper, force his contract, when he has 
 who, although charged by the law been given an incorrect rate by the 
 with knowledge of the filed and agent of a carrier, based upon 
 published rates, it is known in which he has made contracts and 
 most instances, has no knowledge suffers damages thereby. But 
 of the rates prescribed by the filed Congress, no doubt, considered 
 and published tariffs, and because that it was better that the few 
 of his lack of experience in such cases of injustice that might arise 
 matters, is unable to determine from this source had better oc- 
 from such schedules the freight cur than that the opportunity for 
 rate in any given case, and who. evading the law and permitting 
 therefore, is in a large measure rebating and favoritism in rates 
 dependent upon the information under the plea of mistakes of the
 
 474 Duties to Interstate Shippers. [§ 266 
 
 vides that "If any common carrier subject to the pro- 
 visions of this Act, after written request made upon the 
 agent of such carrier hereinafter in this section referred 
 to, by any person or company for a written statement 
 of the rate or charge applicable to a described ship- 
 ment between stated places under the schedules or 
 tariffs to which such carrier is a party, shall refuse or 
 omit to give such written statement within a reasonable 
 time, or shall misstate in writing the applicable rate, and 
 if the person or company making such request suffers 
 damage in consequence of such refusal or omission or 
 in consequence of the misstatement of the rate, either 
 through making the shipment over a line or route for 
 which • the proper rate is higher than the rate over 
 another available line or route, or through entering into 
 any sale or other contract whereunder such person or 
 company obligates himself or itself to make such ship- 
 ment of freight at his or its cost, then the said carrier 
 shall be liable to a penalty of two hundred and fifty dol- 
 lars, which shall accure to the United States and may be 
 recovered in a civil action brought by the United States. 
 It shall be the duty of every carrier by railroad to keep 
 at all times conspicuously posted in every station where 
 freight is received for transportation the name of an 
 agent resident in the city, village, or town where such 
 station is located, to whom application may be made for 
 the information by this section required to be furnished 
 on written request; and in case any carrier shall fail 
 at any time to have such name so posted in any station, 
 it shall be sufficient to address such request in sub- 
 stantially the following form: 'The Station Agent of the 
 
 Company at Station, ' together with 
 
 the name of the proper post office, inserting the name 
 of the carrier company and of the station in the blanks, 
 and to serve the same by depositing the request so 
 addressed, with postage thereon prepaid, or any post 
 office." 
 
 agents, a different rule would af- 38 L. R. A. (N. S.) 351, 120 Pac. 
 ford, should obtain." Atchison, f . 987. 
 & S. F. R. Co. V. Bell, 31 Okla. 238,
 
 § 268J Filing and Pfulication of Kates. 475 
 
 § 267. In Actions to Collect Scheduled Rates Coun- 
 terclaims for Damages to Goods Prohibited, livery de- 
 vice and sul)terfuge wliicli in any manner mi^lil per- 
 mit any discrimination between shippers, is i)r(iliil)itod. 
 The purpose of Congress in the ado) »t ion of the Inter- 
 state Commerce Act was to eul up, by the roots, every 
 form of disci-imiiu\tion, favoritism and inetiuality."^ Car- 
 riers cannot, tiierefore, accept any compensation other 
 than cash for interstate transportation.'"* Applying 
 these rules in actions for the collection of fi'eight 
 charges, the courts have held tluit a shi})per cannot 
 refuse to pay the schedule rates for transportation be- 
 cause of a claim for damages to the goods shipped. In 
 view of the purpose and spirit of the act, a counter- 
 claim of such a nature in an action to enforce the pay- 
 ment of freight charges, would i)ave the way and open 
 the door to an insiduous method of rel)ating.''''' "If the 
 defendant in this action has a valid claim for danuiges, 
 both i)arties should be permitted to exercise their right 
 to compromise the action; but, if such com|)romise were 
 effected in a transaction involving the collection of 
 freight charges, the court would be compelled to super- 
 vise it with the utmost care, in order, as Judge Munger 
 expresses it, 'to prevent the granting and receiving of 
 rebates by insiduous agreement between the parties.' 
 So important is it that the collection of freight charges 
 sliould be uniform as to all shippers, so important is it 
 that it be above suspicion of favoritism, that I feel that 
 it is against ]>ul)ii(' ])olicy to permit a counterclaim of 
 this kind to l)e pleaded, and tlio counterclaim will be 
 sti-icken out."'" 
 
 § 268. Damages Not Recoverable for Failure to 
 Post Rates at Stations. As the recpiirement of the stat- 
 
 67. LouisviUe & N. R. Co. v. 69. Chicago & N. W. Ry. Co. v. 
 Rlottley, 216 U. S. 467, .55 L. Ed. WUliam S. Stein Co.. 233 Fed. 716; 
 297, 31 Sup. Ct. 265, 34 L. H. A. Illinois Cent. R. Co. v. W. L. 
 (N. S.) 671. Iloopes & Sons, 23:? Fed. 135. 
 
 68. Chicago, I. & L. R. Co. v. 70. Judge Wade in Illinois Cent. 
 United States. 219 U. S. 486, 55 L. R. Co. v. W. L. Hoopcs & Sons. 
 Ed. 305, 31 Sup. Ct. 272. siipni.
 
 476 
 
 Duties to Interstate Shippers. 
 
 [§ 268 
 
 lite that tariffs must be kept posted in depots and 
 stations was intended as a means of affording special 
 facilities to the public for ascertaining rates actually in 
 force and not as a condition upon which the legal opera- 
 tion of a tariff' must depend, the failure of a carrier to 
 obey all law in this respect does not invalidate the 
 tariff when it has been properly filed with the Com- 
 mission." A failure to post the tariffs in stations will 
 subject the carrier to the penalties provided by the 
 statute;'- but notwithstanding the provisions of section 
 8 prescribing that if any carrier shall do or omit to do 
 any act, matter or thing required by the statute to be 
 done, such carrier shall be liable in damages to the 
 person injured thereby, a shipper cannot recover for 
 loss sustained by a carrier's failure to post a tariff in 
 accordance with the requirements of the act and the 
 Commission's regulations thereunder, although the tar- 
 iff had been lawfully filed with the Commission.''^ 
 
 
 71. Kansas City Southern R. Co. 
 V C. H. Albers Commission Co., 223 
 U. S. 573, 56 L. Ed. 556, 32 Sup. 
 Ct. 316; Texas & P. R. Co. v. Cis- 
 co Oil Mill, 204 U. S. 449, 51 L. Ed. 
 562, 27 Sup. Ct. 358; Texas & P. 
 R. Co. V. Mugg, 202 U. S. 242, 50 
 L. Ed. 1011, 26 Sup. Ct. 628. 
 
 72. Franke Grain Co. v. Illinois 
 Cent. R. Co., 27 I. C. C. 625, in 
 which the Commission said: "Sec- 
 tion 6 provides that schedules of 
 rates shall be plainly printed in 
 large type, and that copies for the 
 use of the public shall be kept post- 
 ed in every depot, station, or of- 
 fice of such carrier where passen- 
 gers or freight respectively are 
 received for transportation in such 
 form that they shall be accessible 
 to the public and can be conven- 
 iently inspected. This section 
 gives the Commission certain dis- 
 cretion to modify the provision as 
 to posting. Under the rules of 
 the Commission, however, every 
 carrier must keep on file, subject 
 
 to public inspection at stations 
 where property is received for 
 transportation, its current rates 
 from such stations. Under these 
 rules the Soo line was under re- 
 quirement to have on file at Mil- 
 waukee the rates here involved. 
 The Elkins Act provides that a 
 fine of not less than $1,000 nor 
 more than $20,000 shall be incur- 
 red by any carrier failing to pub- 
 lish its rates in the manner pro- 
 vided above. The Commission will 
 request the prompt prosecution of 
 carriers who fail to meet the above 
 requirements of the law. It will 
 make investigations on its own ac- 
 count to determine the state of tar- 
 iff files at stations, and will re- 
 ceive and act upon information 
 from any person having knowledge 
 of such failure." 
 
 73. United States. Franke Grain 
 Co. V. Illinois Cent. R. Co., 27 I. 
 C. C. 625. 
 
 Alabama. Northern Alabama R. 
 Co. V. Wilson Mercantile Co., 9
 
 § 268] Filing and Publication df Rates. 477 
 
 Formerly the Inteistatc Commorfe Commission and 
 some courts held that damages could be recovered be- 
 cause of a failure to file and keep open for public in- 
 spection at stations the established rates even thou<;h 
 the shipper thereby indirectly received a quasi rebate 
 from the established rate.'* These rulings were, how- 
 ever, in effect, overruled by the Supreme Court in the 
 case cited in the notes,'" in which the Court said: ''The 
 Henderson Elevator Company, defendant in error, as 
 plaintiff below brought this action to recover damages 
 from the Railroad Company, the plaintiff in error, be- 
 cause of a loss alleged to have been sustained bv an 
 erroneous quotation by the agent of the Railroad Com- 
 pany of the freight rate on corn shipped in interstate 
 commerce from the station of the Railroad Company at 
 Henderson, Kentucky. A rate of 10 cents per hundred 
 pounds was quoted by the agent when in fact the rate 
 as fixed by the published tariff on file with the Interstate 
 Commerce Commission and effective at the time was lSy2 
 cents per hundred pounds. On the trial before a jury 
 the court instructed that if the loss sustained by the 
 plaintiff 'was occasioned and brought about by defend- 
 ant's failure to have posted or on file in its office in 
 Henderson, Kentucky, its freight tariff rate in question 
 and by reason of any erroneous quotation of defendant 
 of its freight rate from and to the points in question, 
 of which plaintiff complains, . . .' there should 
 
 Ala. App. 269, 63 So. 34; Louis- Tex. Civ. App igo S W 
 
 ville & N. R. Co. v. McMullen, 5 1161. 
 
 Ala. App. 662, 59 So. 683. 74. St. Louis Southwestern R 
 
 Kentucky. LouLsville & N. R. Co. Co. of Texas v. Lewellen Bros 113 
 
 V. Allen, 152 Ky. 145, 153 S. W. C. C. A. 414, 192 Fed. 540; Kiel 
 
 ^^^- Woodenware Co. v. Chicago M & 
 
 Missouri. Mott Store Co. v. St. st. P. Ry. 18 L C. C 242- Illinois 
 
 Louis & S. F. R. Co., 184 Mo. App. Cent. R. Co. v. Henderson Eleva 
 
 50, 168 S. W. 322; Mires v. St. ,_ ^ ,,„ ,^ „„! „ 
 
 Louis & S. F. R. Co.. 134 Mo. App. ['' ^'l''' ^^^ '''' ''' ^- ^- '''■' 
 379, 114 S. W. 1052. Wabash R. Co. v. Sloop, 200 Mo. 
 
 South Carolina. Southern Ry. ^^^' ^^ ^- ^- ^^"■ 
 
 Co. V. Wilmont Oil Mills, 105 S. C. ^5. Illinois Cent. R. Co. v. Hen- 
 
 51, 89 S. E. 476. derson Elevator Co., 226 U. S. 441, 
 Texas. Wardlow v. Andrews, 57 L. Ed. 290, 33 Sup. Ct. 176.
 
 478 Duties to Inteestate Shippers. [<§. 268 
 
 be a verdict for the plaiiitii^'. A verdict having been 
 rendered for the plaintiff in accordance with this in- 
 struction and the judgment entered thereon having been 
 subsequently affirmed by the Court of Appeals of Ken- 
 tucky (138 Kentucky, 220), this writ of error was sued 
 out. It is to us clear that the action of the court below 
 in affirming the judgment of the trial court and the 
 reasons upon which that action was based were in con- 
 flict with the rulings of this court interpreting and ap- 
 plying the Act to Regulate Commerce. New York Cent. 
 R."r. v. United States (No. 2), 212 U. S. 500, 504; Texas 
 & Pacific R. R. Co. v. Mugg, 202 U. S. 242; Gulf Rail- 
 road Co. v. Hefiey, 158 U. S. 98. That the failure to 
 post does not prevent the case from being controlled by 
 the settled rule established by the cases referred to 
 is now beyond question. Kansas City So. Ry. Co. v. 
 Albers Comm. Co., 223 U. S. 573, 594 (a)." 
 
 § 269. Rule Stated in Foregoing Paragraph Illus- 
 trated in Adjudicated Cases. The following are illus- 
 trative applications to concrete cases of the foregoing 
 rule: a shipper's agent, upon applying to a carrier for 
 the rate on corn from a point in Iowa to a point in Wis- 
 consin, was shown a tariff which fixed a rate of 14.75 
 cents per 100 pounds upon which the shipper relied and 
 shipped a carload. The tariff shown him, however, had 
 been canceled and the rate between the two points in the 
 established tariff was 21.75 cents; but this new tariff had 
 not been posted at the station from which the grain was 
 shipped. Upon a complaint for reparation because of 
 a failure to post the new rate, a recovery was denied.^" 
 In a carrier's action against a shipper for a sum of mon- 
 ey alleged to be due it on account of undercharges made 
 by it to him in the shipment of interstate freight, the 
 shipper claimed that the rate established in the sche- 
 dules and filed with the Commission was not effective 
 because not posted in the stations as required by law; 
 but the court held that the posting was no part of the 
 
 76. Franke Grain Co. v. Illinois Cent. R. Co., 27 I. C. C. 625.
 
 § 271 I I^'lLIXG AND PUBLICATIOX OF RaTES. 479 
 
 pstablislimoiit of tlic inic and tlial tlic sliipitci' was 
 liahlc/^ 
 
 § 270. Shipper May Recover Damages for Collec- 
 tion of Rate in Excess of that Fixed by Schedule. A 
 carrier iiia\' not collccl lii-^licr cliai'i^cs lliaii lliosc prc?- 
 scribed in the tariffs, for a carrier fixes its own rate by 
 IWni^^ tlic i'(M|nii'('(l sclK'dulc. 'Plie I'atc tlius tiled l)e- 
 (M)ines tlie lawfnl i-ate and must l)e deemed to be reason- 
 able unless attacked on that ground before tlie Inter- 
 state Commeiee Commission. Tlie aeeeptanee of a great- 
 er or a less rate or charge constitutes an unlawful act. 
 If, therefore, the carrier exacts more than the scheduled 
 rate, the shii)per sustains thereby a loss which is the 
 difference between the scheduled rate and the rate he 
 was actually charged. As he is entitled to transporta- 
 tion at the lawful rate as fixed by the tariff, he may, 
 therefore, recover any amount paid in excess of the 
 published rate.^*^ 
 
 § 271. Nothing but Money May be Lawfully Re- 
 ceived for Transportation of Either Passengers or Prop- 
 erty. The statute declares it to be an unjust and unlaw- 
 ful discrimination for any carrier subject to the pro- 
 visions of the Act to receive from any ])erson "a great- 
 er or less compensation" for any service rendered in 
 the transportation of property or persons than is re- 
 ceived from any other person under like circumstances. 
 This provision of the statute was sui)plemented by the 
 amendment of 11)06 to section 6 which provides that 
 no carrier shall receive "a greater or less or different 
 compensation" for the transportation of persons or 
 property. It follows that nothing but money can be law- 
 fully received or accepted by interstate cai'riers in ]mx- 
 nient for transportation, whether of passengers or ]irop- 
 ertv, or for anv service connected therewith. 
 
 77. Louisville & N. R. Co. v. Feintuch, 112 C. C. A. 12G, 191 
 Allen, 152 Ky. 145, 153 S. W. 198. Fed. 482. 
 
 78. Chicago, B. & Q. R. Co. v.
 
 480 Duties to Interstate Shippers. [§ 271 
 
 A contract, therefore, between an interstate carrier 
 and a passenger injured in a wreck whereby the pas- 
 senger releases the carrier from all damages on account 
 of its negligence, in consideration of the issuance of a pass 
 to the passenger, providing for free transportation for 
 him for the remainder of his life over the line of the 
 carrier, is invalid in that it provides that the carrier 
 shall receive a different compensation for transportation 
 in violation of the statute/"* Similarly, a contract be- 
 tween a publisher and an interstate carrier whereby the 
 carrier agreed to accept advertisements in a magazine 
 in payment for transportation for the use of the pub- 
 lisher, his employes and members of his family, was 
 held to be void.*" "The legislative department," said 
 the Court in the last case cited, "intended that all who 
 obtained transportation on interstate lines should be 
 treated alike in the matter of rates and that all who 
 availed themselves of the services of the railway com- 
 pany (with certain specified exceptions) should be on a 
 plane of equality. Those ends cannot he met otherwise 
 than by requiring transportation to be paid for in money 
 which has a certain value known to all and not in com- 
 modities or services or otherwise than in money." Con- 
 tracts of a similar nature have been frequently con- 
 demned.^^ 
 
 § 272. Acceptance of Promissory Notes in Payment 
 for Freight Charges Unlawful. The statute prohibits 
 all carriers from collecting or receiving a greater or less 
 or different compensation for transportation or any serv- 
 ice connected therewith than the rates, fares and charg- 
 es which are specified in the tariffs filed with the Com- 
 mission. Congress intended in the passage of the statute 
 
 79. LouisvUle & N. R. Co. v. 887; United States v. Union Stock 
 Mottley, 219 U. S. 467, 55 L. Ed. Yard & Transit Co. of Chicago, 226 
 297, 31 Sup. Ct. 265, 34 L. R. A. u. S. 286, 57 L. Ed. 226, 33 Sup. 
 (N. S.) 671. Ct. 83; United States v. Garbisli, 
 
 80. Chicago, I. & L. R. Co. v. ^22 u. S. 257, 56 L. Ed. 190. 32 
 United States, 219 U. S. 486, 55 
 L. Ed. 305, 31 Sup. Ct. 272. 
 
 81. Fourche River Lumber Co. 
 V. Bryant Lumber Co., 230 U. S. Commission, 200 U. S. 361, 50 L. 
 316, 57 L. Ed. 1498, 33 Sup. Ct. Ed. 515, 26 Sup. Ct. 272. 
 
 Sup. Ct. 77; New York, N. H. & 
 H. R. Co. V. Interstate Commerce
 
 § 273] Filing and Publication of Rates. 481 
 
 tliat all persons ol)taininj^' transportation from interstate 
 carriers should be on a plane of equality. The purpose of 
 the statute cannot ])e met except by reciuiring tliat trans- 
 ])ortation be paid for in money.®- It is, therefore, un- 
 lawful for a carrier to receive in payment for trans- 
 l)ortation services a promissory note as it is a different 
 comi)ensation from that whicli the law autlioi-izes, 
 namely, money. ^•'' 
 
 § 273. Separately Established Rates must be Pub- 
 lished in Absence of Joint Rates over Through Route. 
 The statute provides that if no joint rate over a through 
 route has boon established, the several carriers in sucli 
 through route must file, print and keep open to public 
 inspection, the separately established rates, fares and 
 charges api»lical)le to the through transportatioiL When, 
 therefore, an interstate shipment of merchandise passes 
 from the point of origin to the point of destination over 
 the lines of two separate carriers, and a joint rate over 
 said lines has not been filed and published in the manner 
 required by the statute, the lawful rate to be applied to 
 such a movement is the published tariff rate of the first 
 carrier from the point of origin to the point of connec- 
 tion with the second carrier and the published tariff rate 
 of the second carrier from the point of connection with 
 the first carrier and the point of destination.®* It is 
 competent, however, for carriers, if conditions justify, 
 to make their proportions of a through rate less than 
 the local charges upon their own lines; but in so doing, 
 they must publish the rates in conformity with the pro- 
 visions of the statute. If not published, the carriers 
 must adhere to the rates established, published and filed 
 by them as applied not only to local but to through 
 
 82. LouisviUe & N. R. Co. v. 83. United States v. Sunday 
 
 Mottley, 219 U. S. 4G7, 55 L. Ed. Creek Co., 194 Fed. 252. 
 
 297, 31 Sup. Ct. 265, 34 L. R. A. 84. Kansas City Soutliern Ry. 
 
 (N. S.) 671; See Cliicago, I. & Co. v. C. H. Albers Commission 
 
 L. R. Co. V. United States, 219 U. Co., 223 U. S. 573, 56 L. Ed. 556. 
 
 S. 486, 55 L. Ed. 305, 31 Sup. Ct. 32 Sup. Ct. 316; United States v. 
 
 272. Camden Iron Works, 150 Fed. 214; 
 
 1 Control C'linii'is :il
 
 482 Duties to Interstate Shippers. [§ 273 
 
 traffic. ^^ The policy of the law is that every route and 
 every service shall have a puhlished rate clearly known 
 and available to all patrons of the carrier. 
 
 § 274. When Through Rate is Made up of Sum of 
 Locals, Rates in Effect on Date of Shipments Apply. 
 When through billing is given by an initial carrier to 
 destination on the line of a connecting carrier, there is 
 in existence a through route over which a through rate 
 applies. When such a rate is made up of the sum of the 
 locals, the locals apply as of the date of shipment. Any 
 decrease or increase made after the date of the shipment 
 is not applicable to such through shipments; for tariffs 
 cannot be given a retroactive effect and be made to ap- 
 ply to conditions other than those existing on the date 
 when such tariffs became effective. 
 
 A combination through rate is as binding, definite 
 and absolute as a joint through rate, and all the condi- 
 tions, regulations and privileges obtaining as to au}^ 
 factor in such combination rate or through shipment at 
 the time of initial shipment upon such combination 
 through rate, must be adhered to and cannot be varied 
 as to that shipment during the transit to its final desti- 
 nation. A local or proportional rate "in" cannot be 
 absorbed, diminished or affected by any "out" rate not 
 in effect at the time when the traffic moved ujxju such 
 local or proportional rate.®" 
 
 § 275. Departures from Published Tariffs Permitted 
 in Performance of Private Duties of Carriers. The 
 
 provisions of the statute prohibiting departures from 
 published tariffs are not binding upon a railroad com- 
 pany when it is acting outside the performance of its 
 duties as a common carrier. Thus, a carrier having 
 entered into a contract with a construction company for 
 
 United States v. Wood, 145 Fed. L. Ed. 698, 28 Sup. Ct. 439. 
 405. 86. Liberty Mills v. Louisville 
 
 85. Chicago, B. & Q. R. Co. v. & N. R. Co., 23 I. C. C. 182; In re 
 
 United States, 85 C. C. A. 194, 157 Through Routes and Through 
 
 Fed. 830, aff'd in 209 U. S. 90, 52 Rates, 12 I. C. C. 163.
 
 § 276] Filing and Publication of Rates. 483 
 
 the grading of a new ])raneli line, agreed to transport 
 the supplies, eamp and gj-ading outfit and the employes 
 of the construction company at less than the rates and 
 fares fixed in the i)u])lish('d tariffs of the carrier. Such a 
 contract, when entered into in good faith and not as a 
 subterfuge, is not a violation of the statute penalizing 
 departures from the published schedules." There are 
 many special arrangements which are not embraced with- 
 in the railroad company's duty as a common carrier, 
 although their performance may incidentally involve the 
 actual transportation of persons and things, whose car- 
 riage in other circumstances might be within the car- 
 rier's public obligation. ^^ 
 
 ^ 276. Rates for Passage of Vehicles on Railroad 
 Ferries Must be Filed. All rates of common carriers 
 b)" railroad no matter for what service performed, are 
 within the purview of Section 6. Transportation by 
 ferries, when owned by common carriers by railroad 
 and in connection with railroad operation, is under 
 the control of the Commission. ^^ Frequently in addition 
 to transporting passengers and freight in connection 
 with their rail lines, carriers use their ferries for the 
 purpose of transporting vehicles and passengers having 
 no connection with their rail lines. If interstate in 
 character, vehicular ferry rates and fares not made in 
 connection with rail lines must also be filed with the 
 Commission under the provisions of Section 6."" 
 
 87. Santa Fe, P. & P. R. Co. v. 0. S. W. Ry. Co. v. Voight, 176 U. 
 Grant Bros. Const. Co., 228 U. S. S. 498, 44 L. Ed. 560, 20 Sup. Ct. 
 177, 57 L. Ed. 787, 33 Sup. Ct. 474; 385; Long v. Lehigh Valley R. Co., 
 In re Railroad-Telegraph Con- 65 C. C. A. 354, 130 Fed. 870. 
 tracts, 12 I. C. C. 10. 89. Section 93, supra. 
 
 88. Northern Pac. R. Co. v. 90 New York-Jersey City Ferry 
 Adams, 192 U. S. 440, 48 L. Ed. Rates, 37 I. C. C. 103. 
 
 513, 24 Sup. Ct. 408; Baltimore &
 
 CHAPTER XIV 
 
 Damages ok Rkpakatton for Violations of Commerce 
 Act — Jurisdiction of Courts and Commission. 
 
 Sec. 277. Statutory Provision Creating Civil I^iability for Damages 
 Due to Violation of Interstate Commerce Act 
 
 Sec. 278. Statutory Authority of Commission and Courts to Award 
 Damages for Violation of Act. 
 
 Sec. 279. Commission Without Authority to Award Damages Prior to 
 Amendment of 1889. 
 
 Sec. 280. Award of Damages by Commission for Unlawful Discrimina- 
 tion — Former and Present Rule. 
 
 Sec. 281. Authority of Commission to Award Damages Extends Only 
 to Violations of Act to Regulate Commerce. 
 
 Sec. 282. Conflicting Provisions Harmonized and Exclusiveness of 
 Remedy before Commission, in Certain Cases. Established. 
 
 Sec. 283. Courts Without Primary Jurisdiction to Award Damages 
 for Exaction of Excessive Interstate Rates. 
 
 Sec. 284. But Actions for Overcharges Exceeding Scheduled Rates 
 may be Prosecuted in Courts without Previous Determi- 
 nation of Commission. 
 
 Sec. 285. Suits for Damages Recoverable Under Section 8 Cannot be 
 Prosecuted in State Courts. 
 
 Sec. 286. Damages Caused by Unjust Discrimination, Preliminary Or- 
 der of Commission Essential, When. 
 
 Sec. 287. Original Jurisdiction of State Courts to Award Damages 
 Against Interstate Carriers not Wholly Superseded. 
 
 Sec. 288. In Actions for Damages for Violation of Statute Pecuniary 
 Loss Must be Shown. 
 
 Sec. 289. Measure of Damages for Unreasonable Rates and Unlawful 
 Discriminations. 
 
 Sec. 290. Parties Entitled to Damages for Excessive Freight Charges 
 — Consignors and Consignees. 
 
 Sec. 291. Right of Shipper to Reparation When Arbitrary Sum is 
 Added to Sale Price to Cover Excessive Charges. 
 
 Sec. 292. Foregoing Principle Approved by Federal Supreme Court — 
 Southern P. Co. v. Darnell-Taenzer Lumber Co. 
 
 Sec. 293. Reparation on Past Shipments not Automatically Awarded 
 on Finding that Rate is Excessive. 
 
 Sec. 294. Damages Growing out of Inadequate Service or Facilities. 
 
 Sec. 29.5. Damages for Misrouting Shipments May be Awarded by 
 Commission, When. 
 
 Sec. 290. Reparation Awarded by Commission for Overcharges a Bar 
 to Subsequent Action for Additional Damages. 
 
 Sec. 297. Findings of Commission on Reasonableness of Rates Inure 
 to Benefit of Every Person Paying the Unjust Rate. 
 
 (484)
 
 "§. 27-'^ I Damages under Commerce Act. 485 
 
 Seo. 298. Findings of Faft Required When Commission Awards Dam 
 ages Against a Carrier. 
 
 Sec. 299. Statute Prescribing Findings and Orders of Commission 
 Prima Facie 1^'vidcnce of Facts Therein Stated, Constitu- 
 tional. 
 
 Sec. 300. Commission May Order Reparation without Prescribing Max- 
 imum Rate to be Observed In the Future. 
 
 Sec. 301. Actions to Enforce Orders of Commission Awarding Dam- 
 ages may be Prosecuted in State as well as Federal Courts. 
 
 Sec. 302. Complaints for Damages before Commission must be Filed 
 within Two Years. 
 
 Sec. 303. Assignability of Claims for Damages under the Interstate 
 Commerce Act. 
 
 Sec. 304. Allowance of Attorney's Fees for Services in Reparation 
 Cases Before Commission not Permitted. 
 
 § 277. Statutory Provision Creating Civil Liability 
 for Damages Due to Violation of Interstate Commerce 
 Act. Every eommoii carrier subject to the })r() visions 
 of tlie Interstate Commerce Act that shall do, cause to 
 be done, or permit to be done, any act, matter or thing, 
 ]irohibited by the Act to "Regulate Commerce, or declared 
 therein to be unlawful, or shall omit to do any act, mat- 
 ter or thing in such statute required to be done, shall 
 be liable to the person injured thereby for the full a- 
 mount of damages sustained in consequence of any such 
 violation of the provisions of the statute, together with 
 a reasonable attorney's fee to be fixed by the court, in 
 every case of recovery, which may be taxed and collect- 
 ed as a part of the costs in each case. Such, in substance, 
 is the provision of Section 8 of the Interstate Commerce 
 Act. It has not been amended since its enactment as a 
 l)art of the original act in 1887. 
 
 § 278. Statutory Authority of Commission and 
 Courts to Award Damages for Violation of Act. Every 
 ])erson claiming to he damaged by any common carrier 
 subject to the statute may either make complaint to 
 the Interstate Commerce Commission or may bring suit 
 for the recovery of damages for which a common car- 
 rier may be liable under the provisions of the Interstate 
 Commerce Act, in any district court of the United States 
 of competent jurisdiction; but such person shall not 
 have the right to pursue both of such remedies and
 
 48G Duties to Interstate Shippers. [§ 278 
 
 must, in each case, elect which one of the two methods 
 he will pursue/ 
 
 The procedure for damages before the Commission 
 is governed by sections 13, 14 and 16 of the Act. If, 
 after a hearing upon a complaint made as provided by 
 section 13, the Interstate Commerce Commission, in a 
 proceeding instituted before it, shall determine that any 
 party is entitled to an award of damages under the pro- 
 visions of the Act for a violation thereof, the Commis- 
 sion is required to make an order directing the carrier 
 to pay to the complainant the sum to which he is en- 
 titled on or before a day named in the order. If a car- 
 rier does not comply with an order for the payment of 
 money within the time specified in such order, the com- 
 plainant, or any person for whose benefit such order was 
 made, may file in the district court of the United States 
 for the district in which he resides or in which is located 
 the principal operating office of the carrier, or through 
 which the road of the carrier runs, or in any state court 
 of general jurisdiction having jurisdiction of the parties, 
 a petition setting forth briefly the things for which he 
 claims damages and the order of the Commission in the 
 premises. Such suits in the district court of the United 
 States shall proceed in all respects like other civil suits 
 for damages except that, on the trial of such suits, the 
 findings and orders of the Commission shall be prima 
 facie evidence of the facts therein stated. The petition- 
 er shall not be liable for costs in the district court nor 
 for costs at any subsequent stage of the proceeding un- 
 less they accrue upon his appeal. If the petitioner 
 shall finally prevail, he shall be allowed a reasonable 
 attorney's fee, to be taxed and collected as a part of 
 the costs of the suit. In such suits all parties in whose 
 favor the Commission may have made an award for 
 damages by a single order, may be joined as plaintiffs, 
 and all of the carriers parties to such order awarding 
 such damages, may be joined as defendants. Such a 
 suit may be maintained by such joint plaintiffs and 
 
 1. Section 9 of the Act to Regu- late Commerce, appendix A, infra.
 
 , § 279] Damages under Commerce Act. 487 
 
 against such joint defendants in any district where any- 
 one of such joint plaintiffs could maintain such suit 
 against any one of such joint defendants, and service 
 of process against any one of such defendants as may 
 not be found in the district where the suit is brought, 
 may be made in any district where such defendant car- 
 rier has its principal operating office. In such joint 
 suits the recovery, if any, may be by judgment in favor 
 of any one of such plaintiffs against the defendant found 
 to be liable to such plaintiff. 
 
 Every order of the Commission awarding damages 
 may be served upon the designated agent of the carrier 
 in the city of Washington, D. C, or upon such other one 
 as may be provided by law. The Commission is author- 
 ized to suspend or modify its orders upon such notice 
 and in such manner as it shall deem proper.^ Whenever 
 an investigation shall be made by the Commission, it 
 shall be its duty to make a report in writing in respect 
 thereto, which shall state the conclusions of the Commis- 
 sion, together with its decision, order or requirement in 
 the premises, and in case damages are awarded, such 
 report shall include the findings of facts on which the 
 award is made.^ Nothing in the Act to Regulate Com- 
 merce shall in any way abridge or alter the remedies 
 existing at common law or by statute, but the provisions 
 of the Interstate Commerce Act are in addition to such 
 remedies.* 
 
 § 279, Commission Without Authority to Award 
 Damages Prior to Amendment of 1889. Prior to the 
 amendment of 1889 no provision was incorporated in the 
 statute for enforcing the orders of the Commission in 
 the matter of reparation for past damages. When the 
 question involved is one of reparation for past damages, 
 the constitutional right to a trial by jury exists under 
 
 2. Section 16 of the Act to Reg- ulate Commerce, Appendix A, in- 
 ulate Commerce, Appendix A, in- fra. 
 
 jra. 4. Section 22 of the Act to Reg- 
 
 3. Section 14 of the Act to Reg- ulate Commerce, Appendix A, ii\- 
 
 f7-a.
 
 488 
 
 Duties to Interstate Shippees. 
 
 [§ 279 
 
 the seventh amendment to tlie federal constitution, and, 
 as the statute made no provision for a jury trial as 
 originally enacted, the Commission, in several cases, de- 
 clined to make an award of damages.' But the amend- 
 ment of 1889 contained a provision giving a jury trial 
 in the federal court when the matter involved in any 
 order entered by the Commission was founded upon a 
 controversy requiring a trial by jury. Since that time 
 the Commission has entertained jurisdiction of claims 
 for damages due to a violation of tlie statute." 
 
 § 280. Awards of Damages by Commission for 
 Unlawful Discrimination — Former and Present Rule. 
 
 Notwithstanding the acknowledged powers of the Com- 
 mission under the Act to Regulate Commerce as amend- 
 
 5. Riddle, Dean & Co. v. New 
 York, L. E. & W. R. Co., 1 I. C. C. 
 594; Heck v. East Tennessee, V. 
 & G. Ry. Co., 1 I. C. C. 495. 
 
 6. St. Louis Blast Furnace Co. 
 V. Virginian Ry. Co., 21 I. C. C. 
 215; Parfrey v. Chicago, M. & St. 
 P. Ry. Co., 20 I. C. C. 104; Stein- 
 feld & Co. V. Illinois Cent. R. Co., 
 20 I. C. C. 12; Texas Grain & Ele- 
 vator Co. V. Chicago, R. I. & P. 
 Ry. Co., 18 I. C. C. 580; Stacy 
 Mercantile Co. v. Minneapolis, St. 
 P. & S. S. M. Ry. Co., 18 I. C. C. 
 550; De Bary & Co. v. Louisiana 
 W. R. Co., 18 I. C. C. 527; Maris 
 V. Southern P. Co., 18 I. C. C. 
 301; Delray Salt Co. v. Pennsyl- 
 vania R. Co., 18 I. C. C. 259; 
 American Creosote Works v. Ill- 
 inois Cent R. Co., 18 I. C. C. 212; 
 Kindleton v. Southern P. Co., 17 
 I C. C. 251; Beekman Lumber Co. 
 V. Chicago, R. I. & P. Ry. Co., 10 
 I. C. C. 528; Carstens Packing Co. 
 V. Chicago, M. & St. P. Ry. Co., 16 
 I. C. C. 469; Sunderland Bros. Co. 
 V. Pere Marquette R. Co., 16 I. 
 C. C. 450; Wells-Higman Co. v. 
 Grand Rapids & I. Ry. Co., 16 I. 
 
 C. C. 339; Gilchrist v. Lake Erie 
 & N. R. Co., 16 I. C. C. 318; Allen 
 & Co. V. Chicago, M. & St. P. Ry. 
 Co., 16 I. C. C. 293; Diehl v. Chi- 
 cago, M. & St. P. Ry. Co., 16 I. 
 C. C. 190; Hardenberg, Dolson Ji 
 Gray v. Northern P. Ry. Co., 14 
 I. C. C. 579; Carstens Packing Co. 
 V. Northern P. Ry. Co., 14 I. C. C. 
 577; Sylvester v. Pennsylvania R. 
 Co., 14 I. C. C. 573; Wilson v. Chi- 
 cago, M. & St. P. Ry. Co., 14 I. C. 
 C. 549; McCaull-Dinsmore Co. v. 
 Chicago G. W. Ry. Co., 14 I. C. C. 
 527; Slimmer & Thomas v. Chica- 
 go, St. P., M. & O. Ry. Co., 14 I. 
 C. C. 525; Gamble-Robinson Com. 
 Co. V. Northern P. Ry. Co., 14 I. 
 C C. 523; California Commercial 
 Ass'n V. Wells, Fargo & Co., 14 I. 
 C. C. 422; Flint & Walling Mfg. 
 Co. V. Lake Shore & M. S. Ry. Co.. 
 14 L C. C. 336; Nicola, Stone & 
 Myers Co. v. Louisville & N. R. 
 Co., 14 I. C. 199; Erie Preserving 
 Co. v. Lake Shore & M. S. Ry., 
 14 I. C. C. 118; Laning-Harris Coal 
 & Grain Co. v. Missouri P. Ry. Co., 
 13 I. C. C. 154; Poor Grain Co. v. 
 Chicago, B. & Q. R. Co., 12 I. C.
 
 § 280 J Damages unjjek Commerce Act. 48*J 
 
 ed in 1906, the Conmiission held in 1909' that damages 
 arising out of unlawful discriminations ascertained and 
 found by the Commission to liave been practiced by an 
 interstate carrier, were cognizable only in the courts, 
 and that the jurisdiction of the Commission extended 
 only to rate or transportation damages, that is, such 
 damages as grow out of the collection by cairiers of 
 excessive rates. Shortly after the Commission made 
 its report in the Joynes case, a federal circuit court 
 dismissed an action for damages alleged to have been 
 sustained by a shipper on account of unlawful dis- 
 crimination in the distribution of coal cars on the ground 
 that the Commission alone could primarily entertain 
 a claim of that nature." When this decision was hand- 
 ed down, the Commission then reluctantly overruled 
 its former decision and held that its power to award 
 damages under section 9 of the act included ''general" 
 damages as well as "rate" damages due to a violation 
 of any of the provisions of the Act.^ 
 
 The power of the Commission to award damages 
 for unlawful discriminations in violation of the Inter- 
 state Commerce Act has since been affirmed by the 
 United States Supreme Court,'" and has been exercised 
 
 C. 418; American Grass Twine Co. Co.. 20 I. C. C. 52; Jacoby & Co 
 
 V. Chicago, St. P. M. & O. Ry. Co., v. Pennsylvania R.' Co.. 19 I C C 
 
 12 I. C. C. 141; Frederick Brick 392; Hillsdale Coal & Coke Co v 
 
 Works V. Northern C. Ry. Co., 12 Pennsylvania R. Co., 19 I. c C 
 
 I C. C. 13; MacLoon v. Chicago 355 
 
 & N. W. Ry. Co. 5 I. C. C. 84. jo. Pennsylvania R. Co. v. Son- 
 
 Co 7 l"Tr ;-,f ^""^^^^""^" ^- -an Shaft Coal Co., 242 U. S. 120. 
 
 Co 7 . C C.361. 61 L. Ed. 188, 37 Sup. Ct. 46; 
 
 8. Mornsdale Coal Co. v. Penn- Pennsylvania R. Co v W F Ta 
 sylvania R. Co 176 Fed. 748, in ,,,, ^ ^^^ ^42 U. S. 89, 01 L.' Ed. 
 which the court cited: Baltimore ifir 07 c!„„ r,. .„ ^ 
 
 & O. R. Co. V. United States ex rel. r ^' '' f ^^ ^*; ^S: Pennsylvania 
 
 Pitcairn Coal Co.. 215 U. S. 481. 54 ^:,'''; l ^"y^^!" ^«^> ^"°- ^0- 
 
 L Ed. 292. 30 Sup. Ct. 164; Texas f ^ ^'^ ^- '''' '' ^- ^^- ^67. 35 
 
 & P. R. Co. V. Abilene Cotton Oil ^"P" ^*- ■^^^' ^^orrisdale Coal Co. • 
 
 Co., 204 U. S. 426, 51 L. Ed. 553, 27 ^ Pennsylvania R. Co.. 230 U. S. 
 
 Sup. Ct. 350, 9 Ann. Cas. 1075. ^04, 57 L. Ed. 1494. 33 Sup. Ct. 
 
 9. Hillsdale Coal & Coke Co. v. ^^S; Mitchell Coal & Coke Co. v. 
 Pennsylvania R. Co.. 23 I. C. 186; Pennsylvania R. Co., 230 U. S. 247, 
 Rulah Coal Co. v. Pennsylvania R. 57 L. Ed. 1472, 33 Sup. Ct. 916.
 
 490 Duties to Interstate Shippees. [§ 280 
 
 by the Commission in many cases/' "The Commission 
 also had authority to make examination and report up- 
 on the amount of damages which the plaintiff had suf- 
 fered from the unjust discrimination alleged in its com- 
 plaint. We deem the provisions of the Act to be clear 
 upon this point. See sections 8, 9, 13, 16. There is 
 nothing in the Act to suggest that the damages which 
 may thus be ascertained are only those arising from 
 unreasonable or unjustly discriminatory rates. Rules 
 as to car distribution that are unjustly discriminatory 
 are within the purview of section three, and damages 
 thereby occasioned, as well as those due to the exaction 
 of unreasonable rates, arise from the violation of the 
 Act and their ascertainment is within the scope of the 
 Commission's authority."'^ 
 
 § 281. Authority of Commission to Award Dam- 
 ages Extends Only to Violations of Act to Regulate Com- 
 merce. The authority of the Interstate Commerce Com- 
 mission to award damages extends only to such damages 
 as accrue from violations of the Interstate Commerce 
 Act.'^ The Commission has never assumed jurisdiction 
 
 11. Sloss-Sheffield Steel & Iron 41 I. C. C. 39; Vulcan Coal & 
 Co. V. Louisville & N. R. Co., 40 I. Mining Co. v. Illinois Cent. R. Co., 
 C C. 743; Manufacturers' & Met- 32 I. C. C. 52; Atlas Portland 
 chants' Ass'n v. Aberdeen & A. R. Cement Co. v. Lehigh Valley R. 
 Co., 37 I. C. C. 350; Spiegle v. Co., 32 I. C. C. 487; United States 
 Southern Ry. Co., 32 I. C. C. 687; v. Union P. R. Co., 28 I. C. C. 518; 
 Curry & Whyte Co. v. Duluth & I. Hampton Mfg. Co. v. Old Dominion 
 R. R. Co., 32 I. C. C. 162; Curry S S. Co., 27 I. C. C. 666; Ralston 
 & Whyte V. Duluth & I. R. R. Co., Townsite Co. v. Missouri P. Ry. 
 .30 I. C. C. 1; New Orleans Board Co., 22 I. C. C. 354; Kay Co. v. 
 of Trade v. Illinnois Cent. R. Co., Denver & R. G. R. Co., 21 I. C. C. 
 29 I. C C. 32; Eichenberg v. 239; Maxwell v. Wichita Falls & 
 Southern P. Co.,' 28 I. C. C. 584; N. W. Ry. Co., 20 I. C. C. 197; Han- 
 Wisconsin Lime & Cement Co. v. ley Milling Co. v. Pennsylvania Co., 
 Cleveland, C. C. & St. Ry. Co., 25 19 I. C. C. 475; Memphis Freight 
 
 • I. C. C. 366. Bureau v. Kansas City S. Ry. Co., 
 
 12. Pennsylvania R. Co. v. 17 I. C. C. 90; Falls & Co. v. Chi- 
 Clark Bros. Coal Min. Co., 238 U. cago, R. I. & P. Ry. Co., 15 I. C. C. 
 S. 456, 59 L. Ed. 1406, 35 Sup. Ct. 269; Royal Brewing Co. v. Adams 
 896. Exp. Co., 15 I. C. C. 255; General 
 
 13. Southwestern Portland Elec. Co. v. New York Cent. & H. 
 Cement Co. v. Texas & P. Ry. Co., River R. Co., 14 I. C. C. 237; La
 
 § 282] Damages under Commerce Act. 491 
 
 to award damages over loss and damage claims not 
 arising from any duty imposed upon the carriers by 
 the Act to Regulate Commerce, such as destruction of 
 property from accident, loss by stealing or fire, etc.'* 
 
 Under Section 16 of the Act, tlie Conmiission is 
 authorized to make an award of damages whenever, after 
 a hearing and u])on eonii)]aiiit made, it shall find that 
 the party complaining is entitled to an award of dam- 
 ages under the provisions of the Act ''for a violation 
 thereof." With respect, therefore, to the performance 
 by carriers for the shipping public of their general 
 duties as common carriers other than those governed 
 by the act, the Commission is without authority.''* Thus, 
 the Commission's jurisdiction over claims for damages 
 does not extend to claims arising from loss, damage 
 or delay to shipments in transit, such claims being cog- 
 nizable only in the courts.'" The Commission has no 
 authority to enforce a contract between two carriers." 
 
 § 282. Conflicting Provisions Harmonized and Ex- 
 clusiveness of Remedy before Commission, in Certain 
 Cases, Established. Although section 9 of the Interstate 
 Commerce Act provides two methods of procedure for 
 the recovery of damages resulting from a violation of 
 the statute, one before the courts, and the other before 
 the Commission, section 22 prescribes that nothing in 
 the Act shall in any way abridge or alter the remedies 
 existing at common law or by statute. These and other 
 sections of the Act have been so construed in a series of 
 cases by the national Supreme Court that the remedies 
 provided by section nine for damages, under certain 
 
 Salle & Bureau C. R. Co. v. Chi- Pennsylvania Co., 19 I. C. C. 475; 
 
 cago & N. W. Ry. Co., 13 I. C. C. Duncan v. Atchison, T. & S. F. Ry. 
 
 610; Macbride Coal & Coke Co. v. Co., 6 I. C. C. 85. 
 
 Chicago, St. P., M. & O. Ry. Co., 13 15. Blume & Co. v. Wells, Fargo 
 
 I C. C. 571; Haines v. Chicago, R. & Co., 15 I. C. C. 53. 
 
 I & P. Ry. Co., 13 I. C. C. 214; 16. Atlas Portland Cement Co. v. 
 
 Shiel & Co. V. Illinois Cent. R. Co.. Lehigh Valley R. Co.. 32 I. C. C. 
 
 12 I .C. C. 10; Railroad Coramis- 487. 
 
 sion of Florida v. Savannah, F. & 17. Laona & N. R. Co. v. Min- 
 
 N. Ry. Co., 5 I. C. C. 13. neapolis, St. P. & S. S. M. Ry. 
 
 14. Carstens Packing Co. v. Co., 24 I. C. C. 639.
 
 492 Duties to Interstate Shippers. [§ 282 
 
 conditions hereinafter discussed, are not concurrent. 
 On the contrary, actions for damages in certain cases 
 may not be instituted in the courts without a prior pro- 
 ceeding and finding by the Interstate Commerce Com- 
 mission.^^ The adjudication giving the Interstate Com- 
 merce Commission exclusive preliminary jurisdiction in 
 certain actions for damages was first established by 
 the Supreme Court in 1907 and has been adhered to since 
 that time. The principles determining when the juris- 
 diction of the Commission is exclusive are discussed in 
 the succeeding paragraphs. 
 
 § 283. Courts Without Primary Jurisdiction to 
 Award Damages for Exaction of Excessive Interstate 
 Rates. To prevent unjust discriminations and prefer- 
 ences between shi^Dpers, the Interstate Commerce Act 
 requires all interstate carriers to file schedules of their 
 rates, fares and charges for the transportation of pas- 
 sengers and property with the Interstate Commerce Com- 
 mission, and no carrier may collect or receive a greater 
 or less or different compensation for such transportation 
 
 18. Pennsylvania R. Co. v. Son- vania R. Co., 230 U. S. 304, 57 L. 
 
 man Shaft Coal Co., 242 U. S. 120, Ed. 494, 33 Sup. Ct. 938; Mitchell 
 
 61 L. Ed. 188, 37 Sup. Ct. 46; Coal & Coke Co. v. Pennsylvania R. 
 
 Loomis V. Lehigh Valley R. Co., Co., 230 U. S. 247, 57 L. Ed. 1472, 
 
 240 U. S. 43, 60 L. Ed. 517, 36 Sup. 33 Sup. Ct. 916; Pennsylvania R. 
 
 Ct. 228; Mills v. Lehigh Valley R. Co. v. International Coal Min. Co., 
 
 Co., 238 U. S. 473, 59 L. Ed. 1414, 230 U. S. 184, 57 L. Ed. 1446, 33 
 
 35 Sup. Ct. 888; Pennsylvania R. Sup. Ct. 893, Ann. Cas. 1915A 315; 
 
 Co. v. Clark Bros. Coal Min. Co., United States v. Pacific & A. Ry. 
 
 238 U. S. 456, 59 L. Ed. 1406, 35 & Nav. Co., 228 U. S. 87, 57 L. Ed. 
 
 Sup. Ct. 896; Illinois Cent. R. Co. 742, 33 Sup. Ct. 443; Kansas City 
 
 V. Mulberry Hill Coal Co., 238 U. Southern R. Co. v. C. H. Albers 
 
 S. 275, 59 L. Ed. 1306, 35 Sup. Ct. Commission Co., 223 U. S. 573, 56 
 
 760; Pennsylvania R. Co. v. Puri- L. Ed. 556, 32 Sup. Ct. 316; Gal 
 
 tan Coal Min. Co., 237 U. S. 121, 59 veston, H. & S. A. R. Co. v. Wal 
 
 L. Ed. 807, 25 Sup. Ct. 484; Texas lace, 223 U. S. 481, 56 L. Ed. 519 
 
 & P. R. Co. v. American Tie & 32 Sup. Ct. 205; Louisville & N. R 
 
 Timber Co., 234 U. S. 138, 58 L. Ed. Co. v. F. W. Cook Brewing Co. 
 
 1255, 34 Sup. Ct. 885; Minnesota 223 U. S. 70, 56 L. Ed. 355, 32 Sup 
 
 Rate Cases, 230 U. S. 352, 57 L. Ed. Ct. 189; Baltimore & O. R. Co. v 
 
 1511, 33 Sup. Ct. 729, 48 L. R. A. United States ex rel. Pitcairn Coal 
 
 (N. S.) 1151, Ann. Cas. 1916A 18; Co., 215 U. S. 481, 54 L. Ed. 292, 
 
 Morrisdale Coal Co. v. Pennsyl- 30 Sup. Ct. 164; Interstate Com-
 
 § 288] Damages under Commerce Act. 493 
 
 than is spccilicd in llic tariffs so (ilod.''' When such 
 rates have been duly filed and publislied as required by 
 law, they cannot be clianged by a carrier witliout the 
 filing and publication of a new rate and charge. Such 
 published rates, fares and charges are presumed to be 
 reasonable until set aside by the Interstate Commerce 
 Commission upon a complaint and hearing. 
 
 The power given under section eight of the Act to 
 the Commission to award damages for exaction of un- 
 reasonable rates is complementary to the ]K)wer to de- 
 termine tlie reasonableness of the scheduled rates. The 
 jurisdiction of the Commission over these two subject 
 matters is exclusive.^" A shipper cannot, therefore, 
 prosecute an action in either the state or the federal 
 courts for damages on account of the unreasonableness 
 or the excessiveness of a scheduled rate or charge with- 
 out a previous finding and order by the Interstate Com- 
 merce Commission.^' If the courts were permitted to 
 award damages for excessive rates and charges without 
 a preliminary order of the Commission, the question 
 as to what would constitute a reasonable rate would 
 vary according to the different judgments of different 
 juries in the various courts. The uniformity of rates 
 for similar services would thus be destroyed; for in 
 ascertaining the damage due to a shipjDer from the 
 collection of an overcharge, the court would be compelled 
 to determine what would constitute a reasonable rate 
 as the measure of damages is the difiference between 
 the rate charged and the rate found to be reasonable. 
 
 merce Commission v. Chicago & A. 21. Western & A. R Co v White 
 
 R. Co., 215 U. S. 479, 54 L. Ed. 291, Provision Co.. 142 Ga. 240. 82 S. E. 
 
 30 Sup. Ct. 163. 044; Robinson v. Baltimore & O. R 
 
 19. Section 250. supra. ^o., 64 W. Va. 406, 63 S. E 323 
 
 20. Morrisdale Coal Co. v. Penn- o* ^^ ^ , 
 
 1 • n r^ oor, TT o oA^ ^^^'® courts have no authority 
 
 sylvania R. Co., 230 U. S. 304, 
 
 57 L. Ed. 1494, 33 Sup. Ct. 938; "''^'' ""'^^^^^^ ^^*^^ primarily 
 
 United States v. Pacific & A. Ry. ^«°^« ^'*^^*° ^^^ jurisdiction of 
 
 & Nav. Co., 228 U. S. 87, 57 L. Ed. t^^ Interstate Commerce Com- 
 
 742, 33 Sup. Ct. 443; Texas & P. mission. Cleveland & W. Coal Co. 
 
 R. Co. V. Abilene Cotton Oil Co., v. Pennsylvania Coal Co., 
 
 204 U. S. 42G, 51 L. Ed. 553, 27 Sup. Ohio , 119 N. E. 367. 
 
 Ct. 350, 9 Ann. Cas. 1075.
 
 494 Duties to Interstate Shippers. [§ 283 
 
 The right of an individual to maintain an action 
 in the courts to obtain damages for the violation of the 
 •Interstate Commerce Act as conferred by Section 9 must 
 be confined to the redress of such wrongs as can be 
 remedied by the courts without previous action by the 
 Commission and it has not therefore implied the power 
 in the courts to primarily entertain complaints for the 
 award of damages to individuals because of the un- 
 reasonableness of rates and charges." Thus, in the case 
 last cited, a shipper brought a suit in a state court 
 against a carrier for damages on the ground that the 
 rate charged for the shipment of cotton seed from a 
 point in Louisiana to a point in Texas was unjust and 
 unreasonable. The state court awarded judgment be- 
 cause the rate was excessive notwithstanding the fact 
 that the charges collected were in conformity with the 
 rate schedules on file with the Interstate Commerce Com- 
 mission. The court held that a shipper had a common 
 law right to sue and recover freight charges in excess 
 of a reasonable compensation. But on writ of error to 
 the United States Supreme Court, the case was reversed 
 in an opinion holding that a shipper seeking damages 
 predicated upon the unreasonableness of a scheduled 
 interstate rate, must, under the Act to Regulate Com- 
 merce, primarily invoke redress through the Interstate 
 Commerce Commission. 
 
 § 284. But Actions for Overcharges Exceeding 
 Scheduled Rates may be Prosecuted in Courts without 
 Previous Determination of Commission. When a car- 
 rier charges more than, or otherwise departs from, the 
 published rate on file with the Interstate Commerce 
 Commission, the courts may determine whether the pub- 
 lished rate or more than the published rate has been 
 collected in a given case without a previous determi- 
 nation by the Commission.^^ If a carrier departs from 
 
 22. Texas & P. R. Co. v. Abilene 23. Pennsylvania R. Co. v. In- 
 Cotton Oil Co., 204 U. S. 426, 51 ternational Coal Min. Co., 230 U. 
 L. Ed. 553, 27 Sup. Ct. 350, 9 Ann. S. 184, 57 L. Ed. 1446, 33 Sup. Ct. 
 Cas. 1075. 893, Ann. Cas. 1915A 315; Gimbel
 
 § 284] Damages under Commerce Act. 495 
 
 a published tariff, ilic iiijuicd i^arty may sue without 
 previous action h> llic ( 'ommission, because the courts 
 can api)ly the law ])r<)liihitin,i^ a departure from the tariff 
 to the facts of a particular case.'* An action, therefore, 
 may be prosecuted in the courts to recover amounts 
 ])aid for interstate transportation in excess of the sche- 
 duled rates and charges on file with the Commission.'''' 
 The line of distinction showing when a shipper 
 may sue in the courts for overcharges without previous 
 action by the Commission, and when he cannot, was 
 thus well stated by the Circuit Court of Appeals:^® ''Un- 
 der what circumstances, if at all, the option apparently 
 otfered by section 9 may be available, we will endeavor 
 to determine from a consideration of the nature of the 
 Interstate Commerce Act. Varying secret rates, unjust 
 discriminations, undue preferences, were the evils to 
 l)e cured. Publicity, uniformity, and equality, with 
 respect to all matters of rates and practices, were the 
 remedies. And a new means was created for administer- 
 ing the remedies, namely, the commission with its super- 
 visory and regulatory powers. The commission was 
 added as an instrumentality of the administrative (ex- 
 ecutive) department of government, and two distinct 
 classes of powers were conferred upon it, quasi legis- 
 lative and quasi judicial. When shippers before the 
 commission challenge a published rate as unjust and 
 demand the fixing of a just rate, and fail to make a# claim 
 or admit they have no claim for damages accrued, they 
 present nothing but matter that is legislative in its 
 nature. Congress directly and in the first instance might 
 have inquired into the character and value of the partic- 
 ular transportation service now under investigation 
 by the commission and have named the rate therefor in 
 a statute. But, with the increasing complexities of 
 
 Bros., Inc. v. Barrett, 215 Fed. 25. Geraty v. Atlantic Coast 
 
 1004; National Pole Co. v. Chi- Line R. Co., 211 Fed. 227. 
 
 cago & N. W. R. Co., 127 C. C. A. 26. National Pole Co. v. Chi- 
 
 561, 211 Fed. 65. cago & N. W. R. Co , 127 C. C. A. 
 
 24. MitcheU Coal & Coke Co. v. 561, 211 Fed. 65. 
 Pennsylvania R. Co., 230 U. S. 247, 
 57 L. Ed. 1472, .33 Sup. Ct. 916.
 
 496 Duties to Intekstate Shippeks. [<^ 284 
 
 liumau activities, it was impossible to cover the details 
 of ratemaking (and the same is true of many other sub- 
 jects) by specific statutes; and so the board or commis- 
 sion form of legislation was used. That is, Congress 
 declared the public policy and fixed the legal principles 
 that were to control, and charged an administrative body 
 with the duty of ascertaining within particular fields 
 from time to time the facts on which tlie legal principles 
 established by Congress would be brought into play. 
 Such action by the commission, to be constitutional, 
 cannot of course be legislation, for the whole of the 
 lawmaking power of the United States, except the ad- 
 visory and veto power of the President, is in Congress. 
 But since the Congressional prohibition of unjust rates 
 cannot, by the terms of the act, be effective against a 
 particular published rate, although unjust, until the 
 commission has investigated the service in question and 
 has established the standard of justness for all shippers 
 who use that service, the action of the commission in 
 reguition of rates is quasi legislative — it converts the 
 actual legislation from a static into a dynamic condi- 
 tion. When shippers before the commission challenge 
 a published rate as unjust and demand the fixing of 
 a just rate, and additionally ask a reparation order for 
 damages measured by the excess of the published rate 
 over the declared just rate as applied to their shipments, 
 their additional or secondary demand, considered by it- 
 self, presents nothing but matter that is judicial in its 
 nature. There is a controversy, between parties, in 
 which none but the parties are interested, to be settled 
 by hearing the evidence, finding the facts and applying 
 the law, and the settlement to be binding only upon 
 parties and privies. In such a controversy the facts to 
 be found from the evidence are the facts that pertain 
 to the particular shipments and payments of the com- 
 plaining shipper, and the law to be applied is the Inter- 
 state Commerce Act by virtue of either its direct terms 
 or an administrative, quasi legislative declaration of the 
 commission. The commission's action in such a con- 
 troversy, to be constitutional, cannot of course be judi- 
 cial, for the whole of the judicial power of the United
 
 § 284J Damages under Commerce .Act. 407 
 
 States is vested in its eouils. But, wliilc such action is 
 of a judicial nature, in resjx'ct to power it is only quasi 
 judicial, since a judicial determination of a controversy is 
 a final determination embodied in a judj^ment or decree 
 of a court and enforceable by execution or other writ of 
 the court. Turnin*i: now to section 8, that the 'carrier 
 shall 1)0 liable to the i)erson injured for the full amount 
 of damages sustained in consequence of any violation of 
 the provisions of this act,' let us see what is reciuired to 
 constitute a cause of action thereunder. If a shipper 
 states in his complaint that he paid 12 cents per hun- 
 dredweight on certain described shipments, that during 
 the times of the shipments the carrier had a published 
 tariff of 10 cents per hundredweight on such shipments, 
 and that the payments exacted of the shipper were un- 
 just to the extent of 2 cents per hundredweight, the 
 stated facts make a good complaint, foi- the statutory 
 prohibition of unjust rates is directly effective by reason 
 of the published rate's being equivalent to a statutory 
 declaration of the maximum of reasonable rates. There 
 need be no administrative, quasi legislative determina- 
 tion of conditions on which the statutory prohibition 
 would be brought into effect. Such a complaint for 
 damages is presentable to the commission for its quasi 
 judicial action. Or, under section 9 the plaintiff ma}" 
 at once demand judgment in a federal District Court. 
 Pennsylvania R. Co. v. International Coal Co., 230 U. 
 S. 184, 33 Sup. Ct. 893, 57 L. Ed. 1446. If a shipper 
 states in his complaint that he paid 12 cents per hun- 
 dredweight on certain shipments, that the carrier's jDub- 
 lished rate on such shipments was 12 cents per hundred- 
 w^eight, and that the jiayments exacted of the shijiper 
 were unjust to the extent of 2 cents per hundredweight, 
 the stated facts fail to constitute a cause of action, for 
 the statutory prohibition of unjust rates cannot, in the 
 face of the presumption attaching to the carrier's pub- 
 lished rate, be effective until the commission has exer- 
 cised its quasi legislative function of determining the 
 just rate, with which the trier of the damage case may 
 compare the facts respecting the plaintiff's shipments 
 and the payments therefor exacted by the carrier. But 
 
 1 Coutrol CaiViors 3-
 
 4-98 Duties to Interstate Shippers. ['^ 284 
 
 when the rate-determining- function has been fully exer- 
 cised by the commission (and the function is exactly 
 the same whether exercised over a present or future 
 rate, or over a past or abandoned rate (Mitchell Coal 
 Co. V. Pennsylvania R. Co., 230 U. S. 247, 33 Sup. Ct. 
 916, 57 L. Ed. 1472), then the statutory standard is as 
 definite and specific as if Congress itself had fixed the 
 rate. And consequently it seems clear to us that, since 
 legislation is for all citizens and subjects and therefore 
 requires uniformity and equality, while judgments con- 
 cern only the i3arties litigant and therefore may be va- 
 riant or contradictory without affecting their nature, 
 whenever damages are occasioned by unjust exactions 
 and the standard of justness is definitely fixed in the 
 act itself or in the quasi legislative determination of 
 the commission, an injured party who has had no hand 
 in procuring either the legislation or the r/^/rt.sHegislation 
 is given a cause of action by section 8, and for his damag- 
 es he may have by virtue of section 9 either a repara- 
 tion order of the commission or a judgment of a feder- 
 al District Court. This must be the result because, on 
 the basis that all legislative functions have been com- 
 pletely and explicitly exercised, there would be nothing 
 for the commission to do for an injured shipper except 
 to apply to his particular facts the universal law, and 
 that can be done as well in court without disturbing or 
 obstructing the Act's cardinal purposes of uniformity 
 and equality in the legislative subject matter of rates 
 and practices." 
 
 § 285. Suits for Damages Recoverable Under Sec- 
 tion 8 cannot be Prosecuted in State Courts. When an 
 act creates a new liability or gives a right of action and 
 at the same time prescribes the means by which, or the 
 court in which, the right is to be enforced, resort may 
 not be had to any other means or court, than that pre- 
 scribed.^^ As it is specifically provided in Section 9 
 that a person claiming to be damaged by any common 
 
 27. Carlisle v. Missouri Pac. Ry. Siggins v. Chicago & N. W. R. Co., 
 Co., 168 Mo. 652, 68 S. W. 898; 153 Wis. 122, 140 N. W. 1128.
 
 <§ 285] Damages under Commerce Act. 499 
 
 carrier for a violation of the Act may, at his election, 
 make complaint to the Commission or bring suit in a 
 federal court of competent jurisdiction, it follows that 
 the state courts have no jurisdiction to enforce claims 
 for damages due to a violation of the Interstate Com- 
 merce Act.^^ A shipper cannot maintain an action at 
 common law in a state court to recover the excess of 
 unjust and unreasonable freight charges exacted on 
 interstate shipments when the rates charged were those 
 fixed by the schedules." 
 
 Where a particular remedy is provided by law, such 
 remedy must be sought to the exclusion of all others in 
 the cases contemplated by statute; otherwise, a person 
 claiming injury under the Interstate Commerce Act, 
 instead of being compelled to elect which one of the 
 two methods of procedure provided by the Act he will 
 adopt, will be afforded a third alternative not contem- 
 plated or provided for in the statute. This would be a 
 violation of the express terms of the statute whereby 
 he is limited to a choice between two remedies.^'* The 
 Interstate Commerce Commission and the federal courts 
 have exclusive jurisdiction of all claims for overcharges 
 on interstate shipments whether they grow out of an 
 
 28. United States. Pennsylvania R. A. 725, 26 Ann. St. Rep. 198 9 
 
 R. Co. V. Puritan Coal Mln. Co., So. 441. 
 
 237 U. S. 121, 59 L. Ed. 867, 35 Sup. Nebraska. Fitzgerald v. Fitz- 
 
 Ct. 484; Union Pac. R. Co. v. Ore- gerald & Mallory Const. Co., 41 
 
 gon-Washlngton Lumber Manufac- Neb. 374, 59 N. W. 838. 
 
 turers' Ass'n, 91 C. C. A. 51, 165 Pennsylvania. Puritan Coal Min. 
 
 Fed. 13; Northern Pac. R. Co. v. Co. v. Pennsylvania R. Co., 237 
 
 Pacific Coast Lumber Manufac- Pa. 420, Ann. Cas. 1914B 37, 85 
 
 turers' Ass'n, 91 C. C. A. 39, 165 Atl. 426. 
 
 Fed. 1; Sheldon v. Wabash R. Co.. jexas. Gulf, C & S F R Co 
 
 105 Fed. 785; Van Patten v. Chi- ^ ^oore. 98 Tex. 302 4 Ann Cas' 
 
 cago, M. & St. P. R. Co., 74 Fed. 770 83 S W 3r'' 
 
 981. ' • • - 
 
 California. Olcovich v. Grand 
 Trunk R. Co. of Canada. 20 Cal. 
 App. 349, 129 Pac. 290. 
 
 Georgia. Western & A. R. Co. ^^- Robinson v. Baltimore & 0. 
 
 v. White Provision Co., 142 Ga. ^- Co., 64 W. Va. 406, 63 S. E. 323. 
 
 246, 82 S. E. 644. 30. Gulf, C. & S. F. R. Co. v. 
 
 Louisiana. Copp v. Louisville Moore, 98 Tex. 302, 4 Ann. Cas. 
 
 & N. R. Co., 43 La. Ann. 511, 12 L. 770, 83 S. W. 362. 
 
 West Virginia. Robinson v. Bal- 
 timore & O. R. Co., 64 W. Va. 406, 
 63 S. E. 323.
 
 500 Duties to Interstate Shippers. [§ 285 
 
 excessive rate or out of misrouting.^^ A state court has 
 no jurisdiction of an action to recover damages from 
 a railroad company for charging the shipper rates in 
 excess of those prescribed by the Interstate Commerce 
 Act.'' 
 
 § 286. Damages Caused by Unjust Discrimination, 
 Preliminary Order of Commission Essential, When. 
 
 AVhenever in any claim for damages against an inter- 
 state carrier for violating the Interstate Commerce 
 Act, the determination thereof involves matters calling 
 for the exercise of the administrative power and dis- 
 cretion of the Commission, a preliminary order by the 
 Commission is essential before the shipper may proceed 
 in the courts.^^ Thus, when a shipper is seeking damag- 
 es because of a discriminatory rule of a railroad com- 
 pany in distributing cars for interstate shipments during 
 times of car shortage, the question whether the rule or 
 method of car distribution practiced by the railroad 
 company is unjustly discriminatory, is one which the 
 Commission is authorized to pass upon, and no action 
 can be maintained in the courts to recover damages 
 alleged to have been inflicted thereby until the Commis- 
 sion has made its finding as to the reasonableness of the 
 rule.^* But if an action is based upon a discriminatory 
 enforcement of the carrier's own rule for car distribu- 
 tion, no administrative question is involved. Such an 
 action, although brought against an interstate carrier 
 
 31. Siggins v. Chicago & N. W. Ed. 1255, 34 Sup. Ct. 885. 
 
 R. Co., 153 Wis. 122, 140 N. W. 34. Pennsylvania R. Co. v. Clark 
 
 1128. Bros. Coal Min. Co., 238 U. S. 
 
 32. Carlisle v. Missouri Pac. Ry. 456, 59 L. Ed. 1406, 35 Sup. Ct. 
 Co., 68 Mo. 652, 68 S. W. 898. 896; Pennsylvania R. Co. v. Puri- 
 
 33. Loomis v. Lehigh Valley R. tan Coal Min. Co., 237 U. S. 121, 
 Co., 240 U. S. 43, 60 L. Ed. 517, 59 L. Ed. 867, 35 Sup. Ct. 484; 
 36 Sup. Ct. 228; Pennsylvania R. Mitchell Coal & Coke Co. v. Penn- 
 Co. V. Clark Bros. Coal Min. Co., gylvania R. Co., 230 U. S. 247, 57 
 238 U. S. 456, 59 L. Ed. 1406, 35 ^ ^ ^^^^^ 33 g^^ ^^ g^g. ^^j^j. 
 
 Sup. Ct. 896; P"^"j°^^yJ:^^"^2^3^\^^- more & O. R. Co. v. United States 
 
 nllTuEaVir^'^ Sup. Ct. 484;' ^^ '''■ P^^cairn Coal Co.. 215 J. 
 
 Texas & P. R. Co. v. American Tie S. 481, 54 U Ed. 292. 30 Sup. Ct. 
 
 & Lumber Co., 234 U. S. 138, 58 L. l^"*-
 
 § 287] Damages under Commebce Act. 501 
 
 for damages arising in interstate coiiinierce, may ])(' 
 brought in the eourts witli a preliminary finding by the 
 Commission. ^'^ 
 
 § 287. Original Jurisdiction of State Courts to 
 Award Damages Against Interstate Carriers not Wholly 
 Superseded. The. authority granted to the Interstate 
 ('onnnerco Commission and tlie federal courts to award 
 damages against interstate carriers for violations of 
 the Act to Regulate Commerce does not supersede the 
 original jurisdiction of state courts witliout previous 
 action of the Commission, in any case where the deci- 
 sion does not involve the determination of matters call- 
 ing for the exercise of the administrative power and 
 discretion of the Commission, or relates to a subject as 
 to which the jurisdiction of the federal courts has not 
 otherwise been made exclusive.^" For example, a shipper 
 may prosecute an action for darnages against a carrier 
 for a failure to comply with its common law duty of 
 furnishing cars for the shipment of coal even though 
 the cars were to be used in conveying coal in interstate 
 commerce.^^ 
 
 35. Illinois Cent. R. Co. v. Mul- the purpose of preventing sych a 
 berry Hill Coal Co., 238 U. S. 275, result, the proviso to sec. 22 de- 
 59 L. Ed. 1306, 35 Sup. St. 760; clared that 'nothing in this act 
 Pennsylvania R. Co. v. Puritan contained shall in any way abridge 
 Coal Min. Co., 237 U. S. 121, 59 or alter the remedies now existing 
 L. Ed. 867, 35 Sup. Ct. 484. at common law or by statute, but 
 
 36. Illinois Cent. R. Co. v. Mul- the provisions of this act are In 
 berry Hill Coal Co., 238 U. S. 275, addition to such remedies.' That 
 59 L. Ed. 1306, 35 Sup. Ct. 760. proviso was added at the end of 
 
 37. Pennsylvania R. Co. v. Puri- the statute, — not to nullify other 
 tan Coal Min. Co., 237 U. S. 121, parts of the Act, or to defeat rights 
 59 L. Ed. 867, 35 Sup. Ct. 484, or remedies given by preceding 
 wherein it was said: "But sees. sections,— but to preserve all 
 8 and 9 standing alone might have existing rights which were not in- 
 been construed to give the Fed- consistent with those created by 
 eral courts exclusive jurisdiction the statute. It was also intend- 
 of all suits for damages occasiouvid ed to preserve existing remedies, 
 by the carrier violating any of such as those by which a shipper 
 the old duties which were pre- could, in a state court, recover 
 served and the new obligations for damages to property while in 
 which were imposed by the Com- . the hands of the interstate carrier: 
 merce Act. And, evidently, for damages caused by delay in ship-
 
 502 
 
 Duties to Interstate Shippers. 
 
 [§ 288 
 
 § 288. In Actions for Damages for Violation of 
 Statute Pecuniary Loss Must be Shown. The only 
 right of recovery given by the Interstate Commerce 
 Act to an individual against a common carrier is to 
 the "person or persons injured thereby for the full 
 amount of damages sustained in consequence of any 
 such violation of the provisions of this act." It there- 
 fore follows that before any party can recover under 
 the statute, he must show not merely the wrong of the 
 carrier, but that the wrong shown did, in fact, operate 
 to his injury.^^ The statute gives a right of action for 
 damages to the injured party. By the use of these legal 
 terms, it is clearly indicated that the damages recover- 
 able were those known to the law and intended as com- 
 pensation for an injury sustained, that is, of pecuniary 
 loss inflicted.^® 
 
 ment; damages caused by failure 
 to comply with its common law 
 duties and the like. But for this 
 proviso to sec. 22 it might have 
 been claimed that, Congress having 
 entered the field, the whole sub- 
 ject of liability of carrier to ship- 
 pers in interstate commerce had 
 been withdrawn from the juris- 
 diction of the state courts and 
 this clause was added to indicate 
 that the Commerce Act, in giving 
 rights of action in Federal courts, 
 was not intended to deprive the 
 state courts of their general and 
 concurrent jurisdiction. Galves- 
 ton etc., R. R. v. Wallace, 223 U. 
 S. 481. Construing, therefore, 
 sees. 8, 9 and 22 in connection with 
 the statute as a whole, it appears 
 that the Act was both declara- 
 tory and creative. It gave ship- 
 pers new rights, while at the same 
 time preserving existing cause of 
 action. It did not supersede the 
 jurisdiction of state courts in any 
 cause, new or old, where the de- 
 cision did not involve the deter- 
 mination of matters calling for 
 
 the exercise of the administrative 
 power and discretion of the Com- 
 mission; or relate to a subject as 
 to which the jurisdiction of the 
 federal courts had otherwise been 
 exclusive." 
 
 38. Meeker v. Lehigh Valley 11. 
 Co., 236 U. S. 412, 59 L. Ed. 644, 
 35 Sup. Ct. 328, Ann. Cas. 1916 
 B 691; Parsons v. Chicago & N. W. 
 Ry. Co., 167 U. S. 447, 42 L. Ed. 
 231, 17 Sup. Ct. 887; Darnell- 
 Taenzer Lumber Co. v. Southern 
 Pac. Co., 137 C. C. A. 460, 221 
 Fed. 890; Lehigh Valley R. Co. v. 
 American Hay Co., 135 C. C. A. 
 307, 219 Fed. 539; Lehigh Valley 
 R. Co. V. Clark, 125 C. C. A. 235, 
 207 Fed. 717; Knudsen-Ferguson 
 Fruit Co. V. Michigan Cent. R. Co., 
 79 C. C. A. 46, 148 Fed. 968; Pub- 
 lic Service Commission of Mis- 
 souri V. Wabash R. Co., 37 I. C. 
 C. 297; Eagle Ice Co. v. Chicago, 
 M. & St. P. Ry. Co., 37 I. C. C. 
 250; Union Tanning Co. v. South- 
 ern Ry. Co., 25 I. C. C. 112. 
 
 39. Meeker v. Lehigh Valley 
 R. Co., 236 U. S. 412, 59 L. Ed.
 
 § 289] 1)ama(;e.s under Commerce Act. 503 
 
 Neither the Commission nor the courls arc justi- 
 fied in awarding damages for a viohition of tlie Act ex- 
 cept on a basis as certain and definite in hiw and in fact 
 as is essential to the supi)ort of a final judgment or de- 
 cree requiring the payment of a definite sum of money 
 by one party to another.'" A co7n))lainant must estaV)- 
 lish the fact of his damage as well as the amount of the 
 damages he claims/^ For example, if a complainant 
 paid charges which were found by the Commission to 
 be discriminatory, this of itself, is not sufficient to award 
 a finding of damages." 
 
 § 289. Measure of Damages for Unreasonable Rates 
 and Unlawful Discriminations. The first section of the 
 Interstate Commerce Act declares that all rates shall 
 be just and reasonable. If a carrier prescribes by its 
 schedules and collects a rate which is unjust and un- 
 reasonable, it thereby violates the first section. Any 
 person who has paid such an excessive rate, may, by 
 complaint to the Commission, upon showing that the 
 rate was unjust and unreasonable, and to what extent, 
 obtain an order for the payment of damages in the event 
 that the sum paid exceeded a just and reasonable rate.*^ 
 
 644, 35 Sup. Ct. 328, Ann. Cas. ton OU Co. v. Atchison, T. & S. F. 
 
 1916B 691; Chattanooga I. & Mfg. R. Co., 20 I. C. C. 43. 
 
 Co. V. Louisville & N. R. Co., 40 40. Anadarko Cotton Oil Co. v. 
 
 I C. C. 150; Shelby ville Business Atchison, T. & S. F. R. Co., 20 I. 
 
 Men's Ass'n v. Louisville & N. R. C. C. 43. 
 
 Co., 37 L C. C. 675; National 41. New Orleans Board of Trade 
 
 Pickle & Canning Co. v. Chicago, v. Illinois Cent. R. Co., 29 I. C. C. 
 
 M. & St. r. R. Co., 37 I. C. C. 403; 32. 
 
 Axton v. Kanakha & M. Ry. Co., 42. Greenbaum v. Louisville & 
 
 37 L C. C. 389; Manufacturers & N. R. Co., 31 L C. C. 699. 
 
 Merchants' Ass'n of New Albany 43. American Grass Twine Co. 
 
 v. Aberdeen & A. R. Co.. 37 L C. v. Chicago. St. P.. M. & O. Ry. Co., 
 
 C. 350; Coffeyville Mercantile Co. 12 I. C. C. 141; McGrew v. Mis- 
 
 V. Missouri, K. & T. R. Co., 33 L souri P. R. Co., 8 L C. C. 630; 
 
 C. C. 122; Greenbaum v. Louisville Cattle Raisers' Ass'n v. Fort Worth 
 
 & N. R. Co.. 31 L C. C. 699; Hormel & D. C. Ry. Co.. 7 I. C. C. 513: 
 
 & Co. V. Chicago, M. & St. P. R. :\Iichigan Box Co. v. Flint & P. M. 
 
 Co., 30 L C. C. 98; New Orleans R. Co., 6 L C. C. 335: Perry v. 
 
 Board of Trade v. Illinois Cent. R. Florida, C. & P. R. Co., 5 I. C. C. 
 
 Co., 29 T. C. C. 32: Anadarko Cot- 97; Lehmann. Higginson & Co. v.
 
 50-4 Duties to Interstate Shippers. [§ 289 
 
 Tlie measure of damages, therefore, in reparation cases 
 based upon an unreasonable rate, is the difference be- 
 tween the excessive rate actually collected and the 
 lower rate which the Commission decides to have been 
 a reasonable rate.** 
 
 The early theories of the Commission witli regard 
 to re]iaration on account of undue preferences and un- 
 just discriminations were substantially modified after 
 the decision of the Supreme Court in Pennsylvania R. 
 Co. V. International Coal Co.,*'^ wherein the court held 
 that in a discrimination case the damage to the Com- 
 plainant, if any, may be exactly equal to the difference 
 between the rates paid by the complainant and those paid 
 by his competitors, that it may be more or it may be 
 substantially less, but whatever it is, the complainant 
 must prove his damage with the same degree of certain- 
 ty that would justify a judgment in court. In actions, 
 therefore, for damages due to unlawful discriminations 
 and preferences, accomplished by means of rebating, 
 the old theory that the amount of the rebate furnished 
 the measure of damages, has been abandoned. The plain- 
 tiff must now prove that he was actually damaged by 
 reason of such undue discrimination or preference, and 
 must furthermore prove the amount of such damages.**' 
 
 Where the payment of rebates to a competitor does 
 the complainant no harm, he cannot recover damages 
 on such payments in a suit for unjust discrimination.*^ 
 "But it is said that the reports disclose that the Com- 
 
 Texas & P. R. Co., 5 I. C. C. 44; & Myers Co. v. Louisville & N. R. 
 
 Railroad Commission of Florida Co., 14 I. C. C. 199. 
 V Savannah, F. & W. Ry. Co., .5 45. Pennsylvania R. Co. v. In- 
 
 l n n i^ ternational Coal Min. Co., 230 U. 
 
 44. Sanford-Day Iron Works v 
 Louisville & N. R. Co., 41 I. C. C 
 
 S. 184, 57 L. Ed. 1446, 33 Sup. Ct. 
 
 893, Ann. Cas. 191.5A 315. 
 
 46. Wilkes & Co. v. Alabama G. 
 12; Oden & Elliott v. Seaboard g ^ ^^ 39 j ^ ^ ^^^. ^^.^^^^ 
 
 Air Line R. Co., 37 I. C. C. 345; ^ Southern Ry. Co., 32 I. C. C. 687; 
 
 National Wool Growers Ass'n v. Hormel & Co. v. Chicago, M. & St. 
 
 Oregon Short Line R. Co., 35 I. C. p. Ry. co., 30 I. C. C. 98. 
 C. 675; Kindleton v. Southern P. 47. Mitchell Coal & Coke Co. v. 
 
 Co., 17 I. C. C. 251; Nicola, Stone Pennsylvania R. Co., 181 Fed. 403.
 
 § 289] Damages under Commerce Act. 505 
 
 mission," said Mr. Justice \'an Devantor,'' "applied 
 an erroneous and inadmissi])le measure of damages, and 
 tlierefore that no effect can be given to the award. Wliat 
 the reports really disclose is that the Commission, 'upon 
 consideration of the evidence adduced ui)<)n the hearing 
 upon the question of reparation' found (a) that by rea- 
 son of the unjust discrimination resulting from giving 
 the rebate to the Lehigh Valley Coal Company Meeker 
 & Company were 'damaged to the extent of the ditfer- 
 ence' between what they actually paid from November 
 1, 1900, to August 1, 1901, and what they would have 
 paid had they been dealt with on the same basis as was 
 the Coal Company, and (b) that by reason of being 
 charged an excessive and unreasonable rate from August 
 1, 1901, to July 17, 1907, Meeker & Company were 
 'damaged to the extent of the difference' between what 
 they actually paid and what they would have paid had 
 they been given the rate which the Commission found 
 would have been reasonable. In this we perceive noth- 
 ing pointing to the application of an erroneous or in- 
 admissible measure of damages. The Commission was 
 authorized and required by section 8 of the Act to Regu- 
 late Commerce to award 'the full amount of damages sus- 
 tained,' and that, of course, was to be determined from 
 the evidence. If it showed that the damages correspond- 
 ed to the rebate in one instance and to the overcharge 
 in the other the claimant was entitled to an award ui)on 
 that basis. The case of Pennsylvania Railroad v. Inter- 
 national Coal Mining Co., 230 U. S. 184, is cited as hold- 
 ing otherwise, but it does not do so. There a shipper, 
 without proving that he sustained any damages, sought 
 to recover from a carrier for giving a rebate to another 
 shipper, and this court, referring to section 8, said (p. 
 203) : 'The measure of damages was the pecuniary loss 
 inflicted on the plaintiff as the result of the rebate paid. 
 Those damages might be the same as the rebate, or less 
 than the rebate, or many times greater than the rebate; 
 but unless they were proved they could not be recover- 
 
 48. Meeker v. Lehigh VaUey R. 35 Sup. Ct. 328, Ann. Cas. 191UB 
 Co., 236 U. S. 412. 59 L. Ed. 644, 691.
 
 506 Duties to Interstate Shippers. [§ 289 
 
 ed. Whatever tliey were they could be recovered.* 
 There is nothing- in either report of the Commission 
 which is in conflict with what was said in that case. 
 On the contrary, the plain import of the fmdings is that 
 the amounts awarded represent the claimant's actual 
 pecuniary loss; and, in view of the recital that the find- 
 ings were based upon the evidence adduced, it must be 
 presumed, there being no showing to the contrary, that 
 they were justified by it." 
 
 § 290. Parties Entitled to Damages for Excessive 
 Freight Charges — Consignors and Consignees. A party 
 entitled to recover damages for freight charges found 
 by the Commission to be excessive is the one who has 
 either, by himself or by another, paid and borne the 
 freight charges for the transportation service, irrespec- 
 tive of the title of the property shipped.*^ Where freight 
 charges are paid by the consignees but are charged back 
 to the consignors, the consignees are not entitled to 
 reparation.^" 
 
 If shipments, are made and sold f. o. b. destination 
 under a contract which provides that if the traffic rate 
 shall decline or advance, the buyer is to have the ben- 
 efit of the one and to assume the burden of the other, 
 the consignors are the parties entitled to a reparation. ^^ 
 But sometimes neither the consignor nor the consignee 
 is entitled to reparation. Strangers to the transporta- 
 tion transaction may recover if they have borne the 
 freight charges, for an undisclosed principal of a nom- 
 inal shipper may maintain an action against the car- 
 rier.^^ 
 
 49. Hygienic Ice Co. v. Chicago 51. Sloss-SliefReld Steel & Iron 
 & N. W. Ry. Co., 37 I. C. C. 384; Co. v. Louisville & N. R. Co., 40 
 Oden & Elliott v. Seaboard Air I. C. C. 738; Baker Mfg. Co. v. Chi- 
 Line Ry. Co., 37 I. C. C. 345. cago & N. W. Ry. Co., 21 I. C. C. 
 
 50. Traffic Bureau of the Sioux 605. 
 
 City Commercial Club v. Anderson 52. Ford v. Williams, 21 How. 
 
 & S. R. R. Co., 37 I. C. C. 353; (U. S.) 287, 16 L. Ed. 36; New 
 
 Commercial Club of Omaha v. An- Jersey Steam Nav. Co. v. Mer- 
 
 derson & S. R. R. Co., 27 I. C. C. chants Bank, 6 How. (U. S.) 344, 
 
 302; Mountain Ice Co. V. Delaware, 12 L. Ed. 465; Oden & Elliott v. 
 
 L. & W. R. Co., 21 I. C. C. 45. Seaboard Air Line Ry. Co., 37 I.
 
 § 291] Damages under Commerce Act. 507 
 
 § 291. Right of Shipper to Reparation When Arbi- 
 trary Sum is Added to Sale Price to Cover Excessive 
 Charges. The ineasme of damages for tlie exaction of 
 an excessive rate by carriers as to interstate sliipments 
 is the difference between tlie rate to which the shipper 
 is entitled and the rate he was compelled to pay." Coun- 
 sel for carriers as defendants in reparation cases have 
 frequently urged that if a shipper has paid a rate that 
 is later found to have been unreasonable, but has condi- 
 tioned his commercial transactions in the light of and 
 on the basis of the rate paid, he has passed along to 
 his vendees any damage he might have sustained and 
 is, therefore, not entitled to reparation; but this theory 
 has been rejected by the Commission and the courts. 
 
 "Ro]iaration for the exaction of unreasonable rates 
 cannot be denied because the shipper or the consignee, 
 from whom the same has been collected, has, on that 
 account, secured a high price for the commodity from 
 the purchaser; for, if shippers were obliged to follow 
 every transaction to its ultimate result, and to trace 
 out the exact- commercial effect of a freight rate paid 
 it would never be possible to show damages with suf- 
 ficient accuracy to justify giving them.'* In an 
 action to recover damages, based upon an order of the 
 Interstate Commerce Commission made pursuant to its 
 powers under sections 8 and IG of the Act, and award- 
 
 C. C. 345; Lindsay Bros. v. Grand paid and that which would have 
 
 Rapids & I. Ry. Co., 15 I. C. C. 182. been paid under the unreasonable 
 
 53. Michigan Hardwood Manu- rate, and has declined to go be- 
 
 facturers Ass'n v. Transcontinental yond the parties to the transpor- 
 
 Freight Bureau, 27 I. C. C. 32; tation contract in an effort to prove 
 
 National Wool Growers Ass'n v. or to disprove that the complain- 
 
 Oregon Short Line R. Co., 25 I. C. ant was damaged." Annual Re- 
 
 C. 675; Nicola, Stone & Myers Co. port of the Interstate Commerce 
 
 V. Louisville & N. R. Co., 14 I. C. Commission for the year 1916, p 
 
 C. 199; Gardner & Clark v. South- 75. 
 ern Ry. Co. 10 I. C. C. 342. 54. Ballou & Wright v. New 
 
 "With respect to reparation be- York, N. H. & H. R. Co., 34 I. C. 
 
 cause of the payment of a rate C 120; Michigan Hardwood Manu- 
 
 that is unreasonable j^er se, the facturers Ass'n v. Transcontinental 
 
 Commission has followed the rule Freight Bureau. 27 1. C. C. 32; 
 
 that the measure of damages is Burgess v. Transcontinental 
 
 the difference between the rate Freight Bureau, 13 I. C. C. 668.
 
 508 Duties to Interstate Shippers. [§ 291 
 
 ing reparation for oxcessivo rates paid to a shipper for 
 the transportation of motorcycles from a point in Massa- 
 chusetts to cities in Oregon and Washington, the car- 
 riers set np in their answer, as a defense, that the con- 
 signee, who was the complainant, sold each motorcycle 
 to the trade at a retail price of $15 in excess of the 
 factory list price, and that this sum was added to cover, 
 and did cover, the diiference in freight charges sought 
 to be recovered as damages by the complainant. To 
 this defense the trial court sustained a demurrer and 
 refused to permit testimony in support thereof. In af- 
 firming the action of the district court, the circuit court 
 of appeals held that a shipper cannot be deprived of the 
 reparation provided by law, because in his business, 
 the freight charges paid entered as an element of cost 
 and were passed along to the ultimate purchaser in the 
 selling price.'^'^ 
 
 § 292. Foregoing Principle Approved by Federal 
 Supreme Court— Southern P. Co. v. Darnell-Taehzer 
 Lumber Co. After the cases cited in the foregoing 
 paragraph were decided, the federal Supreme Court 
 also approved the principle that a shipper is entitled to 
 recover from the carrier damages for the exaction of un- 
 reasonable rates or charges although he collects the 
 amount from the purchasers of the goods because a car- 
 rier ought not to be allowed to retain its illegal profit; 
 and if a shipper were obliged to follow every trans- 
 action to its ultimate result and to trace out the exact 
 commercial effect of the freight rate paid, it would never 
 be possible to show damages with sufficient accuracy to 
 justify them,^^ ''The only question before us," said 
 Mr. Justice Holmes, "is that at wliicli we have hinted: 
 Whether the fact that the plaintiffs were able to pass 
 on the damage that tliey sustained in the first instance 
 by paying the unreasonable charge, and to collect that 
 
 55. New York, N. H. & H. R. 56. Southern Pac. Co. v. Dar- 
 
 Co. V. Ballou & Wright, C. C. nell-Taenzer Lumber Co., 245 U. S. 
 
 A. , 242 Fed. 8C2. 531, 62 L. Ed. , 38 Sup. Ct. 
 
 , decided Jan. 21, 1918.
 
 <^ 298] Damages under Commerce Act. 509 
 
 aiiioiiiil from 1li<' purchasers, provonts ilicir recovering 
 the overpayment from the carriers. Tlie answer is not 
 difTionlt. The general tendency of tlie law, in regard 
 to damages at least, is not to go beyond the first step. 
 As it does not attribute remote consequences to a defend- 
 ant, so it holds him liable if proximately the plaintiff 
 has suffei-ed a loss. The plaintiffs suffered losses to the 
 amount of the verdict when they paid. Their claim ac- 
 crued at once in the theory of the law and it does not 
 inquire into later events. Olds vs. Mapes-Reeve Con- 
 struction Co., 177 Mass., 41, 44. Perhaps strictly the 
 securing of such an indemnity as the present might be 
 regarded as not differing in principle from the recovery 
 of insurance, as res inter alios, with which the defend- 
 ants were not concerned. If it be said that the whole 
 transaction is one from a business point of view, it is. 
 enough to reply that the unity in this case is not suf- 
 ficient to entitle the purchaser to recover, any more than 
 the ultimate consumer who in turn paid an increased 
 price. He has no privity with the carrier. Staie vs. Cent- 
 ral Vermont Ry. Co., 81 Vt. 459. See Nicola, Stone & 
 Myers Co. vs. Louisville & Nashville R. R. Co., 14 I. C. C. 
 207-209. Baker Manufacturing Co. vs. Chicago North- 
 western Ry. Co., 21 I. C. C. 605. The carrier ought not 
 to be allowed to retain his illegal profit, and the only 
 one who can take it from him is the one that alone was 
 in relation with him, and from whom the carrier took 
 the sum. New York, New Haven & Hartford R. R. Co. 
 vs. Ballon & Wright, 242 Fed. Rep., 862. Behind the 
 technical mode of statement is the consideration well 
 emphasized by the Interstate Commerce Commission, of 
 the endlessness and futility of the effort to follow every 
 transaction to its ultimate result. 13 I. C. C. 680. Prob- 
 ably in the end the public pays the damages in most 
 cases of compensated torts." 
 
 § 293. Reparation on Past Shipments not Automa- 
 tically Awarded on Finding that Rate is Excessive. 
 
 When the Interstate Commerce Commission linds, ui)oii 
 a complaint and hearing, that a rate is unreasonable 
 and, therefore, in violation of the act, it does not thereby
 
 510 Duties to Interstate Shippers. [§ 293 
 
 follow that the Commission will award reparation cover- 
 ing the statntor)- period of two years prior to the date 
 the complaint was filed upon the basis of the new rate es- 
 tablished and found to be reasonable;" for a rate may be 
 reasonable at one period of its existence, and at a later 
 period unreasonable because of changed conditions and 
 circumstances.'' There is no conclusive presumption that 
 a rate reasonable at one time was reasonable a month 
 or a year before, since reasonable rates vary from time 
 to time. Where, therefore, rates have been established 
 and maintained by a carrier in good faith, especially 
 where they have been long in eiTect and acquiesced in 
 by shippers without protest, the Commission will not 
 award reparation, even though the rate is reduced, un- 
 less it clearly appears that the rates paid in the past 
 have been excessive.^^ 
 
 In every case where reparation is demanded, the 
 Commission must fix the point of time when the rate 
 became unreasonable, must determine when shippers 
 were entitled to, and when carriers ought to have estab- 
 lished the rate found reasonable. Each case must de- 
 pend upon its own facts.^" The general principles deter- 
 mining when reparation will be awarded were thus stated 
 by the Commission:" "An award of the Commission in 
 reparation of damages resulting from a violation of the 
 
 57. Coffey ville Mercantile Co. v. Line R. Co., 24 I. C. C. 81; Mem- 
 Missouri, K. & T. Ry. Co., 33 I. phis Freight Bureau v. St. Louis & 
 C. C. 122: Memphis Freight Bureau S. F. Ry. Co., 21 L C. C. 113; 
 V. Illinois Cent. R. Co., 27 I. C. C. Sweeney, Lynes & Co. v. New York, 
 507; Waukesha Lime & Stone Co. P. & N. R. Co., 20 I. C. C. 600; 
 V. Chicago, M. & St. P. Ry. Co., 26 Riverside Mills v. Charleston & 
 I. C. C. 515; Minneapolis Steel & W. C. Ry. Co., 20 I. C. C. 423. 
 Machinery Co. v. Chicago, M. & St. 58. Carter White Lead Co. v. 
 P. Ry. Co., 26 I. C. C. 193; New Norfolk & W. Ry. Co., 21 I. C. C. 
 Pittsburgh Coal Co. v. Hocking 41. 
 
 Valley Ry. Co., 26 I. C. C. 121; 59. Penrod Walnut & Veneer Co. 
 
 Lewis V. Chicago, B. & Q. R. Co.. v. Chicago, B. & Q. R. Co., 15 I. C. 
 
 25 L C. C. 97; Kellogg Toasted C. 326. 
 
 Corn Flake Co. v. Michigan Cent. 60. In re Wool, Hide & Pelt 
 
 R. Co., 24 I. C. C. 604; Railroad Rates, 25 I. C. C. 675. 
 
 Commission of Oregon v. Southern 61. Anadarko Cotton Oil Co. v. 
 
 P. Co., 24 I. C. C. 273; Holland Atchison, T. & S. F. Ry. Co. 20 I. 
 
 Blow Stave Co. v. Atlantic Coast C. C. 43.
 
 § 293] Damages under Commerce Act. 511 
 
 Act to Regulate Commerce is not enforceable as such, but 
 in a suit in court for such damages the findings and 
 order of the C^ommisison are prima facie, evidence in 
 suppoi-t thereof. It follows that the Commission is not 
 justified in awarding damages in any case except on a 
 basis as certain and definite in law and in fact as is 
 essential to the support of a final judgment or decree 
 requiring the payment of a definite sum of money by one 
 party to another. The standard of the law by which 
 the validity of any rate as affected by its amount is 
 determined, is not more definite than that it must be 
 reasonable and just. The test of reasonableness can be 
 applied only by reference to and upon consideration of 
 all pertinent facts, circumstances, and conditions affect- 
 ing the rate in effect at any particular time. In the 
 nature of the case there can be no rule or process where- 
 by the definite absolute maximum limit of reasonable- 
 ness in the amount of a rate can be fixed with the 
 certainty of a demonstration. The law imposes upon 
 carriers the duty of initiating their rates, under the 
 injunction of the statute that they shall be reasonable 
 and just. In the performance of this duty by the car- 
 riers they must exercise judgment and discretion by a 
 like resort to existing facts, circumstances, and condi- 
 tions in the first instance, just as the Commission must 
 later do when the rates are brought in question before 
 it. The carriers are presumed to act in good faith in 
 their exercise of discretion and judgment under this 
 somewhat indefinite standard of the statute in its prac- 
 tical application, and therefore rates established by the 
 carriers can not be condemned except upon investiga- 
 tion and full hearing. A rate reasonable in view of the 
 circumstances and conditions when it is estal)lished may 
 in course of time become unreasonable by virtue of 
 changed circumstances and conditions. It is manifestly 
 impracticable for the carriers or the Commission in such 
 a case to determine at what exact time in the gradual 
 process of changes the rate becomes unreasonable. In 
 the matter before us it appears that some of the rates 
 between many of the points involved were formerly 
 higher than at present, and the situation here fairly
 
 512 Duties to Interstate Shippers. [§ 293 
 
 illustrates what lias taken place elsewhere in reductions 
 from time to time in rates as the density of traffic in- 
 creases with that of population and business develop- 
 ment in a new and growing community. It would be a 
 manifestly harsh rule that would assume a rate now 
 condemned as unreasonable to have been so for a period 
 of two years, or that of the statute of limitations, in 
 the past as a basis for the payment of money by the 
 carriers on past shipments, especially when no com- 
 plaint had been made against them within that period. 
 Certain it is that the law establishes no such presump- 
 tion, nor is it a necessary sequence that the rate has 
 been unreasonable for any period in the past. Neither 
 does it seem that the bona fide action of the carriers in 
 the necessary exercise of their judgment within reason- 
 able limits should always be at their peril of liability 
 for reparation for the difference between rates initiated 
 upon their judgment and later changed upon the judg- 
 ment of the Commission. Therefore the awarding of rep- 
 aration by no means necessarily follows the reduction of 
 a rate, whether by the voluntary action of the carriers 
 or by order of the Commission. When a rate is ad- 
 vanced and the increased rate is condemned by the 
 amount of the advance, a much more satisfactory basis 
 for an award of reparation is afforded than in a case 
 like the one before us, where so far as changes have 
 occurred they have been, at least for the most part, 
 reductions in a territory where changes in conditions 
 have taken place which contribute in greater or less 
 degree to a present showing of unreasonableness in ex- 
 isting rates. Again our records show in many instances 
 that rates have long remained in the tariffs, sometimes 
 without frequent occasion on the part of shippers to use 
 them, and when traffic has been offered to which they 
 were applied they have not only been challenged by the 
 shipper as unreasonable, but conceded to be so by the 
 carriers and clearly so found by the Commission by 
 comparison with other rates and by other suitable tests, 
 and orders for reparation have followed. The reference 
 to particular circumstances and conditions in the classes 
 of cases just mentioned is not an intimation that awards
 
 <§ 296] Damages under Commerce Act. 513 
 
 of reparation are to be confined to such cases. It is 
 intended only to make clearer our view that whatever 
 may be the nature of the facts, circumstances and con- 
 ditions appearing in a particular case where reparation 
 is involved, whether on account of excessive rates or by 
 reason of unjust discrimination, there must be that de- 
 gree of certainty and satisfactory conviction in the mind 
 and judgment of the Commission as would be deemed 
 necessary under the well-established principles of law 
 as a basis for a judgment in court." 
 
 § 294. Damages Growing out of Inadequate Ser- 
 vice or Facilities. Tlie Commission has hehl that it has 
 jurisdiction to award damages or reparation growing 
 out of an unjust discrimination and preference in train 
 service equipment furnished for the transportation of 
 milk in carloads from one state to another."^ 
 
 § 295. Damages for Misrouting Shipments May be 
 Awarded by Commission, When. The Act to Regulate 
 Commerce confers upon the Commission jurisdiction 
 over a complaint for the recovery of a damage resulting 
 from misrouting a shipment, where such damage arises 
 from a rate or charge in excess of the lawful rate or 
 charge that would have applied via the route over 
 which the shipment properly should have moved or a 
 movement which was specifically directed by the ship- 
 per,®^ 
 
 § 296. Reparation Awarded by Commission for 
 Overcharges a Bar to Subsequent Action for Additional 
 Damages. The statute contemplates that when a ship- 
 IDer makes his complaint to the Commission for repara- 
 tion because of excessive rates or charges, the Commis- 
 sion may award to him the full amount of damages 
 sustained. A shipper may not, therefore, after com- 
 
 62. Graustein v. Boston & M. R. & Co. v. Chicago, M. & St. P. Ry. 
 Co., 45 I. C. C. 393. Co., 18 I. C. C. 132; Kile & Morgan 
 
 63. Noble v. Jonesboro, I. C. & Co. v. Deepwater Ry. Co., 15 I. C. 
 E R. Co., 20 I. C. C. 520; Cressey C. 235. 
 
 1 Control Caniors 33
 
 514 Duties to Interstate Shippers. [§ 296 
 
 plaining to the Interstate Commerce Commission and 
 obtaining a sum as reparation for unreasonable rates, 
 institute and prosecute an action for damages to his 
 business because the carrier wilfully and maliciously 
 maintained unreasonable rates." "The Court of Ap- 
 peals," said Mr. Justice Holmes in the case cited, "de- 
 cided that the Act to Regulate Commerce committed to 
 the Interstate Commerce Commission only the granting 
 of special relief aganst the making of an overcharge and 
 that the satisfaction of the Commission's award still 
 left open an action in the state courts .to recover what 
 are termed general damages — such as are supposed to 
 have been recovered in this case. In this we are of 
 opinion that the court was wrong. By section 8 a com- 
 mon carrier violating the commands of the act is made 
 liable to the person injured thereby 'for the full amount 
 of damages sustained in consequence' of the violation. 
 By section 9 any person so injured may make com- 
 X3laint to the Commission or may sue in a court of the 
 United States to recover the damages for which the car- 
 rier is liable under the act, but must elect in each case 
 which of the two methods of procedure he will adopt. 
 The rule of damages in one hardly can be different from 
 that proper for the other. An award directing the 
 carrier to pay to the complainant the sum to which he 
 is entitled is provided for by section 16. By the same 
 section if the carrier does not comply in due time with 
 the order, the complainant may sue in a state court — 
 which implies that if the order has been complied with, 
 and the money paid, no suit can be maintained. It is 
 to be noticed further that reparation before answer is 
 contemplated as possible by section 13, and, in that 
 case, the carrier shall be relieved of liability to the 
 complainant though only of course for the particular 
 violation of law. The decisions say that whatever the 
 damages were they could be recovered; Pennsylvania R. 
 R. Co. V. International Coal Mining Co., 230 U. S. 184, 
 
 64. Louisville & N. R. Co. v. Ohio Valley Tie Co., 242 U. S. 288, 
 
 61 L. Ed. 305, 37 Sup. Ct. 120.
 
 § 297] Damages under Commerce Act. 515 
 
 202, 203; Meeker v. Lehi^Hi Valley R. R. Co., 236 U. S. 
 412, 429; and tliat the statute determines the extent of 
 damages. Pennsylvania R. R. Co. v. Clark Brothers Coal 
 Mining Co., 238 U. S. 456, 472. We are of opinion that 
 all damage that projierly can he attrihuted to an over- 
 charge, whether it be the keeping of the plaintiff out 
 of its money, dwelt upon by the trial court, or the 
 damage to its business following as a remote result of 
 the same cause, must be taken to have been considered 
 in the award of the Commission and compensated when 
 that award was paid." 
 
 § 297. Findings of Commission on Reasonableness 
 of Rates Inure to Benefit of Every Person Paying the 
 Unjust Rate. A proceeding before the Interstate Com- 
 merce Commission to determine the reasonableness 'of 
 an advance in rates filed with the Commission by car- 
 riers is not in the nature of a private litigation between 
 the parties who are complainants, and the carriers, but 
 is a matter of public concern in which the whole body 
 of shippers who are compelled to pay the unjust rate 
 are interested. Such proceedings inure to the benefit 
 of not only those who are complainants, but all others 
 not named as complainants who were affected by the 
 unjust rate. A general finding and order declaring a 
 rate unreasonable, may be taken advantage of by other 
 shippers through appropriate proceedings before the 
 Commission or the courts.**^ 
 
 65. Phillips Co. v. Grand Trunk not a party before the Commission 
 Western R. Co., 236 U. S. 662, 59 the defendants insist that it can- 
 L. Ed. 774, 35 Sup. Ct. 444, in not take advantage of the order 
 which the court said: "The Phil- that the rate was unjust, so as to 
 lips Company, relying on a find- be able to maintain the present 
 ing by the Commission on the com- suit. But the proceeding before 
 plaint of the Yellow Pine Associa- the Commission, to determine the 
 tion, that a 2 cents advance in a reasonableness of the 2 cents ad- 
 lumber rate was unreasonable, vance, was not in the nature of 
 brought suit against four carriers private litigation between a Lum- 
 to recover an overcharge collected ber Association and the carriers, 
 on 90.432,500 pounds of lumber but was a matter of public concern 
 shipped to it over their connect- in which the whole body of ship- 
 ing lines. But as the plaintiff was pers was interested. The inquiry
 
 516 Duties to Inteestate Shippers. [§ 298 
 
 § 298. Findings of Fact Required When Commis- 
 sion Awards Damages Against a Carrier. In all com- 
 plaints for damages prosecuted before the Commission 
 against a common carrier for a violation of any of the 
 provisions of the Act, the statute requires the Commis- 
 sion to make a report in writing in respect thereto, 
 which shall state the conclusions of the Commission 
 together with its decision and order. If damages are 
 awarded, the report of the Commission shall include 
 the findings of fact on which the award is made.*'*' The 
 order must also direct the carrier to pay to the com- 
 plainant the sum to which he is entitled on or before 
 a day named therein.*'^ 
 
 The statute does not require that the report contain 
 the evidential or primary facts — a finding of the ultimate 
 facts is sufficient.'' "Another objection," said the 
 court in the Meeker case, cited, "which was directed 
 against the orders as well as the reports is that they 
 contain no findings of fact or at least not enough to 
 sustain an award of damages. The arguments advanced 
 to sustain this objection proceed upon the theory that 
 the statute requires that the reports, if not the orders, 
 shall state the evidential rather than the ultimate facts, 
 that is to say, the primary facts from which through 
 a process of reasoning and inference the ultimate facts 
 
 as to the reasonableness of the ad- similarly situated were entitled by 
 
 vance was general in its nature. appropriate proceedings before the 
 
 The finding thereon was general in Commission or the courts to obtain 
 
 its operation and inured to the the benefit of that general finding 
 
 benefit of every person that had and order." 
 
 been obliged to pay the unjust rate. 66. Section 14 of the Act to 
 
 Otherwise those who filed the com- Regulate Commerce, appendix A, 
 
 plaint, or intervened during the infra. 
 
 hearing, would have secured an 67. Section 16 of the Act to 
 
 advantage over the general body Regulate Commerce, appendix A, 
 
 of the public, with the result that ^^^^^_ 
 
 the order of the Commission would 68. Mills v. Lehigh Valley R. 
 
 have created a preference in favor ^^^ ^^^ ^ ^ ^^^^ ^^ ^ ^^ ^^^^^ 
 of the parties to the record and ^^ ^^^^^^ ^ ^^^^.^^ 
 
 would have destroyed the very ^^ „ ^ ^ ^ „„„ ^^ _ ..„ -^ 
 
 uniformity which that body had Valley R. Co., 236 U. S. 412 59 
 
 been organized to secure. The L. Ed. 644. 35 Sup. Ct. 328, Ann. 
 
 plaintiff and every other shipper Cas. 1916B 691.
 
 § 299] Damages under Commerce Act. 517 
 
 may be determined. We tliink this is nut tlie ri^^ht 
 view of the statute and that wliat it ref|uii'es is a finding 
 of tlie ultimate facts — a finding whieli, as ajjplied to 
 the present case, would disclose (1) the relation of tlie 
 parties as shipper and carrier in interstate commerce; 
 (2) the character and amount of the traffic out of which 
 the claims arose; (3) the rates paid by the shipper for 
 the service rendered and whether they were according 
 to the established tariff; (4) whether and in what way 
 unjust discrimination was practiced against the shij^per 
 from November 1, 1900, to August 1, 190J ; (5) whether, 
 if there was unjust discrimination, the sliijjper was in- 
 jured thereby, and, if so, the amount of his danmges; 
 (6) whether the rate collected from the shipper from 
 August ], 1901, to July 17, 1907, was excessive and un- 
 reasonable, and, if so, what would have been a reason- 
 able rate for the service; and (7) whether, if the rate 
 was excessive and unreasonable, the shipper was in- 
 jured thereby, and, if so, the amount of his damages. 
 Upon examining the reports as set forth in the record, 
 we think they contain findings of fact wiiicli meet the 
 requirements of the statute and that the facts stated 
 in the findings, if taken as iirima facie true, sustain the 
 award of the Commission. True, the findings in the 
 original report are interwoven with other matter and 
 are not expressed in the terms which courts generally 
 employ in special findings of fact, but there is no dif- 
 ficulty in separating the findings from the other matter 
 or in fully understanding them, and particularly is this 
 true when the two reports are read together, as they 
 should be. We say 'should be' because both were made 
 in the same proceeding and the later one affirmatively 
 shows that it was made to supplement and give effect 
 to the original." 
 
 § 299. Statute Prescribing Findings and Orders of 
 Commission Prima Facie Evidence of Facts Therein 
 Stated, Constitutional. The seventh amendment to the 
 Constitution of the United States provides that in suits 
 at common law where the value in controversy shall 
 exceed twenty dollars, the right of trial by jury shall
 
 518 Duties to Interstate Shippebs. [§ 299 
 
 be preserved, and no fact tried by a jury shall be other- 
 wise reexamined in any court of the United States.*'^ 
 The fifth amendment provides that no person shall be 
 deprived of his liberty or property without due process 
 of law. 
 
 The provision of Section 16 of the Interstate Com- 
 merce Act which prescribes that in proceedings for 
 damages before the Commission, the findings and orders 
 of the Commission shall be prima facie evidence of the 
 facts therein stated, is not repugnant to either of the 
 foregoing constitutional provisions.'^" "This provision," 
 said the court in the Meeker case, cited, "only estab- 
 lished a rebuttable presumption. It cuts off no defense, 
 interposes no obstacle to a full contestation of all the 
 issues, and takes no question of fact from either court 
 or jury. At most therefore it is merely a rule of evi- 
 dence. It does not abridge the right of trial by jury 
 or take away any of its incidents. Nor does it in any 
 wise work a denial of due process of law. In principle 
 it is not unlike the statutes in many of the States 
 whereby tax deeds are made prima facie evidence of 
 the regularity of all the proceedings upon which their 
 validity depends. Such statutes have been generally 
 sustained. Pillow v. Eoberts, 13 How. 472, 476; Marx 
 V. Hanthorn, 148 U. S. 172, 182; Turpin v. Lemon, 187 
 U. S. 51, 59; Cooley's Constitutional Limitations, 7th 
 ed. 525, as have many other state and Federal enact- 
 ments establishing other rebuttable presumptions. Mo- 
 bile etc.. Railroad v. Turnispeed, 219 U. S. 35, 42; Lind- 
 
 69. Lloyd v. DoUison, 194 U. 3. 358, 11 Sup. Ct. 712; Aetna Life 
 
 445, 48 L. Ed. 1062, 24 Sup. Ct. 703; Ins. Co. v. Ward, 140 U. S. 76,~35 
 
 Long Island Water-Supply Co. v. L- Ed. 371, 11 Sup. Ct. 720; Wilson 
 
 City of Brooklyn, 166 U. S. 685, 41 v. Everett, 139 U. S. 616. 35 L. Ed. 
 
 L. Ed. 1165, 17 Sup. Ct. 718; Chi- 286, 11 Sup. Ct. 664; Pearson v. 
 
 cago, B. & Q. R. Co. v. City of Yewdall, 95 U. S. 294, 24 L. Ed. 
 
 Chicago, 166 U. S. 226, 41 L. Ed. 436. 
 
 979, 17 Sup. Ct. 581; Iowa Cent. 70. Pennsylvania R. Co. v. W. F. 
 
 Ry. Co. V. State, 160 U. S. 389, 40 Jacoby & Co., 242 U. S. 89. 61 L. 
 
 L. Ed. 467, 16 Sup. Ct. 344; Rogers Ed. 165, 37 Sup. Ct. 49; Meeker 
 
 V. United States, 141 U. S. 548, v. Lehigh Valley R. Co., 236 U. S. 
 
 35 L. Ed. 853, 2 Sup. Ct. 91; Scott 412, 59 L. Ed. 644, 35 Sup. Ct. 328, 
 
 V. Neely, 140 U. S. 106, 35 L. Ed. Ann. Cas. 1916B 691.
 
 § 300] Damaoes undkk Commkrck Act. 519 
 
 sloy V. Natural Carbonic Gas Co., 220 IJ. S. Gl, cSl; Reit- 
 ler V. Harris, 223 U. S. 437; Luria v. United States, 231 
 U. S. 9, 25. An instructive case upon tlie suliject is 
 Holmes v. Hunt, 122 Massachusetts, 505, wliere, in an 
 elaborate opinion by Chief Justice Gray, a statute mak- 
 ing the report of an auditor prima facie evidence at the 
 trail before a jury was held to be a legitimate exercise 
 of legislative })ower over rules of evidence and in no 
 wise inconsistent with the constitutional right of trial 
 ^^y J^iO"- And in Chicago, etc.. Railroad v. Jones, 149 
 Illinois, 361 382, a like ruling was made in respect of a 
 statut(jry ])rovision similar to that now before us." 
 
 § 300. Commission May Order Reparation without 
 Prescribing Maximum Rate to be Observed in the Future. 
 The Circuit Court of Appeals in Denver & R. G. R. Co. 
 V. Baer Bros. Mercantile Co.,'' decided that the Inter- 
 state Commerce Commission could not make an order 
 of reparation unless at the same time, and as a part of 
 such order, it fixed a rate to be charged in the future; 
 but on writ of error to the Supreme Court, that tribunal 
 held that an order of reparation was valid, although 
 the Commission had not therein fixed a new and just 
 rate for the future.'- "That the two subjects of Repara- 
 tion and Rates," said Mr. Justice Lamar, "may be dealt 
 with in one order is undoubtedly true. Texas & Pae. 
 Rv. V. Abilene, 204 U. S. 426, 446. Robinson v. Bait. 
 & Ohio R. R., 222 U. S. 506, 509. But awarding repara- 
 tion for the past and fixing rates for the future involve 
 the determination of matters essentially different. One 
 is in its nature of matters essentially different. One 
 is in its nature x)rivate and the other public. One is 
 made by the Commission in its g?<i7.9i-judieial capacity 
 to measure past injuries sustained by a private shipper; 
 the other, in its (?im5z-legislative capacity, to prevent 
 future injury to the public. But testimony showing the 
 
 71. 109 C. C. A. 337, 187 Fed. 485. Denver & R. G. R. Co., 233 U. S. 
 
 72. Baer Bros. Mercantile Co. v. 479, 58 L. Ed. 1055, 34 Sup. Ct. 641.
 
 520 Duties to Interstate Shippers. [§ 300 
 
 unreasonableness of a past rate may also furnish in- 
 formation on which to fix a reasonable future rate and 
 both subjects can be, and often are, disposed of by the 
 same order. Tliis, however, is not necessarily so. In- 
 deed, under the original Commerce Act, the two matters 
 could not possibly be combined in a single order for the 
 reason that, while at that time the Commission could 
 order the carrier to desist from unreasonable practices 
 and award damages, it could not fix rates. This brought 
 about an anomalous state of affairs. For if the shipper 
 obtained his order of reparation because of unreason- 
 able charges which the Railroad Company was ordered 
 to discontinue, a slightly different, but still unreason- 
 able, rate might be put in for the future, which the 
 shipper had to pay and again institute proceedings for 
 reparation. Section 15, Act of February 4, 1887, c. 104, 
 24 Stat. 379, 384. This situation was dealt with by the 
 Hepburn Act, which, in addition to the existing power 
 to make reparation, conferred upon the Commission the 
 new power to make rates for the future. But the two 
 matters were treated as different subjects and were 
 dealt with in separate sections. Section 4 conferred the 
 power of making rates. Section 5 gave the Commission 
 IDower to make reparation orders. Sections 4, 5, act of 
 June 29, 1906, c. 3591, 34 Stat. 584, 589, 590. Not only 
 were the two functions separately treated, but an analy- 
 sis of the act shows that there is no such necessary 
 connection between them as to make the quasi-judicial 
 order for reparation depend for its validity upon being 
 joined with a quasi-legislatWe order fixing rates. Per- 
 sons entitled to one may have no interest in the other. 
 Persons interested in both may be entitled to reparation 
 and not to a new rate; or to a new rate and not to repara- 
 tion. For example, sec. 13 (24 Stat. 383) permits 'any 
 mercantile, agricultural or manufacturing society or any 
 body public or municipal organization to make com- 
 plaints against the carrier.' On the application of such 
 bodies, old rates might be declared unjust and new rates 
 established, but, of course, no reparation would be given, 
 for the reason that such complainants were not shippers 
 and, therefore, not entitled to an award of pecuniary
 
 § 300] Damages under Commerce Act. 521 
 
 damages. Cf. T.ouisvilh', etc., R. R. v. Jut. Com. Comm., 
 227 U. S. 88. Then, too, tliere are cases in which a rate, 
 reasona])le wlicn made, })ecomes imreasonable as the 
 result of a gradual change in conditions, so that no 
 reparation is ordered even though a new rate be estab- 
 lished for the future. Anadarko Cotton Oil Co. v. Atclii- 
 son, etc., Ry., 20 I. C. C. 43. Conversely, there may 
 be cases where what was an unreasonal)le rate in the 
 past is found to be reasonable at the date of the hearing. 
 In such a case reparation would be awarded for past 
 unreasonable charges collected but no new rate would 
 be established for the future. It may, however, be said 
 that even in such a case, tlie order while condemning 
 the rate for the past, should contain a provision validat- 
 ing it for the future. But while tliis consideration 
 might show that it was erroneous not to name tlie new 
 rate, it would not follow that the order awarding 
 reparation was void. The Hepburn Act treates the two 
 subjects as related, but independent. The grounds of 
 complaint may be joint or separate, and the very fact 
 that they may sometimes be separate shows that the 
 presence of both is not jurisdictional and that the ab- 
 sence of a provision for one need not operate to invali- 
 date an order as to the other. This conclusion is strength- 
 ened by considering the hardships that would result 
 from nullifying a reparation order for error in omitting 
 a provision for the future rate. It would punish the 
 shiijper for the failure of the Commission. It would de- 
 prive him of his award of damages for his iirivate in- 
 jury, because of the Commission's omission to make a 
 rate for the benefit of the public. The shipper might 
 or might not intend to remain in business. He might" or 
 he might not be interested in future rates. He might 
 have been able to prove unreasonableness as to the past 
 without being able to furnish evidence as to what would 
 be reasonable for the future. Or, the Commission might 
 be in position to say witli certainty that the rates had 
 been unreasonable and award reparation accordingly, 
 but it might require a protracted and lengthy hearing 
 to establish what would be just for the future. To make 
 the shipper wait on such a finding and deprive him of
 
 522 Duties to Interstate Shippees. [§ 300 
 
 his ]iresent right to reparation, until the determination of 
 an independent question, would work a hardship not 
 contemplated by the act and not required by any of its 
 provisions. The present case illustrates some of these 
 features. The plaintiff's petition asked for reparation 
 and that the Commission would establish just rates. On 
 the hearing- it appeared that there was no through route 
 or joint rate and that the established local charge of 
 one of the carriers was just while that of the other had 
 not been established or included in a filed tariff and 
 was also unjust. The evidence was sufficient to sustain 
 a finding of damages against such carrier, but it did 
 not show how the through rate should be divided be- 
 tween the two companies, one of which hauled 923 
 miles and the other 160 miles. The carriers did not ask 
 for an extension of the time within which the repara- 
 tion should be paid. The fact that they were given an 
 opportunity to agree on a through rate and how it 
 should be divided, ought not to deprive plaintiff of its 
 rights to damages for the past, under a reparation 
 order which could not, by any possibility, be changed 
 by any subsequent finding as to rates for the future." 
 
 § 301. Actions to Enforce Orders of Commission 
 Awarding Damages may be Prosecuted in State as well 
 as Federal Courts. When a statute creates a right and 
 designates the court in which it is to be enforced, other 
 courts have then no jurisdiction to award damages there- 
 under." Prior to 1910, section 16 of the Act provided 
 that suits to enforce the orders of the Commission might 
 be filed in the federal courts. The state courts, there- 
 fore, had no jurisdiction of such claims.'^ One of the 
 
 73. Carlisle v. Missouri Pac. Ry. facturers' Ass'n, 91 C. C. A. 51, 
 Co., 168 Mo. fi52, 68 S. W. 898; 165 Fed. 13; Northern Pac. R. Co. 
 Gulf, C. & S. F. R. Co. V. Moore. y Pacific Coast Lumber Manufa-^- 
 98 Tex. 302, 4. Ann. Cas. 770, 83 S. ^^^^^^, ^^^.^^ g^ (. ^ ^ 39^ ^gg 
 W. 362. 
 
 74. United States. Pennsylvania 
 R. Co. V. Puritan Coal Min. Co., 
 237 U. S. 121, 59 L. Ed. 867, 35 
 Sup. Ct. 484: Union Pac. R. Co. v. ^^"'nk R. Co. of Canada, 20 Cal 
 Oregon-Washington Lumber Manu- App. 349, 129 Pac. 290. 
 
 Fed. 1; Sheldon v. Wabash R. Co., 
 105 Fed. 785. 
 
 California. Olcovitch v. Grand
 
 § 302] 
 
 Damages under Commerce Act. 
 
 523 
 
 aineiidnHMits, ))ass«'(l as a pai't of tln^ Mann-Elkins Act 
 of 1910, provides tliat the coiii})laiiiarit, iu his suit to 
 enforce an order of the Commission for damages, may 
 file his suit in any state court of general jurisdiction 
 having jurisdiction of the parties. 
 
 § 302. Complaints for Damages before Commission 
 must be Filed within Two Yeajrs. Before the anieiidmeiit 
 of 11)06 tlie Interstate Commerce Act contained no pro- 
 vision limiting the time within which proceedings before 
 the Commission or actions in court for a violation of the 
 Act should be instituted. The statutes of limitations of 
 the states, where an action was prosecuted, therefore, 
 controlled in the absence of a federal statute of limita- 
 tion."^ But section 16 of the Act, as amended iu 1906, 
 provides that all complaints for the recovery of dama- 
 ges before the Commission shall be filed within two 
 years from the time the cause of action accrued, and 
 not after, and a petition for the payment of money 
 shall be iiled in court within one year from the date of 
 the order, and not after.'" A cause of action for the re- 
 
 Georgia. Western & A. R. Co. v. 
 White Provision Co., 142 Ga. 246, 
 82 S. E. 644. 
 
 Louisiana. Copp v. Louisville & 
 N. R. Co., 43 La. Ann. 511, 12 L. 
 R. A. 725, 26 Ann. St. Rep. 198, 9 
 So. 441. 
 
 Nebraska.* Fitzgerald v. Fitz- 
 gerald & IMallory Const. Co., 41 
 Neb. 374, 59 N. W. 838. 
 
 West Virginia. Robinson v. Bal- 
 timore & O. R. Co., 64 W. Va. 403, 
 63 S. E. 323. 
 
 Wisconsin. Bichlmeir v. Min- 
 neapolis, St. P. & S. S. M. R. Co., 
 159 Wis. 404, 150 N. W. 508; Sig- 
 gins V. Chicago & N. W. R. Co., 153 
 Wis. 122, 140 N. W. 1128. 
 
 75. O'Sullivan v. Felix, 233 
 U. S. 318, 58 L. Ed. 980, 34 Sup. Ct. 
 596; McClaine v. Rankin, 197 U. 
 S. 154, 49 L. Ed. 702, 25 Sup. Ct. 
 410, 3 Ann. Cas. 500: Brady v. 
 
 Daly, 175 U. S. 148, 44 L. Ed. 109, 
 20 Sup. Ct. 62; Campbell v. City of 
 Haverhill, 155 U. S. 610, 39 L. Ed. 
 280, 15 Sap. Ct. 217; Michigan 
 Ins. Bank v. Eldred, 130 U. S. 693, 
 32 L. Ed. 1080, 9 Sup. Ct. 690; 
 Ratican v. Terminal R. R. Ass'n of 
 St. Louis, 114 Fed. 666; Murray 
 v. Chicago & N. W. Ry. Co., 35 
 C. C. A. 62, 92 Fed. 868; Copp v. 
 Louisville & N. Ry. Co., 50 Fed. 
 164. 
 
 76. Meeker v. Lehigh Valley R. 
 Co., 236 U. S. 412, 59 L. Ed. 644. 
 35 Sup. Ct. 328, Ann. Cas. 1916B 
 691, in which the court said: 
 "Whether the claims were barred 
 in whole or in part by some ap- 
 plicable statute is one of the 
 questions which the record pre- 
 sents, and to dispose of it we must 
 notice three statutes upon which 
 the defendant relies. One of these
 
 524 
 
 Duties to Interstate Shippers. 
 
 [§ 302 
 
 covery of damages for unreasonable charges under the 
 Act to Regulate Commerce accrues not from the date a 
 shipment was received or delivered b}^ the carrier, but 
 from the date the freight charges ivere actually paidj'^^ 
 The filing of an informal complaint before the Commis- 
 sion covering a particular shipment is sufficient to inter- 
 rupt the running of the statute even though the formal 
 complaint upon which an order is subsequently based, is 
 not filed for more than two years after the delivery of 
 
 is Rev. Stat., Sec. 1047, which 
 places a limitation of five years 
 upon any 'suit or prosecution for 
 any penalty or forfeiture, pecuni- 
 ary or otherwise, accruing undor 
 the laws of the United States.' The 
 words 'penalty or forfeiture' in 
 this section refer to something 
 imposed in a punitive way for an 
 infraction of a public law, and do 
 not include a liability imposed for 
 the purpose of redressing a private 
 injury, even though the wrongful 
 act be a public offense and punish- 
 able as such. Here the liability 
 sought to be enforced was not 
 punitive but strictly remedial, as 
 is shown by sections 8, 9, 14 and 
 16 of the Act to Regulate Com- 
 merce. So sec. 1047 was not ap- 
 plicable. Chattanooga Foundry v. 
 Atlanta, 203 U. S. 390, 397; O'Sul- 
 livan V. Felix, 233 U. S. 318; Hunt- 
 ington V. Attrill, 146 U. S. 657, 666- 
 669; Brady v. Daly, 175 U. S. 148. 
 Next in order is a Pennsylvania 
 statute containing a limitation of 
 six years. 2 Stewart's Purdon's 
 Digest, 13th ed. 2282. It could ap- 
 ply only in the absence of a con- 
 trolling Federal statute. Rev. Stat, 
 sec. 721; Campbell v. Haverhill, 
 155 U. S. 610; McClaine v. Rankin, 
 197 U. S. 154, 158; O'Sullivan v. 
 Felix, supra. Such a statute was 
 adopted and put in force before 
 any part of either claim fell with- 
 
 in the bar of the local limitation. 
 By the act of June 29, 906, c. 3591, 
 34 Stat. 584, 590, Congress amend 
 eil sec. 16 of the Act to Regulate 
 Commerce by incorporating there- 
 in the following limitations: 'All 
 complaints for the recovery of 
 damages shall be filed with the 
 Corhmission within two years from 
 the time the cause of action ac- 
 crues, and not after, and a petition 
 for the enforcement of an ord^r 
 for the payment of money shall be 
 filed in the Circuit Court within 
 one year from the date of the 
 order, and not after: Provided, 
 that claims accrued prior to the 
 passage of this Act may be pre- 
 sented within one year.' The 
 words of the proviso make it cer- 
 tain that the amendment was to 
 reach claims already accrued as 
 well as those thereafter accruing. 
 And while there doubtless was no 
 purpose to revive claims then 
 barred by local statutes, it is evi- 
 dent that Congress intended to 
 take all other claims out of the 
 operation of the varying laws of 
 the several States and subject 
 them to limitations of its own cre- 
 ation which would operate alike 
 in all the States." 
 
 76a. United States v. Interstate 
 
 Commerce Commission, U. S. 
 
 , 62 L. Ed. , Sup. Ct. 
 
 , decided April 29, 1918.
 
 § 302] Damages under Commerce Act. 525 
 
 the shipment/^ But tlie iiling of a complaint by volun- 
 tary association of lumber manufacturers does not inter- 
 rupt the running of the statute as to those members not 
 named in the complaint/^ 
 
 A shipper cannot take advantage of proceedings of 
 other sliippers for reparation so as to prevent the run- 
 ning of the statute against ]iim/° "But while every 
 person," said the court in the last case cited, "who 
 liad paid the rate could take advantage of the finding 
 that the evidence was unreasonable, he was obliged to 
 assert his claim within the time fixed by law. When 
 the overcharge was collected a cause of action at once 
 arose and the shipper at once had the right to file a 
 complaint or to intervene in proceedings instituted by 
 others. If he failed to take either of those steps and 
 there was a finding of unreasonableness in the proceed- 
 ings begun by others, he could, if in time, present his 
 claim, and wait the result of the litigation over the 
 validity of any order made at the instance of those 
 parties. If it was ultimately sustained by the court as 
 valid he would then be in position to obtain reparation 
 from the Commission — or a judgment from a court of 
 competent jurisdiction, on a claim that had been sea- 
 sonably presented. But neither proceedings begun by 
 other shippers, nor findings of unreasonableness and 
 orders issued thereon by the Commission, would save 
 the rights of those who disregarded the requirements of 
 the Hepburn Amendment, that, 'all complaints for the 
 recovery of damages shall be filed with the Commission 
 within two years from the time the cause of action ac- 
 cures, and not after, and a petition for the enforcement 
 of an order for the payment of money shall be filed in 
 the Circuit Court within one year from the date of the 
 order, and not after; provided, that claims accrued prior 
 to the passage of this act may be presented within one 
 year.' 34 Stat. 586. In the present case the overcharges 
 
 77. International Agr. Corpo- tal Freight Bureau, 27 I. C. C. 32. 
 ration v. Louisville & N. R. Co., 29 79. Phillips & Co. v. Grand 
 I. C. C. 391. Trunk Western R. Co., 236 U. S. 
 
 78. Michigan Hardwood Manu- 662, 59 L. Ed. 774, 35 Sup. Ct. 444. 
 facturers Ass'n v. Transcontinen-
 
 526 Duties to Interstate Shippers. [§ 302 
 
 were made and paid prior to August, 1904. The present 
 suit was brought May 9, 1909, — less than two years after 
 the validity of the Commission's order was sustained 
 by the Supreme Court, — but, more than one year after 
 the passage of the Hepburn Amendment, and more than 
 four years after the plaintiff's cause of action arose." 
 A claim must therefore be filed with the Commission 
 within two years by some person entitled either in law 
 or in equity to prosecute and recover on account of 
 that claim.^° 
 
 § 303. Assignability of Claims for Damages under 
 the Interstate Commerce Act. In Edmunds v. Illinois 
 Cent. R. Co.," the court lield that claims for damages 
 under the provisions of the Interstate Commerce Act 
 constituted property rights which might be assigned and 
 that suits therefor were maintainable by the consignee; 
 but, in a conference ruling,^^ the Commission held that 
 in awarding reparation it will recognize an assignment 
 by a consignor to a consignee or by a consignee to a 
 consignor, but will not recognize an assignment to a 
 stranger to the transportation records. 
 
 § 304. Allowance of Attorney's Fees for Services 
 in Reparation Cases Before Commission not Permitted. 
 When a person recovers damages against a carrier for 
 a violation of any of the provisions of the Interstate 
 Commerce Act, it is provided in Section 8 that, in ad- 
 dition thereto, the carrier is liable for a reasonable 
 counsel or attorney's fee to be fixed by the court in every 
 case of a recovery, which shall be taxed and collected 
 as a part of the costs in the case. Section 16, relating 
 to actions to enforce claims for damages after the Com- 
 mission has acted thereon, provides that if the petitioner 
 shall finally prevail, he shall be allowed a reasonable 
 attorney's fee to be taxed and collected as a part of the 
 costs of the suit. These provisions contemplate that only 
 when the damages are recovered by suit in a court that 
 
 80. Missouri & Kansas Sliippers' 81. 80 Fed. 78. 
 
 Ass'n V. Atchison, T. & S. F. Ry. 82. Conference Rule No. 363. 
 
 Co., 13 I. C. C. 411.
 
 <§> 304] Damages under Commerce Act. 527 
 
 a foo is to be allowed. If, Ihererore, a carrier complies 
 with an order of the Commission regulating damages 
 before theclaiinant ])roceeds to enforce tl^e order by an 
 action in court, an attorney's fee cannot be taxed as a 
 part of the costs/'' The provision allowing an attorney's 
 fee does not apply to actions by shippers against an 
 initial carrier under the Carmack amendment because 
 the cause of action is not a violation of the act but the 
 loss or damage to the property/* 
 
 83. Meeker v. Lehigh Valley R. 84. Atlantic Coast Line R. Co. v. 
 
 Co.. 236 U. S. 412, 59 L. Ed. 644, Riverside Mills, 219 U. S. 186, 55 
 
 35 Sup. Ct. 328, Ann. Cas. 1916B L Ed. 167, ;U Sup. Ct. 164, 31 L. 
 
 691. R. A. (N. S.) 7.
 
 CHAPTER XV 
 
 Liabilities for Loss and Damages to Interstate Ship- 
 ments— Carmack Amendment. 
 
 Sec. 305. Initial Carriers Liable for Loss and Damage to Property 
 IMoving in Interstate Commerce. 
 
 Sec. 306. Constitutionality and Validity of tht Carmack Amendment. 
 
 Sec. 307. Law Governing Duties of Carriers for Loss or Damage to 
 Interstate Shipments Prior to 1906. 
 
 Sec. 308. Purpose of Congress in the Enactment of the Carmack 
 Amendment. 
 
 Sec. 309. Stipulations Exempting Initial Carrier from Liability for 
 Loss and Damage on Connecting Lines Invalid. 
 
 Sec. 310. All State Laws and Rules Regulating Liabilities for Loss 
 and Damage, Superseded as to Interstate Shipments. 
 
 Sec. 311. Decisions of Federal Courts Control in Construing Carmack 
 Amendment. 
 
 Sec. 312. State Courts may Enforce Provisions of Carmack Amend- 
 ment and Award D amages Thereunder. 
 
 Sec. 313. Actions Brought in State Courts under Carmack Amend- 
 ments not Removable, When. 
 
 Sec. 314. Initial Carrier may not be Sued in Domicile of Terminal 
 Carrier. 
 
 Sec. 315. Receipt from Shipper of Money Paid by Initial Carrier Bind- 
 ing upon Connecting Carrier in Absence of Fraud. 
 
 Sec. 316. Recovery Against Initial Carrier Bars an Action Against 
 Connecting Carriers. 
 
 § 305. Initial Carriers Liable for Loss and Dama- 
 ge to Property Moving in Interstate Commerce. In 
 1906 Congress passed an amendment to section 20 of the 
 Act to Regulate Commerce which is popularly known as 
 the Carmack amendment.^ It provides that any com- 
 mon carrier, railroad or transportation company receiv- 
 ing property for transportation from a point in one 
 state to a point in another state, shall issue a receipt 
 or a bill of lading therefor and shall be liable to the 
 lawful holder thereof for any loss, damage or injury to 
 such property caused by it or by any common carrier, 
 
 1. Act of .Tune 29, 1906, 34 Stat. at L. 593. See Section 69, supra. 
 
 (528)
 
 § 305] Liabilities for Loss and Damages. 
 
 529 
 
 railroad, or transportation company to which sucIl prop- 
 erty may be delivered or over whose line or lines such 
 property may pass and that no contract, receipt, rule 
 or regulation shall exempt such comi)any from the 
 liability imposed by the statute.^ 
 
 The significant and dominating features of the 
 Carmack amendment as originally enacted were: First. 
 It affirmatively required the initial carrier to issue a 
 receipt or bill of lading when it received property for 
 transportation from a point in one state to a point in 
 another.^ Second. Such initial carrier is made liable 
 to the lawful holder liiereof for any loss, damage or 
 injury to such property caused by it.* Third. It is 
 
 2. The changes made in this 
 amendment by the first and second 
 Cummins amendment should be 
 carefully noted. Section 317, injra. 
 
 3. United States. Boston & M. R. 
 Co. V. Hooker, 233 U. S. 97, 58 L. 
 Ed. 868, 34 Sup. Ct. 526. L. R. A. 
 1915B 450, Ann. Cas. 1915D 593. 
 
 Illinois. Looney v. Oregon Short 
 Line R. Co., 271 111. 538, 111 N. E. 
 509. 
 
 Indiana. Chesapeake & O. Ry. 
 
 Co. of Indiana v. Jordan, Ind. 
 
 App. , 114 N. E. 461. 
 
 Massachusetts. Aradalou v. New 
 York, N. H. & H. R. Co., 225 Mass. 
 235, 114 N. E. 297. 
 
 Missouri. Bowles v. Quincy. 0. 
 
 & K. C. R. Co., Mo App. , 
 
 187 S. W. 131; Keithley v. Lusk, 
 190 Mo. App. 458, 177 S. W. 756; 
 Kent V. Chicago, B. & Q. R. Co.. 
 189 Mo. App. 424, 176 S. W. 1105: 
 Morrison Grain Co. v. Missouri 
 Pac. R. Co., 182 Mo. App. 339, 170 
 S. W. 404. 
 
 New Jersey. International Watch 
 Co. V. Delaware, L. & W. R. Co.. SO 
 N. J. L. 553, 78 Atl. 49. 
 
 Wisconsin. Aton Piano Co. v. 
 Chicago. M. & St. P. Co., 152 Wis. 
 156. 139 N. W. 743. 
 
 "By this legislation, the carrier 
 is required to have a written ship- 
 ping contract and cannot ship 
 without one." Kent v. Chicago, B. 
 ■4 Q. R. Co., supra. 
 
 4. United States. Cincinnati. 
 N. O. & T. P. R. Co. V. Rankin, 241 
 U. S. 319, 60 L. Ed. 1022, 36 Sup 
 Ct. 555, L. R. A. 1917A 265; South- 
 ern R. Co. V. Prescott, 240 U. S. 
 632, 60 L. Ed. 836, 36 Sup. Ct. 469; 
 Southern Exp. Co. v. Byers, 240 U. 
 S. 612, 60 L. Ed. 825, 36 Sup. Ct. 
 410, L. R. A. 1917A 197; Clevelan'\ 
 C, C. & St. L. R. Co. V. Dettlebach, 
 2.'39 U. S. 588, 60 L. Ed. 453. 36 Sip. 
 Ct. 177; Norfolk & W. R. Co. v. 
 Dixie Tobacco Co.. 226 U. S. 593, 
 57 L Ed. 980, 33 Sup. Ct. 609; 
 Kansas City Southern R. Co. v. 
 Carl, 227 U. S. 639. 57 L. Ed. 683. 
 33 Sup. Ct. 391: Wells. Fargo -^ 
 Co. V. Neiman-Marcup. 227 U. S. 
 469, 57 L. Ed. 600, 33 Sup. Ct. 267: 
 Galveston, H. & S. A. R. Co. v. 
 Wallace. 223 U. S. 481, 56 L. Ed. 
 516. 32 Sup. Ct. 205. 
 
 Florida. Seaboard Air Line Ry. 
 Co. V. Mullin. 70 Fla. 450, 11 N. C. 
 C A. 1. L. R. A. 1916D 982. Ann. 
 Cas. 191SA 576, 70 So. 467. 
 
 1 I'onli-ul I'HiTicr.s 31
 
 530 
 
 Duties to Interstate Shippers. 
 
 [§ 305 
 
 also made liable for any loss, damage or injury to such 
 property by any common carrier, railroad or transporta- 
 tion company to which such property may be delivered 
 or over whose line or lines such property may pass.^ 
 
 Georgia. Southern Pac. Co. v. 
 Crenshaw, 5 Ga. App. 675, 63 S. E. 
 865. 
 
 • Kentucky. Cincinnati, N. O. & 
 T. P. R. Co. V. Rankin, 153 Ky. 
 730, 45 L. R. A. (N. S.) 529, 156 
 
 5 W. 400. 
 
 Maine. Ross v. Maine Cent. R. 
 Co., 112 Me. 63, 90 Atl. 711. 
 
 Missouri. Cudahy Packing Co. 
 V Atchison, T. & S. F. R. Co., 193 
 Mo. App. 572, 187 S. W. 149; 
 Bowles V. Quincy, O. & K. C. R. 
 
 Co., Mo. App. , 187 S. 
 
 W. 131. 
 
 New Jersey. Florman v. Dodd 
 
 6 Childs Exp. Co., 79 N. J. L. 63, 
 74 Atl. 446. 
 
 New York. Barstow v. New 
 York. N. H. & H. R. Co., 158 N. 
 Y. App. Div. 665, 143 N. Y. Supp. 
 983; Shultz v. Skaneateles R. Co., 
 122 N. Y. Supp. 445. 
 
 Oklahoma. Missouri, O. & G. Ry. 
 
 Co. V. French, Okla. , 152 
 
 Pac. 591; St. Louis & S. F. R. 
 Co. V. Zickafoose, 39 Okla. 302, 6 
 N. C. C. A. 717, 135 Pac. 406. 
 
 Rhode Island. Glenlyon Dye 
 Works V. Interstate Exp. Co., 36 
 R. I. 558. 91 Atl. 5. 
 
 Texas. Stevens & Russell v. St. 
 
 Louis Southwestern Ry. Co., 
 
 Tex. Civ. App. . 178 S. W. 810. 
 
 5. United States. St. Louis, I. 
 M. & S. R. Co. V. Starbird, 243 U. 
 S. 592. 61 L. Ed. 917, 37 Sup. Ct. 
 462; Pennsylvania R. Co. v. Olivit 
 Bros., 243 U. S. 574, 61 L. Ed. 908, 
 37 Sup. Ct. 468; Western Transit 
 Co. V. A. C. Leslie & Co., 242 U. S. 
 448, 61 L. Ed. 423, 37 Sup. Ct. 133; 
 Chesapeake & 0. R. Co. v. Mc- 
 
 Laughlin, 242 U. S. 142, 61 L. Ed. 
 207, 37 Sup. Ct. 40; Cincinnati, N. 
 O. & T. P. R. Co. V. Rankin, 241 
 U. S. 319, 60 L. Ed. 1022, 36 Sup. 
 Ct. 555, L. R. A. 1917A 265; 
 Georgia. F. & A. R. Co. v. Bllsh 
 Milling Co.. 241 U. S. 190, 60 L. Ed. 
 948, 36 Sup. Ct. 541; Northern 
 Pac. R. Co. V. Wall, 241 U. S. 87, 
 60 L. Ed. 905, 36 Sup. Ct. 493; 
 New York, P. & N. R. Co. v. Penin- 
 sula Produce Exch. of Maryland, 
 240 U. S. 34, 60 L. Ed. 511. 36 Sup. 
 Ct. 230, L. R. A. 1917A 193; Nor- 
 folk & W. R. Co. V. Dixie Tobacco 
 Co.. 228 U. S. 593, 57 L. Ed. 980, 
 33 Sup. Ct. 609. 
 
 Arkansas. St. Louis, I. M. & S. 
 R. Co. V. Cdnningham Commission 
 Co., 125 Ark. 577, 188 S. W. 1177. 
 
 Delaware. Bowden v. Philad3l- 
 phia, B. & W. R. Co., 5 Boyce's 
 (Del.) 146, 91 Atl. 209. 
 
 Georgia. Southern Pac. Co. v. 
 Crenshaw, 5 Ga. App. 675, 63 S. 
 E. 865. 
 
 Idaho. Barrett v. Northern P. 
 R. Co.. 29 Idaho 139, 157 Pac. 1016. 
 
 Indiana. Cleveland, C. C. & St. 
 L. R. Co. V. Hayes, 181 Ind. 87, 102 
 N. E. 34. 103 N. E. 839. 
 
 Louisiana. Burkenroad Gold- 
 smith Co. V. Illinois Cent. R. Co., 
 138 La. 81, Ann. Cas. 1917C 935, 
 70 So. 44. 
 
 Michigan. Perkett v. Manistee 
 & N. E. R. Co., 175 Mich. 253, 141 
 N. W. 607; Sturges v. Detroit, G. 
 H. & M. R. Co., 166 Mich. 231, 131 
 N. W. 706. 
 
 Missouri. .Jones v. Louisville & 
 
 N. R. Co., Mo. App. , 182 
 
 S W. 1064.
 
 § 306] Liabilities for Loss and Damages. 
 
 531 
 
 Fourth. It affirmatively declares that no contract, re- 
 ceipt, rule or regulation shall exempt such common 
 carrier, railroad or transportation company from tiic 
 liability imposed by the statute." 
 
 § 306. Constitutionality and Validity of the Car- 
 mack Amendment. Soon alter tliu enactment of the 
 Carmack amendment, its constitutionality was attacked 
 
 Oklahoma. St. Louis & S. F. R 
 Co. V. Mounts, 44 Okla. 359, 144 
 Pac. 1036. 
 
 South Carolina. Van Epps v. At- 
 lantic Coast Line R. Co., 105 S. C. 
 406, 89 S. E. 1035. 
 
 Texas. Texas-Mexican Ry. Co. 
 
 V Sutherland, Tex. Civ. App. 
 
 . 189 S. W. 983; Patton v. Tex- 
 as & P. Ry. Co., Tex. Civ. 
 
 App. , 137 S. W. 721; Missouri, 
 
 K. & T. R. Co. of Texas v. Stark 
 Grain Co.. 103 Tex. 542, 131 S. W. 
 410. 
 
 Washington. Coovert v. Spo- 
 kane, P. & S. R. Co., 80 Wash. 87, 
 141 Pac. 324. 
 
 6. United States. New York 
 Cent. & H. River R. Co. v. Bea- 
 ham, 242 U. S. 148. 61 L. Ed. 210, 
 37 Sup. Ct. 43: Cincinnati, N. 3. 
 & T. P. R. Co. V. Rankin, 241 U. 
 S. 319, 60 L. Ed. 1022. 36 Sup. Ct. 
 555, L. R. A. 1917 A 265; Oregon 
 Short Line R. Co. v. Homer, 235 
 U. S. 693, 59 L. Ed. 429, 35 Sup. Ct. 
 207; Boston & M. R. Co. v. Hook- 
 er, 233 U. S. 97, 58 L. Ed. 868, 34 
 Sup. Ct. 526, L. R. A. 1915B 450. 
 Ann. Cas. 1915D 593: Missouri, K. 
 & T. R. Co. V. Harriman, 227 U. 
 S. 657, o7 L. Ed. 690, 33 Sup. Ct. 
 397; Adams Exp. Co. v. Croninger. 
 226 U. S. 491, 57 L. Ed. 314, 33 
 Sup. Ct. 148, 44 L. R. A. (N. S.) 
 257; Galveston, H. & S. A. R. Co. 
 V. Wallace, 223 U. S. 481, 56 L. 
 Ed. 516, 32 Sup. Ct. 205. 
 
 Alabama. Central ot Georgia R. 
 Co. v. Patterson, 12 Ala. App. 369, 
 68 So. 513; Central of Georgia R. 
 Co. V. Broda, 190 Ala. 266, 67 So. 
 4.'J7; Atlantic Coast Line R. Co. v. 
 Ward, 4 Ala. App. 374, 58 So. /677. 
 
 Delaware. Bowden v. Philadel- 
 phia, B. & W. R. Co., 5 Boyce's 
 (Del.) 146. 91 Atl. 209. 
 
 Indiana. Pittsburgh, C, C. & St. 
 L. R. Co. V. Knox, 177 Ind. 344, 98 
 N. E. 295; Pittsburgh, C, C. & 
 St. L. R. Co. V. Mitchell, 175 Ind. 
 196, 91 N. E. 735, 93 N. E. 996. 
 
 Iowa. Erisman v. Chicago, B. & 
 
 Q. R. Co., Iowa , 163 N. 
 
 W. 627; Blair & Jackson v. Wells. 
 Fargo & Co., 155 Iowa 190, 135 N. 
 W. 615. 
 
 Michigan. Parkett v. Manistee 
 & N. E. R. Co., 175 Mich. 253, 141 
 N. W. 607. 
 
 Mississippi. Southern Pac. R. Co. 
 V. A. .1. Lyon & Co., 107 Miss. 777, 
 Ann. Cas. 1917D 171, 66 So. 209. 
 
 North Carolina. Pace Mule Co. 
 
 V Seaboard Air Line R. Co.. 160 N. 
 C 215, 76 S. E. 513; Herring v. 
 Atlantic Coast Line R. Co.. 160 N. 
 C. 252, 76 S. E. 527. 
 
 North Dakota. Cook v. North- 
 ern Pac. R. Co., 32 N. D. 340, L. 
 R. A. 1916D 345. 155 N. W. 867. 
 
 Oklahoma. Haskell v. St. Louis 
 
 & S. F. R. Co., Okla. , 162 
 
 Pac. 459; St. Louis & S. P. R. Co. 
 
 V Cox, Peery & Murray. 40 Okla. 
 258, 1.38 Pac. 144.
 
 532 
 
 Duties to Interstate Shippers. 
 
 [§ 306 
 
 in many state courts on the ground that its provisions 
 deprived carriers of their property without due process 
 of law, interfered with the liberty of contract, and was 
 an improper exercise of the power of Congress under 
 the commerce clause; but its validity was sustained al- 
 most without dissent.^ The constitutionality of the 
 amendment was first passed upon by the United States 
 Supreme Court in Atlantic Coast Line R. Co. v. River- 
 side Mills,^ and the decision in that case was subse- 
 quently affirmed in the cases cited.® In the Riverside 
 Mills case, it was held that the statute, in prohibiting 
 an initial carrier from exercising its former right under 
 the common law to make a contract limiting its liability 
 to its own line, was not a denial of the liberty of con- 
 tract secured by the Fifth amendment to the national 
 Constitution for the reason that the government may 
 deny liberty of contract to the extent of forbidding or 
 regulating every contract which is reasonably calculated 
 to injuriously affect the public interest. 
 
 Tennessee. Louisville & N. R. 
 Co. V. Hobbs, 136 Tenn. 512, 190 
 S. W. 461. 
 
 Utah. Shay v. Union Pac. R. Co., 
 47 Utah 252, 153 Pac. 31. 
 
 7. Arkansas. St. Louis & S. F. 
 R. Co. V. Heyser, 95 Ark. 412, Ann. 
 Cas. 1912A 610, 130 S. W. 562. 
 
 Illinois. Fry v. Southern Pac. 
 Co., 247 111. 564, 93 N. E. 906. 
 
 Indiana. Cleveland, C. C. & St. 
 L. R. Co. V. Hayes, 181 Ind. 87, 102 
 N. E. 34, 103 N. E. 839; Pitts- 
 burgh. C, C. & St. L. R. Co. V. 
 Mitchell, 175 Ind. 196, 91 N. E. 
 735, 93 N. E. 996. 
 
 Kentucky. Louisville & N. R. Co. 
 V. Scott, 133 Ky. 724, 19 Ann. Cas. 
 392, 118 S. W. 990. 
 
 Michigan. Sturges v. Detroit, G. 
 H. & M. R. Co., 166 Mich. 231, 131 
 N. W. 706. 
 
 Minnesota. Ford v. Chicago, R. 
 I. & P. R. Co., 123 Minn. 87, 143 N. 
 W. 2^9; Dodge v. Ch'ca-o, St. P. 
 
 M. & 0. R. Co., Ill Minn. 123, 126 
 N. W. 627. 
 
 New York. Welch Lumber Co. 
 V. Norfolk & W. R. Co., 137 N. Y. 
 App. Div. 248, 121 N. Y. Supp. 985. 
 
 Texas. Missouri, K. & T. Ry. 
 Co. of Texas V. Harriman Bros., 
 
 Tex. Civ. App. , 128 S. 
 
 W. 932; Galveston, H. & S. A. Ry. 
 Co. V. Crow (Tex. Civ. App.) 117 
 S. W. 170; Galveston, H. & S. A. 
 Ry. Co. V. Wallace, (Tex. Civ. 
 App.) 117 S. W. 169; Galveston, 
 H. & S. A. R. Co. v. F. A. Piper 
 Co., 52 Tex. Civ. App. 568, 115 S. 
 W. 107. 
 
 Virginia. Norfolk & W. R. Co. 
 V. Dixie Tobacco Co., Ill Va. 813, 
 69 8. E. 1106. 
 
 8. 219 U. S. 186, 55 L. Ed. 167, 
 31 Sup. Ct. 164, 31 L. R. A. (N. 
 S.) 7. 
 
 9. Norfolk & W. R. Co. v. Dixie 
 Tobacco Co., 228 U. S. 593, 57 L. 
 Ed. 980, 33 Sup. Ct. 609; Galves-
 
 § 306] Liabilities for Loss and Damages. 533 
 
 Answering tlie contention that the amendment was 
 invalid because beyond tlie power of Congress under the 
 commerce clause, the court held that its provisions pre- 
 scribed a rule under which interstate commerce might 
 be conducted, and was, therefore, within the range of 
 congressional discretion as to the regulation best adapted 
 to remedy a practice found inefficient or hurtful. The 
 statute, the court decided, was embraced within the 
 grant of power conferred upon Congress to use all law- 
 ful means necessary to the execution of the power to 
 regulate commerce. The act was held to be as directly 
 applicable to commerce as the Safety Appliance Act, 
 regulating the agencies of commerce, and the Anti-Trust 
 Act, embracing contracts in restraint of trade between 
 the states. Although the statute requires the carrier to 
 accept goods destined beyond its line for delivery and 
 to issue a through bill of lading, such compulsory ac- 
 ceptance and liability for damages done by others, is 
 not a taking of the carrier's property without due pro- 
 cess of law.^** "It must be conceded," said the court in 
 the Riverside Mills Case, "that the effect of the act in 
 respect of carriers receiving packages in one State for 
 a point in another and beyond its own lines, is to deny 
 to such an initial carrier the former right to make a 
 contract limiting liability to its own line. This it is 
 said is a denial of the liberty of contract secured by the 
 Fifth Amendment to the Constitution. To support this 
 counsel cite such cases as Allgeyer v. Louisiana, 165 U. 
 S. 589; Lochner v. New York, 198 U. S. 45, and Adair 
 V. United States, 208 U. S. 161; This power to regulate 
 is the right to prescribe the rules under which such 
 commerce may be conducted. 'It is,' said Chief Justice 
 Marshall, in Gibbons v. Ogden, 9 Wheat. 1, 197, 'a 
 power vested in Congress as absolutely as it would be 
 in a single government having in its power as are found 
 in the Constitution of the United States.' It is a power 
 which extends to the regulation of the appliances and 
 
 ton, H. & S. A. R. Co. v. Wallace, 10. Norfolk & W. R. Co. v. Dixie 
 
 223 U. S. 481, 56 L. Ed. 516, 32 Sup. Tobacco Co., 228 U. S. 593, 57 L. 
 Ct. 205. Ed. 980, 33 Sup. Ct. G09.
 
 534 Duties to Inteestate Shippers. [§ 306 
 
 machinery and agencies by which such commerce is 
 conducted. Thus in Johnson v. Southern Pac. Ry., 196 
 U. S. 1, an act prescribing safety appliances was up- 
 held. And in Interstate Commerce Commission v. Illi- 
 nois Central R. R. Co., 215 U. S. 452, it was held that 
 the equipment of an interstate railway, including cars 
 used for the transportation of its own fuel, was subject 
 to the regulation of Congress. In Interstate Commerce 
 Commission v. C. 6c A. Ry. Co., 215 U. S. 479, it was 
 held to extend to the distribution of coal cars to the 
 shipper, so as to prevent discrimination. In The Em- 
 ployers' Liability Cases, 207 U. S. 463, 495, power to 
 pass an act which regulated the relation of master and 
 servant, so as to impose on the carrier, while engaged 
 in interstate commerce, liability for the negligence of a 
 fellow-servant, for which at common law there was no 
 liability, and depriving such carrier of the common-law 
 defense of contributory negligence save by way of reduc- 
 tion of damages, was upheld. In Addyston Pipe Co. 
 v. United States, 175 U. S. 211, and Northern Securities 
 Co. V. United States, 193 U. S. 197, it was held that this 
 power of regulation extended to and embraced contracts 
 in restraint of trade between the States. It is obvious, 
 from the many decisions of this court, that there is no 
 such thing as absolute freedom of contract. Contracts 
 which contravene public policj^ cannot be lawfully made 
 at all, and the power to make contracts may in all cases 
 be regulated as to form, evidence, and validity as to 
 third persons. The power of government extends to the 
 denial of liberty of contract to the extent of forbidding 
 or regulating every contract which is reasonably cal- 
 culated to injuriously affect the public interests. Un- 
 doubtedly the United States is a government of limited 
 and delegated powers, but in respect of those powers 
 which have been expressly delegated, the power to regu- 
 late commerce between the States being one of them, the 
 power is absolute except as limited by other provisions 
 of the Constitution itself. Having the express power 
 to make rules for the conduct of commerce among the 
 States, the range of Congressional discretion as to the
 
 § 3()() I I.IABILITIKS FOR Tx)SS AND DAMAGES. 535 
 
 regulation best adapted to iciiicdy a praqtice loiiiid inef- 
 ficient or hurtful, is a wide one. If the regulating act 
 l)e one direetly applicable to such commerce, not obnox- 
 ious to any other ])rovision of the ( .Constitution, and 
 reasonably adapted to the |)uri)ose by reason of iegiti- 
 niate I'elation between such commerce and tiie rule pro- 
 \'ided, the (piestion of power is foreclosed. 'The test of 
 power,' said Mr. Justice Wliite, speaking for this comt 
 in the Employers' Liability Cases, cited above, 'is not 
 merely the matter regulated, but whether the regulation 
 is directly one of interstate commerce, or is embraced 
 within the grant conferred on Congress to use all lawful 
 means necessary and approj^riate to the execution of the 
 power to regulate commerce.' That a situation had 
 come about which demanded regulation in the public 
 interest was the judgment of Congress. The requirement 
 that carriers who undertook to engage in interstate 
 transportation, and as a part of that business held them- 
 selves out as receiving packages destined to places be- 
 yond their own terminal, should be required as a con- 
 dition of continuing in that traffic to obligate themselves 
 to carry to the point of destination, using the lines of 
 connecting carriers as their own agencies, was not be- 
 yond the scope of the power of regulation. The rule 
 is adapted to secure the rights of the shi]i])er by secur- 
 ing unity of transportation with unity of responsibility. 
 The regulation is one which also facilitates the remedy 
 of one who sustains a loss, by localizing the responsible 
 carrier. Neither does the regulation impose an unrea- 
 sonable burden upon the receiving carrier. The methods 
 in vogue, as the court may judicially know, embrace 
 not only the voluntary arrangement of through routes 
 and rates, but the collection of the single charge made 
 by the carrier at one or the other end of the route. This 
 involves frequent and prom])t settlement of traffic bal- 
 ances. The routing in a measure de])(Mids ui)on the 
 certainty and ])i()inptness of such traffic balance settle- 
 ments, and such balances have been regarded as debts 
 of a ])referred character when there is a receivership. 
 Again, the business association of such carriers affords 
 to each facilities for locating primary responsiliility as
 
 536 Duties to Interstate Shippers. [§ 306 
 
 between tliemselves which the shipper cannot have. 
 These well-known conditions alTord a reasonable security 
 to the receiving carrier for a reimbursement of a car- 
 rier liability which should fall upon one of the connect- 
 ing carriers as between themselves." 
 
 § 307. Law Governing Duties of Carriers for Loss 
 or Damage to Interstate Shipments Prior to 1906. Prior 
 to the enactment of the Carmack amendment which 
 makes the initial carrier liable for loss, damage or in- 
 jury to through shipments, whether such losses occur on 
 or off the line of the initial carrier, the rule of the car- 
 rier's liability for an interstate shipment of property, 
 as enforced in both federal and state courts, was either 
 that of the general common law as enforced in the fed- 
 eral courts throughout the country," or that determined 
 by the supposed public policy of a particular state,^' 
 or that prescribed by the statutory law of a particular 
 state.^' 
 
 State statutes containing reasonable regulations 
 which did not constitute direct burdens upon interstate 
 commerce, were held to be valid and enforceable even 
 as to shipments from one state to another. For example, 
 a Virginia statute prescribing that a common carrier 
 accepting for transportation property directed to a 
 point of destination beyond the terminus of its own 
 line, should thereby be deemed to assume an obliga- 
 tion for its safe carriage to such point of destination, 
 unless released from such liability by a contract signed 
 by the owner, was held to be valid and applicable to 
 
 11. Primrose v. Western U. Tel. sylvania R. Co., 112 U. S. 331, 28 L. 
 
 Co., 154 U. S. 1, 38 L. Ed. 883, 14 Ed. 717, 5 Sup. Ct. 151; York Mfg. 
 
 Sup. Ct. 1098; New York, I. E. Co. v. Illinois Cent. R. Co., 3 Wall. 
 
 & W. R. Co. V. Estill, 147 U. S. 591. (u. S.) 107, 18 L. Ed. 170. 
 
 39 L. Ed. 292, 13 Sup. Ct. 444; ^^ Pennsylvania R. Co. v. 
 
 Liverpool & G. W. Steam Co. v^ ^^^ ^ ^^ ^^ 
 
 Phenix Ins. Co., 129 U. S. 397, 32 * ' 
 
 L Ed. 788, 9 Sup. Ct. 469; PhcEnix ^^^' ^^ ^"P- ^^- '^^^• 
 
 Ins. Co. V. Erie & W. Transp. Co., 13. Chicago, M. & St. P. Ry. Co. 
 
 117 U. S. 312, 29 L. Ed. 873, 6 v. Solan, 169 U. S. 133, 42 L. Ed. 
 
 Sup. Ct. 750, 1176; Hart v. Penn- 688, 18 Sup. Ct. 289.
 
 *§ 307] Liabilities for IjOss and Damages. 537 
 
 interstate sliii)meiits.^^ A Alissouri law itiovidiii^ tliat 
 a railroad company issuing- a bill of ladinit? should be 
 liable for any loss or daniag'c to i)i-op('rty caused by its 
 own or the neg'ligence of a succeeding carrier, was sus- 
 tained even as to a shipment from Missouri to Illinois.*'^ 
 But a (Jeorgia act prescribing that when freight has 
 been delivered for transi)ortation by two or more car- 
 riers, the initial carrier, upon the application of the 
 shipper, must furnish information in writing stating 
 when, where and how, and by which carrier the freight 
 was lost, damaged or destroyed and the names of the 
 agents by whom the truth of such facts could be estab- 
 lished, was an unlawful regulation of interstate com- 
 merce.^"' 
 
 With such diversity of legislative enactments and 
 judicial holdings, neither uniformity of obligation nor 
 of liability existed as to interstate and foreign ship- 
 ments. Radical dit^erences existed even in the inter- 
 pretation of the common law liability of interstate car- 
 riers as to loss and damage to interstate shipments. 
 Thus, in Hart v. Pennsylvania R. Co.,'' the national 
 Supreme Court held that a contract fairly made and en- 
 tered into between a carrier and a shipper agreeing 
 on a valuation of the property carried, with a rate of 
 freight based on such valuation, on the condition that 
 the carrier assumed liability only to the extent of such 
 agreed valuation in case of loss by the negligence of 
 the carrier, was valid; while the supreme court of Penn- 
 sylvania, on the other hand, in administering the com- 
 mon law according to its understanding and interpreta- 
 tion of it, denied the right of a carrier to thus limit its 
 liability for loss or damage resulting from negligence.'® 
 
 14. Richmond & A. R. Co. v. 16. Central of Georgia R. Co. v. 
 R A. Patterson Tobacco Co., 169 Murphey, 196 U. S. 194, 49 L. Ed. 
 U. S. 311, 42 L. Ed. 759, 18 Sup 444, 25 Sup. Ct. 218, 2 Ann. Cas. 
 Ct. 335. 514. 
 
 15. Missouri, K. & T. Ry. Co. v. 17. 112 U. S. 331, 28 L. Ed. 717, 
 McCann. 174 U. S. 580. 43 L. Ed. 5 Sup. Ct. 151. 
 
 1093, 19 Sup. Ct. 755. 18. Jones v. Lehigh & N. E. R. 
 
 Co., 202 Pa. 81, 51 Atl. 590.
 
 538 
 
 Duties to Interstate Shippers. 
 
 [§ 307 
 
 The American courts had also lield that an initial 
 carrier, receiving property for shipment to a point be- 
 yond its own line and on the line of a succeeding car- 
 rier, might refuse to assume responsibility for safe car- 
 riage further than the terminus of its own line, and that 
 a provision in a shipping contract providing that the 
 initial carrier should not be liable for loss or damage not 
 occurring on its own portion of a through route, was 
 valid, and not a contract for exemption from a carrier's 
 liability as such.^^ 
 
 § 308. Purpose of Congress in the Enactment of the 
 Carmack Amendment. One of the reasons which induced 
 the passage of the Carmack amendment was the desire 
 of Congress to obliterate the diversity of liability of 
 interstate carriers as to loss and damage claims arising 
 out of interstate shipments and to establish one uniform 
 
 19. United States. Atlantic 
 Coast Line R. Co. v. Riverside 
 Mills. 219 U. S. 186, 55 L. Ed. 
 167, 31 Sup. Ct. 164, 31 L. R. A 
 (N. S.) 7; Southern Pac. Co. v. 
 Interstate Commerce Commission. 
 200 U. S. 536, 50 L. Ed. 585, 26 Sup. 
 Ct. 330; Louisville & N. R. Co. v. 
 West Coast Naval Stores Co., 198 
 U. S. 483, 49 L. Ed. 1135, 25 Sup. 
 Ct. 745; Pennsylvania R. Co. v. 
 Jones, 155 U. S. 333, 39 L. Ed. 176, 
 15 Sup. Ct. 136; Atchison, T. & S. 
 F. R. Co. v. Denver & N. O. R. 
 Co., 110 U. S. 667, 28 L. Ed. 291, 
 4 Sup. Ct. 185; Myrick v Michigan 
 Cent. R. Co., 107 U. S. 102, 27 L. 
 Ed. 325, 1 Sup. Ct. 425; Ogdens- 
 burg & L. C. R. Co. v. Pratt, 22 
 Wall. (U. S.) 123. 22 L. Ed. 827. 
 
 California. Cavallaro v. Texas 
 & P. Ry. Co.. 110 Cal. 348, 52 Am. 
 St. Rep. 94, 42 Pac. 918. 
 
 Florida. Savannah, F. & W. Ry. 
 Co. V. Harris, 26 Fla. 148, 23 Am. 
 St. Rep. 551, 7 So. 544. 
 
 Iowa. Hartley v. St. Louis, K. 
 & N. W. R. Co.. 115 Iowa 612, 89 
 N. W. 88. 
 
 Maine. Taylor v. Maine Cent. 
 R. Co., 87 Me. 299, 32 Atl. 905. 
 
 Maryland. Hoffman v. Cumber- 
 land Valley R. Co., 85 Md. 391, 37 
 Atl. 214. 
 
 "Such a provision is not a con- 
 tract for exemption from a car- 
 rier's liability as such, but a pro- 
 vision making plain that it did not 
 assume the obligation of a carrier 
 beyond its own line, and that each 
 succeeding carrier in the route was 
 but the agent of the shipper for a 
 continuance of the transportation. 
 It is therefore obvious that at the 
 common law an Initial carrier un- 
 der such a state of facts would not 
 be liable for a loss through the 
 fault of a connecting carrier to 
 whom it had, in due course, safely 
 delivered the goods for further 
 trc,nsportation." Atlantic Coast 
 Line R. Co. v. Riverside Mills, su- 
 pra.
 
 '^ 308] LiABiLiTiF.s FOR Loss AND Damages. 539 
 
 rule of liability throughout the United States.'" The aim 
 was to esta])lisli unity of responsil)ility.-^ But tlie over- 
 slia(lovvin<^- i)urpoHe of Congress in passing tlie amend- 
 ment was to remove the burdensome situation of the 
 sliipi)ing public in reference to interstate siiipments 
 over routes including separate lines of carriers. Under 
 the common law, as explained in the foregoing para- 
 graph, each carrier participating in a through shipment, 
 could limit its lability for loss or damage to that oc- 
 curring on its own lines. Shippers of goods over two or 
 more lines were therefore compelled to ascertain when 
 and where their property was lost or damaged in order 
 to recover against the carrier causing the damage. 
 
 The obstacles in attempting to determine responsi- 
 bility for damage to property shipped over different 
 lines were frequently insurmountable, and, in many in- 
 stances, shippers were remediless. Congress recognized 
 the difficulties involved on the part of shippers when 
 goods were lost, in tracing the goods, fixing the liability 
 and recovering their damage." But, on the other hand, 
 the facilities of an initial carrier were found to be much 
 greater than those of the shippers for locating the 
 goods and fixing the liability for loss or damage and the 
 proviso permitting the initial carrier to recover from 
 the carrier on whose lines the loss occurred the amount 
 
 20. St. Louis, I. M. & S. R. Co. Blish Mining Co.. 241 U. S. 190, 
 V. Starbird, 243 U. S. 592, 61 L. 60 L. Ed. 948, 36 Sup. Ct. 541. 
 Ed. 917, 37 Sup. Ct. 462; South- 22. Gejrgia. Southern Ry. Co. 
 ern R. Co. v. Prescott, 240 U. S. v Bennett. 17 Ga. App. 162, 86 S. 
 632, 60 L. Ed. 836, 36 Sup. Ct. 469; E. 418. 
 
 Northern Pac. R. Co. v. WaU, 241 Illinois. Looney v. Oregon 
 
 U. S. 87. 60 L. Ed. 905, 36 Sup. Ct. Short Line R. Co., 271 111. 538. Ill 
 
 493: New York, P. & N. R. Co. v. N. E. 509. 
 
 Peninsula Produce Exch. of Mary- Missouri. Donovan v. Wells, 
 
 land. 240 U. S. 34, 60 L. Ed. 511. Fargo & Co., 265 Mo. 291. 177 S. 
 
 36 Sup. Ct. 230, L. R. A. 1917A 193; W. 839. 
 
 Atlantic Coast Line R. Co. v. River- New Jersey. Spada v. Pennsyl- 
 
 side Mills. 219 U. S. 186, 55 L. Ed. vania R. Co.. 86 N. J. L. 187, 92 
 
 167, 31 Sup. Ct. 164, 31 L. R. A. Atl. 379. 
 
 (N. S.) 7. Texas. Pecos & N. T. Ry. Co. v. 
 
 21. Georgia. F. & A. R. Co. v. Meyer. Tex. Civ App. 155. S. 
 
 W. 309.
 
 540 
 
 Duties to Interstate Shippers. 
 
 [§ 308 
 
 of damages paid to the owner of the property adequately 
 protected the initial carrier." The object of the stat- 
 ute was to require the initial carrier receiving freight 
 for transportation in interstate commerce to obligate it- 
 self to carry to the point of destination, using the lines 
 of the connecting carriers as its agents, thus securing 
 for the shippers unity of transportation and responsi- 
 bility.-'' 
 
 § 309. Stipulations Exempting Initial Carrier from 
 Liability for Loss and Damage on Connecting Lines In- 
 valid. It necessarily follows from the language of the 
 Carmack amendment that all stipulations in bills of 
 lading for through shipments exempting the initial car- 
 rier from liability for loss or damage not occurring on 
 its own line, are invalid and cannot be enforced, as the 
 statute conclusively treats all the connecting carriers 
 as the agents of the initial carrier for whose act it is 
 liable.^^ 
 
 23. When the Carmack amend- 
 ment was reported by a conference 
 committee. Representative Rich- 
 ardson explained its purpose as 
 follows: "One of the great com- 
 plaints of the railroads has been 
 — r^nd, I think, a reasonable, just 
 and fair complaint — that when a 
 man made a shipment, say. from 
 Washington, for instance, to San 
 Francisco, Cal., and his shipment 
 was lost in some way. the citizen 
 had to go thousands of miles, prob- 
 ably, to institute his suit. The re- 
 sult was that he had to settle his 
 damages at what he could get. 
 What have we done? We have 
 made the initial carrier, the car- 
 rier that takep and receives the 
 shipment, responsible for the loss 
 of the article in the way of dam- 
 ages. We save the shipper from 
 going to California or some dis- 
 tant place to institute his suit. 
 Why? Th3 reasons for inducing 
 
 us to do that were that the initial 
 carrier haa a through route con- 
 nection with the secondary car- 
 rier, on whose route the loss oc- 
 curred, and a settlement between 
 them will be an easy matter, while 
 the shipper would be at heavy ex- 
 pense in the institution of a suit. 
 If a judgment is obtained against 
 the initial carrier, no doubt ex- 
 ists but that the secondary carrier 
 would pay it at once. Why? Be- 
 cause the arrangement, the con- 
 cert, the cooperation, the through 
 route courtesies between them 
 would be broken up if prompt pay- 
 ment were not made. We have 
 done that in conference." 
 
 24. St. Louis Southwestern R. 
 Co. of Texas v. Alexander, 227 U. 
 S. 218, 57 L. Ed. 486, 33 Sup. Ct. 
 245. Ann. Cas. 1915B 77. 
 
 25. United States. Smeltzer v. 
 St. Louis & S. F. R. Co., 158 Fed. 
 649.
 
 § 310] Liabilities for IjOss and Damages. 
 
 541 
 
 § 310. All State Laws and Rules Regulating Lia- 
 bilities for Loss and Damage, Superseded as to Inter- 
 state Shipments. Tlie suhjind matter of the lial^ilities of 
 t!Oinnioii carriers for loss or injury to property trans- 
 ported in interstate commerce belongs to that class of 
 regulations which the state may control in the absence 
 of action by Congress. By enactment of tlie Carmack 
 amendment, Congress legislated upon the subject, and 
 state laws and rules therefore, in so far as they attempt 
 to and do cover the same field, have been superseded.-^ 
 
 Alabama. Central of Georgia R. 
 Co. V. Broda, 190 Ala. 266, 67 So. 
 437; Atlantic Coast Line R. Co. 
 V. Ward. 4 Ala. App. 374, 58 So. 
 677; Central of Georgia R. Co. v. 
 Sims. 169 Ala. 295, 53 So. 826. 
 
 Arkansas. United States Exp. 
 Co. V. Cohn, 108 Ark. 115, 157 S. 
 W. 144; Southern Exp. Co. v. 
 Meyer, 94 Ark. 103, 125 S. W. 642. 
 
 Indiana. Pittsburgh, C, C. & S':. 
 L. R. Co. V. Knox, 177 Ind. 344. 98 
 N. E. 295. 
 
 Iowa. Glassman v. Chicago, R. 
 I & P. R. Co., 166 Iowa 254, 147 N. 
 W. 757; Cramer v. Chicago, R. I. 
 & P. R. Co., 153 Iowa, 103, 133 N. 
 W. 387. 
 
 Louisiana. Burkenroad Gold- 
 smith Co. V. Illinois Cent. R. Co.. 
 138 La. 81, Ann. Cas. 1917C 935. 
 70 So. 44. 
 
 Michigan. Perkett v. Manistee & 
 N. E. R. Co., 175 Mich. 253, 141 
 N. W. 607. 
 
 Mississippi. Southern Pac. R. 
 Co. V. A. .1. Lyon & Co.. 107 Miss. 
 777. Ann. Cas. 1917D 171, 66 So. 
 209. 
 
 Minnesota. Dodge v. Chicago. 
 St. P., M. & O. R. Co., Ill Minn. 
 123. 126 N. W. 627. 
 
 Rhode Island. Glenlyon Dye 
 Works V. Interstate Exp. Co., 36 
 R. I. 5,^8, 91 Atl. 5. 
 
 Texas. I^Iissouri. K. & T. Ry. Co. 
 of Texas v. Hailey, Tex. Civ. 
 
 App. , 156 S. W. 1119; Chica- 
 go, R. I. & G. Ry. Co. V. Scott, 
 
 Tex. Civ. App. , 156 S. W. 294. 
 
 Virginia. Old Dominion S. S. 
 Co. V. Flanary & Co., Ill Va. 816, 
 69 S. E. 1107. 
 
 26. United States. Missouri, K. 
 & T. R. Co. of Texas v. Ward, 244 
 U. S. 383, 61 L. Ed. 1213, 37 Sup. 
 Ct. 617; St. Louis, I. M. & S. R. 
 Co. V. Starbird, 243 U. S. 592, Gl 
 L. Ed. 917, 37 Sup. Ct. 462; West- 
 ern Transit Co. v. A. C. Leslie 
 & Co., 242 U. S. 448, 61 L. Ed. 423, 
 37 Sup. Ct. 133; Cincinnati, N. O. 
 & T. P. R. Co. V. Rankin, 241 U. 
 S. 319, 60 L. Ed. 1022, 36 Sup. Ct. 
 555, L. R. A. 1917A 265: Georgia. 
 F. & A. R. Co. V Blish Milling Co., 
 241 U. S. 190. 60 L. Ed. 948. ."6 
 Sup. Ct. 541; Northern Pac. R. Co. 
 V Wall. 241 U. S. 87, 60 L. Ed. 
 905. 36 Sup. Sup. Ct. 493; South- 
 ern Ry. Co. V. Prescott, 240 U. S. 
 632, 60 L. Ed. 836. 36 Sup. Ct. 469: 
 Southern Exp. Co. v. Byers, 240 U. 
 S. 612, 60 L. Ed. 825, 36 Sup. Ct. 
 410; L. R. A. 1917A 197; Cleve- 
 land, C. C. & St. L. R. Co. V. Det- 
 tlebach. 239 U. S. 588, 60 L. Ed. 
 453, 36 Srp. Ct. 177; Charleston & 
 W. C. R. Co. V. Varnville Furniture 
 Co., 237 U. S. 597, 59 L. Ed. 1137. 
 35 Sup. Ct. 715. Ann. Cas. 10160 
 333; Pierce Co. v. W^ells Fargo & 
 Co., 236 U. S. 278. 59 L. Ed. 576. 
 35 Sup. Ct. 351; Missouri, K. & T.
 
 542 
 
 Duties to Interstate Shippers. 
 
 [§ 310 
 
 That tlie legislation supersedes all the regulatious and 
 policies of a particular state upon the same subject 
 
 R. Co. of Texas v. Harris, 234 U. 
 S. 412, 58 L. Ed. 1377, 34 Sup. Ct. 
 790, L. R. A. 1915E 942; Atchison, 
 T. & S. F. R. Co. V. Moore, 233 U. 
 S. 182, 58 L. Ed. 906, 34 Sup. Ct. 
 558: Atchison, T. & S. F. R. Co. 
 V. Robinson, 233 U. S. 173, 58 L. 
 Ed. 901, 34 Sup. Ct. 556; Boston 
 & M. R. Co. V. Hooker, 233 U. S. 
 97, 58 L. Ed. 868, 34 Sup. Ct. 526, 
 L. R. A. 1915B 450. Ann. Cas. 1915 
 D 593; Chicago, R. I. & P. R. Co. 
 V Cramer, 232 U. S. 490, 58 L. Ed. 
 697. 34 Sup. Ct. 383; Barrett v. 
 New York, 232 U. S. 14, 58 L. Ed. 
 483, 34 Sup. Ct. 203; Norfolk & 
 W. R. Co. V. Dixie Tobacco Co., 
 228 U. S. 593, 57 L. Ed. 980, 33 
 Sup. Ct. 609: Kansas City South- 
 ern R. Co. V. Carl, 227 U. S. 639, 
 57 L. Ed. 683, 33 Sup. Ct. 391; 
 Wells, Fargo & Co. v. Neiman-Mar- 
 cus Co.. 227 U. S. 469, 57 L. Ed. 
 600, 33 Sup. Ct. 267; Chicago, St. 
 P., M. & O. R. Co. V. Latta, 226 U. 
 S. 519, 57 L. Ed. 328, 33 Sup. Ct. 
 155; Chicago, B. & Q. R. Co. v. 
 Miller, 226 U. S. 513, 57 L. Ed. 323. 
 33 Sup. Ct. 155; Chicago & E. I. 
 R. Co. V. Collins Produce Co., 149 
 C. C. A. 169, 235 Fed. 857, 14 N. C. 
 C. A. m. 
 
 Alabama. Henderson & Walters 
 V. Atlantic Coast Line Ry. Co.. — 
 
 Ala. , 76 So. 309; Deavors v. 
 
 Southern Exp. Co., Ala. , 
 
 76 So. 288; Western U. Tel. Co. 
 
 V. Smith, Ala. , 75 So. 
 
 393; Nashville, C. & St. L. Ry. 
 Co. V. Abramson-Boone Produce 
 Co., Ala. , 74 So. 350. 
 
 Arkansas. St. Louis, I. M. & S. 
 R. Co. V. Cunningham Commission 
 Co., 125 Ark. 577, 188 S. W. 1177; 
 Kansas City & M. R. Co. v. Oak- 
 ley, 115 Ark. 20, 170 S. W. 565; 
 
 St. Louis, I. M. & S. R. Co. v. 
 Faulkner, 111 Ark. 430, 164 S. W. 
 763. 
 
 Georgia. Southern Exp. Co. v. 
 
 Oliver, Ga. App. , 93 S. E. 
 
 109; Central of Georgia R. Co. 
 V. Yesbik, 146 Ga. 769, 92 S. E. 
 527; Morris v. Southern R. Co., 
 19 Ga. App. 495, 91 S. E. 878; Cin- 
 cinnati, H. & D. R. Co. V. Quincy 
 & Rogers, 19 Ga. App. 167, 91 S. 
 E. 220; Central Georgia R. Co. 
 v. Waxelbaum Produce Co., 18 Ga. 
 App. 489, 89 S. E. 635; Nashville, 
 C. & St. L. Ry. v. C. V. Truitt Co , 
 17 Ga. App. 236, 86 S. E. 421; 
 Mitchell & Co. v. Atlantic Coast 
 Line R. Co., 15 Ga. App. 797, 84 S. 
 E. 227; Atlantic Coast Line R. Co. 
 V. Thomasville Live Stock Co., 13 
 Ga. App. 102, 78 S. E. 1019. 
 
 Illinois. Shellabarger Elevator 
 Co. v. Illinois Cent. R. Co., 278 
 111. 333; L. R. A. 1917E 1011, 116 
 N. E. 170; Pennington v. Grand 
 Trunk Western R. Co., 277 111. 39, 
 115 N. E. 170; Gamble-Robinson 
 Commission Co. v. Union Pac. R. 
 Co., 262 111. 400, Ann. Cas. 1913B 
 89, 104 N. E. 666; Clingan v. Cleve- 
 land, C, C. & St. L. Ry. Co.. 184 
 111. App. 202. 
 
 Indiana. Chesapeake & O. Ry. 
 
 Co. of Indiana v. Jordan, Ind. 
 
 App. , 114 N. E. 461; Cleve- 
 land. C. C. & St. L. R. Co. V. 
 Hayes (Ind.), 104 N. E. 581; Wa- 
 bash R. Co. V. Priddy, 179 Ind. 
 483, 101 N. E. 724. 
 
 Iowa. Erisman v. Chicago, B. & 
 
 Q. R. Co., Iowa , 163 N. 
 
 W. 627; Cedar Rapid Fuel Co. v. 
 
 Illinois Cent. R. Co.. Iowa 
 
 , 160 N. W. 353; Heilman & 
 
 Clark v. Chicago & N. W. R. Co.. 
 167 Iowa 313, 149 N. W. 436.
 
 § 310] TjIabilitiks von Loss and Damages. 
 
 543 
 
 results from the general cliaracter of the statute; for it 
 embraces the subject of the liahilty of the cai-ricr uiidei- 
 
 Kentucky. Southern Ry. Co. v. 
 Avey, 17:5 Ky. 598, 191 S. W. 4G0: 
 Louisville & N. R. Co. v. Miller, 
 156 Ky. 677, 50 L. R. A. (N. S.) 
 819, 162 S. W. 73; Cincinnati, N. 
 O. & T. P. R. Co. V. Rankin, 15:5 
 Ky. 730, 45 L. R. A. (N. S.) 529, 
 156 S. W. 400. 
 
 Louisiana. National Rice Mill- 
 ing Co. V. New Orleans & N. E. R. 
 Co., 132 La. 615, Ann. Cas. 1914D 
 1099, 61 So. 708. 
 
 Maine. Continental Paper Bag 
 
 Co. V. Maine Cent. R. Co., Me. 
 
 , 99 Atl. 259. 
 
 Massachusetts. Aradalou v. 
 New York, N. H. & H. R. Co., 225 
 Mass. 235, 114 N. E. 297. 
 
 Minnesota. Victor Produce Co. 
 V. Western Transit Co., 135 Minn. 
 121, 160 N. W. 248; Ford v. Chi- 
 cago, R. I. & P. R. Co., 123 Minn. 
 87, 143 N. W. 249. 
 
 Mississippi. St. Louis & S. F. 
 R. Co. V. Woodruff Mills, 105 Miss. 
 214, 62 So. 171. 
 
 Missouri. Jordan Bros. v. Chi- 
 cago, B. & Q. R. Co., Mo. App. 
 
 , 196 S. W. 417; Barton v. 
 
 Louisville & N. R. Co., Mo. 
 
 App. , 196 S. W. 379; O'- 
 
 Briant v. Pryor, Mo. App. 
 
 , 195 S. W. 759; Foster Lum- 
 ber Co. V. Atchison, T. & S. F. R. 
 Co., 270 Mo. 629, 194 S. W. 281: 
 Equity Elevator Co. v. Union Pac. 
 
 R. Co., Mo. App. , 191 S. 
 
 W. 1067; Collier v. Wabash R. Co., 
 
 Mo. App. . 190 S. W. 969; 
 
 Wilson v. Chicago Great Western 
 
 R. Co., Mo. App. , 190 S. 
 
 W. 22; Brockman Commission Co. 
 V. Missouri Pac. R. Co., 195 Mo. 
 App. 607, 188 S. W. 920; Conley 
 V. Chicago, B. & Q. R. Co., 192 Mo. 
 App. 534. 183 S. W. 1111; Donovan 
 
 V Wells, Fargo & Co., 265 Mo. 291. 
 177 S. W. 839; Dunlap v. Chicago 
 & A. R. Co.. 187 Mo. App. 201, l'^2 
 S. W. 1178; Bailey v. Missouri 
 Pac. R. Co., 184 Mo. App. 457, 171 
 S. W. 44; Johnson Grain Co. /. 
 Chicago, B. & Q. R. Co., 177 Mo. 
 App. 195, 164 S. W. 182; American 
 Silver Mfg. Co. v. Wabash R. Co., 
 174 Mo. App. 184, 156 S. W. 830. 
 
 New Jersey. Olivit Bros. v. Penn- 
 •sylvania R. Co., 88 N. J. L. 241, 96 
 Atl. .^82. 
 
 New York. Burke v. Union Pac. 
 
 R. Co., N. Y. App. Div. , 
 
 166 N. Y. Supp. 100; Lynch v. 
 New York Cent. & H. River R. Co., 
 
 89 N. Y. Misc. 472, 153 N. Y. Supp. 
 633; Barnet v. New York Cent. & 
 H. River R. Co., 167 N. Y. App. 
 Div. 738, 153 N. Y. Supp. 374; Bar- 
 stow V. New York, N. H. & H. R. 
 Co., 158 N. Y. App. Div. 665, 143 
 N. Y. Supp. 983; Schultz v. Skan- 
 eateles R. Co., 122 N. Y. Supp. 445. 
 
 North Carolina. Davis v. Nor- 
 folk Southern R. Co., 172 N. C- 209, 
 
 90 S. E. 123; Aydlett v. Norfolk 
 Southern R. Co., 172 N. C. 47, 89 
 S. E. 1000. 
 
 North Dakota. Knapp v. Minne- 
 apolis, St. P. & S. S. M. R. Co., 34 
 N. D. 466, 159 N. W. 81; Cook v. 
 Northern Pac. R. Co., 32 N. D. 340, 
 L. R. A. 1916D 345, 155 N. W. 867. 
 
 Oklahoma. Haskel v. St. Louis 
 
 & S. F. R. Co., Okla. , 162 
 
 Pac. 459; St. Louis & S. F. R. 
 
 Co. V. Akard, Okla. , 159 
 
 Pac. 344; St. Louis & S. F. R. Co. 
 
 V. Wynn, Okla. , 153 Pac. 
 
 1156; Chicago, R. I. & P. Ry. Co. 
 
 V. Wynn, Okla. , 153 Pac. 
 
 880; St. Louis & S. F. R. Co. v. 
 Cox. Peery & Murray, 40 Okla. 258, 
 138 Pac. 144; St. Louis & S. F. R.
 
 544 Duties to Interstate Shippers. [§ 310 
 
 a bill of lading which he must issue, aud limits his 
 power to exempt himself by rule, regulation or contract. 
 Almost every detail of the subject is covered so com- 
 pletely that it appears beyond question that Congress 
 intended to take possession of the subject and supersede 
 all state legislation with reference to it.^' A state statute, 
 for example, providing that no contract, rule or regu- 
 lation shall exempt a common carrier from its liability 
 as such which would exist had no contract, rule or regu- 
 lation been made or entered into, is not applicable to 
 interstate shipments since the enactment of the Car- 
 mack amendment. ^^ A law of a state invalidating con- 
 tracts which require the bringing of an action for a car- 
 rier's liability in less than the statutory period, is in- 
 operative as to shipments governed by the federal law.^® 
 A provision in the constitution of a state affecting the 
 duty and liability of a carrier for loss and injury to 
 propert}^, has been superseded as to interstate traffic 
 
 Co. V. Zickafoose, 39 Okla. 302, 6 Co. v. Smyth, Tex. Civ. App. 
 
 N. C. C. A. 717, 135 Pac. 406; Mis- , 189 S. W. 70; Pacific Exp. 
 
 souri, K. & T. R. Co. v. WaLston, Co. v. Krower, 106 Tex. 216, 163 
 
 37 Okla. 517, 133 Pac. 42; St. Louis S. W. 9; Galveston, H. & S. A. Ry. 
 
 & S. F. R. Co. V. Bilby, 35 Okla. Co. v. Sparks, Tex. Civ. App. 
 
 589, 130 Pac. 1089. , 162 S. W. 943; Patton v. 
 
 Oregon. Stoddard Lumber Co. v. Texas & P. Ry. Co., Tex. Civ. 
 
 Oregon-Washington R. & Nav. Co., App. , 137 S. W. 721. 
 
 84 Or. 399, 165 Pac. 363. Vermont. Dionne v. American 
 
 South Carolina. Van Epps v. At- Exp. Co., Vt. , 101 Atl. 
 
 lantic Coast Line R. Co., 105 S. C 209. 
 
 406, 89 S. E. 1035; Spence v. Wisconsin. Best v. Great North- 
 Southern Ry. Co., 101 S. C. 436, 85 ern R. Co., 159 Wis. 429, 150 N. W. 
 S. E. 1058. 484. 
 
 South Dakota. House v. Chicago 27. Adams Exp. Co. v. Cron- 
 
 & N. W. R. Co.. 30 S. D. 321, Ann. inger, 226 U. S. 491, 57 L. Ed. 314. 
 
 Cas. 1915C 1045, 138 N. W. 809. 33 Sup. Ct. 148, 44 L. R. A. (N. 
 
 Texas. Chicago, R. I. & G. Ry. S.) 257. 
 
 Co. V. .Jenkins. Tex. Civ. App. 28. Chicago, R. I. & P. R. Co. v. 
 
 . 196 S. W. 679; Gulf, C. & S Cramer, 232 U. S. 490, 58 L. Ed. 
 
 F. R. Co. V. Nelson, 108 Tex. 305, 697, 34 Sup. Ct. 383. 
 
 192 S. W. 1056; Andrews v. Rob- 29. Missouri, K. & T. R. Co. v. 
 
 erts, Tex. Civ. App. , 192 Harriman, 227 U. S. 657, 57 L. Ed. 
 
 S. W. 569; Atchison, T. & S. F. Ry. 690, 33 Sup. Ct. 397.
 
 <^ 310] LlABILITIEvS FOR LoSS AND DaMAGES. 545 
 
 although tlie loss occurred within tlip territory of that 
 state.'" 
 
 The assumption of federal control over interstate 
 shipments by the Canuaek amendment invalidates a 
 sfate statute imposing a penalty of $50.00 on carriers 
 for failure to ])ay claims within forty days, in so far as 
 interstate shipments are affected thereby.'^ Section 9 
 of article 23 of the Oklahoma constitution, which pre- 
 scribes that any provision of any contract or agreement 
 stipulating for notice or demand other than such as may 
 be provided by law, as a condition precedent to estab- 
 lishing any claim, shall be null and void, has ceased to 
 be applicable to bills of lading or contracts governing 
 interstate traffic.^^ A statutory enactment of a state 
 providing a penalty for the failure of a carrier to trace 
 property and inform the shipper when, where, and by 
 which carrier his property was lost, damaged or des- 
 troyed, does not control as to interstate shipments.^' 
 
 In St. Louis, I. M. & S. R. Co. v. Starbird,'* the ef- 
 fect of the Carmack amendment on all state laws and 
 regulations was thus stated: "On June 29, 1906, Congress 
 passed the so-called Hepburn Act (34 Stat. 584), by 
 section 20 of which it undertook to provide for the liabili- 
 ty of carriers in interstate commerce, and to subject 
 them, as to interstate shipments, to certain obligations 
 which should supersede the varying requirements of 
 the States through which interstate transportation might 
 be conducted. Tlie construction of this act came before 
 this court in Adams Express Company v. Croninger, 
 226 U. S. 491, and upon full consideration it was held 
 that the effect of the Canuaek Amendment was to super- 
 sede all legislation in the particular States, and to em- 
 brace the liability of the carrier in interstate transporta- 
 
 30. Chicago. St. P.. M. & O. R. S. 597, 59 L. Ed. 1137, 35 Sup. Ct. 
 Co. V. Latta, 226 U. S. 519. 57 L. 715, Ann. Cas. 1916D 333. 
 
 Ed. 328, 33 Sup. Ct. 155; Chicago, ^2. St. Louis & S. F. R. Co. v. 
 
 B. & Q. R. Co. V. Miller. 226 U. S. ^?/- 'J ^^'^- T' ''' ^^^^ ''''■ 
 
 33. Meetze v. Southern Exp. Co., 
 513, 57 L. Ed. 323, 33 Sup. Ct. 155. 91 g c 379, 74 S E 823 
 
 31. Charleston & W. C. R. Co. 34. 243 U. S. 592, 61 L. Ed. 917, 
 V. Varnville Furniture Co., 237 U. 37 Sup. Ct. 462. 
 
 1 Control Cariiers H.j
 
 546 Duties to Ixteestate Shippers. [§ 310 
 
 tion. It was there said that almost every detail of the 
 subject had been completely covered, and that there 
 could be no rational doubt that Congress intended to 
 take possession of the subject and lay down rules and 
 regulations upon which the parties might rely and have 
 their rights determined by a uniform rule of obligation. 
 Among other things, the act required that the initial 
 carrier should issue a receipt or bill of lading whenever 
 it received property for transportation from a point in 
 one State to a point in another State, and the initial car- 
 rier was made liable, not only for the results of its own 
 negligence, but also for loss, damage or injury to the 
 property occasioned by any common carrier, railroad 
 or transportation company to which the property should 
 be delivered and over whose line or lines the property 
 might pass, and it was provided that no contract, re- 
 ceipt, rule or regulation should exempt such initial car- 
 rier from the liability imposed by the act. As the ship- 
 ment in this case was interstate, there can be no question 
 that, since the decision in the Croninger Case, supra, 
 the parties are held to the responsibilities imposed by 
 the federal law, to the exclusion of all other rules of obli- 
 gation. Since the Carmack Amendment, the carrier in 
 this case is liable only under the terms of that act of Con- 
 gress, and the action against it to recover on a through 
 bill of lading for the negligence of connecting carriers 
 as well as of itself, was founded on that Amendment. 
 Atlantic Coast Line R. R. Co. v. Riverside Mills, 219 
 U. S. 186, 196. This principle has been so frequently 
 recognized in the recent decisions of this court that it 
 is only necessary to refer to some of them. In Southern 
 Railway Co. v. Prescott, 240 U. S. 632, 636, 639, this 
 court said: 'As the shipment was interstate, and the 
 bill of lading was issued pursuant to the Federal Act, 
 the question whether the contract thus set forth had 
 been discharged was necessarily a Federal question. 
 . . . Viewing the contract set forth in the bill of lading 
 as still in force, the measure of liability under it must 
 also be regarded as a Federal question. As it has often 
 been said, the statutory provisions manifest the intent 
 of Congress that the obligation of the carrier with res-
 
 ^ 31 1 ] LlABILTTIEH FOR Tj«SS AND DaMAGES. 547 
 
 pect to the sorvices within tlie purviow of the statute 
 shall be governed by uniform rule in the place of tlie 
 diverse requirements of state leg'i station and decisions.' 
 In Southern Elxpress Company v. Byers, 240 U. S. 612, 
 614, this court said: 'Manifestly the shipment was inter- 
 state commerce; and, under the settled doctrine estab- 
 lished by our former opinions, rights and liabilities in 
 connection therewith depend upon acts of Congress, the 
 bill of lading and common law principles accepted and 
 enforced bv the Federal courts.' To the same effect, 
 Northern Pacific Ry. Co. v. Wall, 241 U. S. 87, 91, 92; 
 Georgia, Florida & Alabama Ry. Co. v. Blish iSIilling 
 Co., 241 U. S. 190; Cincinnatti,' New Orleans & Texas 
 Pacific Ry. Co. v. Rankin, 241 U.' S. 319." 
 
 § 311. Decisions of Federal Courts Control in Con- 
 struing Carmack Amendment. In construing and ap- 
 plying the Carmack amendment, as amended, state 
 courts are bound to follow the decisions of the federal 
 courts, since by the enactment of the federal act Con- 
 gress has taken complete possession of the subject mat- 
 ter of the liability of carriers on account of inter- 
 state shipments of goods. The rules of decision, there- 
 fore, prevailing in the federal courts with respect to the 
 statute supersedes all the laws and policies of the states 
 as manifested by the decisions of their courts.^^ Where 
 the common law rule of the state differs from that en- 
 
 35. United States. St. Louis, I. Missouri. McElvain v. St. Louis 
 
 M. & S. R. Co. V. Starbird, 243 U. & S. F. R. Co., 176 Mo. App. 379, 
 
 S. 592, 61 L. Ed. 917, 37 Sup. Ct. 158 S. W. 464; Joseph v. Chicago. 
 
 462; Southern R. Co. v. Prescott, B. & Q. R. Co., 175 Mo. App. 18, 157 
 
 240 U. S. 632, 60 L. Ed. 836, 36 S. W. 837. 
 
 Sup. Ct. 469. New York. Davenport v. Chesa- 
 
 Kentucky. Cleveland, C, C. & peake & O. R. Co., 87 N. Y. Misc 
 
 St. L. R. Co. V. Young, 175 Ky. 841. 303, 149 N. Y. Supp. 865; United 
 
 195 S. W. 93. Lead Co. v. Lehigh Valley R. Co., 
 
 Michigan. Harrison Granite Co. 156 N. Y. App. Div. 525, 141 N. 
 
 V. Grand Trunk R. Co., 175 Mich. Y. Supp. 310. 
 
 144, 141 N. W. 642. North Dakota. Cook v. North - 
 
 Mississippi. Southern R. Co. v. ern Pac. R. Co., 32 N. D. 340, L. R. 
 
 North State Oil Co., 107 Miss. 71. A. 1916D 345. 155 N. W. 867. 
 
 64 So. 965; St. Louis & S. F. R. South Carolina. Spence v. 
 
 Co. v. Woodruff Mills. 105 Miss. Southern R. Co., 101 S. C. 436, 85 
 
 214, 62 So. 171. S. E. 1058; Elliott v. Atlantic
 
 548 Duties to Interstate Shippers. [§ 311 
 
 forced iu the federal courts, the state courts will follow 
 the federal rule as to all interstate shipments.^^* 
 
 § 312. State Courts may Enforce Provisions of 
 Carmack Amendment and Award Damages Thereunder. 
 Although Section 9 provides that persons damaged by 
 a violation of the Interstate Commerce Act may make 
 complaint before the Commission or any district court 
 of the United States, and although the act known as 
 the Carmack amendment which renders the initial car- 
 rier liable for loss or damage to an interstate shipment 
 caused by it, or by a connecting carrier, was passed as an 
 amendment to the Act to Regulate Commerce, damages 
 caused by the failure to deliver goods as required by 
 the Carmack amendment are not within the provisions 
 of sections 8 and 9 of the statute; because the cause of 
 action is the loss of the property intrusted to the common 
 carrier and such loss is in no way traceable to a vio- 
 lation of the provisions of the Act to Regulate Com- 
 merce.^^ "The ,iurisdiction of the state court," said 
 Mr. Justice Lamar in the Wallace case, "was attacked, 
 iirst, on the ground that sec. 9 of the original act of 1887 
 provided that persons damaged by a violation of the 
 statute 'might make complaint before the commission 
 . . . or in any District or Circuit Court of the United 
 States.' 24 Stat. 379. It was contended that Texas & 
 Pacific Ry. v. Abilene Cotton Oil Co., 204 U. S. 426, 
 ruled that this jurisdiction was exclusive, and from that 
 it was argued that no suit could be maintained in a 
 state court on any cause of action created either by the 
 original act of 1887 or by the amendment of 1906. But 
 damage caused by failure to deliver goods is in no way 
 
 Coast Line R. Co., 94 S. C. 129, 75 Kibler, Ohio , 119 N. E. 
 
 S. E. 88t;. 77 S. E. 718. 733. 
 
 South Dakota. House v. Chicago 36. Galveston, H. & S. A. R. Co. 
 
 & N. W. R. Co., 30 S. D. 321, Ann. v. Wallace, 223 U. S. 481, 56 L. 
 
 Cas. 1915C 1045, 138 N. W. 809. Ed. 516, 32 Sup. Ct. 205; Atlantic 
 
 Wisconsin. Chicago, M. & St. P. Coast Line R. Co. v. Riverside 
 
 R. Co. V. Rock County Sugar Co., Mills, 219 U. S. 186, 55 L. Ed. 167, 
 
 162 Wis. 374, 156 N. W. 607. 31 Sup. Ct. 164, 31 L. R. A. (N. S.) 
 
 35a. Toledo & O. C. Ry. Co. v. 7.
 
 § 313] Liabilities for Loss and Damages. 549 
 
 traceable to a violation ol' the statute, and is not, there- 
 fore, within the provision of sees. 8 and D of the act to 
 regulate commerce. Atlantic Coast Line v. Riverside 
 Mills, 219 U. S. 186, 208. The real question, therefore, 
 ])resented by this assignment of error, is whether a state 
 court may enforce a right of action arising under an act 
 of Congress. Statutes have no extra-territorial opera- 
 tion, and the courts of one government cannot enforce 
 the penal laws of another. At one time there was some 
 question both as to the duty and power to try civil cases 
 arising solely under the statutes of another State. But 
 it is now recognized that the jurisdiction of state courts 
 extends to the hearing and determination of any civil 
 and transitory cause of action created by a foreign stat- 
 ute, provided it is not of a character opposed to the 
 public policy of the State in which the suit is brought. 
 Where the statute creating the right provides an ex- 
 clusive remedy, to be enforced in a particular way, or 
 before a special tribunal, the aggrieved party will be 
 left to the remedy given by the statute which created 
 the right. But jurisdiction is not defeated by implica- 
 tion. And, considering the relation between the Federal 
 and the state Government, there is no presumption that 
 Congress intended to prevent state courts from exer- 
 cising the general jurisdiction already possessed by them, 
 and under which they had the power to hear and de- 
 termine causes of action created by Federal statute. 
 Robb V. Connolly, 111 U. S. 624, 637.' On the contrary, 
 the absence of such provision would be construed as 
 recognizing that where the cause of action was not penal, 
 but civil and transitory, it was to be subject to the princi- 
 ples governing that class of cases, and might be assert- 
 ed in a state court as well as in those of the United 
 States. This jiresumption would be strengthened as to 
 a statute like this passed, not only for the purpose of 
 giving a right, but of affording a convenient remedy." 
 
 § 313. Actions Brought in State Courts under Car- 
 mack Amendment not Removable, When. The Judicial 
 Code as originally enacted provided that any suit of a 
 civil nature, at law or in equity, arising under the Consti-
 
 550 Duties to Interstate Shippers. [§ 313 
 
 tut ion or tlie laws of the United States, of which the 
 district courts of the United States are given jurisdic- 
 tion, brought in any state court, may be removed by the 
 defendant therein to the district court of the United 
 States for the proper district.'" Applying this provi- 
 sion, it was held that an action for damages under the 
 Carmack amendment was a suit of a civil nature under 
 the laws of the United States and might, therefore, be 
 removed to the proper federal court without regard to 
 the amount involved. ^^ To obviate the result following 
 from these decisions, Congress passed an act which pro- 
 vides that no suit brought in an}^ state court of com- 
 petent jui'ii^diction against a railroad company, or other 
 corporation, or person, engaged in and carrying on the 
 business of a common carrier, to recover damages for 
 delay, loss of, or injury to property received for trans- 
 portation by such common carrier under the Carmack 
 amendment, shall be removed to any court of the United 
 States where the matter in controversy does not exceed, 
 exclusive of interest and costs, the sum or value of 
 $3,000.^'-' 
 
 § 314. Initial Carrier may not be Sued in Domicile 
 of Terminal Carrier. It is well established that in order 
 to render a corporation amenable to service of process 
 in a foreign jurisdiction it must appear that the corpora- 
 tion is transacting business in that district to such an 
 extent as to subject it to the jurisdiction and laws there- 
 of.*" In St. Louis Southwestern R. Co. of Texas v. 
 
 37. Section 28 of Chap. 3 of Green v. Chicago, B. & Q. R. Co., 
 the Judicial Code, 36 Stat, al L. 205 U. S. 530, 51 L. Ed. 916, 27 
 1094. Sup. Ct. 595; Peterson v. Chicago, 
 
 38. Alabama Great Southern R. I. & P. R. Co., 205 U. S. 364, 
 Co. V. American Cotton Oil Co., 51 L. Ed. 841, 27 Sup. Ct. 513; Geer 
 143 C. C. A. 313, 229 Fed. 11. v. Mathieson Alkali Works, 190 U. 
 
 39. Act of Jan. 20, 1914, 38 Stat. S. 428, 47 L. Ed. 1122, 23 Sup. Ct. 
 at L. 278. 807; Conley v. Mathieson Alkali 
 
 40. Herndon-Carter Co. v. Works, 190 U. S. 406. 47 L. Ed. 
 James N. Norris, Son & Co., 224 1113, 23 Sup. Ct. 728; Goldey v. 
 U. S. 496, 56 L. Ed. 857, 32 Sup. Morning News, 156 U. S. 518, 39 
 Ct. 550; Mechanical Appliance L. Ed. 517, 15 Sup. Ct. 559; St. 
 Co. V. Castleman, 215 U. S. 437, Clair v. Cox. 106 U. 8. 350, 27 L. 
 54 L. Ed. 272, 30 Si:p. Ct. 125; Ed. 222, 1 Sup. Ct. 354; Lafayette
 
 § 314] I.IABILITIKS FOR LoSS AND DaMAGES. 551 
 
 Alexander/' it was conteudod by tlio holder of the bill 
 of lading that an initial carrier domiciled in Texas which 
 had contracted to trans})ort the goods from a point in 
 Texas to New York through its connecting carriers 
 became, by virtue of the statute, subject to service of 
 process in New York througli tlie connecting carrier 
 as its agent; but the court rejected this theory, and said: 
 "The object of the statute was to require the initial car- 
 rier receiving freight for transportation in interstate 
 commerce to obligate itself to carry to the point of desti- 
 nation, using the lines of connecting carriers as its agen- 
 cies, thus securing for the benefit of the shipper unity of 
 transportation and responsibility. Atlantic Coast Line 
 R. R. Co. V. Riverside Mills, 219 tl. S. p. 203. The provi- 
 sions of the amendment had the etTect of facilitating the 
 remedy of the shipper by making the initial carrier re- 
 sponsible for the entire carriage, but the amendment was 
 not intended, as we view it, to make foreign corporations 
 through connecting carriers liable to suit in a district 
 where they were not carrying on business in the sense 
 which has heretofore been held necessary to confer juris- 
 diction. We reach the conclusion that this case is to be 
 decided upon the principles which have heretofore pre- 
 vailed in determining whether a foreign corporation is 
 doing business within the district in such sense as to 
 subject it to suit therein. This court has decided each 
 case of this character upon the facts brought before it 
 and has laid down no all-embracing rule by which it 
 may be determined what constitutes the doing of busi- 
 ness by a foreign corporation in such manner as to 
 subject it to a given jurisdiction. In a general way it 
 may be said that the business must be such in character 
 and extent as to warrant the inference that the corpora- 
 tion has subjected itself to the jurisdiction and laws 
 of the district in which it is served and in which it is 
 bound to appear when a proper agent has been served 
 with process." 
 
 Ins. Co. V. French, 18 How. ( U. S.) 41. 227 U. S. 218, 57 L. Ed. 486. 
 
 404, 15 L. Ed. 451. 3:5 Sup. Ct. 245, Ann. Cas. 1915B 77.
 
 552 Duties to Interstate Shippers. [§315 
 
 § 315. Receipt from Shipper of Money Paid by Ini- 
 tial Carrier Binding upon Connecting Carrier in Absence 
 of Fraud. Tlie statute provides tliat the common car- 
 rier, raih'oad or transportation company issuing the 
 receipt or bill of lading shall be entitled to recover from 
 the common carrier, railroad or transportation company 
 on whose lines the loss, damage or injury was sustained, 
 the amount of such loss, damage or injury as it may 
 be required to pay to the owners of such property, as 
 may be evidenced by any receipt, judgment or trans- 
 cript thereof. The purpose of the act was to give the 
 initial carrier, after it had been required to pay a loss, 
 a remedy over against the particular carrier causing 
 the loss, for the amount paid by the initial carrier as 
 evidenced by any receipt, etc.*^ If, therefore, there is 
 a loss of or damage to goods under a contract of af- 
 freightment made with the initial carrier which it, in 
 good faith, has paid to the owner, the receipt of the 
 shipper showing the payment is sufficient evidence to es- 
 tablish the amount of such claim in an action against 
 the connecting carrier, and, in the absence of fraud, is 
 conclusive thereof.^^ A judgment obtained by a ship- 
 per against an initial carrier for loss, injury or damage 
 to his shipment on the line of a connecting carrier oper- 
 ates as a final adjudication of the amount of damages 
 so sustained and in any subsequent litigation between 
 the carriers, the amount of such damages so ascertained 
 in the original judgment will not be open to question 
 except upon a plea and proof of collusion or fraud; but 
 the judgment is not conclusive upon the question as 
 to whether the loss or damage occurred while the goods 
 were in the possession and control of the connecting 
 carrier.** 
 
 42. Atlantic Coast Line R. Co. which the court remarked that 
 V. Riverside Mills, 219 U. S. 186, even a judgment obtained by a 
 55 L. Ed. 167, 31 Sup. Ct. 164, 31 shipper against the initial car- 
 L. R. A. (N. S.) 7. rier is not conclusive against the 
 
 43. Kansas City & M. R. Co. v. connecting carrier but merely 
 New York Cent. & H. River R. Co , prima facie evidence. 
 
 110 Ark. 612, 103 S. W. 171. But 44. St. Joseph & G. I. Ry. Co. 
 
 see Central of Georgia R. Co. v. v. Des Moines Union Ry. Co., 
 
 Sims, 169 Ala. 295, 53 So. 826, in Iowa , 162 N. W. 812, wherein
 
 <§> 316] Liabilities fob Loss and Damages. 553 
 
 § 316. Recovery Against Initial Carrier Bars an 
 Action Against Connecting Carriers. When a shipper 
 prosecutes an action and recovers judgment against 
 an initial carrier for loss and damage to an interstate 
 shipment and accepts payment thereof, he is then pre- 
 cluded from recovering additional damages for the 
 same cause of action against the connecting carrier; 
 because when a party elects to sue a tortfeasor who is 
 liable for all the damages, and recovers, he cannot there- 
 after sue the other wrongdoer.''' It appeared from the 
 facts in the O'Briant case, cited, that the i)!aintiff ship- 
 ped live stock from Athens, Tenn., to Glenwood, Mo., the 
 shipment moving over the line of the Louisville & Nash- 
 ville Railroad from Athens to East St. Louis, 111., and 
 over the line of the Wabash Railroad from East St. 
 Louis to Glenwood, Mo. He brought an action for the 
 loss and damage complained of against the initial car- 
 rier and recovered a judgment, which was paid. Being 
 dissatisfied with the amount of the judgment, he there- 
 after prosecuted an action against Pryor as the receiver 
 
 the court said: "The judgment fendant, then the statute makes 
 against the plaintiff entered in the judgment in favor of Duncan 
 the Missouri court is neither in competent evidence upon the fur- 
 form or effect a judgment against ther question as to the amount of 
 the defendant in this case, nor was plaintiff's recovery. Such Is the 
 it given any such effect by the very obivous meaning and intent 
 trial court. The right of the of the statute, and the court is 
 plaintiff in this action to recover not at liberty to nullify its effect 
 depends, not upon the judgment by any strained or unnatural con- 
 mentioned, but upon the suflicien- struction of its language. As the 
 cy of the showing that the loss. statute makes the initial carrier 
 injury or damage for which such primarily liable to the shipper for 
 judgment was entered occurred on the default or negligence of any 
 the defendant's line of railroad, and all connecting carriers, as 
 and so far as that issue is con- well as its own, it is thereby com- 
 cerned the adjudication between pelled, vrhen sued upon a claim 
 Duncan and the plaintiff is of no of that nature, to defend, not 
 force or effect against the defend- alone its own conduct in the prem- 
 ant. But when the plaintiff had ises, but the conduct of all the 
 offered evidence tending to show, carriers making up the connected 
 and as we think conclusively show- line of through transportation." 
 
 ing, that the injury to the ship- 45. O'Briant v. Pryor. Mo. 
 
 ment was sustained while in the App. , 195 S. W. 759. 
 
 possession and control of the de-
 
 554 Duties to Ixteestate Shippers. [§ 316 
 
 of the AVabasli Eailroad Compan}^ and obtained a judg- 
 ment in the trial conrt. It was held that he conld not 
 recover, *' Under the Carmack Amendment," said Judge 
 Ellison, ''to the Interstate Commerce Act the initial car- 
 rier (the Louisville & Nashville company) was liable 
 for all damages for the through shipment, although 
 all, or a part, of such damages accrued by reason of the 
 negligence of the destination carrier. Atlantic Coast 
 LineV. Eiverside Mills, 219 U. S. 186, 31 Sup. Ct. 164, 
 55 L. Ed. 167, 31 L. E. A. (N. S'.) 7; Adams Express Co. 
 V. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 
 314, 44 L. E. A. (N. S.) 257. And such is the decision 
 of the Springfield Court of Appeals. Jones v. Eailroad, 
 182 S. W. 1064. The case presented is that plaintiff be- 
 gan an action against a wrongdoer who was liable for 
 the entire wrong committed on his property, prosecuted 
 it to judgTQent, recovered a smaller sum than he asked, 
 but acquiesced and accepted such sum in satisfaction 
 of the judgment. He then afterwards began an action 
 against a second wrongdoer liable for a part of the dama- 
 ge done to the same property, seeking to recover such 
 part. When he elected to sue the party liable for all 
 the damage, that disabled him from dividing up his 
 action, by accepting a part and suing the other wrong- 
 doer, who committed other parts of the damage. When 
 he accepted satisfaction from the wrongdoer liable for 
 all, he discharged the others. Chicago Herald Co. v. 
 Bryan, 195 Mo. 574, 588, 92 S. W. 902. In Brown v. 
 Cambridge, 3 Allen (Mass.) 474, it is said: 'The same 
 doctrine applies to all joint torts, and to torts for which 
 the injured party has an election to sue one or more 
 parties severally. Where, for example, a master is liable 
 for the tort of his servant, a satisfaction from one dis- 
 charges both, though they cannot be sued jointly.' 
 Plaintiff seeks to avoid the effect of his former suit by 
 testifying that he was present 'when the court rendered 
 judgment for me for $95 for 3 cows and 1 calf, and that 
 the court's finding was based on the fact that they were 
 not delivered, and also that I didn't give notice to the 
 Louisville & Nashville company.' We think such testi- 
 mony does not affect the law as we have stated it."
 
 Sec. 
 
 317. 
 
 Sec. 
 
 318. 
 
 Sec. 
 
 319. 
 
 Sec. 
 
 320. 
 
 Sec. 
 
 321. 
 
 Sec. 
 
 322. 
 
 Sec. 
 
 323. 
 
 Sec. 
 
 324. 
 
 CHAPTER XVI 
 
 The Carmack Amendment as Modified by Fihst and 
 Second Cummins Amendments. 
 
 Text of the Carmack Amendment as Modified by P"'irst and 
 Second Cummins Amendments. 
 
 Causes Leading to Enactment of First Cummins Amendment 
 — Agreed Valuation Clauses and Notices of Loss. 
 
 Effect of Second Cummins Amendment upon Provisions of 
 First Cummins Amendment. 
 
 Object and Purpose of Congress in Enacting Second Cum- 
 mins Amendment of 1916. 
 
 Cummins Amendment has no Retroactive Effect. 
 
 Initial Carriers Subject to the Statute as Changed by Cum- 
 mins Amendment. 
 
 Interurban Electric Railroad Subject to Statute, When. 
 
 Carriers Liable for Full Actual Loss, Damage or Injury to 
 Ordinary Live Stock. 
 Sec. 325. Limitations of Liability Valid as to Property Other Than 
 
 Live Stock, When. 
 Sec. 326. Stipulations as to Notice of Claims and Limitations upon 
 
 filling of Suits Now Regulated by Statute. 
 Sec. 327. Statute not Applicable to Export and Import Shipments to 
 and from Countries not Adjacent to United States. 
 
 § 317. Text of the Carmack Amendment as Modi- 
 fied by First and Second Cummins Amendments. The 
 Carmack anieiidmeiit as modilied by the lirst' and second^ 
 Cummins amendments thereto, now reads as follows: 
 "That any common carrier, railroad, or transportation 
 company subject to the provisions of this Act receiving 
 property for transportation from a point in one State 
 or territory or the District of Columbia to a point in 
 another State, Territory, District of Columbia, or from 
 any point in the United States to a point in an adjacent 
 foreign country shall issue a receipt or bill of lading 
 therefor, and shall be liable to the lawful holder thereof 
 for any loss, damage, or injury to such property caused 
 by it or by any common carrier, railroad, or transporta- 
 tion comi)any to which such property may be delivered 
 
 1. Act of March 4, 1915. 38 Stat. 2. Act of August 9, 191(1. 39 
 
 at L. 1197. Stat, at L. 441. 
 
 (555)
 
 556 Duties to Inteestate Shippebs. [§ 317 
 
 or over whose line or lines such property may pass with- 
 in the United States or within an adjacent foreign count- 
 ry when transported on a through bill of lading, and 
 no contract, receipt, rule, regulation, or other limitation 
 of any character whatsoever, shall exempt such common 
 carrier, railroad, or transportation company from the 
 liability hereby imposed; and any such common carrier, 
 railroad, or transportation company so receiving prop- 
 erty for transportation from a point in one State, Terri- 
 tory, or the District of Columbia to a point in another 
 State or Territory, or from a point in a State or Terri- 
 tory to a point in the District of Columbia, or from any 
 point in the United States to a point in an adjacent for- 
 eign country, or for transportation wholly within a 
 Territory shall be liable to the lawful holder of said 
 receipt or bill of lading or to any party entitled to recov- 
 er thereon, whether such receipt or bill of lading has been 
 issued or not, for the full actual loss, damage, or injury 
 to such property caused by it or by any such common 
 carrier, railroad, or transportation company to which 
 such property may be delivered or over whose line or 
 lines such property may pass within the United States 
 or within an adjacent foreign country when transported 
 on a through bill of lading, notwithstanding any limita- 
 tion of liability or limitation of the amount of recovery 
 or representation or agreement as to value in any such 
 receipt or bill of lading, or in any contract, rule, regu- 
 lation, or in any tariff filed with the Interstate Com- 
 merce Commission; and any such limitation, without 
 respect to the manner or form in which it is sought to 
 be made is hereby declared to be unlawful and void: 
 Provided, hoivever, That the provisions hereof respect- 
 ing liability for full actual loss, damage, or injury, not- 
 withstanding any limitation of liability or recovery or 
 representation or agreement or release as to value, and 
 declaring any such limitation to be unlawful and void, 
 shall not apply, first, to baggage carried on passenger 
 trains or boats, or trains or boats carrying passengers; 
 second, to property, except ordinary live stock, received 
 for transportation concerning which the carrier shall 
 have been or shall hereafter be expressly authorized
 
 § 317] Carmack and Cummins Amendments. 557 
 
 or required by order of the Interstate Commerce Com- 
 mission to establish and maintain rates dependent upon 
 the value declared in writing by the shipper or agreed 
 upon in writing as the released value of the property, 
 in which case such declaration or agreement shall have 
 no other effect than to limit liability and recovery to 
 an amount not exceeding the value so declared or 
 released, and shall not, so far as relates to values, be 
 held to be a violation of section ten of this Act to regu- 
 late commerce, as amended; and any tariff schedule 
 which may be filed with the Commission pursuant to 
 such order shall contain sju'cific reference thereto and 
 may establish rates varying with the value so declared 
 or agreed upon; and the Commission is hereby empower- 
 ed to make such order in cases where rates dependent 
 upon and varying with declared or agreed values would, 
 in its opinion, be just and reasonable under the circum- 
 stances and conditions surrounding the transportation. 
 The term 'ordinary live stock' shall include all cattle, 
 swine, sheep, goats, horses, and mules, except such as 
 are chiefly valuable for breeding, racing, show purposes, 
 or other special uses: Provided further, That notliing 
 in this section shall deprive any holder of such receipt 
 or bill of lading of any remedy or right of action which 
 he has under the existing law: Provided further, That 
 it shall be unlawful for any such common carrier to pro- 
 vide by rule, contract, regulation, or otherwise a short- 
 er period for giving notice of claims than ninety days 
 and for the filing of claims for a shorter period than 
 four months, and for the institution of suits than two 
 years : Provided further. That if the loss, damage, or 
 injury complained of was due to delay or damage while 
 being loaded or unloaded, or damaged in transit by 
 carlessness or negligence, then no notice of claim nor 
 filing of claim shall be re(iuired as a condition precedent 
 to recovery. That the common carrier, railroad, or trans- 
 portation company issuing such receipt or bill of lading 
 shall be entitled to recover from the common carrier, 
 railroad, or transportation company on whose line the 
 loss, damage, or injury shall have been sustained the 
 amount of such loss, damage, or injury as it may be re-
 
 558 Duties to Intebstate Shippees. [§ 317 
 
 quired to pay to the owners of siicli property, as may 
 be evidenced by any receipt, judgment, or transcript 
 thereof. ' ' 
 
 § 318. Causes Leading to Enactment of First 
 Cummins Amendment — Agreed Valuation Clauses and 
 Notice of Loss. In construing the Carmack amendment 
 as originally enacted, the federal Supreme Court in a 
 series of cases, beginning in 1913 with Adams Exp. Co. 
 V. Croninger,^ held that while a common carrier could 
 not exempt itself from liability for its own negligence 
 or that of its servants,* it might, however, by a fair, 
 open, just and reasonable agreement, limit the amount re- 
 coverable by a shipper in case of loss or damage to an 
 agreed valuation, made for the purpose of obtaining the 
 lower of two or more rates proportioned to the amount 
 of the risk. When, therefore, the bill of lading and the 
 tariffs of a carrier contained two rates based on valua- 
 tion and goods were shipped at the lower value in order 
 to secure the lower rate, the Supreme Court, in many 
 cases prior to the Cummins amendment, held that the 
 valuation so declared and fixed in the tariffs controlled 
 when the carrier was sued for loss or damage, as the 
 shipper was conclusively presumed to have knowledge 
 of the schedules on file with the Commission.' 
 
 3. 226 U. S. 491, 57 L. Ed. 314, L. Ed. 210, 37 Sup. Ct. 43; Cin- 
 33 Sup. Ct. 148, 44 L. R. A. (N. S.) cinnati, N. 0. & T. P. R. Co. v. 
 257. Rankin, 241 U. S. 319, GO L. Ed. 
 
 4. The court cited the follow- 1022, 36 Sup. Ct. 555, L. R. A. 1917 
 ing cases: Hart v. Pennsylvania A 265; Louisville & N. R. Co. v. 
 R. Co., 112 U. S. 331, 28 L. Ed. 717, Maxwell, 237 U. S. 94, 59 L. Ed. 
 5 Sup. Ct. 151; Bank of Kentucky 853, 35 Sup. Ct. 494, L. R. A. 1915 
 V Adams Exp. Co., 93 U. S. 174, 23 E 665; Pierce Co. v. Wells Fargo 
 L. Ed. 872; New York Cent. R. Co. & Co., 236 U. S. 278, 59 L. Ed. 576, 
 V. Lockwood, 17 Wall. (U. S.) 357, 35 Sup. Ct. 351; Atchison. T. & 
 21 L. Ed. 627; York Mfg. Co. v. S. F. R. Co. v. Robinson, 233 U. S. 
 Illinois Cent. R. Co., 3 Wall. (U. 173, 58 L. Ed. 901, 34 Sup. Ct. 556; 
 S.) 107, 18 L. Ed. 170. Boston & M. F. Co. v. Hooker. 233 
 
 5. American Exp. Co. v. United U. S. 97, 58 L. Ed. 868, 34 Sup. 
 States Horse Shoe Co., 244 U. S. Ct. 526, L. R. A. 1915B 450, Ann. 
 58, 61 L. Ed. 990, 37 Sup. Ct. 595; Cas. 1915D 593; Great Northern 
 New York Cent. & H. River R. R. Co. v. O'Connor, 232 U. S. 508, 
 Co. v. Beaham, 242 U. S. 148, 61 58 L. Ed. 703, 34 Sup. Ct. 380, 8
 
 § 318j Carmack and Cummins Amendments. 
 
 559 
 
 In enforcing tlie provisions of the Carmack amend- 
 ment as originally enacted, the courts also upheld the 
 validity of stipulations in the shipi^ing contracts pro- 
 viding for a written notice of claims for damages to be 
 given the carrier within a designated time." For ex- 
 ample, a livestock contract which provided that claims 
 for damages should be presented within five days from 
 the time the stock were removed from the cars, was held 
 to be valid and enforceable as to an interstate shipment.^ 
 Similarly, provisions in bills of lading re(iuiring that 
 suits for loss or damage be brought within a designated 
 time shorter than the statute of limitation, were upheld.^ 
 
 The purpose of Congress in the enactment of the 
 Cummins amendment was to destroy, in a measure and 
 to the extent indicated in the succeeding paragraphs, 
 the effect of these decisions in limiting and cpialifving 
 
 N. C. C. A. 53; Chicago, R. I. & P. 
 R. Co. V. Cramer, 232 U. S. 490, 58 
 L. Ed. 697, 34 Sup. Ct. 383; Mis- 
 souri, K. & T. R. Co. V. Harriman. 
 227 U. S. 657, 57 L. Ed. 690, 33 
 Sup. Ct. 397; Kansas City Soutli- 
 ern R. Co. v. Carl, 227 U. S. 639, 
 57 L. Ed. 683, .33 Sup. Ct. 391. 
 
 6. United States. St. Louis. I. 
 M. & S. R. Co. V. Starbird. 243 U. 
 S. 592, 61 L. Ed. 917, 37 Sup. Ct. 
 462; GeorKia, F. & A. R. Co. v. 
 Blish Milling Co., 241 U. S. 190, 
 60 L. Ed. 948. 36 Sup. Ct. 541; 
 Northern Pac. R. Co. v. Wall, 241 
 U. S. 87, 60 L. Ed. 905, 36 Sup. Ct. 
 49.S; Missouri, K. & T. R. Co. v. 
 Harriman, 227 U. S. 657, 57 L. Ed. 
 690, 33 Sup. Ct. 397; Southern Exp. 
 Co. V. Caldwell. 21 Wall. (U. S.) 
 264. 22 L. Ed. 556. 
 
 Arkansas. Lusk v. Long. 127 
 Ark. 261, 192 S. W. 213: St. Louis 
 & S. F. R. Co. V. Keller, 90 Ark. 
 308, 119 S. W. 254. 
 
 Colorado. Atchison, T. & S. F. 
 
 Ry. Co. V. IMiller. Colo. , 
 
 16,"^ Pac. 836. 
 
 Georgia. Mitchell & Co. v. At- 
 
 lantic Coast Line R. Co., 15 Ga. 
 App. 797, 84 S. E. 227. 
 
 Iowa. Erisman v. Chicago, B. & 
 
 Q. R. Co., Iowa , 163 N. 
 
 W. 627. 
 
 Kansas. Abell v. Atchison, T. 
 & S. P. R. Co.. 100 Kan. 238, 164 
 Pac. 269. 
 
 Missouri. .Johnson v. Missouri 
 
 Pac. Ry. Co., Co. App. , 
 
 187 S. W. 282; Johnson Grain Co. 
 V. Chicago, B. & Q. R. Co., 177 Mo. 
 App. 194, 164 S. W. 182; McElvain 
 V. St. Louis & S. F. R. Co.. 176 Mo. 
 App. 379. l.')8 S. W. 464. 
 
 North Dakota. Strommer v. Chi- 
 vago. M. & St. P. R. Co.. 38 S. 
 D. 368. 161 N. W. 346. 
 
 Oklahoma. Chicago. R. I. & P. 
 Ry. Co. V. Parsons, Okla. , 
 
 162 Pac. 955. 
 
 7. Erie R. Co. v. Stone. 244 U. 
 S. 332, 61 L. Ed. 1173. 37 Sup. Ct. 
 633, Ann. Cas. 1918A 1024. 
 
 8. Missouri, K. & T. R. Co. v. 
 Harriman, 227 U. S. 657. 57 L. Ed. 
 690. 33 Sup. Ct. 397: Sims v. Mis- 
 souri Pac. R. Co.. 177 Mo. App. 18, 
 
 163 S. W. 275.
 
 560 Duties to Interstate Shippees. [^ 318 
 
 the rights of shippers wheu suing for loss or damage to 
 interstate shipments. 
 
 § 319. Effect of Second Cummins Amendment upon 
 Provisions of First Cummins Amendment. The sole 
 change made in the Cummins amendment of March 4, 
 1915 by the second Cummins amendment of August 9, 
 1916, was the repeal of the following clause therein: 
 ''Provided, however, that if the goods are hidden from 
 view by wrapping, boxing or other means, and the car- 
 rier is not notified as to the character of the goods, the 
 carrier may require the shipper to specifically state in 
 writing the value of the goods, and the carrier shall not 
 be liable beyond the amount so specifically stated, in 
 which case the Interstate Commerce Commission may 
 establish and maintain rates for transportation, depend- 
 ent upon the value of the property shipped as specifical- 
 ly stated in writing by the shipper. Such rates shall 
 be published as other rate schedules," and the substi- 
 tution therefor of the following paragraph: "Provided, 
 however, that the provisions hereof respecting liability 
 for full actual loss, damage, or injury, notwithstanding 
 any limitation of liability or recovery or representation 
 or agreement or release as to value, and declaring any 
 such limitation to be unlawful and void, shall not apply, 
 first, to baggage carried on passenger trains or boats, 
 or trains or boats carrying passengers; second, to prop- 
 erty, except ordinary live stock, received for transporta- 
 tion concerning which the carrier shall have been or 
 shall hereafter be expressly authorized or required by 
 order of the Interstate Commerce Commission to estab- 
 lish and maintain rates dependent upon the value de- 
 clared in writing by the shipper or agreed upon in writ- 
 ing as the released value of the property, in which case 
 such declaration or agreement shall have no other effect 
 than to limit liability and recovery to an amount not 
 exceeding the value so declared or released, and shall 
 not, so far as relates to values, be held to be a violation 
 of section ten of this Act to Regulate Commerce, as 
 amended; and any tariff schedule which may be filed 
 with the commission pursuant to such order shall con-
 
 <§ 320] Carmack and Cummins Amendments. 561 
 
 tain specific reference thereto and may esta1)li.sli rates 
 varying witli the value so declared or agreed upon; and 
 the commission is hereby empowered to make such order 
 in cases where rates dependent upon and varying with 
 declared or agreed values would, in its opinion, be just 
 and reasonable under the circumstances and conditions 
 surrounding the transportation. The term "ordinary 
 live stock" shall include all cattle, swine, sheep, goats, 
 horses, and mules, except such as are chiefly valuable 
 for breeding, racing, show purposes, or other uses." 
 
 § 320. Object and Purpose of Congress in Enacting 
 Second Cummins Amendment of 1916. The ])ur))ose 
 and object of Congress in passing the second Cunmiins 
 amendment were thus stated by the Senate Committee 
 on Interstate Commerce in its report accompanying the 
 bill: "The proposed legislation is an amendment of the 
 act of March 4, 1915, commonly called the Cummins 
 amendment. That amendment was designed to impose 
 upon carriers liability for full actual loss, damage, or 
 injury, to property transported notwithstanding any 
 limitation of liability or recovery or representation or 
 agreement as to value. The Cummins amendment as 
 reported by this committee contained a ]n'oviso making 
 certain exceptions in its application. The proviso re- 
 ported by the committee was stricken out on the floor 
 of the Senate and another substituted in its stead and 
 in that form became a law. 
 
 "The construction put upon the proviso by the Inter- 
 state Commerce Commission has resulted in some vex- 
 atious requirements insisted upon by carriers and in 
 some injustice. For instance, it has been held by the 
 commission that under the proviso the carrier may com- 
 pel the shipper to state the value of the goods tendered 
 for shipment and that if the true value is not stated the 
 shipper is liable to criminal prosecution under section 
 10 of the act to regulate commerce. The committee 
 does not agree with the commission in the interpreta- 
 tion so placed upon the proviso, but there is no way in 
 which to remedy the matter except to make the intent 
 of Congress so clear that it is impossible to misunder- 
 
 1 Control Carriers 36
 
 562 Duties to Interstate Shippers. [§ 320 
 
 stand it. Further, flie commission has held that bag- 
 gage carried on passenger trains npon the ticket of a 
 passenger is within the terms of the law. Whether this 
 construction is correct or incorrect, it is palpable that 
 baggage so transported on a passenger fare ought not to 
 be subject to the rule which controls ordinary freight, 
 and in the bill now reported it is excepted in express 
 terms. 
 
 "The bill herewith reported has nothing whatever 
 to do with rates on transportation; that is to say, it does 
 not prescribe the compensation which carriers may 
 charge for service. It reenacts the Cummins amendment 
 with the modifications above suggested. Its purpose is 
 to restore the law of full liability as it existed prior to 
 the Carmack amendment of 1906, so that when prop- 
 erty is lost or damaged in the course of transportation 
 under such circumstances as to make the carrier liable 
 recovery is had for full value or on the basis of full value. 
 From this general rule there is excepted, first, baggage 
 carried on passenger trains. This is done for obvious 
 reasons. Second, other property except ordinary live 
 stock, with respect to which the Interstate Commerce 
 Commission has fixed or authorized affirmatively a rate 
 dependent upon value, either an agreed or a released 
 value. When the commission has fixed or authorized 
 such a rate the value agreed upon or released and neces- 
 sarily stated by the shipper is not to be held as a repre- 
 sentation of value under section 10 of the interstate 
 commerce act. With respect to ordinary live stock as 
 defined in the bill there can be no rate dependent either 
 upon agreed or released value, and in the event of loss 
 or damage the carrier must respond for the actual value 
 of the property. The carrier will be permitted to make 
 such a rate on ordinary live stock as will compensate for 
 the service, including liability, but the rate can not vary 
 according to the value of each animal that may be load- 
 ed into a car. There will remain the right on the part 
 of the carrier to classify different kinds of animals with- 
 in the definition of ordinary live stock, but when so 
 classified there can be no lawful variance in rates be- 
 cause one carload of such animals may be more valuable
 
 § 322] Carmack and Cummins Amendments. 563 
 
 than another. Tlio committoe thinks it ])roper to say 
 ihat in the preparation of tlie amendment of S. 3069 it 
 has had tlie benefit of the advice of a member of the 
 Interstate Commerce Commission and that the recom- 
 mendation of tlie commission has been adopted." 
 
 § 321. Cummins Amendment has no Retroactive 
 Effect. Tlie Cummins amendment which restricts the 
 right of the carrier to make certain stipulations in a 
 bill of lading, is not retroactive in its effect. It does 
 not, therefore, apply to shipments made and causes of 
 action whicli accrued before its effective date." 
 
 § 322. Initial Carriers Subject to the Statute as 
 Changed by Cummins Amendment. The Carmack 
 amendment as originally enacted provided that the ini- 
 tial carrier subject thereto ^Yas a ''common carrier, rail- 
 road or transportation company receiving property for 
 shipment from a point in one state to a point in an- 
 other state." It therefore included many common car- 
 riers not subject to the general provisions of the Inter- 
 state Commerce Act, such as water carriers acting inde- 
 pendently of railroads. The statute did not, however, 
 include carriers engaged in foreign commerce as dis- 
 tinguished from interstate commerce.'*^ A railroad com- 
 
 9. St. Louis, I. M. & S. R. Co. v. against the right of a connecting 
 Starbird, 243 U. S. 592, 61 L. Ed. carrier to limits its liability to loss 
 917, 37 Sup. Ct. 462; Northern or damage occurring on its own 
 Pac. R. Co. V. Wall, 241 U. S. 87, line is only applicable when the 
 60 L. Ed. 905, 36 Sup. Ct. 493; shipment is from 'a point in one 
 Bryan v. Louisville & N. R. Co., state to a point in another state.' 
 
 N. C. , 93 S. E. 750; Wash- The use of this language excludes 
 
 ington Horse Exch. v. Louisville the idea that Congress intended to 
 
 & N. R. Co.. 171 N. C. 65, 87 S. prohibit such contracts when the 
 
 E. 941. shipment was to a foreign coun- 
 
 10. J. H. Hamlen & Sons v. Ill- try. The word 'state,' as used in 
 Inois Cent. R. Co., 212 Fed. 324; the Constitution of the United 
 Aldrich v. Atlantic Coast Line R. States, has been uniformly con- 
 Co., 104 S. C. 364, 89 S. E. 315; strued to mean a constituent mem- 
 Houston East & W. T. R. Co. v. ber or part of the federal union 
 Inman, Akers & Inman. 63 Tex. having an independent local gov- 
 Civ. App. 556, 134 S. W. 275. ernmental organization, but as 
 
 "This language is clear and un- used in the statutes and treaties 
 ambiguous, and the prohibition of the Ignited States it has been
 
 564 
 
 Duties to Inteestate Shippers. 
 
 [^ 322 
 
 pany, for example, transporting property from a point 
 in the United States to a point in Canada, was not, as 
 to such a shipment, subject to the act." A Missouri 
 court held that a carrier engaged in transporting prop- 
 erty between two points in the same state but which 
 passed in transit through another state, was within the 
 Carmack amendment'^ while a contrary conclusion was 
 reached by a Texas court.'^ 
 
 But as changed by the Cummins amendment, the 
 act now applies to any common carrier, railroad or 
 transportation company subject to the provisions of the 
 Interstate Commerce Act receiving property for trans- 
 portation from a point in one state or territory or the 
 District of Columbia, to a point in another state, terri- 
 
 construed to include territories of 
 the United States, and also for- 
 eign countries or states when such 
 construction is required by the 
 context of the act or instrument, 
 and is necessary to effectuate its 
 evident purpose. Hepburn v. El- 
 zey, 6 U. S. 445, 2 L. Ed. 332; 
 Downes v. Bidwell, 182 U. S. 244, 
 
 21 Sup. Ct. 770, 45 L. Ed. 1088; 
 Tabott V. Silver Bow, 139 U. S. 438. 
 11 Sup. Ct. 594, 35 L. Ed. 210; De 
 Geofrey v. Riggs, 133 U. S. 258, 10 
 Sup. Ct. 295, 33 L. Ed. 642; Eid- 
 man v. Martinez, 184 U. S. 578, 
 
 22 Sup. Ct. 515, 46 L. Ed. 697; 
 Terry v. Olcott, 4 Conn. 442; In- 
 surance Co. V. Insurance Commis- 
 sioners, 64 Mich. 614, 31 N. W. 542. 
 We think it is clear from an exami- 
 nation of the entire act that the 
 word 'state,' as used in the amend- 
 ment in question, was used in its 
 limited constitutional sense, and 
 was intended to mean a state of 
 the federal Union. Other portions 
 of the act are expressly made ap- 
 plicable to shipments from 'any 
 state or territory or the District 
 of Columbia to any other state, ter- 
 
 ritory or District of Columbia, or 
 to any foreign country,' showing 
 that Congress did not understand 
 or intend that the word 'state,* as 
 used in the amendment, should in- 
 clude a foreign state or country, 
 as well a state of the Union." Hous- 
 ton, East & W. T. R. Co. v. In- 
 man, Akers & Inman, supra. Con- 
 tra: Texas & P. Ry. Co. v. Lang- 
 
 behn, Tex. Civ. App. , 158 
 
 S. W. 244. 
 
 11. Best V. Great Northern R. 
 Co., 159 Wis. 429, 150 N. W. 484, 
 in which the court said: "The 
 Carmack amendment does not ap- 
 ply to the case, because the ship- 
 ment here was not from 'a point 
 in one state to a point in another 
 state,' but from a point in one 
 state to a foreign country, and un- 
 der such circumstances the Car- 
 mack amendment does not apply." 
 
 12. Howard v. Chicago, R. I. & 
 
 P Ry. Co., Mo. App. , 184 
 
 S W. 906. 
 
 13. Wichita Falls & W. Ry. Co. 
 
 V. Asher, Tex. Civ. App. , 
 
 171 S. W. 1114.
 
 § 324] Carmack and Cummins Amendments. 565 
 
 tory or District of Columbia, or from any point in the 
 United States to a point in an adjaceut foreign country. 
 Carriers tlierefore engaged in transporting i)roperty 
 from tlie United States to Mexico or Canada are subject 
 to the statute; but even as amended, tlie act does not in- 
 clude all carriers subject to the Interstate Commerce 
 Act, for those engaged in ti'ansporting property in for- 
 eign commerce other than to adjacent foreign countries, 
 are not included. The general principles determining 
 who are carriers witliin the meaning of the Act to Regu- 
 late Commerce are elsewhere discussed and considered.^* 
 
 § 323. Interurban Electric Railroad Subject to 
 Statute, When. An interurban electric railroad engaged 
 in interstate commerce by accepting freight for ship- 
 ment to a point in another state is within the Carmack 
 amendment although its line only runs between two 
 points in the same state. ^^ 
 
 § 324. Carriers Liable for Full Actual Loss, Dam- 
 age or Injury to Ordinary Live Stock. The statute, as 
 changed by the two Cummins amendments, provides 
 that the initial carrier shall be liable for the full actual 
 loss, damage or injury to ordinary live stock caused 
 by it or by any connecting carrier notwithstanding any 
 limitation of liability or limitation of the amount of re- 
 covery or representation or agreement as to value in any 
 receipt or bill of lading, or any contract, rule, regulation, 
 or in any tariff filed with the Interstate Commerce Com- 
 mission. Any such limitation, without respect to the 
 manner or form in which it is sought to be made, is 
 declared by the statute to be unlawful and void. The 
 term "ordinary live stock," as used in the statute, in- 
 cludes all cattle, swine, sheep, goats, horses, and mules, 
 
 14. Chapter 6, supra. prove that the electric railroad had 
 
 15. Ross V. Maine Cent. R. Co., entered into a common control. 
 112 Me. 63, 90 Atl. 711, in which management or arrangement for 
 the court properly held that the a continuous carriage or shipment 
 company was a carrier under the into another state. See section 90, 
 statute, but erroneously assumed supra. 
 
 that the plaintiff was required to
 
 566 Duties to Interstate Shippees. [§ 324 
 
 except such as are chiefly valuable for breeding, racing, 
 show purposes, or other special uses. 
 
 "It is clearly the purpose of the Cummins amend- 
 ment, as amended, to invalidate all limitations of lia- 
 bility for loss, damage, or injury to ordinary live stock 
 caused by the initial carrier or by another carrier to 
 which shipment may be delivered or which may partici- 
 pate in transporting it, notwithstanding any representa- 
 tion or agreement or release as to value. While it does 
 not appear to -be the purpose of petitioners to attempt 
 a limitation of liability, a continuance of the present 
 method of stating rates for ordinary live stock would re- 
 quire a representation of the value, which is declared to 
 be unlawful. The act, as amended, fixes upon the car- 
 rier liability for the full actual loss, damage, or injury 
 caused by it to ordinary live stock and invalidates any 
 limitation or attempted limitation of that liability, 
 wherever or in whatever form it is found. Ordi- 
 nary live stock is excepted from the property as to 
 which we are empowered to authorize or require the 
 establishment of rates dependent upon declared or 
 released value. If rates on ordinary live stock de- 
 pendent upon declared value could lawfully be main- 
 tained without authorization by the Commission, there 
 might and probably would be instances in which 
 conflict would arise as between the liability imposed 
 by the act upon the carrier and the prohibitions 
 of section 10 of the act affecting shippers. We 
 can not, in view of the provisions of the law, author- 
 ize or sanction such rates upon ordinary live stock; 
 neither can they lawfully be maintained upon any other 
 character of traffic except under authorization duly 
 granted by the Commission. Under such authority both 
 shipper and carrier are fully protected and the full 
 spirit of the law is observed. The shipper or lawful 
 holder of the receipt or bill of lading for ordinary live 
 stock should be free to press his claim for recovery in 
 full for loss, damage, or injury caused by the carrier, 
 and rates for the transportation of such live stock may 
 not be stated in a manner to require a representation of 
 the value. This is not saying that value may not be
 
 § 325] Carmack and Cummins Amendments. 567 
 
 considered and duly weigliod as an element in determin- 
 ing what reasonable rates shall be established. As to 
 live stock the order herein will apply only to that which 
 is chiefly valuable for breeding, racing, show purposes, 
 or other si)ecial uses. An order will be entered authoriz- 
 ing the maintenance of existing express rates dependent 
 upon the declared or released value of the property 
 transported, except ordinary live stock, also authorizing 
 the form of express receipt to be used.'"*^ 
 
 § 325. Limitations of Liability Valid as to Prop- 
 erty Other Than Live Stock, When. Prior to the en- 
 actment of the Cuniiiiins aniendnieiits, a limitation of a 
 carrier's liability for loss or damage even when due to 
 negligence, to a valuation agreed u]xui for the i)urpose 
 of determining which of two alternative lawful rates 
 applied to a particular shipment was valid under the 
 Carmack amendment as to all classes of freight, express 
 and baggage.^' As shown in the foregoing paragraph, 
 no such limitations, since the enactment of the Cummins 
 amendments, are invalid as to ordinary live stock, which 
 includes cattle, swine, sheep, goats, horses and mules, 
 except such as are chiefly valuable for breeding, racing, 
 show purposes, or other special uses. 
 
 But as to all other property shipped in interstate 
 commerce and to adjacent foreign countries, such limi- 
 tations are still valid even under the Cummins amend- 
 
 16. In the Matter of Express S 508, 58 L. Ed. 703, 34 Sup. Ct. 
 Rates, Practices, Accounts, and 380, 8 N. C. C. A. 53; Chicago, R 
 Revenues, 43 I. C. C. 510. I. & p. R. Co. v. Cramer, 232 U. S 
 
 17. Cleveland, C, C. & St. L. 490, 58 L. Ed. 697, 34 Sup. 383: 
 R. Co. V. Dettlebach, 239 U. S. 588, Barrett v. City of New York. 232 
 60 L. Ed. 453, 36 Sup. Ct. 177; U. S. 14, 58 L. Ed. 483. 34 Sup. Ct 
 George N. Pierce Co. ^. WeUs Far- 203; Missouri. K & T R Co v 
 go & Co., 236 U. S. 278. 59 L. Ed. Harriman, 227 U. S 657 57 L Ed* 
 576. 35 Sup. Ct. 351: Atchison, T. (jg^^ 33 g^p ^^ 3^^. Chicago. St. 
 
 & S. F. R. Co. V. Robinson. 233 U. 
 S. 173, 58 L. Ed. 901. 34 Sup. Ct 
 556; Boston & M. R. Co. v. Hook 
 
 P., M. & O. R. Co. V. Latta. 226 U. 
 S. 519, 57 L. Ed. 328, 33 Sup. Ct. 
 
 er, 233 U. S. 97, 58 L. Ed. 868. 34 '^^^-- ^^^"^ ^''P- ^o. v. Croning- 
 
 Sup. Ct. 526. L. R. A. 1915B 450, ^^- 226 U. S. 491. 57 L. Ed. 314. 33 
 
 Ann. Cas. 1915D 593; Creat North- Sup. Ct. 148, 44 L. R. A. (N. S.) 
 
 ern R. Co. v. O'Connor, 232 U. 257.
 
 568 Duties to Interstate Shippers. [^ 325 
 
 ments, when expressly authorized by the Interstate Com- 
 merce Cow mission. For the statute declares that the 
 provisions of the Cummins amendments making the car- 
 riers liable for full actual loss, damage or injury shall 
 not apply to baggage carried on passenger trains or 
 boats, or trains or boats carrying passengers anc] to 
 property, except ordinary live stock, received for trans- 
 portation concerning which the carrier shall have been 
 or shall be expressly authorized or required by order of 
 the Interstate Commerce Commission to establish and 
 maintain rates dependent upon the value declared in 
 writing by the shipper or agreed upon in writing as the 
 released value of the property, in which case such de- 
 claration or agreement shall have the effect of limiting 
 liability and recovery to an amount not exceeding the 
 value so declared or released. The statute further re- 
 quires any tariff schedule which may be filed with the 
 Interstate Commerce Commission pursuant to such 
 order, to contain specific reference thereto, and may al so 
 establish rates varying with the value so declared or 
 agreed upon. The Interstate Commerce Commission is 
 empowered to make such order in cases where rates de- 
 pendent upon a varying with declared or agreed values, 
 would, in its opinion, be just and reasonable under the 
 circumstances and conditions concerning the transporta-" 
 tion. 
 
 § 326. Stipulations as to Notice of Claims and 
 Limitations upon Filing of Suits Now Regulated by Stat- 
 ute. The Cummins amendments provide that it shall 
 be unlawful for any common carrier to provide by rule, 
 contract, regulation, or otherwise, a shorter period for 
 giving notice of claims than ninety days, and for the 
 filing of claims for a shorter period than four months, 
 and for the institution of suits than two years; but if 
 the loss, damage or injury complained of was due to 
 delay or damage while being loaded or unloaded, or dam- 
 aged in transit by carlessness or negligence, then no 
 notice of claim or filing of claim, is required as a con- 
 dition precedent to recovery.
 
 •^ 326] Car MACK and Cummins Amendments. 569 
 
 Scores of decisions by federal and state courts con- 
 struing the original Carmack amendment have, in ef- 
 fect, been overruled by the foregoing amendment. Amoniz: 
 these decisions are Missouri, K. & T. R. Co. v. Uarri- 
 man^* in which the court, construing the Carmack amend- 
 ment pi-ior to the Cunmiins amendment, held that a 
 stipulation in a shi])i)ing contract ])roviding that no suit 
 shall be brought after the lapse of ninety days from the 
 happening of any loss or damage, any statute or limi- 
 tation to the contrary notwithstanding, was valid as 
 to interstate shipments; St. Louis, I. M. & S. R. Co. v. 
 Starbird,^" wherein the court held that a stii)ulation 
 in a bill of lading providing that claims for damages 
 must be reported by the consignee in writing to the de- 
 livering line within thirty-six hours after the consignee 
 had been notified of the arrival of the freight at the 
 place of delivery, and if such notice was not given, nei- 
 ther the initial nor the connecting carrier was liable, was 
 valid and enforceable; Chesapeake & O. R. Co. v. Mc- 
 Laughlin,-'^ wherein the court held that a stipulation in 
 a uniform livestock contract declaring that the carrier 
 shall not be liable unless claim for loss or damage shall 
 be made in writing, verified by aflidavit and delivered 
 to the general claim agent of the carrier within five 
 days from the time the livestock is removed from the 
 car, was legal and binding upon the shipper; Northern 
 Pac. R. Co. V. Wall,-^ wherein the court held that a re- 
 quirement in a livestock contract that a claim for damag- 
 es should be presented within five days from the time 
 the stock was removed from the car, was reasonable. 
 Decisions of similar import which do not now, in view 
 of the foregoing amendment, properly declare the law as 
 to interstate shipments, are cited in the notes.-^ 
 
 18. 227 U. S. 657. 57 L. Ed. G90. R. Co. v. Stone, 244 U. S. 332, 61 
 33 Sup. Ct. 397. L. Ed. 1173, 37 Sup. Ct. 633. 
 
 19. 243 U. S. 592. r.l L. Ed. 917. 22. Kentucky. Armstrong v. 111. 
 37 Sup. Ct. 462. inois Cent. R. Co., 162 Ky. 539, 
 
 20. 242 U. S. 142, 61 L. Ed. 207, 172 S. W. 947. 
 
 37 Sup. Ct. 40. Missouri, Dunlap v. Chicago & 
 
 21. 241 U. S. 87, 60 L. Ed. 905, A R. Co., 187 Mo. App. 201, 172 S. 
 36 Sup. Ct. 493. See also Erie W. 1178: Joseph v. Chicago, B. &
 
 570 Duties to Interstate Shippers. [§ 327 
 
 § 327. Statute not Applicable to Export and 
 Import Shipments to and from Countries not Adjacent 
 to United States. The provisions of the Carmack 
 ameiidnieiit only applied to shipments of property from 
 a point in one state to a point in another ;'-■■ but as modi- 
 fied and enlarged by the Cummins amendments, its terms 
 include the shipments of i:)roperty by any common car- 
 rier subject to the Interstate Commerce Act from a point 
 in one state or territory or the District of Columbia to 
 a i^oint in another state, territory or District of Columbia, 
 or from any point in the United States to a point in an 
 adjacent foreign country. As the Act as amended makes 
 no reference to shipments from a point in the United 
 States to a point in nonadjacent foreign country, or 
 from a nonadjacent foreign country to a point in the 
 United States, its provisions do not, therefore, apply 
 to export and import shipments to and from foreign 
 countries not adjacent to the United States."* 
 
 Q. R. Co.. 175 Mo. App. 18, 157 S. V. Great Northern R. Co., 159 Wis. 
 
 W. 837. 429, 150 N. W. 484. 
 
 New Jersey. Spada v. Pennsyl- 24. In re the Cummins Amend- 
 
 vania R. Co., 86 N. J. L. 187, 92 ment, 33 I. C. C. 682, in which the 
 
 Atl. 379. Commission said: "Does the 
 
 Oklahoma. St. Louis & S. F. R. amendment to the act apply to ex- 
 Co. V. Pickens, Okla. . 151 port and import shipments to and 
 
 Pac. 1055; St. Louis & S. F. R. from foreign countries not adja- 
 
 Co. V. Zickafoose, 39 Okla. 302. 6 cent to the United States? This 
 
 N. C. C. A. 717, 135 Pac. 406. must be answered in the negative 
 
 Virginia. Old Dominion S. S. in view of the fact that, while 
 
 Co. V. C. F. Flanary & Co., Ill Va. specifically stating that its terms 
 
 816, 69 S. E. 1107. shall apply to property received 
 
 23. J. H. Hamlen & Sons v. Ill- for transportation from certain 
 
 inois Cent. R. Co., 212 Fed. 324; points to certain other points, it 
 
 Aldrich v. Atlantic Coast Line R. makes no reference to shipments 
 
 Co., 104 S. C. 364, 89 S. E. 315: from a point in the United States 
 
 H6uston East & W. T. R. Co. v. to a point in a nonadjacent foreign 
 
 Inman, Akers & Inman, 63 Tex. country or from a nonadjacent for- 
 
 Civ. App. 55G, 134 S. W. 275; Best eign country."
 
 CHAPTER XVII 
 
 Basis, Natuhk and Extknt of ]jIabilitv IJmdkk Cah- 
 
 MACK AmKNDMKNT As AmKNDKD. 
 
 Sec. 328. Liability Imposed by Statute is that of Common I^aw Doc- 
 trines Governing Duties of Carriers. 
 Sec. 329. Ancient Common Law and Modern Exceptions to Liabilities 
 
 of Common Carriers. 
 Sec. 3.30. Interstate Carriers may Contract Against Loss by Fire not 
 
 Due to Negligence. 
 Sec. 330a. Stipulations Exonerating Carrier from its Own Negligence 
 
 Invalid though Filed with Commission. 
 Sec. 331 Proviso Reserving all Remedies under Existing Laws Re- 
 lates Solely to Remedies under Federal Laws. 
 Sec. 332. Duties and Obligations of Initial Carrier Commence with 
 
 Delivery of Property for Transportation. 
 Sec. 333. Effect of Failure or Refusal of Initial Carrier to Issue Bill 
 
 of Lading. 
 Sec. 334. Term "Lawful Holder" of Bill of Lading not Limited to 
 
 Owner of Property Transported. 
 Sec. 335. Bill of Lading Issued by Initial Carrier Governs Entire 
 
 Transportation — Second Bill Void. 
 Sec. 336. Statute Embraces Damages due to delay as well as for Loss 
 
 or Injury In Course of Transportation. 
 Sec. 337. Wrongful Delivery by a Terminal Carrier a "Loss" Within 
 
 Meaning of Statute. 
 Sec. 338. Initial Carriers Liable for Property Held by Terminal Car 
 
 rier as Warehouseman — Conflicting Decisions. 
 Sec. 339. Nature of Carrier's Liability as Warehouseman. 
 Sec. 340. Quantum of Proof Necessary to Establish Liability under 
 
 Federal Statute. 
 Sec. 341. Federal Rule as to Negligent Delay Co-operating with Act 
 
 of God in Destruction of Property. 
 Sec. 342. Connecting and Terminal Carriers Liable Under Carmack 
 
 Amendment as Amended, When. 
 Sec. 343. Connecting and Terminal Carriers not Liable for Acts of 
 
 Initial Carrier. 
 Sec. 344. Presumption that Loss or Damage Occurred on Line of 
 
 Terminal Carrier — Contrary. Rulings. 
 Sec. 345. Last Carrier not Liable In Absence of Proof of Damage on 
 
 its Line. 
 Sec. 346. Effect of Rerouting or Change of Destination upon Liability 
 
 of Initial Carrier. 
 Sec. 347. Carriers May Limit Liability for Value of Property at Time 
 
 and Place of Shipment. 
 Sec. 348. Provisions of Shipper's Contract with initial Carrier inure 
 
 to Benefit of Connecting Carrier. 
 
 (571)
 
 Di'j: 
 
 Duties to Interstate Shippers. 
 
 [^ 328 
 
 § 328. Liability Imposed by Statute is that of Com- 
 mon Law Doctrines Governing Duties of Carriers. The 
 initial carrier is made liable under the statute as amend- 
 ed to any holder of a bill of lading for any loss, damage 
 or delaj^ to such property caused by it or by any con- 
 necting carrier to whom the property may be delivered. 
 The liability thns imposed plainly implies a liability 
 for some default in its common law duty as a common 
 carrier.^ The Carmack amendment has not changed the 
 
 1. Adams Exp. Co. v. Croninger, 
 226 U. S. 491, 57 L. Ed. 314, 33 Sup. 
 Ct. 148, 44 L. R. A. (N. S.) 257. 
 "What is the liability imposed 
 upon the carrier?" said the court, 
 "It is a liability to any holder of 
 the bill of lading which the pri- 
 mary carrier is required to issue 
 'for any loss, damage or injury to 
 such property caused by it,' or by 
 any connecting carrier to whom 
 the goods are delivered. The sug- 
 gestion that an absolute liability 
 exists for every loss, damage or 
 injury, from any and every cause, 
 would be to make such a carrier an 
 absolute insurer and liable for un- 
 avoidable loss or damage though 
 due to uncontrollable forces. To 
 give such emphasis to the words, 
 'any loss or damage.' would be to 
 ignore the qualifying words, 
 'caused by it.' The liability thus 
 imposed is limited to 'any loss, 
 injury or damage caused by it or 
 a succeeding carrier to whom the 
 property may be delivered,' and 
 plainly implies a liability for some 
 default in its common law duty as 
 a common carrier." 
 
 "The liability imposed by the 
 statute is the lia bility irn p psed by 
 •iiOBHfton — laj^ upon common car- 
 riers." Missouri, K. & T. R. Co. v. 
 Harriman, 227 U. S. S. 657, 57 L. 
 Ed. 690, 33 Sup. Ct. 397. 
 
 "The loss being established, the 
 liability of the initial carrier was 
 not dependent upon the plaintiff's 
 proof that such loss was caused by 
 either the initial or connecting 
 carrier. Defendant's liability was 
 the common-law liability of a car- 
 rier, and it was not incumbent up- 
 on plaintiff to show that an act 
 of the carrier occasioned the loss." 
 Chicago & E. I. R. Co. v. Collins 
 Produce Co., 149 C. C. A. 169, 235 
 Fed. 857, 14 N. C. C. A. 917. 
 
 "The purpose of this amend- 
 ment, * * * is to make the 
 primary carrier liable as at com- 
 mon law for a loss of the property 
 occurring upon the line of its 
 agents, the connecting carrier or 
 carriers, the same as if it had oc- 
 curred upon its own line." Storm 
 Lake Tub & Tank Factory v. Min- 
 neapolis & St. L. Ry. Co., 209 Fed. 
 895. 
 
 "In other words, the common law 
 rule of liability was not changed 
 by the act. That rule was not 
 limited to negligence, but went be- 
 yond that and made the carrier lia- 
 ble for any loss or damage not the 
 act of God or the public enemy. 
 * * * The purpose of the act 
 was to make the first carrier liable 
 as at common law." Cudahy Pack- 
 ing Co. v. Atchison, T. & S. F. R. 
 Co., 193 Mo. App. 572, 187 S. W. 
 149.
 
 § 328] Duties Undkr (/armack Amendment. 573 
 
 common law doctrine in respect to a earrioi's liability 
 for loss oeeurrinff on its own line.^ 
 
 Tlio sani(.' liability of tlio initial carrier ii])()n its 
 own line is imposed upon it as to any loss or damage 
 on the lines of a connecting- carrier.' " riulor the C'ar- 
 mack amendment," said the court in the Wallace case, 
 "as already construed in the Riverside Mills Case, 
 wherever the carrier voluntarily accepts goods for shi])- 
 ment to a point on another line in another State, it is 
 conclusively treated as having made a through contract. 
 It thereby elected to treat the connecting carriers as 
 its agents, for all purposes of transportation and deliv- 
 ery. This case, then, must be treated as though the 
 point of destination was on its own line, and is to be 
 governed by the same rules of pleading, practice and 
 presumption as would have applied if the shipment had 
 been between stations in different States, but both on 
 the Company's railroad. Thus considered, when the 
 holders of the bills of lading proved the goods had not 
 been delivered to the consignee, the presumption arose 
 that they had been lost by reason of the negli- 
 gence of the carrier or its agents. The burden of proof 
 that the loss resulted from some cause for which the 
 initial carrier was not responsible in law or by con- 
 tract was then cast upon the carrier. The plaintiffs 
 were not obliged to prove their case and to disprove the 
 existence of a defense. The carrier and its agents, hav- 
 ing received possession of the goods, were charged with 
 the duty of delivering them, or explaining why that 
 had not been done. This must be so, because carriers 
 not only have better means, but often the only means, of 
 
 "The object of the words that some default in its common law 
 the carrier, 'shall be liable to the duty as a common carrier.' " Col- 
 lawful holder thereof for any loss, lins v. Denver & R. G. R. Co., 181 
 damage or injury to such proper- Mo. App. 213. 167 S. W. 1178. 
 ty caused by it' was not to make 2. Cincinnati. N. O. & T. P. R. 
 the carrier absolutely responsible Co. v. Rankin, 241 U. S. 319, 60 
 for all happenings though alto- L. Ed. 1022. 36 Sup. Ct. 5.55, L. R. 
 gether uncontrollable. The ob- A. 1917A 26.5. 
 
 ject was rather to prevent that 3. Galveston, H. & S. A. R. Co. 
 
 degree of liability. The statute v. Wallace, 223 U. S. 481, 56 L. Ed. 
 
 'plainly implies a liability for 516, 32 Sup. Ct. 205.
 
 574 
 
 Duties to Interstate Shippers. 
 
 [^ 328 
 
 making such proof. If the failure to deliver was due 
 to the act of God, the public enemy or some cause 
 against which it might lawfully contract, it was for the 
 carrier to bring itself within such exception. In the 
 absence of such proof, the plaintiffs were entitled to 
 recover, and the judgment is affirmed."* 
 
 § 329. Ancient Common Law and Modern Excep- 
 tions to Liabilities of Common Carriers. Under the com- 
 mon law as expounded in the courts of England, a com- 
 mon carrier was liable for all losses to goods while in 
 its possession although not due to negligence on its 
 part except when they arose either from the act of God 
 or the public enemy. These were the sole exceptions.' 
 But in the gradual development of the law in relation to 
 carriers, courts, in furtherance of justice, found it neces- 
 sary to add other exceptions, and so, where the loss was 
 caused by some act of the shipper, the carrier was re- 
 lieved of liability.*' Thus, while a common carrier who 
 receives goods for shipment is required to deliver the 
 goods according to its agreement, yet when the owner 
 of the goods accompanies them, the carrier is not liable 
 
 4. "A prima facie case is made 
 by showing a delivery, in good 
 condition and properly packed, to 
 the carrier and the subsequent de- 
 livery after transportation in bad 
 condition." Cudahy Packing Co. 
 V. Atchison, T. & S. F. R. Co., 193 
 Mo. App. 572, 187 S. W. 149. 
 
 5. United States. Memphis & 
 C. R. Co. V. Reeves, 10 Wall. (U. 
 S.) 176, 19 L. Ed. 909. 
 
 Connecticut. Hale v. New Jersey 
 Steam Nav. Co., 15 Conn. 539, 39 
 Am. Dec. 398. 
 
 Missouri. Cudahy Packing Co. 
 V. Atchison, T. & S. F. Ry. Co., 
 193 Mo. App. 572, 187 S. W. 149; 
 Bowles V. Quincy, O. & K. C. R. 
 
 Co., Mo. App. , 187 S. W. 
 
 131; Davis V. Wabash, St. L. & 
 P. Ry. Co., 89 Mo. 340, 1 S. W. 327. 
 
 New York. Gardiner v. New 
 
 York Cent. & H. River R. Co., 139 
 N. Y. App. Div. 17, 123 N. Y. Supp. 
 865; Holsapple v. Rome, W. & O. 
 R. Co., 86 N. Y. 275; Michaels v. 
 New York Cent. R. Co., 30 N. Y. 
 564, 86 Am. Dec. 415. 
 
 Oklahoma. St. Louis & S. F. R. 
 Co. V. Zickafoose, 39 Okla. 302, 6 
 N. C. C. A. 717, 135 Pac. 406; Mis- 
 souri, K. & T. R. Co. V. Hancock & 
 Goodbar, 26 Okla. 265, 109 Pac. 
 223; Chicago, R. I. & P. R. Co. v. 
 Wehrman, 25 Okla. 147, 105 Pac. 
 328. 
 
 6. United States, Ogdensburg 
 & L. C. R. Co. V. Pratt, 22 Wall. (U. 
 S.) 123, 22 L. Ed. 827. 
 
 Florida. Seaboard Air Line Ry. 
 Co. V. Mullin, 70 Fla. 450, 11 N. C. 
 C. C. 1, L. R. A. 1916D 982, Ann. 
 Cas. 1913A 576, 70 So. 467.
 
 <^ 329] Duties Under Carmack Amendment. 575 
 
 for any injury or loss to the jc^oods that may occur 
 through the act of th(3 owner or through any agency 
 that is under the exclusive control of the owner/ Like- 
 wise, the courts found it necessary to ingraft other ex- 
 ceptions, and declared that wliere the loss was occasioned 
 by the act of the public authorities, the carrier should 
 not be held liable.** For exami)le, it has been held that 
 seizure of the goods by military force in obedience to 
 military orders is a defense." It is also now well estab- 
 lished that where the injuries to or loss of the goods 
 resulted from the inherent defects or essential qualities 
 of the articles of merchandise, the carrier is relieved 
 from liability.^" 
 
 Indiana. Terre Haute & L. R. 
 Co. V. Sherwood, 132 Ind. 129, 17 
 L. R. A. 339, 32 Am. St. Rep. 239, 
 31 N. E. 781. 
 
 Iowa. Grieve v. Illinois Cent. R. 
 Co., 104 Iowa 659, 74 N. W. 192; 
 Hart V. Chicago & N. W. R. Co., 69 
 Iowa 485, 29 N. W. 597. 
 
 Massachusetts. Pratt v. Ogdens- 
 burg & L. C. R. Co., 102 Mass. 557. 
 
 Michigan. Frohlick Glass Co. 
 V. Pennsylvania Co., 138 Mich. 
 116, 110 Am. St. Rep. 310, 4 Ann. 
 Cas. 1140, 101 N. W. 223; Heller 
 V. Chicago & G. T. Ry. Co., 109 
 Mich. 53, 63 Am. St. Rep. 541, 60 
 N. W. 667. 
 
 Mississippi. Johnson v. Alabama 
 & V. Ry. Co., 69 Miss. 191 30 Am. 
 St. Rep. 534, 11 So. 104. 
 
 Missouri. Nunnelee v. St. Louis, 
 I. M. & S. R. Co., 145 Mo. App. 17, 
 129 S. W. 762. 
 
 New York. Harris v. Northern 
 Indiana R. Co., 20 N. Y. 232. 
 
 Tennessee. American Lead Pen- 
 cil Co. V. Nashville. C. & St. L. Ry. 
 Co., 124 Tenn. 57, 32 L. R. A. (N. 
 S.) 323, 134 S. W. 613. 
 
 Vermont. Ross v. Troy & B. R. 
 Co., 49 Vt. 364, 24 Am. Rep. 144. 
 
 7. Nunnelee v. St. Louis, I. M. 
 & S. R. Co., supra. 
 
 8. Simpson v. Dufour, 126 Ind. 
 322, 22 Am. St. Rep. 590, 26 N. E. 
 69; Kiff V. Old Colony & N. R. Co.. 
 117 Mass. 591, 19 Am. Rep. 429: 
 Merriman v. Great Northern Exp. 
 Co., 63 ]\Iinn. 543, 65 N. W. 1080: 
 Bliven v. Hudson River R. Co., 36 
 N. Y. 403. 
 
 9. Nashville & C. R Co. v. J. N. 
 Estes, 10 Lea (Tenn.) 749, 78 
 Tenn. 605. 
 
 10. United States. Lawrence v. 
 Denbreens, 1 Black (U. S.) 170, 17 
 L. Ed. 89. 
 
 Alabama. Southern Exp. Co. v. 
 Ashford, 120 Ala. 591, 28 So. 732. 
 
 Connecticut. Coupland v. Housa- 
 tonic R. Co., 61 Conn. 531, 15 L. R. 
 A. 534, 23 Atl. 870. 
 
 Iowa. Gilbert Bros. v. Chicago, 
 R. I. & P. R. Co., 1.56 Iowa 440, 136 
 N. W. 911. 
 
 Maryland. Baltimore & 0. R. 
 Co. V. Dever, 112 Md. 296, 26 L. 
 R. A. (N. S.) 712, 21 Ann. Cas. 
 109, 75 Atl 352. 
 
 Massachustts. Evans v. Fitch- 
 burg R. Co., Ill Mass. 142, 15 Am. 
 Rep. 19. 
 
 Missouri. Cudahy Packing Co. 
 v. Atchison. T. & S. F. R. Co., 193 
 Mo. App. 572. 187 S. W. 149; Lib- 
 by v. St. Louis, I. :m. & S. R. Co.,
 
 576 
 
 Duties to Interstate Shippers. 
 
 [§ 330 
 
 § 330. Interstate Carriers may Contract Against 
 Loss by Fire not Due to Negligence. A carrier cauiiot 
 make a bindini;- agreement stipulating against its own 
 negligence or that of its servants.'' But it may, by con- 
 tract," limit its liability for loss or damage not result- 
 ing from its negligence or that of its employes. It 
 follows that it can limit its liability by stipulating in 
 the contract of carriage against loss due to destruction 
 or damage to property in its custody as a carrier by 
 tire when not attributable to its negligence.'' And such 
 
 137 Mo. App. 276. 117 S. W. 659. 
 
 Montana. Wahle v. Great North- 
 ern R. Co.. 41 Mont. 326, 109 Pac. 
 713. 
 
 New Hampshire. Faucher v. Wil- 
 son, 68 N. H. 338, 39 L. R. A. 431. 
 38 Atl. 1002. 
 
 North Carolina. Currie v. Sea- 
 board Air Line R. Co., 156 N. C. 
 432, 72 S. E. 493. 
 
 11. United States. Pierce Co. 
 V Wells Fargo & Co.. 236 U. S. 
 278, 59 L. Ed. 576, 35 Sup. Ct. 
 351; Kansas City Southern R. 
 Co. V. Carl, 227 U. S. 637, 57 L. 
 Ed. 683, 33 Sup. Ct. 391; Adams 
 Exp. Co. V. Croninger, 226 U. S. 
 491, 57 L. Ed. 314, 33 Sup. Ct. 148, 
 44 L. R. A. (N. S.) 257; Hart v. 
 Pennsylvania R. Co., 112 U. S. 
 331, 28 L. Ed. 717, 5 Sup. Ct. 151. 
 Massachusetts. Bernard v. 
 Adams Exp. Co.. 205 Mass. 254 28 
 L R. A. (N. S.) 293, 18 Ann. Cas. 
 351. 91 N. E. 325. 
 
 New York. Jennings v. Grand 
 Trunk Ry. Co., 52 Hun (N. Y.) 
 227, 5 N. Y. Supp. 140. 
 
 North Carolina. Pace Mule Co. 
 V. Seaboard Air Line R. Co., 160 
 N. C. 215, 76 S. E. 513. 
 
 North Dakota. Cook v. Northern 
 Pac. R. Co., 32 N. D. 340, L. R. A. 
 1916D 345. 155 N. W. 867. 
 
 Tennessee. Drake v. Nashville, 
 C. & St. L. R. Co., 125 Tenn. 627, 
 148 S. W. 214. 
 
 Vermont. Piper v. Boston & M. 
 R. R., 90 Vt. 176, 97 Atl. 508. 
 
 West Virginia. Bosley v. Balti- 
 more & O. R. Co., 54 W. Va. 563, 66 
 L. R. A. 871, 46 S. E. 613. 
 
 12. York Mfg. Co. v. Illinois 
 Cent. R. Co., 3 WaU (U. S.) 107, 
 18 L. Ed. 170, in which the court 
 said: "The law prescribes the 
 duties and responsibilities of the 
 common carrier. He exercises, in 
 one sense, a public employment, 
 and has duties to the public to per- 
 form. Though he may limit his 
 services to the carriage of par- 
 ticular kinds of goods, and may 
 prescribe regulations to protect 
 himself against imposition and 
 fraud, and fix a rate of charges 
 proportionate to the magnitude of 
 the risks he may have to encoun- 
 ter, he can make no discrimina- 
 tion between persons, or vary his 
 charges from their condition or 
 character. He is bound to accept 
 all goods offered within the course 
 of his employment, and is liable 
 to an action in case of refusal. He 
 is chargeable for all losses except 
 such as may be occasicned by the 
 act of God or the public enemy. 
 He insures against all accidents 
 which result from human agency, 
 although occurring without any 
 fault or neglect on his part; and 
 he cannot, by any mere act of his 
 own, avoid the responsibility
 
 § 330] Duties Under Carmack Amendment. 577 
 
 stipulations may be enforced as to interstate shipments 
 witliin the purview of tlie Carmack amendment.'' "We 
 cannot say that there is anything in the a])Ovo-quoted 
 provisions of the Interstate Commerce Law," said the 
 court in the Patterson case, cited, "that would change 
 or interfere with tlie operation of the last-stated, well- 
 settled, declared rule of law in this state, or, to state 
 the proposition substantively, as applicable here, be in 
 the way of a carrier's contracting against loss by tire 
 not due to its own negligence as a contravention of the 
 terms of the federal statute. It will be noted that the 
 section of the act (20) relied upon by appellee as pro- 
 hibiting the carrier from contracting against or limit- 
 ing its liability in this particular provides that the re- 
 ceiving carrier shall be liable for any loss, damage, or 
 injury to such property 'caused by it' on any connecting 
 carrier, and that such carrier cannot by receipt, rule, 
 or regulation exempt itself or connecting carrier from 
 the liability, hereby, imposed. Plainly the liability im- 
 posed which the statute inhibits being limited or con- 
 tracted against, has reference to the loss or damage caus- 
 ed by the receiving or any connecting carrier, and, it be- 
 ing the loss or damage thus occasioned that the carrier 
 is prohibited from contracting against, there is no reason- 
 able construction that can be given to the language used 
 that would so broaden its meaning as to include any 
 and every loss or damage without regard to its having 
 been caused by the wrong or negligence of the carrier, 
 and make the carrier an insurer having no right to 
 limit or contract against liability where the loss or 
 damage is occasioned without negligence of any kind 
 
 which the law thus imposes. He qualified when he expressly stipu- 
 
 cannot screen himself from lia- lates for the restriction and quali- 
 
 bility by any general or special fication. But when such stipula- 
 
 notice, nor can he coerce the own- tion is made, it does not cover 
 
 er to yield assent to a limitation losses from negligence or miscon- 
 
 of responsibility by making ex- duct, we can perceive no just rea- 
 
 orbitant charges when such assent son for refusing its recognition 
 
 is refused. The owner of the goods and enforcement." 
 
 may rely upon this responsibil- 13. Central of Georgia R. Co. v. 
 
 ity imposed by the common law, Patterson, 12 Ala. App. 369, 68 So. 
 
 which can only be restricted and 513. 
 
 1 Coutrul Curiiera 37
 
 978 Duties to Interstate Shippers. [§ 330 
 
 oil its part, as is the appellee's insistence. We do not 
 think there is anything in tlie wording, or the evident 
 purpose and intent to be gathered from context, of the 
 federal statute under consideration, that would justify 
 the construction of giving to it the effect of changing 
 the established rule of law with respect to a carrier's 
 right to limit or qualify by special contract its common 
 law liability as an insurer as against loss or damage of 
 goods in its custody for carriage, occasioned by acts 
 beyond its control, and not attributable in any way to 
 its own misconduct or negligence or that of its servants. 
 There is nothing at variance with the construction we 
 have placed on section 20 of the Interstate Commerce 
 Act in the holding by the United States Supreme Court 
 in the case of the Atlantic Coast Line R. R. Co. v. 
 Riverside Mills, 219 U. S. 186, 31 Sup. Ct. 164, 55 L. 
 Ed. 167, 31 L. R. A. (N. S.) 7, relied upon by the ap- 
 pellee. The plain object and purpose of the section in 
 question is to require the receiving carrier to issue a 
 bill of lading to destination for the property to be car- 
 ried, and to make it liable as principal for damage or 
 loss 'caused by it,' i.e., resulting from the negligence 
 of the carrier or its servants, or that of any of the 
 carriers, over whose lines the property passes, and to 
 inhibit it from contracting against that liability. The 
 holding in the Atlantic Coast Line case, supra, in ef- 
 fect that such a provision making a principal liable 
 for the agencies it uses in transportation, and providing 
 that this liability cannot be contracted against, is a valid 
 statute not violative of constitutional guarantees. There 
 is nothing in the holding of that case, as we read it, to 
 support the appellee's contention that the act changes 
 the rule of law that a carrier may contract against loss 
 or damage not due to negligence on the part of itself 
 or servants, and it is not, therefore, an authority in 
 point on the proposition presented here." 
 
 No. 330a. Stipulations Exonerating Carrier from 
 its Own Negligence Invalid Though Filed with Commis- 
 sion. Contracts of shipment in contravention of the 
 settled principles of the common law preventing the
 
 §331] DiriKs Under Carmack Amendment. 579 
 
 carrier from contracting against liability for loss or 
 damage resulting from his own negligence, are invalid 
 The fact that such contracts have been filed with the Inter- 
 state Commerce Commission does not modify this rule. 
 For example, a stijDulation in a live stock contract thai 
 in the event of any unusual delay or detention of the 
 live stock caused by the negligence of the carrier, the 
 shipper agrees to accept as full compensation for all 
 loss or damage sustained thereby the amount actually 
 expended by the shipper in the purchase of food and 
 water while so detained, was void although the agree- 
 ment was made in consideration of a reduced rate under 
 a uniform live stock contract duly filed with the Inter- 
 state Commerce Commission. "This stipulation," said 
 the court, "«" contravenes the principle that the carrier 
 may not exonerate itself from losses negligently caused 
 by it, and is not within the principle of limiting lia- 
 bility to an agreed valuation which has been made the 
 basis of a reduced freight rate. Such stipulations as 
 are here involved are not legal limitations upon the 
 amount of recovery, but are in effect attempts to limit 
 the carrier's liability for negligence by a contract which 
 leaves practically no recovery for damages resulting 
 from such negligence. AVhile this provision was in the 
 bill of lading, the form of which was filed with the rail- 
 road company's tariffs with the Interstate Commerce 
 Commission, it gains nothing from that fact. The legal 
 conditions and limitations in the carrier's bill of lading 
 duly filed with the Commission are binding until 
 changed by that body (Kansas Southern Rv." Co. v. 
 Carl, 227 U. S. 639, 33 Sup. Ct. 391, 57 L. Ed. 683) ; but 
 not so of conditions and limitations which are, as is 
 this one, illegal, and consequently void." 
 
 § 331. Proviso Reserving all Remedies under Ex- 
 isting Laws Relates Solely to Remedies under Federal 
 Laws. A proviso to the Cummins amendment provides 
 that nothing in the section (section 20 of the Act to 
 
 l:ia. Boston & 1\I. R. Co. v. Piper, IT. s. , 62 L. Ed. 
 
 , 38 Sup. Ct. 354.
 
 580 
 
 Duties to Interstate Shippers. 
 
 [^ 331 
 
 Regulate Commerce) shall deprive any holder of such 
 receipt or bill of lading of any remedy or right of action 
 which he has under the existing law. But Hiis proviso, 
 however, does not refer to or continue in force rights 
 and remedies given under the common law of a state or 
 under state statutes. It refers solely to existing federal 
 laws in effect at the time the cause of action accrued." 
 ''But it has been argued that the non-exclusive charac- 
 ter of this regulation is manifested by the proviso of 
 the section, and that state legislation upon the same sub- 
 ject is not superseded, and that the holder of any such 
 bill of lading may resort to any right of action against 
 such a carrier confeiTed by existing state law. This 
 view is untenable. It would result in the nullification 
 of the regulation of a national subject and operate to 
 maintain the confusion of the diverse regulation which 
 it was the purpose of Congress to put an end to. What 
 this court said of section 22 of this act of 1906 in the 
 case of Texas & Pac. Ry. v. Abilene Cotton Mills, 204 
 U. S. 426, is applicable to this contention. It was 
 claimed that that section continued in force all rio-hts 
 
 6 S. E. 
 
 Grand 
 59, 
 
 Co. V. 
 
 14, United States. Storm Lake 
 Tub & Tank Factory v. Minneap- 
 olis & St. L. R. Co., 209 Fed. 895. 
 
 Georgia. Southern Ry. Co. v. 
 Bennett, 17 Ga. App. 162, 8 
 418. 
 
 Illinois. Pennington v. 
 Trunk Western R. Co., 277 111. 
 115 N. E. 170. 
 
 Kentucky. Southern R. 
 Avey, 173 Ky. 598, 191 S. W. 460. 
 
 Missouri. American Silver Mfg. 
 Co. V. Wabash R. Co., 174 Mo. App. 
 184. 1.56 S. W. 830. 
 
 Wisconsin. Bichlmeir v. Min- 
 neapolis, St. P. & S. S. M. R. Co., 
 159 Wis. 404, 150 N. W. 508. 
 
 "But the Supreme Court of the 
 United States has construed this 
 proviso to mean only such remedy 
 or right of action as existed under 
 the federal laws, statutory or com- 
 mon, at the time of the passage of 
 
 the measure, and not such remedy 
 or right of action as the shipper 
 had under the state law." South- 
 ern Ry. Co. V. Avey, supra. 
 
 "The federal statute touching 
 this matter and the decisions of 
 the Supreme Court of the United 
 Strtes construing them afford an 
 exclusive rule for the determina- 
 tion of the controversies pertain- 
 ing to the subject. This is true, 
 too, notwithstanding the provisio is 
 of the Carmack Amendment to the 
 effect that the enactment shall 
 not deprive any holder of a hill oi 
 lading of any remedy or right of 
 action that he had under the ex- 
 isting law, for this is construed to 
 refer alone to existing federal 
 law." Stubblefield v. St. Louis & 
 S F. R. Co., 194 Mo. App. 396, 184 
 S. W. 149.
 
 ^ 332] Duties Under Cakmack Amendment. 581 
 
 and remedies under the common law or other statutes. 
 But this court said of that contention what must be 
 said of the proviso in section 20, that it was 'evidently 
 only intended to continue in existence such other rights 
 or remedies for the redress of some specific wrong or 
 injury, whether given by the Interstate Commerce Act, 
 or by state statute, or common law, not inconsistent 
 with the rules and regulations prescribed by the provi- 
 sions of this act.' Again, it was said, of the same clause, 
 in the same case, that it could 'not in reason be con- 
 strued as continuing in a shipper a common law right 
 the existence of which would be inconsistent with the 
 provisions of the act. In other words, the act cannot be 
 said to destroy itself.' To construe this proviso as 
 preserving to the holder of any such bill of lading any 
 right or remedy which he may have had under existing 
 Federal law at the time of his action, gives to it a more 
 rational interpretation than one which would preserve 
 liglits and remedies under existing state laws, for the 
 latter view would cause the proviso to destroy the act 
 itself.- One illustration would be a right to a remedy 
 against a succeeding carrier, in preference to proceeding 
 against the primary carrier, for a loss or damage in- 
 curred upon the line of the former. The liability of 
 such succeeding carrier in the route would be that im- 
 posed by this statute, and for which the first carrier 
 might have been, made liable. "^^ 
 
 § 332. Duties and Obligations of Initial Carrier 
 Commence With Delivery of Property for Transporta- 
 tion. The duties and obligations of the initial carrier 
 under the federal statute as to property transported 
 in interstate commerce or to adjacent countries com- 
 mence with the delivery to and the acceptance by the 
 carrier of the property for the purpose of shipment. 
 His liability therefore commences when the shipper sur- 
 renders the entire custody of his goods and the carrier 
 receives complete control of them for the purpose of 
 
 15. Adams Exp. Co. v. Cronin- 33 Sup. Ct. 148, 44 L. R. A. (N. S.) 
 ger, 226 U. S. 491, 57 L. Ed. 314, 257.
 
 582 Duties to Interstate Shippers. [§ 332 
 
 transportation; for the duty and obligation respecting 
 the care and safety of merchandise rests wholly either 
 upon the owner or upon the carrier and the law recog- 
 nizes no division of such duty or obligation. Until the 
 property has been placed in the hands of the carrier by 
 a delivery and is accepted by him, he cannot be held 
 responsible. After the delivery is complete, the carrier 
 alone is responsible and no duty or obligation rests upon 
 the owner.^® "If the goods are delivered to and accept- 
 ed by the carrier for immediate shipment," said Judge 
 Trimble, "the liability of the latter attaches from the 
 moment of such delivery and acceptance, even though 
 the bill of lading is not made out. The liability of the 
 defendant in this case became fixed therefore unless, by 
 reason of the shipment being interstate in its character, 
 a different rule is applied. Nothing is said in the briefs 
 on either side about this feature of the case, however, 
 and we presume that the fact of its being an interstate 
 shipment does not change or affect the situation, other- 
 wise the question would have been raised and such 
 point made. The Carmack Amendment of June 29, 
 1906 (34 Stat. 584, ch. 104) to the Hepburn Act of 
 February 4, 1887 (34 Stat. 584, ch. 3591) provides that 
 the carrier 'shall issue a receipt or bill of lading' for 
 property received for transportation (Adams Express 
 Co. V. Croninger, 226 U. S. 491, 1. c. 504), but it nowhere 
 says the liability of such carrier shall not attach until 
 such bill of lading has been issued. At least our at- 
 tention has not been directed to any decision holding 
 
 16. United States. Southern R. Am. St. Rep. 408, 6 So. 218. 
 
 Co. V. Reid, 222 U. S. 424, 56 L. Ed. Mississippi. Tate v. Yazoo & M. 
 
 257, 32 Sup. Ct. 140; Covington V. R. Co, 78 Miss. 842, 84 Am. 
 
 Stock-Yards Co. v. Keith, 139 U. St. Rep. 649, 29 So. 392. 
 
 S. 128, 35 L. Ed. 73, 11 Sup. Ct. 461. Missouri. Morrison Grain Co. v. 
 
 Arkansas. St. Louis, A. & T. Ry. Missouri Pac. R. Co., 182 Mo. App. 
 
 Co. V. Neel, 56 Ark. 279, 19 S. W. 339, 170 S. W. 404; Milne v. Chi- 
 
 963. cago, R. I. & P. R. Co., 155 Mo. 
 
 Georgia. Dixon v. Central of App. 465, 135 S. W. 85. 
 
 Georgia Ry. Co., 110 Ga. 173, 35 S. New Jersey. Standard Combed 
 
 E. 369. Thread Co. v. Pennsylvania R. Co., 
 
 Louisiana. Meyer v. Vlcksburg, 88 N. J. L. 257, L. R. A. 1916C 606. 
 
 S. & P. R. Co., 41 La. Ann. 639, 17 95 Atl. 1002.
 
 § 333] Duties Under Carmack Amendment. 583 
 
 to that effect. If the carrier chose to accept and begin 
 the transportation of goods witliout issuing a bill of 
 lading it would be violating the act referred to, but the 
 relation of shipper and cairier would exist none the 
 less. The agent took possession of the car, had it 
 switched to where it would have to go when finally 
 started, being satisfied that the contract would be signed 
 in the morning, and treated it as a car for immediate 
 shipment, and defendant did not intend to return it to 
 the elevator. The question whether it was delivered and 
 accepted for shipment was a jury question (Milne v. 
 Railroad, supra; Reading v. Railroad, 165 Mo. App. 123; 
 Gregory v. Wabash Railroad, 46 Mo. App. 574.) The 
 jury has decided the question and upon evidence suf- 
 ficient to justify the finding. Cases which show that 
 goods were merely left at the station, not to be trans- 
 ported immediately in the usual course of business, but to 
 first have something done to them (such as cotton to 
 be compressed) or to await the future convenience or 
 desire of the shipper, are not in point. In the class of 
 cases first mentioned there was no delivery to the car- 
 rier, and in the second class the goods were not to be 
 shipped but to be held by the carrier as a warehouse- 
 man until the owner decided to ship.'"^ 
 
 § 333. Effect of Failure or Refusal of Initial Car- 
 rier to Issue Bill of Lading. While the Cummins amend- 
 ment requires the initial carrier, receiving property for 
 transportation in interstate and foreign commerce, to 
 issue a bill of lading therefor, its liability under the 
 statute is in no wise affected by the fact that it failed 
 or refused to issue a bill of lading.^^ If a carrier re- 
 ceives goods for shipment in interstate commerce and 
 fails to issue the bill of lading prescribed by the federal 
 law, it is nevertheless liable for the value of the goods 
 
 17. Morrison Grain Co. v. Mis- App. 458, 177 S. W. 75G; luter- 
 souri Pac. R. Co., 182 Mo. App. 339. national Watch Co. v. Delaware, L,. 
 170 S. W. 404. & W. R. Co., 80 N. J. L. 553, 78 Atl. 
 
 18. Bowles V. Quincy, O. & K. C. 49; Aton Piano Co. v. Chicago, M. 
 
 R. Co., Mo. App. , 187 S. & St. P. R. Co., 152 Wis. 15G. 139 
 
 W. 131; Keithley v. Lusk, 190 Mo. N. W. 743.
 
 5S4 Duties to Interstate Shippers. [§ 333 
 
 and damages thereto, to the same extent as if it had 
 issued the bill of lading." A carrier will not be per- 
 mitted to take advantage of its own negligence in fail- 
 ing to issne a bill of lading. "The last insistence of de- 
 fendant is that it can be held to the liability of a through 
 carrier only by issuing a bill of lading for a through 
 shipment and this it did not do. It is true that the 
 Federal act requires initial carriers to issue a receipt 
 or bill of lading for all property received for transporta- 
 tion. On account of other provisions of the act this re- 
 ceipt or bill of lading should contain the point of des- 
 tination, the rate to be charged and other pertinent pro- 
 visions. But we cannot assent to the proposition that 
 if a railroad company fails to issue such receipt or 
 bill of lading, when it actually accepts and carries the 
 goods, that it is thereby exempt from liability for its 
 negligence in transporting the same."^'' 
 
 § 334. Term ''Lawful Holder" of Bill of Lading 
 not Limited to Owner of Property Transported. The 
 
 statute prescribes that the lawful holder of a bill of 
 lading, issued by the initial carrier pursuant to the re- 
 quirements of the Act, may maintain an action for any 
 loss, damage or injury to the property transported 
 caused either by the initial carrier or any connecting 
 carrier to whom the goods are delivered. The words 
 "lawful holder" do not limit the remedy given by the 
 Act to the owner of the property or some one shown to 
 be duly authorized to act for him.^' It is not therefore 
 
 19. Bryan v. Louisville & N. R. Carmack Amendment. It pro- 
 Co., N. C. ,93 S. E. 750; vides: 'That any common carrier 
 
 Davis V. Norfolk Southern R. Co., . . . receiving property for 
 
 172 N. C. 209, 90 S. E. 123. transportation from a point in one 
 
 20. Keithley v. Lusk, 190 Mo. state to a point in another state 
 App. 458, 177 S. W. 75G. shall issue a receipt or bill of 
 
 21. Pennsylvania R. Co. v. Olivit lading therefor and shall be liable 
 Bros., 243 U. S. 574, 61 L. Ed. 908, to the lawful holder (italics ours) 
 37 Sup. Ct. 468, in which the court thereof for any loss, damage, or 
 said: "Coming to the merits of injury to such property caused by 
 the question, however, we concur it. . . .' (34 Stat, at L. 595, 
 with the court of errors and ap- chap. 3951, Comp. Stat. 1913, sec. 
 peals in its construction of the 8592.) The crucial words are 'law-
 
 § 335] Duties Under Carmack Amendment. 
 
 585 
 
 essential for the plaintiff to prove ownership in tlie 
 property transported either at the time of shipment, at 
 the time of delivery or prior to the commencement of the 
 suit, if he is in fact the lawful holder of the bill of 
 
 lading." 
 
 § 335. Bill of Lading Issued by Initial Carrier 
 Governs Entire Transportation— Second Bill Void. Un- 
 der the direction of the Carmack amendment na amend- 
 ed, the connecting carriers become the agents of the ini- 
 tial carrier for the purpose of completing the transpor- 
 tation and delivering the property.-' The bill of lading 
 therefore required to be issued by the initial carrier upon 
 
 ful holder.' Defendant contends 
 that they mean 'the owner or some- 
 one shown to be duly authorized to 
 act for him in a w'ay that would 
 render any judgment recovered 
 in such an action against the car- 
 rier res acljudicata in any other 
 action.' And sec. 8 of the Inter- 
 state Commerce Act is referred to 
 as fortifying such view. It pro 
 vides that 'such common carrier 
 shall be liable to the person or 
 persons injured' in consequence of 
 any violations of the act. To ac- 
 cept this view would make sec. 
 8 contradict the Carmack Amend- 
 ment (sec. 20), it having only a 
 general purpose, whereas the pur- 
 pose of the amendment is special 
 and definitely e.xpresses the law- 
 ful holder of the bill of lading to be 
 the person to whom the carrier 
 shall be liable 'for any loss, dam- 
 age, or injury' to property caused 
 by it. Adams Exp. Co. v. Croning- 
 er suirra." 
 
 22. Carr v. Pennsylvania R. Co.. 
 88 N. J. L. 235, 96 Atl. 588. 
 
 23. Northern Pac. R. Co. v. 
 Wall, 241 U. S. 87, 60 L. Ed. 905. 
 3ti Sup. Ct. 493; Galveston. H. & 
 S. A. R. Co. v. Wallace, 223 U. S. 
 
 481, 56 L. Ed. 516, 32 Sup. Ct. 205; 
 Atlantic Coast Line R. Co. v. River- 
 side Mills, 219 U. S. 186, 55 L. Ed. 
 107, 31 Sup. Ct. 164, 31 L. R. A 
 (N. S.) 7. 
 
 "The Carmack Amendment to 
 the Interstate Commerce Act (Sec. 
 7, c. 3591, 34 Stat. 584, 593), which 
 was in force when this bill of 
 lading was issued, directs a car- 
 rier receiving property for inter- 
 state transportation to issue a 
 through bill of lading therefor, al- 
 though the place of destination is 
 on the line of another carrier: 
 subjects the receiving carrier to 
 liability for any injury to the prop- 
 erty caused by it or any other car- 
 rier in the course of the trans- 
 portation, and requires a connect- 
 ing carrier on whose line the prop- 
 erty is injured to reimburse the 
 receiving carrier where the latt-^r 
 is made to pay for such injury. 
 Thus, under the operation of the 
 amendment, the connecting car- 
 rier becomes the agent of the re- 
 ceiving carrier for the purpose of 
 completing the transportation and 
 delivering the property." North- 
 ern Pac. R. Co. v. Wall, supra.
 
 b86 Duties to Interstate Shippers. [§ 335 
 
 an interstate shipment governs the entire transporta- 
 tion and determines the dnties, obligations and liabili- 
 ties of all the participating carriers to the extent that 
 the terms of the bill of lading are applicable and 
 valid.-' The liability of any carrier over the ronte over 
 which the articles are routed, for loss or damage, is that 
 imposed by the act as measured by the original con- 
 tract of shipment so far as it is valid under this stat- 
 ute.=^^ 
 
 As the bill of lading required to be issued by the 
 initial carrier upon an interstate shipment governs the 
 entire transportation, the carrier is bound to transport 
 the property upon the terms named in the original bill 
 of lading and the acceptance by the shipper of a second 
 bill of lading by the connecting carrier is without con- 
 sideration and void.^*' "The purpose of the Carmack 
 Amendment," said Mr. Justice Brandeis in the Ward 
 case, cited, "has been frequently considered by this 
 court. It was to create in the initial carrier unity of 
 responsibility for the transportation to destination. 
 Atlantic Coast Line E. Co. v. Riverside Mills, 219 U. 
 S. 186, 55 L. Ed. 167, 31 L. R. A. (N. S.) 7, 31 Sup. Ct. 
 Rep. 164; Northern P. R. Co. v. Wall, 241 U. S. 87, 92, 
 60 L. ed. 905, 907, 36 Sup. Ct. Rep. 493. And provisions 
 in the bill of lading inconsistent with that liability are 
 void. Norfolk & W. R. Co. v. Dixie Tobacco Co., 228 
 U. S. 593, 57 L. ed. 980, 33 Sup. Ct. Rep. 609. While the 
 receiving carrier is thus responsible for the whole car- 
 riage, such connecting road may still be sued for dam- 
 
 24. Georgia, F. & A. R. Co. v. shipment governs the entire trans- 
 Blish Milling Co., 241 U. S. 190, portation and thus fixes the ob- 
 fiO L. Ed. 948, 36 Sup. Ct. 541; ligations of all participating car- 
 Southern R. Co. V. Prescott, 240 U. rie s to the extent that the terms 
 S. 632, 60 L. Ed. 836, 36 Sup. Ct. of the bill of lading are applicable 
 469; Cleveland, C, C. & St. L. R. and valid." Georgia, P. & A. R. Co. 
 Co. v. Dettlebach, 239 U. S. 588, 60 v. Blish Milling Co., supra. 
 L. Ed. 453, 36 Sup. Ct. 177. 25. Kansas City Southern R. Co. 
 
 "The connecting carrier is not v. Carl, 227 U. S. 639, 57 L. Ed. 683, 
 
 relieved from liability by the Car- 33 Sup. Ct. 391. 
 mack Amendment, but the bill of 26. Missouri. K. & T. R. Co. of 
 
 lading required to be issued by the Texas v. Ward, 244 U. S. 383, 61 
 
 initial carrier upon an interstate L. Ed. 1213, 37 Sup. Ct. 617.
 
 § 336] Duties Undek (-ahmack Amendment. 587 
 
 ages occiiiTing on its line; and tlie liability of such 
 participating carrier is fixed l)y the applicable valid 
 terms of the original bill of lading. The bill of lading 
 re(|iiired to be issued by the initial carrier upon an inter- 
 state shipment governs the entire transportation. The 
 terms of the original bill of lading were not altered 
 by the second, issued l)y the connecting carrier. As 
 appellants were already bound to transport the cattle 
 at the rate and upon the terms named in the original 
 bill of lading, the acceptance by the shii)per of tlic 
 second bill was without consideration and was void. 
 The railway companies contend that while the Car- 
 mack Amendment makes the receiving carriers pay for 
 all liability incurred by the connecting lines, the ques- 
 tion of whether there is any such liability or not must be 
 determined by reference to the separate contracts of each 
 ])articipating carrier, and not to the contract of the ini- 
 tial carrier alone. If, as contended, a shipper must, 
 in order to recover, first file his 'verified claim' with 
 the connecting carrier who caused the injury, as pro- 
 vided in a separate bill of lading issued by such car- 
 rier, the shipper would still rest under the burden of 
 determining which of the several successive carriers was 
 at fault. Such a construction of the Carmack Amend- 
 ment would defeat its purpose, which was to relieve 
 shippers of the difficult, and often impossible, task of 
 determining on which of the several connecting lines 
 the damage occurred. For the purpose of fixing the 
 liability, the several carriers must be treated, not as 
 indei)endent contracting parties, but as one system; 
 and the connecting lines become in effect mere agents, 
 whose duty it is to forward the goods under the terms 
 of the contract made by their principal, the initial car- 
 rier. ' ' 
 
 § 336. Statute Embraces Damages due to Delay as 
 well as for Loss or Injury in Course of Transportation. 
 
 The act prescribes that the initial carrier shall be liable 
 for any ''loss, damage or injury" to the property trans- 
 ported. These words in the statute are comprehensive 
 enough to embrace responsibilitv for all loss resultiuo-
 
 588 
 
 Duties to Inteestate Shippers. 
 
 [§ 336 
 
 from auy failure to discbarge a carrier's duty as to 
 any part of the agreed transportation." An initial 
 carrier is therefore liable for delay occurring on tlie 
 line of a connecting carrier although there may be no 
 physical damage to the property.^* 
 
 In a leading decision the federal Supreme Court 
 held that the statute included liability for loss of market 
 due to a negligent delay on the line of a connecting car- 
 rier.''' The court said: "The amendment of sec. 20 of 
 the Interstate Commerce Act, known as the Carmack 
 Amendment (Act of June 29, 1906, c. 3591, sec. 7, 34 
 Stat. 584, 595), provides 'that any common carrier 
 . receiving property for transportation from a 
 point in one State to a point in another State shall 
 
 27. Georgia, F. & A. R. Co. v. 
 Blish Milling Co., 241 U. S. 190, 60 
 L. Ed. 948, 36 Sup. Ct. 541, in 
 which the court said: "It is not 
 to be doubted that if, in the case 
 of an interstate shipment under 
 a through bill of lading, the ter- 
 minal carrier makes a misdelivery, 
 the initial carrier is liable; and 
 when it inserts in its bill of lad- 
 ing a provision requiring reason- 
 able notice of claims 'in case of 
 failure to make delivery' the fair 
 meaning of the stipulation is that 
 it includes all cases of such failure, 
 as well those due to misdelivery 
 as those due to the loss of the 
 goods. But the provision in ques- 
 tion is not to be construed in one 
 way with respect to the initial 
 carrier and in another with re- 
 spect to the connecting or terminal 
 carrier. As we have said, the lat- 
 ter taxes the goods under the bill 
 of lading issued by the initial car- 
 rier, and its obligations are meas- 
 ured by its terms (Kansas South- 
 ern Ry. V. Carl, stipra; Southern 
 Railroad v. Prescott, supra); and 
 if the clause must be deemed to 
 cover a case of misdelivery when 
 
 the action is brought against the 
 initial carrier, it must equally 
 have that effect in the case of the 
 terminal carrier which in the con- 
 templation of the parties was to 
 make the delivery. The clause 
 gave abundant opportunity for 
 presenting claims and we regard 
 it as both applicable and valid." 
 
 28. Mississippi, Southern Pac. 
 R. Co. V. A. J. Lyon & Co., 107 Miss. 
 777, Ann. Cas. 1917D 171, 66 So. 
 20f.' 
 
 Oklahoma. Ft. Smith & W. R. 
 Co. V. Awbrey & Semple, 39 Okla. 
 270, 134 Pac. 1117. 
 
 Texas. Pecos & N. T. Ry. Co. v. 
 
 Cox, Tex. Civ. App. , 150 
 
 S W. 265. 
 
 Virginia. Norfolk Truckers' Ex- 
 change V. Norfolk Southern R. Co., 
 116 Va. 466, 82 S. E. 92. 
 
 West Virginia. Karr v. Balti- 
 more & O. R. Co., 76 W. Va. 526, 
 86 S. E. 43. 
 
 29. New York, P. & N. R. Co. 
 V. Peninsula Produce Exch. of 
 Maryland, 240 U. S. 34, 60 L. Ed. 
 511, 36 Sup. Ct. 230, L. R. A. 1917A 
 193.
 
 § 336] Duties Under Carmack Amendment, 589 
 
 issue a roeoi])t or ])ill of ladinji: therefor and shall he 
 liable to the lawful holder thereof for any loss, damage, 
 or injury to siu'h ])roperty caused by it or by any com- 
 mon carrier ... to which such property may be 
 delivered or over whose line or lines such property 
 may pass, and no contract, receipt, rule, or regulation 
 shall exempt such common carrier . . . from the 
 liability herebj^ imposed.' We need not review at 
 length the considerations which led to the adoption of 
 this amendment. These were stated in Atlantic Coast 
 Line v. Riverside Mills, 219 IT. S. 186, 199-203. It was 
 there jiointed out that along with singleness of rate and 
 continuity of carriage in through shipments there had 
 grown up the practice of requiring specific stipulations 
 limiting the liability of each separate company to its 
 own part of the through route, and, as a result, the 
 shipper could look to the initial carrier for recompense 
 only 'for loss, damage or delay' occurring on its own 
 line. This 'burdensome situation' was 'the matter which 
 Congress undertook to regulate.' And it was concluded 
 that the requirement that interstate carriers holding 
 themselves out as receiving packages for destinations 
 beyond their own terminal should be compelled 'as a 
 condition of continuing in that traffic to obligate them- 
 selves to carry to the point of destination, using the 
 lines of connecting carriers as their own agencies,' was 
 within the power of Congress. The rule, said the court 
 in defining the purpose of the Carmack iVmendmeut, 
 'is adapted to secure the rights of the shipper by secur- 
 ing unity of transportation with unity of responsibility.' 
 And, again, we said in Adams Express Company v. 
 Croninger, 226 U. S. 491, that this legislation embraces 
 'the subject of the liability of the carrier under a bill 
 of lading which he must issue.' 'The duty to issue a 
 bill of lading and the liability thereby assumed are 
 covered in full, and though tiiere is no reference to the 
 effect upon state regulation, it is evident that Congress 
 intended to adopt a uniform rule and relieve such con- 
 tracts from the diverse regulation to which they had 
 been theretofore subject.' Id., p. 506. It is now in- 
 sisted that Congress failed to accomplish this para-
 
 990 Duties to Interstate Shippers. [§ 336 
 
 mount object; that wliile unity of responsibility was 
 secured if the goods were injured in the course of trans- 
 portation or were not delivered, the statute did not 
 reach the case of a failure to transport with reasonable 
 despatch. In such case it is said that, although tliere 
 is a through shipment, the shipper must still look to 
 the particular carrier whose neglect caused the delay. 
 We do not think that the language of the amendment 
 has the inadequacy attributed to it. The words ^anj 
 loss, damage, or injury to such property' caused by the 
 initial earner or by any connecting carrier are compre- 
 hensive enough to embrace all damages resulting from 
 any failure to discharge a carrier's duty with respect 
 to any part of the transportation to the agreed destina- 
 tion. It is not necessary, nor is it natural in view of 
 the general purpose of the statute, to take the words 
 'to the property' as limiting the word 'damage' as well 
 as the word 'injury' and thus as rendering the former 
 wholly superfluous. It is said that there is a different 
 responsibility on the part of the carrier with respect to 
 delay from that which exists where there is a failure to 
 carry safely. But the difference is with respect to the 
 measure of the carrier's obligation; the duty to trans- 
 port with reasonable despatch is none the less an integral 
 part of the normal undertaking of the carrier. And we 
 can gather no intent to unify only a portion of the 
 carrier's responsibility. Further, it is urged, that the 
 amendment provides that the initial carrier may re- 
 cover from the connecting carrier 'on whose line the 
 loss, damage, or injury shall have been sustained the 
 amount of such loss, damage, or injury as it may be 
 required to pay to the owners of such property,' and 
 this, it is said, shows that the 'loss, damage, or injury' 
 described is that which may be localized as having 
 occurred on the line of one of the carriers and there- 
 fore should be limited to physical loss or injury. But 
 we find no difficulty in this, as the damages required to 
 be paid by the initial carrier are manifestly regarded 
 as resulting from some breach of duty, and the purpose 
 is simply to provide for a recovery against the connect- 
 ing carrier if the latter, as to its part of the transpor-
 
 § 337 1 HrTFRs Undpjr Carmack Amendment. 
 
 51)1 
 
 I 
 
 tatioii, is bound to he guilty of that breach. The view 
 we liave expressed finds support in the explicit terms 
 of the act of January 20, 1914, c. 11, 39 Stat. 278, which 
 provides 'tliat no suit brouglit in any state court of 
 competent jurisdiction against a railroad company 
 . . . to recover damages for delay, loss of, or injury 
 to property received for transportation by such com- 
 mon carrier under section twenty of the Act to regulate 
 commerce . . . shall be removed to any court of 
 the United States where the matter in controversy does 
 not exceed, exclusive of interest and costs, the sum or 
 value of $3,000.' If the language of sec, 20 can be 
 regarded as ambiguous, this legislative interpretation 
 of it as conferring a right of action for delay, as well 
 as for loss or injury to the property in the course of 
 transportation is entitled to great weight." 
 
 § 337. Wrongful Delivery by a Terminal Carrier 
 a "Loss" Within Meaning of Statute. The initial car- 
 rier is liable under the statute for a wrongful delivery 
 of the property by the succeeding carrier, since the 
 act covers not only loss or damage in transit but a 
 misdelivery as well.^° "The duty of an initial carrier 
 with reference to goods transported does not end by 
 merely carrying the goods to their destination safely. 
 Delivery to the person entitled to receive the same, or, 
 if delivery cannot be made, then safe storage subject to 
 the orders of the consignors, is a part of the contract 
 of carriage. The appellant performed neither of these 
 obligations. It neither delivered the goods to the per- 
 son entitled to receive them, nor did it store them sub- 
 
 30. Georgia, F. & A. R. Co. v. 
 Blish Mining Co., 241 U. S. 190, 
 60 L. Ed. 948, 36 Sup. Ct. 541; 
 Thomas v. Blair, 185 Micli. 422, 
 151 N. W. 1041; Sturges v. De- 
 troit, G. H. & M. R. Co., 166 Mich. 
 231, 131 N. W. 706; Peycke Bros. 
 Commission Co. v. Sandstone Co- 
 Op. Co., 195 Mo. App. 417. 191 S. 
 W. 1088; Koniper Mill Co. v. Mis- 
 
 souri Pac. R. Co., 193 Mo. App. 466, 
 186 S. W. 8. 
 
 "The delivery of the car by the 
 terminal carrier, the Burlington, 
 was unauthorized, and this, under 
 the Interstate Commerce Act, ren- 
 dered the initial carrier, the Great 
 Northern, liable." Peycke Bros. 
 Commission Co. v. Sandstone Co- 
 Op. Co., supra.
 
 5-92 Duties to Interstate Shippers. [§ 337 
 
 ject to the order of the consignor. It is therefore liable 
 for the loss, as the initial carrier, under the federal 
 statute.'"' 
 
 § 338. Initial Carriers Liable for Property Held by 
 Terminal Carrier as Warehouseman— Conflicting Deci- 
 sions. IMany slate courts in construing the Carmack 
 amendment have held that the initial carrier is only 
 liable for loss, damage or injury to property trans- 
 ported in interstate commerce while it is in the posses- 
 sion of the terminal carrier as such, and that when the 
 terminal carrier holds the property as a warehouseman 
 and damage then results, the initial carrier is not liable 
 under the federal statute.^^ But these cases seem to be 
 in conflict with the controlling decisions of the federal 
 Supreme Court. ^^ 
 
 Under the Act to Eegulate Commerce, the term 
 "transportation" includes all services in connection with 
 the receipt, delivery, elevation and transfer in transit, 
 ventilation, refrigeration or icing, storage and handling 
 of property transported. From this and other pro- 
 visions of the Hepburn Act Congress recognized that 
 the duties of carriers to the public included the per- 
 formance of a variety of services that, according to the 
 common law, were separable from the carrier's services 
 as carrier, and in order to prevent overcharges and 
 discriminations from being made imder the pretext of 
 
 31. Coovert v. Spokane, P. & S. 32. Adams Seed Co. v. Chicago 
 
 R. Co., 80 Wash. 87, 141 Pac. 324, Great Western R. Co., Iowa 
 
 citing the following cases: Atlan- , 165 N. W. 3G7; Hogan Milling 
 
 tic Coast Line R. Co. v. Riverside Co. v. Union Pac. R. Co., 91 Kan. 
 
 Mills, 219 U. S. 186, 55 L. Ed. 167, 783, 139 Pac. 397; Model MiH Co. 
 
 31 Sup. Ct. 164, 31 L. R. A. (N. S.) y Carolina, C. & 0. R. Co., 136 
 
 7; Galveston, H. & S. A. R. Co. v. rj,^^^ gil, 188 S. W. 936; Norfolk 
 
 Wallace, 223 U. S. 481, 56 L. Ed. ^ ^^ ^_ ^^_ ^_ g^^^^^,^ ^^^^^ ^.^^_ 
 
 ing Co., 109 Va. 184, 63 S. E. 415. 
 33. Southern R. Co. v. Prescott, 
 
 516, 32 Sup. Ct. 205; Chicago & 
 A. R. Co. V. Kirby, 225 U. S. 155, 
 56 L. Ed. 1033, 32 Sup. Ct. 648, 
 Ann. Cas. 1914A 501; Nashville, C. ^40 U. S. G32, 60 L. Ed. 836, 36 
 & St. L. R. Co. v. Dreyfuss-Weil Sup. Ct. 469; Cleveland, C, C. & 
 Co., 150 Ky. 333, 150 S. W. 321, St. L. R. Co. v. Dettlebach, 239 U. 
 and Central of Georgia R. Co. v. S 588, 60 L. Ed 453, 36 Sup. Ct. 
 Sims. 169 Ala. 295, 53 So. 826. 177.
 
 § 339] Duties Under Carmack Amendment. 593 
 
 performing such additional services, it enacted that, so 
 far as interstate carriers by rail were concerned, the 
 entire body of such services should be included together 
 under the single term ''transportation" and subjected 
 to the provisions of the Act. 
 
 In the Dettlebach cane, cited, the federal Supreme 
 Court held that the valuation clause in the bill of lad- 
 ing applied to the terminal carrier's responsibility as 
 warehouseman. In the Prescott case it was held that 
 the liability of the connecting carrier as a warehouse- 
 man was governed by the bills of lading issued by the 
 initial carrier. In neither the Dettlebach or Prescott 
 cases, however, was there an attempt to hold the initial 
 carrier liable for the act of the connecting carrier as 
 warehouseman. 
 
 § 339. Nature of Carrier's Liability as Warehouse- 
 man. When a carrier holds an interstate shipment as a 
 warehouseman, it is liable for loss or damage thereto 
 only in case of negligence. The burden of proving that 
 the loss or damage was due to negligence is upon the 
 plaintiff and the burden does not shift. Since it is the 
 duty of the warehouseman to deliver upon proper 
 demand, his failure to do so, however, without excuse, 
 is regarded as prima facie evidence of negligence; but 
 if it appears that the loss is due to fire, that fact in it- 
 self, in the absence of circumstances permitting the 
 inference of lack of reasonable care, is not sufficient to 
 show negligence and the burden remains upon the plain- 
 tiff to prove that the carrier was guilty of negligence.^* 
 The rule adopted by many state courts that when prop 
 erty is destroyed by fire when held by the carrier as a 
 warehouseman, the burden of showing that there was no 
 negligence, is upon the defendant,'' is not applicable to 
 
 34. Southern R. Co. v. Prescott, 35. Almand v. Georgia Railroad 
 
 240 U. S. 632, 60 L. Ed. 836, 36 Sup. & Banking Co., 95 Ga. 775, 22 S. E. 
 
 Ct. 469; Cau v. Texas & P. R. Co., (574; Stanclird Milling Co. v. Whit'i 
 
 194 U. S. 427, 48 L. Ed. 1053, 24 Line Cent. Transit Co., 122 Mo. 
 
 Sup. Ct. 663; Western Transp. Co. 258, 2C S. W. 704; Brunson & Boat- 
 
 V. Downer, 11 Wall. (U. S.) 129, wright v. Atlantic Coast Line R. 
 
 20 L. Ed. 160. Co., 76 S. C. 9, 9 L. R. A. (N. S.) 
 
 1 Control Carriers 38
 
 594 Duties to Interstate Shippers. [§ 339 
 
 interstate shipments; for the obligation of the carrier 
 with respect to the service within the purview of the 
 Carmack amendment is governed by a uniform rule de- 
 cided in the federal courts in the place of diverse 
 requirements of state legislation and decisions.^^ 
 
 § 340. Quantum of Proof Necessary to Establish 
 Liability under Federal Statute. As the connecting car- 
 riers under tlie Carmack amendment are conclusively 
 deemed to be the agents of the initial carrier for all 
 purposes of transportation and delivery, the point of 
 destination is thereby to be considered as though it were 
 on the initial carrier's own line. A shipment, there- 
 fore, in interstate commerce from a point on one railroad 
 line to a point on another, is governed by the same rules 
 of pleading, practice and presumption as would have 
 applied if the shipment had been between stations on 
 the initial carrier's own railroad." When the plain- 
 tiff, in an action under the Carmack amendment, shows 
 a delivery to the initial carrier of the merchandise in 
 good condition, and a bad or damaged condition when 
 received by the consignee at the destination point from 
 the terminal carrier, he has made a prima facie case 
 under the statute against the initial carrier.^** And, 
 
 577, 56 S. E. 538; Fleischman, 38. United States. Galveston, H. 
 
 Mcrris & Co. v. Southern Ry., 76 & S. A. R. Co. v. Wallace, 223 U. S. 
 
 S. C. 237, 9 L. R. A. (N. S.) 519 481, 56 L. Ed. 516, 32 Sup. Ct. 205. 
 
 56 S. E. 974. Arkansas. St. Louis, I. M. & S. 
 
 36. Charleston & W. C. R. Co. R. Co. v. Home Oil & Manufactur- 
 V Varnville Furniture Co., 237 U. jng Co., 122 Ark. 200, S. W. 176; 
 S 597, 59 L. Ed. 1137, 35 Sup. Ct. Kansas City Southern R. Co. v. 
 715, Ann. Cas. 1916D 333; Mis- Mixon-McClintock Co., 107 Ark. 48, 
 souri, K. & T. R. Co. v. Harriman, j^^^ ^^^ ^^^^^ ^247, 154 N. W. 
 227 U. S. 657, 57 L. Ed. 690, 33 Sup. 205 
 
 Ct. 397; Adams Exp. Co v. Cronin- 
 
 ger, 226 U. S. 491, 57 L. Ed. 314, ^^^^S^^' Nashville, C. & St. L. 
 
 33 Sup. Ct. 148. 44 L. R. A. (U. S.) ^^^ ^0- v. C. V. Truitt Co., 17 Ga. 
 
 257. App. 236, 86 S. E. 421. 
 
 37. Galveston, H. & S. A. R. Co. Indiana. Chicago, I. & L. R. Co. 
 V. Wallace, 223 U. S. 481, 56 L. Ed. v. Woodward, 164 Ind. 360, 72 N. 
 516, 32 Sup. Ct. 205. E. 558, 73 N. E. 810.
 
 § 341] Duties Under Cakmack Amendment. 
 
 595 
 
 similarly, when the plaintiff shows that his goods have 
 been delivered to the initial carrier for transportation 
 and that the terminal carrier has failed to deliver them, 
 there is a presumption of negligent default under the law 
 against the initial carrier.-'" If the failure to deliver 
 is due to the act of God, a public enemy, or some cause 
 against which the initial carrier might lawfully con- 
 tract, the burden is upon it to bring itself within the 
 exception." 
 
 § 341. Federal Rule as to Negligent Delay Co-op- 
 erating with Act of God in Destruction of Property. 
 Many state courts in determining the liability of car- 
 riers for loss or damage to goods prior to the enact- 
 ment of the Carmack amendment adopted the principle 
 that while a carrier was not liable for loss or damage 
 due to the act of God, yet if the property destroyed by 
 an extraordinary flood, for example, would not have 
 
 Iowa. Erismau v. Chicago, B. 
 
 & Q. R. Co., Iowa , 163 N. 
 
 W. 627. 
 
 Kentucky. Stiles, Gaddie & Stiles 
 V. Louisville & N. R. Co., 129 Ky. 
 175, 18 L. R. A. (N. S.) 86, l?a 
 Am. St. Rep. 429, 110 S. W. 320. 
 
 Maine. Dow v. Portland Steam 
 Packet Co., 84 Me. 490, 24 Atl. 945. 
 
 Minnesota. Lindsley v. Chicago, 
 M. & St. P. Ry. Co., 36 Minn. 539, 
 1 Am. St. Rep. 692, 33 N. W. 7. 
 
 Missouri. Cudahy Packing Co. 
 V. Atchison, T. & S. F. R. Co., 193 
 Mo. App. 572, 187 S. W. 149; Col- 
 lins V. Denver & R. G. R. Co.. 181 
 Mo. App. 213, 167 S. W. 1178. 
 
 Tennessee. Louisville & N. Ry. 
 Co. V. Wynn, 88 Tenn. 320, 14 S. W. 
 311. 
 
 39. Nashville, C. & St. L. Ry. 
 Co. v.'V. C. Truitt Co., 17 Ga. App. 
 236. 86 S. E. 421; Brinson & 
 Kramer v. Norfolk Southern R. 
 Co., 169 N. C. 425, 86 S. E. 371. 
 
 40. United States. Galveston. 
 H. & S. A. R. Co. V. Wallace, supra; 
 
 Storm Lake Tub & Tank Factory 
 V. Minneapolis & St. L. R. Co., 209 
 Fed. 895. 
 
 Arkansas. St. Louis, L M. & S. 
 R. Co. V. Cunningham Commis- 
 sion Co., 125 Ark. 577, 188 S. W. 
 1177. 
 
 Illinois. Peoria & P. Union R. 
 Co. V. United States Rolling-Stock 
 Co., 136 111. 643, 29 Am. St. Rep. 
 348, 27 N. E. 59, rev'g 36 111. App. 
 552. 
 
 Indiana. Pittsburgh, C, C. & St. 
 L. R. Co. V. Mitchell. 175 Ind. 196, 
 91 N. E. 735, 93 N. E. 996. 
 
 Michigan. Thomas v. Blair, 185 
 Mich. 422, 151 N. W. 1041. 
 
 Missouri. Cudahy Packing Co. 
 V. Atchison, T. & S. F. R. Co., 193 
 Mo. App. 572, 187 S. W. 149. 
 
 New York. Blackstock v. New 
 Ycrk & E. R. Co., 20 N. Y. 48, 75 
 Am. Dec. 372; Weed v. Panama R. 
 Co.. 17 N. Y. 362, 72 Am. Dec. 474. 
 
 West Virginia. Karr v. Balti- 
 more & O. R. Co., 76 W. Va. 526, 
 86 S. E. 43.
 
 396 
 
 Duties to Interstate Shippers. 
 
 [§ 341 
 
 been in the path of the flood except for the negligent 
 delay of the carrier, the shipper was entitled to re- 
 cover/^ In other words, these courts recognize the rule 
 that if a negligent delay concurred with the act of 
 God in producing the damage, the carrier is liable. But 
 such is not seemingly the rule in the federal courts,*- 
 and since the enactment of the Carmack amendment 
 the liability of carriers to shippers of interstate freight, 
 baggage and express is governed by common law prin- 
 
 41. Alabama. Louisville & N. 
 R. Co. V. Gidley, 119 Ala. 523, 24 
 So. 753. 
 
 Illinois. Wald v. Pittsburgh, C, 
 C. & St. L. R. Co., 162 111. 545, 35 
 L. R. A. 356, 52 Am. St, Rep. 332, 
 44 N. E. 888, rev'g 60 111. App. 460. 
 
 Iowa. Green-Wheeler Shoe Co. 
 V. Chicago, R. I. & P. R. Co., 130 
 Iowa 123, 5 L. R. A. (N. S.) 882, 8 
 Ann. Cas. 45, 106 N. W. 498; 
 Hewett V. Chicago, B. & Q. Ry. Co., 
 63 Iowa 611, 19 N. W. 790. 
 
 Maryland. Baltimore & 0. R. 
 Co. V. Keedy, 75 Md. 320, 23 Atl. 
 643. 
 
 Michigan. Selleck v. Lake Shore 
 & M. S. Ry. Co., 93 Mich. 375, 18 
 L. R. A. 154, 53 N. W. 556. 
 
 Minnesota. Bibb Broom Corn 
 Co. V. Atchison, T. & S. F. R. Co., 
 94 Minn. 269, 69 L. R. A. 509, 110 
 Am. St. Rep. 361, 3 Ann. Cas. 450, 
 102 N. W. 709. 
 
 Missouri. Pruitt v. Hannibal & 
 St. .7. R. Co., 62 Mo. 527; Wolf v. 
 American Exp. Co., 43 Mo. 421, 
 97 Am. Dec. 406. 
 
 New York. Read v. Spaulding, 
 30 N. Y. 630, 86 Am. Dec. 426: 
 Michaels v. New York Cent. R. Co., 
 30 N. Y. 564, 86 Am. Dec. 415. 
 
 Texas. Missouri, K. & T. R. Co. 
 V. McFadden, 89 Tex. 138, 33 S. W. 
 853. 
 
 Wisconsin. Cook v. Minneapolis, 
 St. P. & S. S. M. Ry. Co., 98 Wis. 
 
 624, 40 L. R. A. 457, 67 Am. St. 
 Rep. 830, 74 N. W. 561. 
 
 42. New Orleans & N. E. R. Co. 
 V. National Rice Milling Co., 234 
 U. S. 80, 58 L. Ed. 1223, 
 34 Sup. Ct. 726; Cau v, 
 Texas & P. R. Co., 194 U. S. 427, 
 48 L. Ed. 1053, 24 Sup. Ct. 663; 
 St. Louis, I. M. & S. Ry. Co. v. 
 Commercial Union Ins. Co., 139 U. 
 S. 223, 35 L. Ed. 154, 11 Sup. Ct. 
 554; Western Transp. Co. v. Down- 
 er, 11 Wall. (U. S.) 129, 20 L. Ed. 
 160; Memphis & C. R. Co. v. 
 Reeves, 10 Wall. (U. S.) 176, 19 
 L. Ed. 909; Empire State Cattle 
 Co. V. Atchison, T. & S. F. Ry. Co., 
 135 Fed. 135; Thomas v. Lancaster 
 Mills of Clinton, Massachusetts, 19 
 C. C. A. 88, 71 Fed. 481; Seaboard 
 Air Line Ry. Co. v. Mullin, 70 Fla. 
 450, 11 N. C. C. A. 1, L. R. A. 1916D 
 982, Ann. Cas. 1918A 576, 70 So. 
 467. 
 
 "The cause of the loss was the 
 fire, kindled by some unknown 
 ' means, and in no way arising from 
 or connected with the neglect of 
 the defendant to furnish transpor- 
 tation. Upon principle and au- 
 thority, that neglect was not the 
 direct and proximate cause of the 
 loss by fire, and did not make ths 
 defendant responsible for that loss 
 to the owners of the cotton or to 
 their insurers." St. Louis, I. M. 
 & S. R. Co. V. Commercial Union 
 Ins. Co., supra.
 
 § 341] Duties Under Carmack Amendment. 597 
 
 ciples as accepted and enforced in the federal courts/' 
 Under the federal rule, where property in the ])os- 
 session of a carrier is destroyed by an act of God, but 
 would not have been so lost except for the negligent 
 delay of the carrier, the act of God is the ])roximate 
 cause of the loss and the negligent delay of the car- 
 rier is too remote as a contributing cause to entail lia- 
 bility."* "The United States Supreme Court and the 
 courts of a number of the states hold that a delay in 
 transportation which places the shipment in the track of 
 an unprecedented flood is a remote and not a proximate 
 cause of an injury to the shipment by the flood, and the 
 carrier is not liable merely because of the delay. Such 
 courts base the exemption of the carrier from liability 
 upon the ground that the delay was too remote and 
 that the proximate cause of the injury, towit, the de- 
 structive act of God, could not have been foreseen and 
 provided against as a probable result of the negligent 
 delay. In this view the carrier is held not liable even 
 though the injury would not have occurred but for the 
 previous delay in transportation which caused the ship- 
 ment to be in the track of the flood. "*^ 
 
 But if the carrier independently of its negligent 
 delay were guilty of some act of negligence which oper- 
 ated as an active, efficient and availing cause of the loss 
 or damage, it is liable even under the federal rule;" or, 
 
 43. New York Cent. & H. River 1, L. R. A. 1916D 982, Ann. Cas. 
 R. Co. V. Beaham, 242 U. S. 148, 61 1918A 576, 70 So. 467. 
 
 L. Ed. 210, 37 Sup. Ct. 43; Atchi- Where it appears that the loss 
 
 son, T. & S. F. R. Co. v. Harold, of an interstate shipment was 
 
 241 U. S. 371, 60 L. Ed. 1050, 36 caused by an extraordinary flood, 
 
 Sup. Ct. 065; Southern Exp. Co. v. the prior negligent delay of the 
 
 Byers, 240 U. S. 612, 60 L. Ed. 825, carrier is a remote and not a con- 
 
 36 Sup. Ct. 410, L. R. A. 1917A current pro.ximate cause under 
 
 197; Southern R. Co. v. Presoott, the controlling decisions of the 
 
 240 U. S. 632, 60 L. Ed. 836, 36 Sup. federal courts. Toledo & O. C. R. 
 
 Ct. 469. Co. V. Kibler, Ohio , 119 
 
 44. See cases under note 42, N. E. 733. 
 
 stipra. 46. Thomas v. Lancaster Mills 
 
 45. Seaboard Air Line Ry. Co. v. of Clinton, Massachusetts, 19 C. C. 
 Mullin, 70 Fla. 450, 11 N. C. C. A. A. 88, 71 Fed. 481.
 
 5'9S . Duties to Intekstate Shippers. [§ 341 
 
 as stated by the supreme court of Miunesota:'' "Under 
 tlie federal rule unless the carrier is chargeable with 
 some negligence other than delay in making the ship- 
 ment, the destruction of the property by an act of God, 
 not foreseen in time to guard against it absolves the 
 carrier from liability. * * * Consequently it is nec- 
 essary to determine whether there is evidence tending 
 to prove negligence other than delay without which 
 the property would not have been destroyed by the 
 flood." The burden of proving such other negli- 
 gence rests upon the plaintiff.*^ 
 
 § 342. Connecting and Terminal Carriers Liable 
 under Carmack Amendment as Amended, When. The 
 
 Court of Appeals of Georgia, in construing the Carmack 
 amendment, held that the remedy therein provided 
 against the initial carrier of interstate shipments was 
 exclusive and that the connecting or terminal carriers 
 were not liable as to interstate shipments even though 
 it be shown that the loss or damage occurred on their 
 lines.*^ But the remedy provided in the statute against 
 the initial carrier is not exclusive, for an action may be 
 prosecuted against the connecting or the terminal carrier 
 when the loss or damage is shown to have occurred on 
 its line.'° "This amendment," said the supreme court 
 
 47. Northwestern Consol. Mill- 241 U. S. 190, 60 L. Ed. 948, 36 
 ing Co. V. Chicago, B. & Q. R. Co., Sup. Ct. 541. 
 
 135 Minn. 363, 15 N. C. C. A. 745, Georgia. Central of Georgia R. 
 
 160 N. W. 1028. Co. V. Waxelbaum Produce Co., 18 
 
 48. Memphis & C. R. Co. v. Ga. App. 489, 89 S. E. 635. 
 Reeves, 10 Wall. (U. S.) 176, 19 L. Louisiana. Coate Bros. v. New 
 Ed. 909; Northwestern Consol. Orleans Terminal Co., 139 La. 958, 
 Milling Co. v. Chicago, B. & Q. R. 72 So. 678. 
 
 Co., 135 Minn. 363, 15 N. C. C. A. Maryland. Baltimore, C. & A. R. 
 
 745, 160 N. W. 1028. Co. v. William Sperber & Co., 117 
 
 49. Southern R. Co. v. Savage, Md. 595, 84 Atl. 72. 
 
 18 Ga. App. 489, 89 S. E. 634; Missouri. Collier v. Wabash R. 
 
 Southern R. Co. v. Bennett, 17 Ga. Co., Mo. App. - — 190 S. W. 
 
 App. 162, 86 S. E. 418; Penning- 969. 
 
 ton v Grand Trunk Western Ry. South Dakota. Elliott v. Chi- 
 
 Co., 199 111. App. 479. cago. M. & St. P. R. Co., 35 S. D. 
 
 50. United States. Georgia, F. 57, 150 N. W. 777. 
 & A. R. Co. v. Blish Milling Co.,
 
 § 342] DuTiKs IJndkk Carmack Amendment. 
 
 599 
 
 of Wisconsin," "clearly gives a right of action against 
 the initial carrier. But is such remedy exclusive! The 
 proviso that notliing in this section sliould deprive the 
 holder of the receipt or hill of lading of any remedy or 
 right of action which he has under existing law was con- 
 strued in Adams Express Co. v. Croninger, 226 U. S. 491. 
 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. 8.) 257, 
 to mean existing federal law and not state law. So the 
 remedy given hy the amendment was additional to and 
 concurrent with any other existing federal remedy. The 
 question, therefore, arises whether, under federal law 
 prior to the enactment of the Carmaok amendment, a 
 shipper had a right of action against a carrier negli- 
 gently causing the damage, but who was not the carrier 
 with whom the initial contract of shipment was made. 
 An affirmative answer to this question was given by the 
 Supreme Court of the United States in the case of the 
 New Jersey Steam Navigation Co. v. Merchants' Bank, 
 
 "The Carmack amendment 
 merely places the shipper in a 
 position where he may be able to 
 recover for injured property and 
 relieve himself, often times, from 
 the task of locating the active 
 tortfeasor. But if the shipper 
 knows which one amcng a num- 
 ber of carriers caused the injury, 
 he may sue that one alone." El- 
 liott V. Chicago, M. & St. P. R. Co., 
 supra. 
 
 "It is also contended by the ap- 
 pellant that this suit is based up- 
 on the Carmack amendment to the 
 Interstate Commerce Law, and 
 that, under this amendment, the 
 initial carrier, and the initial car- 
 rier only, is liable for damages 
 for injuries to shipments of stock. 
 In this case, the testimony shows 
 that the stock were delivered in 
 good condition to the Illinois Cen- 
 tral Railroad Company at Louis- 
 ville; that they were delivered to 
 the consignee at Holly Springs, 
 their destination, bv the Illinois 
 
 Central Railroad Company, in a 
 damaged condition; and that the 
 damage to this shipment occurred 
 while they were in the hands of 
 the defendant railroad company. 
 This being true, we do not under- 
 stand the cases cited by counsel as 
 sustaining this proposition to be 
 applicable. There was an injury, 
 a tort, committed by the appellant 
 company to the appellee, for which 
 a cause of action accrued to the 
 appellee: and it was not the in- 
 tention nor purpose of the Car- 
 mack amendment to deprive the 
 consignee of a cause of action 
 which he had by common law 
 against the railroad company in 
 cases of this character. In fact, 
 this act of Congress expressly 
 negatives any such idea." Illinois 
 Cent. R. Co. v. Mahon Live Stock 
 Co., Ill Miss. 496, 71 So. 802. 
 
 51. Bichlmeier v. Minneapolis. 
 St. P. & S. S. M. R. Co., 159 Wis. 
 401. 1.^0 N. W. 508.
 
 600 Duties to Interstate Shippers. [§ 342 
 
 6 How. 344, 12 L. Ed. 465, and so far as we liave been 
 able to discover the rule there announced has remained 
 unchanged. Such are also the uniform holdings of state 
 courts. " Section 1, Hutch. Car. (3d Ed.) sec. 236, and 
 cases cited; 4 Ruling Case Law, 947 and cases cited. 
 The reason of the rule that the owner of the goods may 
 proceed directly against the carrier who is the actual 
 wrongdoer, even if he has a remedy against the receiv- 
 ing carrier, is that each carrier is an agent of the owner 
 authorized to contract with the connecting carrier for 
 the safe transportation of the shipm.ent which, when 
 undertaken by such carrier, becomes a contract with the 
 owner for a breach of which he can proceed directly 
 against the carrier in default." 
 
 § 343. Connecting and Terminal Carriers not Liable 
 for Acts of Initial Carrier. But the connecting and 
 terminal carriers receiving property transported in inter- 
 state commerce are not liable for loss or damage thereto 
 while in possession of the initial carrier in the absence 
 of an agreement to the contraiy." 
 
 § 344. Presumption that Loss or Damage Occurred 
 on Line of Terminal Carrier — Contrary Rulings. Under 
 the common law as enforced in many of the states, it 
 was held that when the plaintiff showed the good con- 
 dition of the goods when delivered to the initial carrier, 
 and that the goods were in bad or damaged condition 
 when delivered by the terminal carrier to the consignee, 
 a presumption arose that the damage occurred on the 
 line of the final carrier.^^ Notwithstanding the enact- 
 ment of the Carmack amendment making the initial 
 carrier liable for loss or damage on the lines of any of 
 the connecting carriers, some courts have held that the 
 
 52. Knapp v. Minneapolis, St. Rep. 551, 7 So. 544; Carr v. Chi- 
 P. & S. S. M. R. Co., 34 N. D. 466, cago, R. I. & P. R. Co., 173 Iowa 
 159 N. W. 81. 444, 155 N. W. 840; Morganton 
 
 53. Montgomery & E. R. Co. v. Mfg. Co. v. Chio R. & C. Ry. Co., 
 Culver, 75 Ala. 587, 51 Am. Rep. 121 N. C. 514, 61 Am. St. Rep. 679, 
 483; Savannah, F. & W. Ry. Co. 28 S. E. 474. 
 
 V. Harris, 26 Fla. 148, 23 Am. St.
 
 § 345] Duties Under Carmack Amendment. 601 
 
 federal act does not supersede this rule."'* These courts 
 take the position tliat the Carmack amendment did not 
 abrogate the rule of the state that property received in 
 good order by tlie initial carrier is presumed to have 
 been received in like order by the succeeding carrier, 
 and that final delivery in bad order raises a rebuttable 
 presumption that the injury occurred on the delivering 
 carrier's line.''"' 
 
 On the other hand, if Congress, by the enactment of 
 this statute, raised a presumption against the initial 
 carrier, a presumption that the last carrier is to blame 
 resting upon state rule cannot exist side by side with 
 a federal statute declaring that this presumption exists 
 against the initial carrier; for it would seem to be a 
 logical impossibility to have a presumption that if a 
 shipment which started in good condition is delivered 
 in damaged condition, the last carrier damaged it, and, 
 at the same time, have one available in the same case, 
 upon the same evidence, that the initial carrier did that 
 damage. Thus, in the case cited in the notes,^*' it was 
 held that the presumption of damage on the line of the 
 final carrier, which existed prior to the enactment of 
 the Carmack amendment, has been effectually destroyed 
 by the declaration of the statute that the initial carrier 
 of interstate shipments is liable no matter on what line 
 the damage may have occurred. 
 
 § 345. Last Carrier not Liable in Absence of Proof 
 of Damage on its Line. The decisions of the courts 
 cited in the foregoing paragraph holding that a recovery 
 may be had against the terminal carrier of freight in 
 interstate commerce, based upon the common law pre- 
 sumption that property starting in good condition re- 
 mains so until the last moment when it could have been 
 harmed, seems to be also in conflict with the decision of 
 
 54. Erisman v. Chicago, B. & Q. Chicago, R. I. & P. Ry. Co. v. Har- 
 
 R. Co., Iowa , 163 N. W. rington, 44 Okla. 41, 143 Pac. 325. 
 
 627. 56. Carlton Produce Co. v. 
 
 55. Duvall V. Louisiana Western Velasco, B. & N. Ry. Co., Tex. 
 
 R. Co., 135 La. 189, 65 So. 104: Civ. App. , 131 S. W. 1187.
 
 602 Duties to Interstate Shippers. [§ 345 
 
 the federal Supreme Court in Charleston & W. C. Ry. 
 Co. V. "^"arnville Furniture Co." In that case an inter- 
 state shipment from a point in North Carolina to a town 
 in South Carolina was involved. The shipper sued the 
 terminal carrier and recovered not only the damages 
 for the loss, but also a penalty under a state law of South 
 Carolina. The damage to the furniture was not shown 
 to have occurred on the line of the terminal carrier, but 
 applying the substantive law of the state, the state courts 
 allowed a recovery against the last carrier not only for 
 the damage, but for the penalty as well. The federal 
 Supreme Court held that the penalty could not be re- 
 covered for the reason that it had been superseded by 
 the Carmack amendment. The damages allowed and 
 the penalty recovered w^ere separable; but the court 
 seems also to have decided that the damages were not 
 recoverable as well as the penalty, for the reason that 
 the jDresumption created by the state law was in conflict 
 with the Carmack amendment. "It is true that in the 
 opinion of the Supreme Court," said Mr. Justice Holmes, 
 "the judgment is spoken of as being for damage done 
 to a shipment 'while in defendant's possession in this 
 State,' and it is said that the statute limits the liability 
 to such damage. But in view of the record this can 
 mean no more than that there is a presumption that the 
 carrier that fails on notice to point out some other as 
 responsible is itself in fault. The defendant happened 
 to be the last carrier of the line, and in many States, 
 including South Carolina, a so-called presumption has 
 been established at common law that property starting 
 in good condition remained so until the latest moment 
 when it could have been harmed. But while this seems 
 to have made its first appearance in the guise of a true 
 presumption of fact, it became, if it was not always, a 
 rule of substantive law, a rule of convenience, calling 
 on the last carrier to explain. Willett v. Southern Ry,, 
 66 S. Car. 477, 479. Moore v. N. Y., New Haven & Hart- 
 
 57. 237 U. S. 597, 59 L. Ed. 1137, 35 Sup. Ct. 715, Ann. Cas. 1916D 
 
 33^
 
 § 345] Duties Under Carmack Amendment. 603 
 
 ford, R. R., 173 MasRachiisetts, 335, 337. Tlie rule is 
 stated as a rule of policy in South Carolina, and the stat- 
 ute makes it still more clearly so, since with the limits 
 that we have stated, it applies indifferently to any car- 
 rier in the line, if witiiin tiie State, accordiuj? to the 
 accident of the plaintiff's demand. The case then, we 
 repeat, is that a carrier in interstate commerce has l3een 
 held liable for a loss not shown to have happened while 
 the goods were in its possession or within the State, 
 or to have been caused by it, if those facts are now in 
 any way material, on the strength of a rule of substan- 
 tive law. The claims dealt with in Atlantic Coast Line 
 Co. V. Mazursky, 216 U. S. 122, all arose before June 
 29, 1906, the date of the Carmack Amendment. The 
 South Carolina law has been amended and enlarged in 
 scope since that decision but it is less necessary to scruti- 
 nize those changes than to consider the modifications of 
 the United States law. As it now stands that law re- 
 quires the initial carrier to issue a through bill of lad- 
 ing and makes it liable for all damage anywhere on the 
 route. Sec. 20. By Sec. 1 as amended by the act of 
 June 18, 1910, sec. 7, c. 309, 36 Stat. 539, 546, it is made 
 the duty of carriers to secure the safe transportation 
 and delivery of property subject to the act, upon reason- 
 able terms. As was said in Missouri, Kans. & Tex. Rv. 
 Co. V. Harris, 234 U. S. 412, 420, the result of many 
 recent cases, there cited, beginning with Adams Express 
 Co. V. Croninger, 226 U. S. 491 and coming down through 
 Boston & Maine R. R. v. Hooker, 233 U. S. 97, is that 
 'the special regulations and policies of particular States 
 upon the subject of the carrier's liability for loss or 
 damage to interstate shipments and the contracts of car- 
 riers with respect thereto, have been superseded.' It 
 is true that in that case the inclusion of the attorney's 
 fee not exceeding $20 in the costs upon judgments for 
 certain small claims was upheld although incidentally 
 including some claims arising out of interstate commerce. 
 But apart from the effect being only incidental the 
 ground relied upon was that the statute did not 'in any- 
 wise enlarge . . . the responsibility of the carrier' 
 for loss or 'at all affect the ground of recovery, or the
 
 604 Duties to Interstate Shippers. [§ 345 
 
 measure of recovery,' pp. 420, 422. The South Carolina 
 Act, on the other hand extends the liability to losses 
 on other roads in other jurisdictions and increases it 
 by a fine difficult to escape. It overlaps the extent of 
 liability for loss." 
 
 § 346. Effect of Re-routing or Change of Destina- 
 tion upon Liability of Initial Carrier. An initial car- 
 rier is not liable for loss or damage to goods on lines 
 not its own, and over which they were routed without 
 notice to it; because the obligation of the initial carrier 
 ceases when the goods reach the destination, in good 
 condition, to which they were originally intended or con- 
 signed.^* This principle is well illustrated in a case 
 where a carload of shingles was delivered to the Great 
 Northern R. Co. for shipment from Sisco, Wash., to Kan- 
 kakee, 111. The carrier issued a bill of lading and routed 
 the shipment over its own line of railway, and over the 
 lines of the Chicago, B. & Q. R. Co. and other carriers 
 whose lines together formed a continuous line of rail- 
 way from Sisco to Kankakee. The shipper, without 
 notice to the initial carrier, instructed the final connect- 
 
 58. Barrett v. Northern Pac. R. charged from all obligations there- 
 Co., 29 Idaho 139, 157 Pac. 1016, under, unless it be shown, which 
 in which the court said: "While it it was not, that they were damaged 
 is true that in this case the goods en route between the above men- 
 were first delivered by respondents tioned points due to negligence in 
 to the Chicago, Burlington & transportation, in which case the 
 Quincy Railroad Company for initial carrier would be liable un- 
 transportation, and, under the der the Carmack amendment. The 
 terms of the contract then entered agreement between appellant (con- 
 in to, that company was the in- necting carrier) and respondents, 
 itial carrier and was liable for any prior to the arrival of the goods in 
 damage which might result due to Spokane whereby they were to be 
 its negligence or to the negligence transferred from that city to 
 of the appellant company while Rupert, constituted a new con- 
 
 the goods were enroute from Con- 
 
 nelsville to Spokane, it is also true 
 
 that the contract in question was 
 
 fully performed and complied with 
 
 when the goods reached Spokane. Railroad Company, and one to 
 
 and the Chicago, Burlington & which that company was not a 
 
 Quincy Railroad Company was dis- party." 
 
 tract, entirely separate and inde- 
 pendent of that entered into with 
 the Chicago, Burlington & Quincy
 
 "^ 346] Duties Under Carmack Amendivtent. 605 
 
 ing carrier named in the bill of lading, and over whose 
 lines the sliipment arrived at Kankakee, to divert the 
 shipment to a point in New Jersey. The terminal car- 
 rier, upon receiving snch instructions, issued a new bill 
 of lading and forwarded the shipment over a new line 
 of connecting railways to its new destination. Under 
 these facts the court properly held that the initial car- 
 rier was not liable for damages to the shingles incurred 
 while they were being transported from Kankakee to 
 the new point of destination.''" "Under its bill of lad- 
 ing," said the court, ''respondent contracted to safely 
 carry and deliver the shingles at Kankakee, 111. Re- 
 spondent assumed no other nor further obligation. There 
 is no evidence in the case of, nor does appellants at- 
 tempt to show, the arrival of the shingles at Kankakee 
 in a damaged condition. Its whole theory of recovery 
 is that the respondent is the initial carrier, and hence 
 liable for any damage to the shipment en route to its 
 destination. If it could be so held, respondent's lia- 
 bility is coextensive with its undertaking, and that end- 
 ed with the arrival of the shingles at the destination 
 named in its bill of lading — Kankakee, 111. Allen & 
 Gilbert Ramaker Co. v. Canadian Pac. R. Co., 42 Wash. 
 64, 84 Pac. 620, 7 Ann. Cas. 468. The liability of re- 
 spondent as initial carrier could not be extended to in- 
 clude the shipment from Kankakee to Palisades Park, 
 so as to render it answerable to appellant for any damage 
 to the shingles from this reshipment." On the other 
 hand, the court of appeals of Georgia held that the ini- 
 tial carrier of a shipment from Moorefield, W. Va., to 
 Richmond, Va., which, upon its arrival at Richmond, 
 was reconsigned to Atlanta, Ga., was liable for damage 
 to the shipment while being transported between Rich- 
 mond and Atlanta. It appeared, however, in this case 
 that the shipment was made under one contract from 
 Moorefield to Atlanta.*" 
 
 59. Parker-Bell Lumber Co. v. GO. Baltimore & O. R. Co. v. 
 
 Great Northern R. Co., 69 Wash Montgomery & Co., 19 Ga. App. 29, 
 
 123, 41 L. R. A. (N. S.) 1064, 124 90 S. E. 740, in which Broyles. J., 
 
 Pac. 389. said: "The destination was
 
 G06 Duties to Interstate Shippers. [§ 347 
 
 § 347. Carriers May Limit Liability for Value of 
 Property at Time and Place of Shipment. Bills of lad- 
 ing issued by carriers for the transportation of property 
 from one state to another frequently contain clauses 
 that the damages for loss or injury shall be determined 
 according to the value of the property at the time and 
 place of shipment. Although the statute provides, since 
 the passage of the Cummins amendment that no con- 
 tract, receipt, rule or other limitation of any character 
 whatsoever shall exempt the carrier from the liability 
 imposed by the act, such stipulations do not consti- 
 tute a limitation of liability in violation of the Cummins 
 amendment, but establish a certain and definite means 
 for determining the measure of recovery of a shipment 
 that has been lost or injured. "Ma^^ the carriers," said 
 the Commission, ^^ "lawfully provide in their tariffs and 
 rate schedules that their liability shall be for the full 
 value of the property at the time and place of ship- 
 ment? It is argued that such a provision would be nei- 
 ther a limitation of the amount of recovery nor a repre- 
 sentation or agreement as to value within the meaning 
 of the new law. It is argued that this rule would re- 
 lieve the question of the amount of liability from un- 
 certainty, would afford a reasonable and uniform method 
 of determining the measure of recovery, save endless 
 litigation with its attendant labor and expense, and 
 avoid unjust discriminations. The Cummins amendment 
 
 changed from Richmond to Atlanta the freight charges due ii, and 
 by the consignees. The shipment thereafter a new bill of lading had 
 was carried from the point of been issued for the shipment from 
 origin — Moorefield, W. Va., — to At- Richmond, Va., to Atlanta, then 
 lanta, Ga., under one contract, the there would have been a new ship- 
 bill of lading issued by the defend- ment, and the railroad issuing this 
 ant company, and the shipment second bill of lading at Richmond 
 moved under a through rate of would have been the initial carrier 
 freight from the point of origin to of the shipment from Richmond 
 Atlanta, the final destination, as to Atlanta." 
 
 appears from the freight bill. If 61. In re the Cummins Amend- 
 
 the defendant, or its connection, ment, 33 I. C. C. 682. See also 
 
 had delivered the shipment at Wallingford v. Atchison, T. & S. F 
 
 Richmond, demanded a surrender Ry. Co., — Kan. , 167 Pac. 
 
 of its bill of lading, there collected 1136.
 
 I 
 
 <§ 348] J)uTiE.s Undkr Carmack Amendment. GOT 
 
 clearly places upou the carriers liability for the full 
 actual loss, damage, or injury to the property trans- 
 ported wliicli is caused by them, and it makes unlaw- 
 ful any limitation of that liability, or of the amount of 
 recovery thereunder, in any receipt, bill of lading, con- 
 tract, rule, regulation, or tariff filed with this Commis- 
 sion, without respect to the manner or form in which 
 such limitation is sought to be made. The loss or dam- 
 age must, apparently, be either as of the time and place 
 of shipment, time and place of loss or damage, or time 
 and place of destination. Where rates are lawfully de- 
 pendent upon declared values, the property and the 
 rates are classified according to the character of the 
 property, of which the value of the property may con- 
 stitute an element, and such classification is necessarily 
 as of the time and place of shipment. It is therefore 
 believed that the liability of the carrier may be limited 
 to the full value of the property so classified and es- 
 tablished as of the time and place of shipment." Such 
 stipulations in bills of lading were frequently held to 
 be valid under the Carmack amendment and prior to 
 the enactment of the Cummins amendments.^^ 
 
 § 348. Provisions of Shipper's Contract with Ini- 
 tial Carriers Inure to Benefit of Connecting Carrier. 
 The liability of any carrier of interstate freight in the 
 route over which the merchandise is routed, for loss 
 
 62. Gulf, C. & S. F. R. Co. v. in the condition in which it should 
 
 Texas Packing Co., 244 U. S. 31, have arrived at the place of des- 
 
 61 L. Ed. 970, 37 Sup. Ct. 487, tination and its market value in 
 
 Pennsylvania R. Co. v. Olivit Bros.. the condition in which, by reason 
 
 243 U. S. 574, 61 L. Ed. 908, 37 Sup. of the fault of the carrier, it did 
 
 Ct. 468; Brockman v. Missouri Pac. arrive. New York, L. E. & ^V. R. 
 
 R. Co., 195 Mo. App. 607, 188 S Co. v. Estill, 147 U. S. 591, 616, 37 
 
 W. 920; Spada v. Pennsylvania R l. Ed. 292, 304, 13 Sup. Ct. 444. 
 
 Co., 86 N. J. L. 187, 92 Atl. 379; ^he stipulations of these bills of 
 
 Wegener v. Chicago & N. W. R. ^^^.^^ changed this rule in the re- 
 
 quirement that the invoice price 
 
 Co., 162 Wis. 322, 150 N. W. 201. 
 
 "Apart from the stipulation of 
 
 these bills of lading, the ordinary ^^ the place of shipment should 
 
 measure of damages in cases of ^^ the basis for assessing the dam- 
 
 this sort is the difference between ages." Gulf, C. & S. F. R. Co. v. 
 
 the market value of the property Texas Packing Co., supra.
 
 608 Duties to Interstate Shippers. [§ 348 
 
 or damage is that imposed by the Carmack amendment 
 as amended and as measured by the original contract 
 of shipment so far as it is valid under the statute ;''' for 
 when an interstate carrier accepts a shipment to a desti- 
 nation over the lines of connecting cariers, the contract 
 made by it governs the entire transportation and a 
 second contract exacted from the shipper by a connect- 
 ing carrier is void." It follows, therefore, that any pro- 
 vision in the contract which would be valid in behalf of 
 the initial carrier likewise inures to the benefit of the 
 connecting carriers.*"'^ For example, a provision in a 
 bill of lading providing for an agreed valuation of the 
 property in the case of loss or accident in consideration 
 of a reduced rate inures to the benefit of a terminal 
 carrier when the property is destroyed while in its cus- 
 tody as a warehouseman."'^ The Carmack amendment 
 as applied to connecting or terminal carriers gives them 
 the benefit of all lawful conditions or provisions in the 
 contract made by the shipper with the initial carrier.''^ 
 
 63. Chicago, St. P., M. & 0. R. 683, 33 Sup. Ct. 391; Burke v. 
 
 Co. V. Latta, 226 U. S. 519, 57 L. Union Pac. R. Co., N. Y. App. 
 
 Ed. 328, 33 Sup. Ct. 155; Chicago, Div. , 166 N. Y. Supp. 100; 
 
 B. & Q. R. Co. V. Miller, 226 U. S. Piper v. Boston & M. R R., 90 Vt. 
 
 513, 57 L. Ed. 323, 33 Sup. Ct. 155; 176, 97 Atl. 508. 
 
 Adams Exp. Co. v. Croninger, 226 66. Cleveland, C, C. & St. L. R. 
 
 U. S. 491, i,l L. Ed. 314, 33 Sup. Ct. Co. v. Dettlebach, 239 U. S. 588, 60 
 
 148, 44 L. R. A. (N. S.) 257. L. Ed. 453, 36 Sup. Ct. 177. 
 
 64. Missouri, K. & T. R. Co. of 67. Erisman v. Chicago, B. & Q. 
 
 Texas v. Ward, 244 U. S. 383, 61 R. Co., Iowa , 163 N. V/. 
 
 L. Ed. 1213, 37 Sup. Ct. 617. 627. 
 
 65. Kansas City Southern R. Co. 
 V. Carl, 227 U. S. 639, 57 L. Ed.
 
 CHAPTER XVIII 
 
 The Fk-Dkhaf. I^iiu. ok T.adinc Law. 
 
 Sec. 349. Origin and General Scope of the Federal Bill of Lading Law 
 Sec. 350. Constitutionality and Validity of the Act. 
 Sec. 351. Leading Provisions of Act— Rule in Friedlander v. Te.xas 
 & Pacific R. Co., Modified. 
 
 § 349. Origin and General Scope of the Federal Bill 
 of Lading Law. Tluj Act of Congress commonly known 
 as the Federal Bill of Lading Law was approved on 
 August 29th, 1916, and became effective on and after 
 January 1st, 1917.' It was the result of the labor of 
 the Commissioners on uniform state laws of the Ameri- 
 can Bar Association, after repeated conferences with rep- 
 resentatives of the American Bankers Association, the 
 railroad associations and the shippers' association. It 
 was originally i)repared for the purj^ose of having it 
 presented to the several State legislatures with a view 
 of providing uniform legislation upon the subject. It 
 became the law in several of the leading commercial 
 States — Connecticut, Illinois, Iowa, Louisiana, Massa- 
 chussets, Maryland, Michigan, New York, Ohio and 
 Pennsylvania. The federal act does not vary substantial- 
 ly from the acts passed by the legislatures of the States 
 just named, save that it is made to ap])ly to interstate 
 and foreign commerce. 
 
 The general scope of the Act is defined in section 
 1 thereof which provides that bills of lading issued by 
 any common carrier for the transportation of goods in 
 any territory of the United States, or the District of 
 Columbia, or from a place in a State to a place in a 
 foreign country, or from a place in one State to a 
 place in another State, or from a place in one State 
 to a place in the same State through another State or 
 foreign country, shall be governed by the act. In 
 substance, the act constitutes a codification of the law 
 
 1. For full copy of Act see ap- pendix C, infra. 
 
 (609) 
 
 1 I'ontrol farilers ."50
 
 610 
 
 Duties td Interstate Shippers. 
 
 [^ 349 
 
 and principles controlling interstate and foreign 
 shipments. It defines the rights and liabilities of the 
 common carriers, consignors, consignees, and all other 
 immediate owners or holders of bills of lading. 
 
 § 350. Constitutionality and Validity of the Act. 
 
 Since Congress has full and plenary power over inter- 
 state and foreign commerce, it is manifest that most 
 of the provisions of the Federal Bill of Lading Act con- 
 stitute a proper exercise of the power of Congress under 
 the commerce clause.^ But in the discussion of the bill 
 while pending in Congress some doubt was expressed 
 as to the constitutionality of those provisions of the act 
 relating to the transfer or negotiation of bills of lading.^ 
 
 2. See Section 5 and 14, supra. 
 
 3. The foUowing coUoquy be- 
 tween Professor Williston and Sen- 
 ator Pomerene durins a congres- 
 sional hearing in 1912 involving 
 the same bill, suggests the consti- 
 tutional question raised by some 
 of the provisions of the bill: 
 
 "Senator Pomerene. Professor, 
 in referring to the bill which bears 
 my i;ame — and I confess to be the 
 only stepfather to that bill, al- 
 though I am in hearty approval 
 of it — you said you had some ques- 
 tion as to the constitutionality of 
 certain provisions. What provi- 
 sions did you have in mind? 
 
 Mr. Williston. Part 3, and one 
 section of the criminal provision. 
 
 Senator Pomerene. That is sec- 
 tion 3? 
 
 Mr. Williston. No; Part 3. I 
 beg your pardon. The bill in the 
 State was divided into four parts; 
 It is not so divided as it stands 
 before you. 
 
 Senator Pomerene. I have here 
 a copy of the bill. 
 
 Mr. Williston. Yes; but that 
 does not state the parts as It did 
 in the other bill. 
 
 Section 28 to 43, inclusive, re- 
 late to dealings in bills of lading 
 between third parties, neither of 
 whom is the carrier. That is, to 
 the negotiation and transfer — 
 
 Senator Pomerene. To the nego- 
 tiation simply of- the bills of lad- 
 ing? 
 
 Mr. Williston. Yes, sir. And it 
 is that part which troubles me. 
 
 Senator Pomerene. Now, state 
 briefly, if you can, what difficul- 
 ties you see in connection with 
 that matter? 
 
 Mr. Williston. The clear ground 
 of supporting Senate bill 957 is 
 that the railroad is an instrument 
 of interstate commerce, and Con- 
 gress has a right to say what bills 
 of lading a railroad shall issua, 
 and what shall be its liabilities on 
 that instrument. Now suppose 
 that instrument goes into the 
 hands of A, a third person, and A 
 pledges it to a bank in Ohio: 
 Query: Does the fact that that bill 
 was originally issued by a railroad, 
 an instrument of interstate com- 
 merce, give Congress the right to 
 say what is the effect of the 
 pledge by A, an outside holder of
 
 § 350 Federal Bill of Lading Law. 611 
 
 The constitutionality of these provisions was thus dis- 
 cussed by the Senate Committee on interstate commerce 
 in its report accompanying the Bill: "The Constitution 
 vests Congress with power 'to regulate commerce witli 
 foreign nations and among the several States and with 
 the Indian tribes.' This authority is very broad, very 
 comprehensive. It covers all phases and features of 
 interstate commerce. It touches not only the property 
 of the railroad, but all of its instrumentalities. It con- 
 trols and protects its operation and its business. The 
 shipment of goods from one State to another is surely 
 interstate commerce. If so, when it comes to the physi- 
 cal property itself, can there be any doubt that the same 
 power extends to all of the instrumentalities used in the 
 conveyance of the property, or to any contract which 
 may pertain to it for the safeguarding of the parties 
 interested? If the goods which are shipped from one 
 State to another be interstate commerce, are we going 
 far afield when we say that the bill of lading, which is 
 the symbolic representative of the goods, is also inter- 
 state commerce ? The Committee will not take the time 
 to discuss all of the decisions of our Supreme Court 
 
 the bill, to B, a bank In Ohio? Mr. Williston. As between them- 
 
 That is my difficulty. selves. That is the matter dealt 
 
 Senator Pomerene. It is still a with in these sections that I have 
 
 contract pertaining to interstate alluded to— the rights of A and 
 
 commerce? B as between one another? 
 
 Mr. Williston. Yes, sir. Senator Pomerene. Your posi- 
 
 Senator Pomerene. This is tion is that in that respect then the 
 
 simply an offhand suggestion: transferee of the bill of lading will 
 
 Would not the holder take it sub- be essentially different from that 
 
 ject to any of its provisions and its of the original consignor? 
 liabilities, whatever they may be? Mr. Williston. A bill of lading 
 
 Mr. Williston. The holder would is both a contract and a svmbol of 
 
 take the rights given by the bill title to the goods. In so far as It 
 
 against the railroad, and I think .• „ „«„x„„„t ... x . < 
 
 .r , , ^ , ^s a contract, it is a contract of 
 
 it clear that Congress would have x, ,, , 
 
 the right to say what these rights ^' '^"'^^'^ comi?auy, and B gets 
 
 shall be against the railroad. But '^^ '°°*^^^^ "^^^^ ^^^^^^ t^« 
 
 can Congress say what are the rel- consignor bargains for against 
 
 ative rights of A and B as against ^^^ railroad company. But as to 
 
 one another? the property rights which B gets 
 
 Senator Pomerene. As between from A, that depends upon what A 
 
 A and B? owns. In a large measure."
 
 (il2 Duties to Inteestate Shippers. [§ 350 
 
 bearing iii)oii this subject. We shall only refer to a few 
 of them: In 1911 the Supreme Court had before it the 
 case of the Soutliern Railway Co. v. the United States. 
 The statute involved was what is commonly known as 
 the 'Safety Appliance Act' of March 2nd, 1893, as amend- 
 ed March 2nd, 1903. Its regulatory features applied to 
 all locomotives, cars, and similar vehicles used on any 
 railway that is a highway of interstate commerce, and 
 were not confined exclusively to vehicles engaged in 
 such commerce. In the syllabus of the case, 222 U. S. 
 20, the court says: The power of Congress under the 
 commerce clause of the Constitution is plenary and com- 
 petent to protect i)ersons and property moving in inter- 
 state commerce from all danger, no matter what the 
 source may be; to that end, Congress may require all 
 vehicles moving on highways of interstate commerce 
 to be so equipped as to avoid danger to x^ei'sons and 
 property moving in interstate commerce. It is of com- 
 mon knowledge that interstate and intrastate commerce 
 are commingled in transportation over highways of inter- 
 state commerce, that trains and cars on the same rail- 
 ways, whether engaged in one form of traffic or the other, 
 are interdependent and that absence of safety appliances 
 from any part of a train is a menace not only to that 
 train but to others. Mr. Justice Van Devanter, in de- 
 livering the opinion of the court, on page 26, says: We 
 come then to the question whether these Acts are with- 
 in 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 em- 
 brace vehicles 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 required by these 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 of those who are 
 employed in its movement? Or, stating it in another 
 way. Is there such a close or direct relation or connec- 
 tion between the two classes of traffic, when moving over 
 the same railroad, as to make it certain that the safety
 
 <S 350 Federal Bill of Lading Law. Glo 
 
 of interstate traffic and of those who are employed in 
 its movement will be promoted in a real or substantial 
 sense ])y applyin^jf tin* re(inireinonts of tliese Aets to 
 vehicles used in moving the tiaflic wliich is intrastate 
 as well as to those in movini^- that which is interstate? 
 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 ])ower to regulate intrastate com- 
 merce as such, but because its power to regulate inter- 
 state commerce is plenary and competently may be ex- 
 erted to secure the safety of the persons and property 
 transported therein and of those who are employed in 
 such transportation, no matter what may be the source 
 of the dangers which threaten it. That is to say, it 
 is no objection to such an exertion of this power that 
 the dangers intended to be avoided arise, in whole or 
 in part, out of matters connected with intrastate com- 
 merce. In the same report, on page 370, Mr. Chief 
 Justice White handed down the opinion of the Supreme 
 Court in Northern Pacific Ry. v. State of "Washington. 
 The case involved the validity of the Act of Congress 
 known as the * hours of service law,' passed March 4th, 
 1907. In the syllabus the court says: A train moving 
 and carrying freight between two points in the same 
 State, but which is hauling freight between points both 
 without the" State, is engaged in interstate commerce 
 and subject to the laws of Congress enacted in regard 
 thereto. On page 377 the court quotes approvingly the 
 language of the Supreme Court of the State of Washing- 
 ton, as follows: The power of Congress to regulate 
 interstate commerce is plenary, and that, as an incident 
 to this power, the Congress may regulate by legisla- 
 tion the instrumentalities engaged in the business, and 
 may prescribe the number of consecutive hours an em- 
 ployee of a carrier so engaged shall be required to re- 
 main on duty; and that when it does legislate upon a 
 subject its act supersedes any and all State legislation 
 on that particular subject. The court cites in support 
 of this doctrine a number of its former decisions. In 
 fact, this proposition is not regarded by the courts as
 
 614 Duties to Interstate Shippers. [<§> 350 
 
 debatable. lu Illinois Central R. R. Co. v. Bebrens, 
 administrator (233 U. S., p. 473), the court says: 'When 
 a railroad is a highway of both interstate and intra- 
 state commerce, and the two classes of traffic are inter- 
 dependent in point of both movement and safety, Con- 
 gress may, imder the power committed to it by the com- 
 merce clause of the Constitution, regulate the liability 
 of the carrier for injuries suffered by an employee en- 
 gaged in general work pertaining to both classes of 
 commerce, whether the particular service performed 
 at the time isolatedly considered, is interstate or intra 
 state commerce.' In St. Louis, Iron Mountain & South- 
 ern Railway Company v. Edwards (227 U. S., 265), the 
 Supreme Court held that — 'As applied to interstate 
 shipments, the State cannot oppose penalties for delay 
 in delivery to consignee, as Congress has acted on that 
 subject by the passage of the Hepburn Act.' In Adams 
 Express Co. v. Croninger (226 U. S., 491) Mr. Justice 
 Lurton at page 500, says: 'That the constitutional 
 power of Congress to regulate commerce among the 
 States and with foreign nations comprehends power to 
 regulate contracts between the shipper and the carrier 
 of an interstate shipment by deiining the liability of the 
 carrier for loss, delay, injury, or damage to such prop- 
 erty needs neither argument or citation of authority. 
 That the legislation (of Congress) supersedes all the 
 regulations and policies of a particular State upon the 
 same subject results from its general character. It em- 
 braces the subject of the liability of the carrier under 
 a bill of lading which he must issue and limits his power 
 to exempt himself by rule, regulation, or contract. Al- 
 most every detail of the subject is covered so complete- 
 ly that there can be no rational doubt but that Congress 
 intended to take possession of the subject and super- 
 sede all State regulation with reference to it. Only the 
 silence of Congress authorized the exercise of the police 
 power of the State upon the subject of such contracts. 
 But when Congress acted in such a way as to manifest 
 a purpose to exercise its conceded authority, the regulat- 
 ing power of the State ceased to exist.' In Houston 
 & Texas Ry. v. United States (234 U. S., 343), the Ian-
 
 ^ 350 Federal Bill of Lading Law. 615 
 
 guage of tlie syllabus, in part, is: 'Tlie object of the 
 commerce clause was to prevent interstate trade from 
 being destroyed or impeded by the rivalries of local 
 governments; and it is the essence of the complete and 
 paramount power confided to Congress to regulate inter- 
 state commerce that wherever it exists it dominates. 
 Wherever the interstate and intrastate transactions of 
 carriers are so related that the government of the one 
 involves the control of the other, it is Congress and not 
 the State that is entitled to prescribe the final and domi- 
 nate rule; otherwise the Nation would not be supreme 
 within the national field. While Congress does not 
 possess authority to regulate the internal commerce of 
 a State, as such, it does possess power to foster and pro- 
 tect interstate commerce, although in taking necessary 
 measures so to do it may be necessary to control intra- 
 state transactions of interstate carriers. The use of the 
 State of an instrument of interstate commerce in a dis- 
 criminatory manner so as to inflict injury on any part 
 of that commerce is a ground for Federal intervention, 
 nor can a State authorize a carrier to do that which 
 Congress may forbid and has forbidden.' Again in 
 Chicago, R. I. & Pac. Ry. v. Hardwick Elevator Co. 
 (226 U. S., 427), it was held that— 'There can be no 
 divided authority over interstate commerce, and regula- 
 tions of Congress on that subject are supi^eme. As to 
 those subjects upon which the States may act in the ab- 
 sence of legislation by Congress, the power of the State 
 ceases the moment Congress exerts its paramount au- 
 thority thereover.' Now let us apply the doctrine of 
 these cases to the Bill under consideration. They show 
 conclusively that if Congress passes this Bill, it will 
 supersede all State legislation upon the subject. It is 
 urged b)^ those who oppose this bill that if goods be 
 sent from New York to Cleveland and the bill of lading- 
 is indorsed and transferred by "one citizen of Cleveland 
 to another citizen of Cleveland, within the State of Ohio, 
 it is an intrastate transaction and cannot be controlled 
 by Congress. As applied to an ordinary contract, if 
 there be no other facts involved, this position would be 
 correct. But we answer, the lines of shipment are inter-
 
 616 Duties to Interstate Shippers. [§ 350 
 
 state lines; the trains carryiuo- the goods from one State 
 to another are 'instrumentalities' employed in inter- 
 state commerce, the shipment of the goods from one 
 State to another is interstate commerce, and in order 
 to define the rights and liabilities of the carrier, the 
 consignor, consignee, and immediate owners, both law 
 and public policy reqnire that the company shall issue 
 bills of lading. Can it be said that the bill of lading, 
 which is the representative of this interstate business, 
 defining the rights and liabilities of all concerned, is 
 not a contract relating to interstate commerce, and there- 
 fore not controlled by its principles! Those who object 
 to the bill admit that interstate shipments are subject 
 to Federal control, save only where it relates to a trans- 
 fer of the bill of lading within a State between citizens 
 of that State. If Congress assumes control of this legis- 
 lation affecting interstate commerce, must it continue 
 to divide its authority with the State when it comes 
 to the mere negotiation and transfer of a bill of lading 
 between two citizens of the same State within the State, 
 but under all other circumstances the State shall have 
 no control? If such be the case, what becomes of tlie 
 doctrine that the power of Congress is plenary after it 
 has once assumed to legislate upon a given subject"? 
 If so, would the Federal law supersede State legisla- 
 tion? If Congress has the power to compel safety ap- 
 pliances to be placed on cars used both in interstate and 
 intrastate transportation over interstate highways in 
 order to insure the safety of interstate traffic, as was 
 held in Southern Railway v. United States, above cited; 
 if it has power to describe the number of consecutive 
 hours of a crew moving a train from one point to an- 
 other in the State of Washington, hauling merchandise 
 from points in the State to points without the State, as 
 well as in carrying merchandise through the State from 
 a point without the State to a foreign destination, in 
 view of the unity and indivisibility of the service of the 
 train crew and the paramount character of the authority 
 of Congress to regulate commerce, as was held in North- 
 ern Pacific Railway v. State of Washington, above cited; 
 if Congress has the power to regulate the carrier's lia-
 
 § 350] P'edehal 1^11. 1. OK Lakinc \^a\\ . ()17 
 
 bility foi- iiijiii'ies to an ciiiployee ocf^urrin^; upon a high- 
 way of both interstate and inti'astate eoniinerce where 
 tlie two kinds of trallic are interdei)en(h'nt in point of 
 movement and safety and wliere tiie injniies were suf- 
 fered wliile the eini)loyee was enj^a.^cd in <<en«M-al woi'k 
 ])ertaining- to botli elases of commeree, wliether the jjaili- 
 eiilar service performed at the time isolated iy considered 
 is interstate or intrastate commerce, as was hehl in Illi- 
 nois Central I?aili'oad Co. v. Behrens, administrator, 
 above cited; it' the State cannot impose penalties for 
 delay and delivery to a consignee because Congress has 
 acted upon tliat subject by the passage of the Hepburn 
 Act, as was held in St. Louis, etc.. Railway v. Edwards, 
 above cited; and if when Congress acts in such a way 
 as to manifest its purpose to exercise its conceded au- 
 thority, the regulatory ]")Ower of the State ceases to 
 exist, as was held in Adams Express Co. v. Croninger, 
 above cited, are we going far afield when we conclude 
 that if (A)ngi'ess decides to regulate a bill of lading 
 from the time it is issued until it is spent it su])ersedes 
 the authority of the State to control such bill in its 
 transfer from one citizen of a State to another citizen 
 within that State? Paraphrasing the language of Mr. 
 Justice Van Devanter, may not this power of Federal 
 control be exerted to secure the safety of the property 
 transported therein, no matter what may be the source 
 of the danger which threatens, whether it be by trans- 
 fer or negotiation between two parties residing in dif- 
 ferent States, or in the same State? Can we not say, 
 again borrowing the thought of the learned Justice, 
 that it is no objection that the dangers intended to be 
 avoided arise in whole or in part out of matters connect- 
 ed with intrastate commerce? Would it not be hyper- 
 critical to say that the bill of lading thus relating to 
 interstate shipments is valid and binding on all parties 
 concerned from the day it is issued to the day it is 
 spent, and subject to the control of Congress at all times, 
 save only when it is transferred or negotiated by or be- 
 tween two citizens of the State within the same State? 
 Is it bound to say the Federal law can regulate its is- 
 suance and operation before it is thus transferred or
 
 618 Duties to Interstate Shippers. * [§ 350 
 
 negotiated between two citizens of the same State, and 
 resume its jurisdiction immediately after it is thus trans- 
 ferred or negotiated between them, provided the subse- 
 quent transfers or negotiations shall be between citizens 
 of different States? Must Congress, after it has assumed 
 jurisdiction, surrender it for a moment of time to the 
 State authorities only to resume it again after a certain 
 contingency? If so, what becomes of the doctrine of 
 our Supreme Court that when Congress does legislate 
 upon a subject its act supersedes any and all State legis- 
 lation on that particular subject! A careful study of 
 these decisions of our Supreme Court force the conclu- 
 sion that the constitutional objections raised are not 
 sound." 
 
 § 351. Leading Provisions of Act— Rule in Fried 
 lander v. Texas & Pacific R. Co. Modified. A summary 
 of the leading provisions of the Federal Bill of Lading- 
 Law with its eifect upon some prior decisions of the 
 federal Supreme Court was contained in the report of 
 the Senate Committee on interstate commerce when 
 the bill was introduced. "In the hearings before the 
 Interstate Commerce Commission it was testified," said 
 the Committee in its report, ''by well-informed witnesses 
 that bills of lading were annually issued in American 
 commerce representing consignments of merchandise 
 valued at $25,000,000,000; that 99 per cent of the tonnage 
 and value of the commodities shipped and covered by 
 these bills of lading involved interstate and foreign 
 commerce and only 1 per cent intrastate commerce. On 
 these bills of lading it is estimated that $5,000,000,000 
 in cash was advanced annually by the banks. It must 
 follow, therefore, that any reasonable legislation which 
 will lead to the security of these bills of lading in tlio 
 hands of their owners or holders must be of immense 
 value to the commerce of the country. It affects the 
 business of 100,000,000 of people, extending into 48 
 States of the Union and to all the nations of the world. 
 In 1889, the United States Supreme Court in Fried- 
 lander V. Texas & Pacific Railroad (130 U. S., 416) held; 
 *A bill of lading fraudulently issued by the station agent
 
 § 351] Federal Bill of Lading Law. 619 
 
 of a railroad company, without receiving the goods 
 named in it for transportation but in otlier respects ac- 
 cording to the customary course of business, imposes no 
 liability upon the company to an innocent holder who 
 receives it witliout knowledge or notice of the fraud 
 and for a \'aluable consideration.' Under the agreed 
 statement of facts in the case just cited, it appears that 
 the bill of lading issued November 6th, 1883, was exe- 
 cuted by one Elaston, the agent of the railroad company, 
 fraudulently and in collusion with one Lahnesteiu, and 
 without receiving any of the cotton called for by the 
 bill of lading, and without any expectation of receiving 
 it on the part of Easton. A conspiracy had. been entered 
 into between Easton and Lahnestein to issue these bills 
 of lading for Lahnestein 's benefit. They had been guilty 
 of similar transactions. The court held that under these 
 circumstances, the agent was acting beyond the scope of 
 his authority, and therefore the railroad company was 
 not bound. Whether this decision was sound or not it 
 was based upon precedents, and ever since has been 
 recognized as the law of the land by the federal courts 
 as well as by some of the State courts. This ruling has 
 resulted in great losses to the buyers of merchandise 
 who have the right to depend upon the bona fides of 
 bills of lading, to bankers and financial men who have 
 bought or discounted drafts secured by these bills of 
 lading, and to sellers and buyers of cotton, grain, or 
 other merchandise whose transactions are discredited by 
 reason of the frauds which have been perpetrated by 
 fraudulent shippers conspiring with freight agents. As 
 a result millions of dollars have been lost to commerce. 
 The pending bill. Section 22, modifies the law as laid 
 down in the Friedlander case, by declaring: 'That if 
 a bill of lading has been issued by a carrier or on his 
 behalf by an agent or employee, the scope of whose 
 actual or apparent authority includes the issuing of 
 bills of lading, the carrier shall be liable to (a) the con- 
 signee named in a straight bill, or (b) the holder of an 
 order bill, who has given value in good faith, relying 
 upon the description therein of the goods, for damages 
 caused by the non-receipt by the carrier of all or part
 
 620 Duties to Interstate Shippers. [§ 351 
 
 of the goods or their failure to correspond with the 
 description thereof in the bill at the time of its issue.' 
 The Committee will not take the time to discuss all of 
 the features of the bill, but among the most impoi-tant, 
 they desire to call attention to the following: 1. Dupli- 
 cate bills of lading. 2. Altered bills of lading. 3. 
 Spent bills of lading. 4. Shipper's load and count. 
 5. Forgeries. The proposed regulations with regard to 
 duplicate bills of lading are found in sections 4 and 5 
 and 15, which read as follows: 'Sec. 4. That order bills 
 issued in a State for the transportation of goods to any- 
 place in the United States on the continent of North 
 America, except Alaska and Panama, shall not be issued 
 in parts or sets. If so issued, the carrier issuing them 
 shall be liable for failure to deliver the goods described 
 therein to any one who purchases a part for value in good 
 faith, even though the purchase be after the delivery of 
 the goods by the carrier to a holder of one of the other 
 parts: Provided, hoivever, that nothing contained in 
 this section shall be inteqireted or construed to forbid 
 the issuing of order bills in parts or sets for such trans- 
 portation of goods to Alaska, Panama, Porto Eico, the 
 Philippines, Hawaii, or foreign countries, or to impose 
 the liabilities set forth in this section for so doing. Sec. 
 5. That when more than one order bill is issued in a 
 State for the same goods to be transported to any place 
 in the United States on the continent of North America, 
 except Alaska and Panama, the word 'duplicate' or some 
 other word or words indicating that the document is 
 not an original bill shall be placed plainly upon the 
 face of every such bill except the one first issued. A 
 carrier shall be liable for the damages caused by his 
 failure so to do to any one who has purchased the bill 
 for value and good faith as an original, even though 
 the purchase be after the delivery of the goods by the 
 carrier to the holder of the original bill: Provided, 
 however, That nothing contained in this section shall in 
 such case for such transportation of goods to Alaska, 
 Panama, Porto Rico, the Philippines, Hawaii, or foreign 
 countries be interpreted or construed so as to require 
 the placing of the word 'duplicate' thereon, or to im-
 
 § 351] Fedeiul Bill of Ladixc Law. G21 
 
 pose the liabilities set forth in this section for failure 
 so to do. See. 15. That a bill, upon the face of which 
 the word 'duplicate' or some other word or words indi- 
 cating that the document is not an original bill is placed, 
 l)lainly shall im])ose upon the carrier issuing the same 
 the liability of one who represents and warrants that 
 such bill is an accurate copy of an original hill [)i'operly 
 issued, but no other liability.' Section lo jjrovides: 
 'That any alteration, addition, or erasure in a bill after 
 its issue without authority from the carrier issuing the 
 same either in writing or noted on the bill, shall be 
 void, whatever be the nature and purpose of the change, 
 and the bill shall be enforceable according to its original 
 tenor.' Many frauds have been committed in the com- 
 mercial world by using bills of lading after the goods 
 have been delivered, and which have not been taken up 
 or cancelled. Frequently they have been used for se- 
 curing credit, although the goods called for have been 
 delivered. The railroads have not been liable because 
 they have been able to prove the delivery of the goods. 
 Sections 11 and 12 of the bill remedy these abuses. 
 They read as follows: 'Sec. 11. That except as provid- 
 ed in section 29, and except when compelled by legal 
 process, if a carrier delivers goods for which an order 
 bill had been issued, the negotiations of which would 
 transfer the right to the possession of the goods, and 
 fails to take uj) and cancel the bill, such carrier shall 
 be liable for failure to deliver the goods to any one 
 who for value and in good faith purchases such bill, 
 whether such purchaser acquired title to the bill before 
 or after the delivery of the goods by the carrier and 
 notwithstanding that delivery was made to the person 
 entitled thereto. Sec. 12. That except as provided in 
 section 26 and except when compelled by legal process, 
 if a carrier delivers part of the goods for which an order 
 bill has been issued and fails either — (a) to take up 
 statement that a portion of the goods has been deliver- 
 ed with a description which may be in general terms 
 either of the goods or packages that have been so de- 
 livered or of the goods or packages which still remain 
 in the carrier's possession, he shall be liable for failure
 
 62^ Duties to Interstate Shippers. [§ 351 
 
 to deliver all the goods specified in the bill to any one 
 who for value and in good faith purchases it, whether 
 and cancel the bill, or (b) to place plainly upon it a 
 such purchaser acquired title to it before or after the 
 delivery of any portion of the goods by the carrier, and 
 notwithstanding that such delivery was made to the 
 person entitled thereto.' Many abuses have arisen by 
 carriers marking bills of lading 'shipper's load and 
 count.' This of course aifects their value for banking 
 and credit purposes. These abuses are sought to be reme- 
 died by section 20 and 21 of the bill, which provide: 'Sec. 
 20. That when goods are loaded by a carrier such car- 
 rier shall count the packages of goods if package freight, 
 and ascertain the kind and quantity of bulk freight 
 and such carriers shall not, in such cases, insert in the 
 bill of lading or in any notice, receipt, contract, rule, 
 regulation, or tariff, 'shipper's weight, load, and count,' 
 or other words of like purport, indicating that the 
 goods were loaded by the shipper and the description 
 of them made by him. If so inserted, contrary to the 
 provisions of this section, said words shall be treated 
 as null and void and as if not inserted therein. Sec. 21, 
 That when goods are loaded by a shipper at a place 
 where the carrier maintains an agency, such car- 
 rier shall, on written request of such shipper, and 
 when given a reasonable opportunity by the shipper 
 so to do, count the packages of goods if package freight, 
 and ascertain the kind and quantity if bulk freight, 
 within a reasonable time after such written request, 
 and such carrier shall not, in such cases, insert in a 
 bill of lading, or in any notice, receipt, contract, rule, 
 regulation, or tariff, 'shipper's weight, load, and count,' 
 or other words of like purport indicating that the goods 
 were loaded by the shipper and the description of them 
 made by him. If so inserted contrary to the provisions 
 of this section, said words shall be treated as null and 
 void and as if not inserted therein.' While the laws of 
 the several States penalize the forging of bills of lading, 
 it is believed, because of the fact that approximately 
 99 per cent of our commerce is interstate or foreign in 
 character, there should be some federal legislation mak-
 
 § 351] Federal Bill of Lading Law. 623 
 
 ing- tlio forgiiio: and issiiin<< of forged bills of lading 
 piiiiisliable by fcdoral courts. This is done by section 
 41 of the pending bill, which is as follows: 'That any 
 l^erson who, knowingly or with intent to defraud, false- 
 ly makes, alters, forges, counterfeits, jirints or photo- 
 graphs any bill of lading, or with like intent utters or 
 iniblishes as true and genuine any such falsely altered, 
 forged, counterfeited, falsely printed or photographed 
 bill of lading, knowing it to be falsely altered, forged, 
 counterfeited, falsely printed or photographed, or aids 
 in making, altering, forging, count<'rf<*itiiig, printing 
 or photograi)hing, or uttering or publishing the same, 
 or issues or aids in issuing or procuring the issue of, 
 or negotiates or transfers for value a bill which con- 
 tains a false statement as to the receipt of the goods, 
 or as to any other matter, or who, within intent to 
 defraud, violates, or fails to comply with, or aids in 
 any violation of, or failure to comply with any pro- 
 visions of this Act shall be guilty of a misdemeanor, 
 and, upon conviction, shall be punished for each offense 
 by imprisonment not exceeding five years, or by a fine 
 not exceeding $5,000, or both.' It is not intended by 
 this report to call special attention to all of the pro- 
 visions of the bill. They are self-explanatory."
 
 CHAPTER XIX. 
 
 The Interstate Commerce Commission — Its Nature, 
 Functions, Powers and Duties. 
 
 Sec. 352. Necessity of a National Commission to Enforce Federal Legis- 
 lation Regulating Railroads. 
 
 Sec. 353. Statutory Provision Creating the Interstate Commerce Com- 
 mission. 
 
 Sec. 354. Amendments of 1906 and 1917 Increasing Membership and 
 Salaries of the Commissioners. 
 
 Sec. 355. Commission an Administrative Body Exercising Quasi Judici- 
 al Functions 
 
 Sec. 356. General Statement of Powers and Duties of Commission 
 over Interstate Carriers. 
 
 Sec. 357. Commission Authorized to Divide its Members into Divisions. 
 
 Sec. 358. Three Divisions of Commission Established Pursuant to Fore- 
 going Amendment. 
 
 Sec. 359. Limitation upon Povi^ers of Commission in Regulating In- 
 terstate Carriers and Transportation. 
 
 Sec. 360. Commission Without Authority to Compel Carriers to Ac- 
 quire and Furnish Special Kind of Cars. 
 
 Sec. 361. Duty to Furnish Cars for Interstate Shipments a .ludicial 
 Question for Courts and not Administrative in Character. 
 
 Sec. 362. Maximum Rates and Charges for Interstate Transportation 
 may be Prescribed by Commission. 
 
 Sec. 363. Proposed Advances in Rates may be Suspended by Commis- 
 sion Pending Investigation of Propriety. 
 
 Sec. 364. Amendment of 1917 Prohibiting Filing of Increased Rates 
 without Approval of Commission. 
 
 Sec. 365. Rules of Carriers Governing Distribution, Exchange, Inter- 
 change and Return of Cars. 
 
 Sec. 366. Statute Compelling Carriers to Establish Through Routes 
 and .Toint Rates upon Order of Commission. Valid. 
 
 Sec. 367. Powers of. and Limitations Upon, Commission in Establishing 
 Through Routes and .loint Rates. 
 
 Sec. 368. When Commission may Establish Through Routes and Max- 
 imum Joint Rates between Rail and Water Lines. 
 
 Sec. 369. Jurisdiction of Commission in Connection with Transporta- 
 tion to Adjacent Foreign Countries. 
 
 Sec. 370. Commission may not Compel a Carrier to Receive and Switch 
 Carload Freight to Industries on its Terminals. 
 
 Sec. 371. Commission may Authorize Carriers to Charge Less for 
 Longer than for Shorter Distance. 
 
 Sec. 372. Commission may Authorize Rail Carriers to Continue Owner- 
 ship of Water Lines. 
 
 (624)
 
 § 352 J The Commerce Commission. 625 
 
 Sec. 373. Commission may Prescribe the Forms of all Schedules or 
 
 Rates and Charges. 
 Sec. 374. Charges by Shippers against Carriers for Services Connected 
 
 with Transportation under Control of Commission. 
 Sec. 375. Commission may Formulate Regulations for the Transpor- 
 tation of Explosives. 
 Sec. 376. Switch Connections may be Ordered by the Commission, 
 
 When. 
 Sec. 377. Forms of all Accounts, Records and Memoranda of Carriers 
 
 Subject to Control of Commission. 
 Sec. 378. Power of Commission over Rail Carriers Discriminating 
 
 against Steamship Lines to Foreign Countries. 
 Sec. 379. Rail Rates Reduced to Meet Water Competition may not be 
 
 Raised without Permission of Commission. 
 Sec. 380. Physical Connection between Line of Rail Carriers and Water 
 
 Carriers may be Established by Commission. 
 Sec. 381. Maximum Proportional Rates by Rail to and From Ports 
 
 may be Established by Commission. When. 
 Sec. 382. Commission Without .Jurisdiction to Regulate Charges in 
 
 Connection with 28-TTour Livestock Law. 
 Sec. .183. Commission Required to Make Annual Reports to Congress 
 Sec. 384. Rules and Regulations for Inspection of Locomotive Boilers 
 
 Controlled by Commission. 
 Sec. 385. Carriers Required to Make Monthly Reports of all Accidents 
 
 to Commission. 
 Sec. 386. Commission May Require Annual Reports from all Common 
 
 Carriers Subject to Statute. 
 Sec. 387. Power of Commission over Safety Appliances on Railroad 
 
 Cars and Engines. 
 Sec. 388. Commission Empowered to Investigate Railroad Accidents 
 
 and to Make Reports. 
 
 § 352. Necessity of a National Commission to En- 
 force Federal Legislation Regulating Railroads. The 
 creation of a national eoiniiiission or o\\\ov speeial trib- 
 unal to be charged with the duty of carrying out and 
 enforcing national legislation for the regulation of inter- 
 state transportation and carriers was recognized and 
 recommended by the Cnlloni Committee in its report to 
 Congress accompanying the proposed bill to regulate 
 commerce. "The commission proposed in the bill here- 
 with reported," said the Committee,^ "is not designed 
 to be a substitute for s]iecitic regulation, but it is de- 
 
 1. Report of the Committee on Interstate Commerce. Senate Re- 
 port 1st Session, 49th Congress. 
 
 1 Control Carriers Kl
 
 626 Duties to Interstate Shippers. ["§ 352 
 
 signed and believed to be a valuable auxiliary agency 
 in facilitating and securing the enforcement of what- 
 ever regulations may be prescribed by Congress. * * * 
 In the light of all the evidence and the facts before it, 
 the committee has become satisfied that no statutory 
 regulations which may be enacted can be made fully 
 effective without providing adequate and suitable ma- 
 chinery for carrying them into execution. 'What is every- 
 body's business is nobody's business,' and the conclu- 
 sion seems irresistible that specific enactments must 
 inevitably fail to remedy the evils they are designed to 
 cure unless an executive board be organized for the 
 special purpose of securing their enforcement. Such 
 enactments cannot possibly be self-enforcing, and when- 
 ever attempts have been made to control or regulate 
 commercial transactions it has been found necessary to 
 do so through a special instrumentality. Whatever pol- 
 icy of regulation may be adopted, whether it be the most 
 conservative or the most radical that can be suggested, 
 and from whatever point of view the question of regu- 
 lation may be regarded, we are convinced that the pro- 
 posed commission will prove equally essential and valu- 
 able in carrying into effect such remedial legislation as 
 may be enacted for the protection of the people against 
 the grievances of which they complain." 
 
 § 353. Statutory Provision Creating the Interstate 
 Commerce Commission. Section 11 of the Interstate 
 Commerce Act as originally enacted provides for the 
 establishment of a commission to be known as the Inter- 
 state Commerce Commission and to be composed of five 
 commissioners appointed by the President by and with 
 the advice of the Senate. This section further provided : 
 "The Commissioners first appointed under this Act 
 shall continue in office for the term of two, three, four, 
 five, and six years, respectively, from the first day of 
 January, Anno Domini eighteen hundred and eighty- 
 seven, the term of each to be designated by the Presi- 
 dent; but their successors shall be appointed for terms 
 of six years, except that any person chosen to fill a 
 vacancy shall be appointed only for the unexpired time 
 of the Commissioner whom he shall succeed. Any Com-
 
 § 354] The Commekck C-ommission, G27 
 
 missionor may be removed by the President for inefficien- 
 cy, neglect of duty, or malfeasance in office. Not more 
 than three of the Commissioners shall he appointed 
 from the same political party. No ])erson in the employ 
 of or holding any official relation to any common carrier 
 subject to the provisions of this Act, or owning stock 
 or bonds thereof, or who is in any manner peciiiii;iril\ 
 interested therein, shall enter u])on the duties of or iioM 
 such office. Said Commissioners shall not engage in any 
 other business, vocation, or employment. No vacancy 
 in the Commission shall impair the right of the remain- 
 ing Commissioners to exercise all the powers of the 
 Commission." 
 
 § 354. Amendments of 1906 and 1917 Increasing- 
 Membership and Salaries of the Commissioners. By an 
 act of June 2i), 190G, being now Section 24 of the Inter- 
 state Commerce Act, the number of the commissioners 
 composing the Interstate Commerce Commission was 
 increased from five to seven with terms of seven years 
 and each to receive a salary of $10,000 annually. This 
 amendment further provides: "The qualifications of the 
 Commissioners and the manner of the payment of their 
 salaries shall be as already provided by law. Such en- 
 largement of the Commission shall be accomplished 
 through appointment by the President, by and with the 
 advice and consent of the Senate, of two additional 
 Interstate Commerce Commissioners, one for a term ex- 
 piring December thirty-first, nineteen hundred and 
 eleven, one for a term expiring December thirty-first, 
 nineteen hundred and twelve. The terms of the present 
 Commissioners, or of any successor appointed to fill a 
 vacancy caused by the death or resignation of any of 
 the present Commissioners, shall expire as heretofore 
 provided by law. Their successors and the successors 
 of the additional Commissioners herein ])r()vided for 
 shall be appointed for the full terms of seven years, 
 except that any person appointed to fill a vacancy shall 
 be appointed only for the unexpired term of the Com- 
 missioner whom he shall succeed. Not more than four 
 Commissioners shall be appointed from the same politi-
 
 628 Duties to Interstate Shippers. [^' 354 
 
 cal party." The Commission was further enlarged in 
 1917 by an amendment providing that it shall consist 
 of nine members.^ 
 
 § 355. Commission an Administrative Body Exer- 
 cising Quasi Judicial Functions. The Interstate Com- 
 merce Commission is a body corporate with power as 
 such to sue and be sued in the courts.' It is an expert 
 tribunal with relation to transportation rates and charg- 
 es;* but it is not a court.' The Commission, although 
 clothed with quasi judicial functions, is an administra- 
 tive body.*" Proceedings before the Commission are not 
 judicial; but quasi judicial and administrative in their 
 nature.' The nature and function of the Commission 
 were well summarized by Judge Jackson in a pioneer 
 and leading opinion, as follows: "But does the inter- 
 state commerce law undertake either to create an 'in- 
 ferior court' or to invest the commission appointed 
 thereunder with judicial functions'? We think not. While 
 the commission possesses and exercises certain powers 
 and functions resembling those conferred upon and ex- 
 ercised by regular courts, it is wanting in several essen- 
 tial constituents of a court. Its action or conclusion 
 upon matters of complaint brought before it for investi- 
 gation, and which the act designates as the 'recom- 
 mendation,' 'report,' 'order,' or 'requirement' of the 
 board is neither final nor conclusive; nor is the com- 
 
 2. Act of Aug. 9, 1917. Appen- v. Cincinnati, N. O. & T. P. R. Co., 
 dix A, infra. 64 Fed. 981. 
 
 3. Texas & P. R- Co. v. Inter- 6. United States v. Reading Co., 
 ■ state Commerce Commission, 162 183 Fed. 427; Western New York 
 
 U. S. 197, 40 L. Ed. 940, 16 Sup. & p. R. Co. v. Penn Refining Co. of 
 
 Ct. 666; Interstate Commerce oil City, Pennsylvania, 70 C. C. 
 
 Commission v. Baltimore & 0. R. a. 23, 137 Fed. 343; Interstate 
 
 Co., 145 U. S. 263, 36 L. Ed. 699, Commerce Commission v. Cincin- 
 
 12 Sup. Ct. 844. jj^jj p^ Q ^ rp p fjy (.Q^ rjQ 
 
 4. Interstate Commerce Com- ^^^ ^^3. ^^^^^^^^^^^ Commerce 
 mission V. Louisville & N. R. Co., ^^^^.^^.^„ ^ Cincinnati, N. O. 
 118 Fed. 613. 
 
 5. Interstate Commerce Com- '-^ '^- •^^ ^y 
 
 • ■ ■D^i^cr.r. it^d TT <5 447 7. Interstate Commerce Com- 
 
 mission V. Brimson, lo4 u. o. *4<, 
 
 38 L. Ed. 1047, 14 Sup. Ct. 1125; mission v. Louisville & N. R. Co.. 
 Interstate Commerce Commission 73 Fed. 409.
 
 § 355] The Commerck Commission, 629 
 
 mission invested witli any autliority to enforce its deci- 
 sion or award. Without reviewing in detail the pro- 
 visions of tlie law, we are clearly of the opinion that the 
 commission is invested with only administrative i)owers 
 of supervision and investigation, which fall far short of 
 making the board a court, or its action judicial, in tlie 
 l)roper sense of the term. The commission hears, investi- 
 gates, and re])orts u])on complaints made before it, in- 
 volving alleged violations of or omission of duty under 
 the act; but subsequent judicial proceedings are con- 
 temi)laled and i^rovided for, as the remedy for the en- 
 forcement, either by itself or the party interested, of 
 its order or report in all cases where the party com- 
 ])lained of or against whom its decision is rendered does 
 not yield voluntary obedience thereto. By the four- 
 teenth and sixteenth sections of the act it is provided 
 that the report or findings made by the commission 
 'should thereafter, in all judicial proceedings, be deemed 
 prima facie evidence as to each and every fact found.' 
 The commission is charged with the duty of investigat- 
 ing and reporting upon complaints, and the facts found 
 or reported by it are only given the force and weight 
 of prima facie evidence in all such judicial proceedings 
 as may thereafter be required or had for the enforce- 
 ment of its recommendation or order. The functions 
 of the commission are those of referees or special com- 
 missioners, a]»])ointed to make preliminary investiga- 
 tion of and report upon matters for subsequent judicial 
 examination and detennination. In respect to inter- 
 state commerce matters covered b}' the law, the com- 
 mission may be regarded as the general referee of each 
 and every circuit court of the United States, upon which 
 the jurisdiction is conferred of enforcing the rights, 
 duties, and obligations recognized and imposed by the 
 act. It is neither a federal court under the constitu- 
 tion, nor does it exercise judicial powers, nor do its 
 conclusions possess the efficacy of judicial proceedings. 
 This federal commission has assigned to it the duties, 
 and performs for the United States, in respect to that 
 interstate commerce committed by the constitution to 
 the exclusive care and jurisdiction of congress, the same
 
 630 Duties to Interstate Shippers. [§ 355 
 
 functions which state commissioners exercise in respect 
 to local or purely internal commerce, over which the 
 states appointing them have exclusive control. Their 
 validity in their respective spheres of operation stands 
 upon the same footing. The validity of state commis- 
 sioners invested with powers as ample and large as 
 those conferred u]Km the federal commissioners, has not 
 been successfully questioned, when limited to that local 
 or internal commerce over which the states have exclu- 
 sive jurisdiction; and no valid reason is seen for doubt- 
 ing or questioning the authority of congress, under its 
 sovereign and exclusive power to regulate commerce 
 among the. several states, to create like commissions for 
 the purpose of supervising, investigating, and re]wrt- 
 ing upon matters or complaints connected with or grow- 
 ing out of interstate commerce. What one sovereign 
 may do in respect to matters within its exclusive con- 
 trol, the other may certainly do in respect to matters 
 over which it has exclusive authority.'"* 
 
 § 356. General Statement of Powers and Duties of 
 Commission over Interstate Carriers. The statute au- 
 thorizes and requires the Commission to execute and 
 enforce the provisions of the Interstate Commerce Act. 
 It may inquire into the management of the business of 
 all the common carriers subject to the statute and may 
 obtain from theni full and complete information neces- 
 sary to enable it to perform its duties and to carry out 
 the business for which it was created. Under the stat- 
 ute it is required to keep itself informed as to the man- 
 ner and method in which the business of all common 
 carriers is conducted. The Commission may also direct 
 the United States District attorneys to institute and 
 prosecute, under the direction of the attorney general, 
 all necessary proceedings for the enforcement of the 
 provisions of the Act, and for the punishment of all 
 violations thereof.® 
 
 8. Kentucky & I. Bridge Co. v. 9. Section 12 of the Act to Reg- 
 
 Louisville & N. R. Co., 37 Fed. uiale Coniaieice, Appendix A, in- 
 567. /'■«•
 
 § 357] The Commerce Commission. 631 
 
 § 357. Commission Authorized to Divide its Mem- 
 bers into Divisions, liy an auieiidinciil pa.s.'^ed in 11*1 7/" 
 the Interstate Commerce Commission was authorized to 
 divide tlie memboi's tliereof into as many divisions as 
 it may deem necessary, wliich may l)e changed from 
 time to time. The amendatory statute is as follows: 
 "The Commission is hereby authorized by its order to 
 divide the members thereof into as many divisions as 
 it may deem necessary, which may be changed from 
 time to time. Such divisions shall be denominated, re- 
 spectively, division one, division two, and so forth. Any 
 commissioner may be assigned to and may serve upon 
 sucli divisidii or dixisioiis as the commission may direct, 
 and the senior in service of the commissioners consti- 
 tuting any of said divisions shall act as chairman there- 
 of. In case of vacancy in any division, or of absence 
 or inability to serve thereon of any commissioner there- 
 to assigned, the chairman of the commission, or any 
 commissioner designated by him for that purpose, may 
 temporarily serve on said division until the commission 
 shall otherwise order. The commission may by order 
 direct that any of its work, business, or functions aris- 
 ing under this Act, or under any Act amendatory there- 
 of, or supplemental thereto, or under any amendment 
 which may be made to any of said Acts, or under any 
 other Act or joint resolution which has been or mav 
 hereafter be approved, or in respect of any matter 
 which has been or may be referred to the commission 
 by Congress or 1)y either branch thereof, be assigned or 
 referred to any of said divisions for action thereon, and 
 may by order at any time amend, modify, supplement, 
 or rescind any snch dii'cction. All such orders shall 
 take effect forthwith and remain in effect until other- 
 wise ordered by the commission. In conformity with 
 and subject to the order or orders of the commission in 
 the premises, each division so constituted shall hav(^ 
 power and authority by a majority tliereof to hear and 
 determine, order, certify, report, or otherwise act as to 
 
 10. Ad of yVugust 0, 1917, Ap- peiulix A, infra.
 
 6o'2 Duties to Intei^state Shippees. [§ 357 
 
 any of said work, business, or functions so assigned or 
 referred to it for action by the commission, and in re- 
 spect thereof the division shall have all the jurisdiction 
 and powers now or then conferred by law upon the 
 commission, and be subject to the same duties and obli- 
 gations. Any order, decision, or report made or other 
 action taken by any of said divisions in respect of any 
 matters so assigned or referred to it shall have the 
 same force and effect, and may be made, evidenced, and 
 enforced in the same manner as if made, or taken by 
 the commission, subject to rehearing by the commission, 
 as provided in section sixteen hereof for rehearing 
 cases decided by the commission. The secretary and 
 seal of the commission shall be the secretary and seal 
 of each division thereof. In all proceedings before any 
 such divisions relating to the reasonableness of rates 
 or to alleged discriminations not less than three mem- 
 bers shall participate in the consideration and decision; 
 and in all proceedings relating to the valuation of rail- 
 way property under the Act entitled 'An Act to amend 
 an Act entitled 'An Act to regulate commerce,' ap- 
 proved February fourth, eighteen hundred and eighty- 
 seven, and all Acts amendatory thereof, by providing for 
 a valuation of the several classes of property of car- 
 riers subject thereto and securing information con- 
 cerning their stocks, bonds, and other securities,' ap- 
 proved March first, nineteen hundred and thirteen, not 
 less than five members shall participate in the consider- 
 ation and decision. The salary of the secretary of the 
 commission shall be $5,000 per annum. Nothing in this 
 section contained, or done pursuant thereto, shall be 
 deemed to divest the commission of any of its powers." 
 
 § 358. Three Divisions of Commission Established 
 Pursuant to Foregoing Amendment. Following the en- 
 actment of the foregoing amendment authorizing the 
 Commission to divide itself into divisions, the Inter- 
 state Commerce Commission, on October 17, 1917, 
 reconstituted itself into three divisions. The order 
 creating the three divisions with the work assigned to 
 each, is as follows: "It is ordered, That, except as
 
 "^ 358] The Commerce Commission. 633 
 
 otherwise provided by tlie Commission, for the purposes 
 of this amendment to the aet to re<^ulate commerce the 
 Commission be and hereby is divided into three divi- 
 sions ninnl)ered, respectively, Division 1, Division 2, 
 and Division 3. It is furtlier ordered, That Commission- 
 ers McChord, Meyer and Aitchison shall constitute Divi- 
 sion 1; tliat Commissioners Clark, Daniels, and Woolley 
 shall constitute Division 2; and that Commissioners 
 Harlan, Hall and Anderson shall constitute Division 3. 
 Each division so constituted shall have power and au- 
 thority by a majority tliereof to hear, determine, order, 
 certify, report, or otherwise act as to any of the work, 
 business or functions assigned or referred to it. Each 
 or any of such divisions, with regard to any case or 
 matter assigned to it, or any question brought to it under 
 this delegation of duty and authority, may call upon 
 the whole Commission for advice and counsel, or for 
 consideration of the case or question by an additional 
 commissioner or commissioners assigned thereto by the 
 whole Commission; and the Commission may bring be- 
 fore it as such any case or question so allotted or as- 
 signed. It is further ordered. That to Division 1 be as- 
 signed all cases set for argument beginning October 24, 
 to and including Oct. 31, 1917, and that in addition 
 thereto Division 1 be charged with the conduct of the 
 work of the Bureau of Valuation other than consider- 
 ing and deciding the proceedings relating to the valua- 
 tion of carriers' property; that to Division 2 be assigned 
 all cases set for argument beginning November 1 to 
 and including Nov. 30, 1917, and in addition thereto 
 Division 2 be charged with the disposition of applica- 
 tions and requests for suspension under the fifteenth 
 section; of applications under the fourth and sixth sec- 
 tions; of cases on the special docket; of the transporta- 
 tion of explosives and dangerous articles; and of tariffs 
 carrying released rates; that to Division 3 be assigned 
 all cases set for argument beginning December 1 to and 
 including Dec. 31, 1917, and in addition thereto Divi- 
 sion 3 be charged with the disposition of all Board of 
 Review cases which have been submitted and those not 
 hereafter orallv argued before the Commission or auv
 
 6o-l- Duties to Intebstate Shippers. [§ 358 
 
 division thereof. And it is fiirtlier ordered (1) That 
 all eases set for argument and all eases submitted, other 
 than Board of Keview cases, in any one month after 
 Jan. 1, 1918, he assigned in monthly rotation to the 
 respective divisions in the order given above; (2) that 
 matters arising in connection with assigned cases shall 
 be dis]>osed of by the division to which snch cases have 
 been assigned; (3) that all procedural questions re- 
 quiring Commission action arising in connection with 
 unassigned cases may be disposed of by any of the 
 divisions; (4) that miscellaneous administrative mat- 
 ters requiring Commission action, not otherwise pro- 
 vided for, may be disposed of by any division; (5) that 
 the foregoing assignment shall not include the consider- 
 ation and disposition of valuation cases; and (6) that 
 each division may determine the time and place for its 
 hearings and conferences and determine its order of 
 business." 
 
 § 359. Limitation upon Powers of Commission in 
 Regulating Interstate Carriers and Transportation. A 
 
 marked distinction exists between the powers of Con- 
 gress and the Interstate Commerce Commission in regu- 
 lating interstate carriers and transportation. Congress 
 may exercise its authority without limit and its power 
 is full and complete, subject only to the limitations of 
 the commerce clause; but the Interstate Commerce 
 Commission can only exercise such power and authority 
 as is granted to it by statutory enactments. When it 
 attempts to regulate interstate commerce and the agvjn- 
 cies and instrumentalities thereof, it must find a specific 
 delegation of authority from Congress in a statute for 
 the power exercised. In making its orders and deci- 
 sions under the Act to Regulate Commerce, the Com- 
 mission must place its finger upon the statute which 
 gives it authority. It can exercise no functions except 
 such as are expressly conferred upon it.^^ 
 
 11. Interstate Commerce Com- P. Ry. Co., 167 U. S. 479, 42 L. Ed. 
 mission v. Cincinnati, N. 0. & T. 243, 17 Sup. Ct. 896.
 
 § 360] The Commerce Commission. 685 
 
 § 360. Commission Without Authority to Compel 
 Carriers to Acquire and Furnish Special Kind of Cars. 
 The lutorHtate Coninioree Commission has tlie power 
 to regulate the distrihution of cars which the carrier 
 possesses in such a manner as to prevent undue dis- 
 crimination among shippers in times of shortage.'- But 
 althougli the statute provides tliat the term "transpor- 
 tation" includes cars and other vehicles instrumental- 
 ities of carriage, and compels carriers subject to the 
 statute, to provide such transi)ortation upon a reason- 
 able recjuest therefor, the Interstate Commerce Com- 
 mission has no authority or jurisdiction to compel a 
 carrier to acquire and provide cars of a special type. 
 Neither does the statute clothe the Commission with 
 the authority to determine what kind of cars should be 
 used for the shipment of commodities." In the case of 
 Pennsylvania Paraffin Works v. Pennsylvania R. Co.,'^ 
 the Interstate Commerce Commission upon the complaint 
 of an oil company, ordered a common carrier to pro- 
 vide and furnish, upon reasonable request, and notice, 
 at complainant's refineries, tank cars in sufficient uum- 
 
 12. Pennsylvania R. Co. V. Clark ley, 198 Fed. 991; Majestic Coal 
 
 Bros. Coal Min. Co., 238 U. S. 456, & Coke Co. v. Illinois Cent. R. Co., 
 
 59 L. Ed. 1406, 35 Sup. Ct. 896; II- 162 Fed. 810; Logan Coal Co. v. 
 
 linois Cent. R. Co. v. Mulberry Pennsylvania R. Co., 154 Fed. 497; 
 
 Coal Co., 238 U. S. 275, 59 L. Ed. United States ex rel. Kingwood 
 
 1306, 35 Sup. Ct. 760; Pennsylva- Coal Co. v. West Virginia North 
 
 nia R. Co. v. Puritan Coal Min em R. Co.. 125 Fed. 252: United 
 
 Co., 237 U. S. 121. 59 L. Ed. 867, 35 States ex rel. Coffman v. Norfolk 
 
 Sup. Ct. 484; Morrisdale Coal Co. & W. Ry. Co.. 109 Fed. 831; Rail- 
 
 V. Pennsylvania R. Co., 230 U. S. road Commission of Ohio v. Hock- 
 
 304, 57 L. Ed. 1494, 33 Sup. Ct. ing Valley Ry. Co., 12 I. C. C. 398; 
 
 938; Interstate Commerce Com- Riddle, Dean & Co. v. Pittsburgh 
 
 mission v. Illinois Cent. R. Co., & L. E. R. Co.. 1 I. C C. 371, 1 I. 
 
 215 U. S. 452, 54 L. Ed. 280, 30 c R 688 
 
 Sup. Ct. 155; Baltimore & O. R. ^^' ^.^j^^^ g^^^^^ ^, p^^^^^j. 
 
 Co. V. United States ex rel. Pit- 
 
 vania R. Co., 242 U. S. 208. 61 L. 
 Ed. 251, 37 Sup. Ct. 95. 
 
 cairn Coal Co.. 215 U. S. 481, 54 
 L. Ed. 292, 30 Sup. Ct. 164; Inter- 
 state Commerce Commission v ^^- ^^ ^- ^- C- 1^9. See also a 
 
 Chicago & A. R. Co.. 215 U. S. 479, similar order, Vulcan Coal Min. 
 
 54 L. Ed. 291. ."^O Sup. Ct. 163; <"o. v. Illinois Cent. R. Co.. 33 I. 
 
 Montana, W. & S. R. Co. v. Mor- C. C. 52.
 
 636 Duties to- Interstate Shippers. [§ 360 
 
 bers to transport the complainant's normal shipments 
 in interstate commerce. Tlie carrier resisted the order 
 on the ground that the Commission had no authority 
 to reqnire it to increase its tank car equipment. An 
 injunction was granted by the District Court suspend- 
 ing the order of the Commission.^^ Upon writ of error, 
 the Supreme Court held that the Commission did not 
 have such power as was attempted to be exercised. 
 ''The Act as it was enacted in 1887," said the Court,'" 
 ''defined the term 'railroad' and the term 'transporta- 
 tion,' the latter as follows: And the term 'transporta- 
 tion,' shall include all instrumentalities of shipment or 
 carriage.' The definition was very comprehensive, and 
 needed not the mobilization of its denotation; but this 
 subsequently was attempted. Words, indeed, were mul- 
 tiplied — was meaning changed! In 1906 the term 'trans- 
 )iortation' was defined to 'include cars and other vehicles 
 and all instrumentalities and facilities of shipment or 
 carriage . . . ' The words are not much less general 
 than the words of the Act of 1887. There is no ad- 
 vance made by them or enlargement of meaning. There 
 was simply a useless tautology. But granting it was not 
 and that Congress deemed a special declaration of things 
 to be necessary, such declaration did not alter the re- 
 lation of the companies to them. The duty which at- 
 tached to 'instrumentalities' of the Act of 1887 attach- 
 ed to the things covered by ts comprehensive general- 
 ity, — to the things declared in the amendment of 1906; 
 that is, to 'cars,' 'vehicles,' 'facilities.' And this duty 
 under the Act of 1887, we have seen, had, in the opin- 
 ion of the Commission, the sanction only of the common 
 law. Under the amendment the most that can be said 
 is that the duty is particularized. Its sanction is not 
 enlarged. But other words occur which, it is contended, 
 have such effect. These words are: 'And it shall be 
 the duty of every carrier ... to provide and fur- 
 nish such transportation upon reasonable request there- 
 is. Pennsylvania R. Co. v. 16. United States v. Pennsyl- 
 Unlted States, 227 Fed. 911. vania R. Co., 242 U. S. 208, 61 L. 
 
 Ed. 251, 37 Sup. Ct. 95.
 
 § 361 J The Commejice Commission. 637 
 
 for . . .' 'I'liis, liowever, is but the expression of 
 a necessary inii)lication. It was useless to declare that 
 whatever a carrier must do, he must do 'upon reason- 
 able request.' The duty having been imposed, it neces- 
 sarily could be demanded. But the expression of the 
 right, if it needed expression, adds nothing of indication 
 to the previous words of the tribunal by which the 
 demand was to be enforced. But it is said the duty hav- 
 ing explicit declaration, the power to enfore it was 
 found in Section 12 as amended March 2, 1899, as fol- 
 lows: 'And the Commission is hereby authorized and 
 required to execute and enforce the provisions of this 
 act.' (25 Stat, at L. 855, 858, chap. 382, Comp Stat. 
 1913, Sections 8569, 8576.) But this casts us back to 
 our general considerations, to which we may only add 
 that there was no (piestion of the duty of carriers 
 either under the Act of 1887 or under tlie amendment of 
 1906. It was their duty under both to furnish the in- 
 strumentalities of transportation. The question is 
 whether, under the latter, as under the former, jurisdic- 
 tion to enforce the duty was at common law in the 
 courts, or under the statute and in the Commission; and 
 we have seen that it was the view of the Commission 
 that the remedy was in the courts, and that the amend- 
 ment of 1906 was not intended to and did not change 
 the remedy. In other words, that Congress in effect 
 accepted the explanation of the Commission and ap- 
 proved its decisions. We repeat, the amendment of 1906 
 was drawn by and recommended by the Commission, 
 and it may be assumed was not intended to have nor 
 given larger import in the law than it had in the rec- 
 ommendation. United States v. Louisville & N. R. Co., 
 236 U. S. 318, 333, et seq., 59 L. "Ed. 598, 35 Sup. Ct. 
 Rep. 363." 
 
 § 361. Duty to Furnish Cars for Interstate Ship- 
 ments a Judicial Question for Courts and not Adminis- 
 trative in Character. As a result of the decision of 
 the Supreme Court in United States v. Pennsylvania R. 
 Co., supra, holding that the Commission, in the absence 
 of unlawful discrimination had no power under the
 
 638 Duties to Inteestate Shippers. [§ 361 
 
 Interstate Commerce Act to compel a carrier to pro- 
 vide and furnish ears upon reasonable request therefor, 
 the opinion of the minority of the commissioners in 
 Vulcan Coal and Mining Co. v. Illinois Cent. R. Co,'' 
 properly states the law as to the authority of the Com- 
 mission. While the duty to furnish cars upon reasonable 
 request is required by the Act, this obligation is merely 
 declaratory of the common law duties of a carrier." 
 The Interstate Commerce Commission is primarily and 
 essentialh^ an administrative body exercising powers 
 which are legislative in their nature, and which are 
 delegated to it by Congress. In the original act, as 
 well as in the amendments, Congress refrained from 
 conferring upon the Commission any jurisdiction or 
 power which properly belongs to the judiciary branch 
 of the government. The question of requiring a carrier 
 to provide itself with additional facilities or respond in 
 damages for failure so to do, is essentially a judicial 
 question for the courts and not a delegated legislative 
 power in the Commission.'^ 
 
 § 362. Maximum Rates and Charges for Interstate 
 Transportation may be Prescribed by Commission. When- 
 ever the Interstate Commerce Commission is of the opin- 
 ion that any individual or joint rates or charges of any 
 kind demanded or collected by any common carrier sub- 
 ject to the Interstate Commerce Act for the transporta- 
 tion of persons or property or for the transmission of 
 messages by telegraph or telephone, as detined in the 
 first section of the Act, or that any individual or joint 
 classifications, regulations or practices of any kind of 
 such carrier, are unjust or unreasonable or .unjustly 
 discriminatory, or unduly preferential or prejudicial, or 
 otherwise in violation of any of the provisions of the 
 Interstate Commerce Act, the Commission may deter- 
 
 17. 33 I. C. C. 52, 71. 19. Vulcan Coal and Mining Co. 
 
 18. Pennsylvania R. Co. v. v Illinois Cent. R. Co., 33 I. C C. 
 United States, 227 Fed. 911. 52, 71.
 
 § 363] The Commebch Commission, 639 
 
 mine and prescribe^" what will be a just and reasonable 
 individual or joint rate or rates, charge or cliarges, to 
 be thereafter observed by such com])anies as the maxi- 
 mum to be charged, and what individual or joint classi- 
 lication, regulation or practice is just, fair and reason- 
 able, to be thereafter followed, and to make an order that 
 the carrier shall cease and desist from such violation 
 to the extent to which the (commission finds the same 
 to exist, and shall not thereafter i)ul)]is]i, demand or 
 collect any rate or charge for such trans])ortation or 
 transmission in excess of the maximum rate or charge 
 so prescribed, and shall adopt the classification and 
 conform to and observe the regulation or ])i'actice so 
 prescribed. All orders of the Commission, except orders 
 for the ])ayment of money, sliall take effect within such 
 reasonable time, not less than thii'ty days, and shall 
 continue in force for such period of time, not exceeding 
 two years, as shall be prescribed in the order of the 
 Commission, unless the order shall be suspended or 
 modified or set aside by the Commission, or be suspend- 
 ed or set aside by a court of comjietent jurisdiction.^^ 
 
 § 363. Proposed Advances in Rates may be Sus- 
 pended by Commission Pending Investigation of Pro- 
 priety. Prior to the passage of the Mann-Elkins Act of 
 1910, there was no check upon the initiative of a car- 
 rier in establishing new rate schedules. Advances in 
 rates and charges could be made by filing and publish- 
 ing a schedule in accordance with the requirements of 
 the statute and the scheduled rate thus filed was pre- 
 sumed to be reasonable. A direct proceeding before the 
 Commission, upon complaint, was necessary to deter- 
 mine whether the new rate filed conformed to the stand- 
 ard required by law — a just and reasonable rate. The 
 Commission could not stay any advanced rate witliout 
 a long delay incident to a hearing and a proper investi- 
 gation. Even the authority of the courts to restrain the 
 
 20. For history of amendment 21. Section 15 of the Act to Reg- 
 
 giving this power to the Commis- ulate Commerce, appendix A, infra. 
 sion, see section 68, supra.
 
 640 Duties to Interstate Shippers. [§ 363 
 
 enforcement of unreasonable rates or a change to unjust 
 and discriminatory rates pending an investigation by 
 the Commission, was doubtful." To remedy this situa- 
 tion, Congress, as a part of the Mann-Elkins Act, passed 
 an amendment to section 15, which is as follows: "When- 
 ever there shall be tiled with the Commission any sche- 
 dule stating a new individual or joint rate, fare, or 
 charge, or any new individual or joint classification, or 
 any new individual or joint regulation or practice af- 
 fecting any rate, fare, or charge, the Commission shall 
 have, and it is hereby given, authority, either upon 
 complaint or upon its own initiative without complaint, 
 at once, and if it so orders, without answer or other form- 
 al pleading by the interested carrier or carriers, but upon 
 reasonable notice, to enter upon a hearing concerning 
 the propriety of such rate, fare, charge, classification, 
 regulation, or practice; and pending such hearing and 
 the decision thereon the Commission upon filing with 
 such schedule and delivering to the carrier or carriers 
 affected thereby a statement in writing of its reasons 
 for such suspension may suspend the operation of such 
 schedule and defer the use of such rate, fare, charge, 
 classification, regulation, or practice, but not for a 
 longer period than one hundred and twenty days be- 
 yond the time when such rate, fare, charge, classifica- 
 tion, regulation, or practice would otherwise go into 
 effect; and after full hearing whether completed before 
 or after the rate, fare, charge, classification, regulation, 
 or practice goes into effect, the Commission may make 
 such order in reference to such rate, fare, charge, classi- 
 
 22. In the following cases it M. & St. P. Ry. Co., 156 Fed. 160. 
 was held that the collection of un- Contra: m. C. Kiser Co. v. Cen- 
 
 reasonable rates could be enjoined tral of Georgia Ry. Co., 152 C. C. 
 
 by the courts pending a determina- a. 552, 239 Fed. 718; M. C. Kiser 
 
 tion of the matter by the Inter- ^o. v. Central of Georgia Ry. Co.. 
 
 state Commerce Commission: 236 Fed. 573; Columbus Iron & 
 
 Northern Pac. R. Co. v. Pacific g^^^j ^^ ^ Kanawha & M. R. Co.. 
 Coast Lumber Manufacturers 
 
 Ass'n, 91 C. C. A. 39, 165 Fed. 1; ^^l C. C. A. 621, 178 Fed. 261; At- 
 
 M. C. Kiser Co. v. Central of lantic Coast Line R. Co. v. Macon 
 
 Georgia Ry. Co., 158 Fed. 193; Grocery Co., 92 C. C. A. 114, 16G 
 
 Jewett Bros. & .lewett v. Chicago, Fed. 206.
 
 § .'j()3 1 TiiK CoMMEJ{CE Commission. 641 
 
 ficatioii, regulation, or i)raetice a;: would \)v proper in a 
 proceeding- initiated after the rate, fare, charge, classi- 
 fi(;ati()n, regulation, ov practice* had become effective: 
 Provided, That if any su(di hearing cannot l)e concluded 
 within the period of suspension, as above stated, tlie 
 Inteistate Commerce (^onnnission may, in its discretion, 
 extend the time of suspension for a further ])eriod not 
 exceeding six months. At any hearing involving a rate 
 increased after January first, nineteen hundred and ten, 
 or of a rate sought to be increased after the passage 
 of this Act, the burden of proof to show that the in- 
 creased rate or proposed increased rate is just and rea- 
 soiuible shall l)e upon the common carrier, and the Com- 
 mission shall gi\e to the hearing and decision of such 
 questions preference over all othei- (piestions pending 
 before it and decide the same as speedily as possible." 
 Under this amendment, the Commission is authorized 
 to suspend the operation of proposed changes in rate 
 schedules until the propriety and reasonableness thereof 
 may be investigated.-^ This power includes the right 
 to suspend reduction in rates where the effect of such 
 suspension will prevent an obvious or apparent unjust 
 discrimination.-* Since the enactment of the amend- 
 ment of 1910, the burden of proof to show that an in- 
 creased rate or a proposed increased rate is just and 
 reasonable, is n])on the carrier.-"" 
 
 23. Western Rate Advance Case, I C. C. 234; In re Rates on Hay 
 38 I. C. C. 114; In re advances to Chicago, 34 I. C. C. 150; Empire 
 Switching. Galesburg, lUinois, 31 Coke Co. v. Buffalo & S. R. Co., 31 
 I. C. C 294; In re Advances Coal I. C. C. 573; In re advances Com- 
 Jrom Oak Hills, Colorado, 30 I. C. raodity Rates between Missouri 
 C. 505; Wickwire Steel Co. v. New River Points, 28 I. C. C. 265; Wls- 
 York Cent. & H. River R. Co., 30 consin State Millers Ass'n v. Chi- 
 I. C. C. 415; Western Rate Ad- cago. M. & St. P. Ry. Co., 23 I. 
 vance Case, 20 I. C. C. 307. C C. 494; In re Potato Rates, 23 
 
 24. Board of Trade of Chicago I. C. C. 69; Davis Sewing Machine 
 V Illinois Cent. R. Co., 26 I. C. Co. v. Pittsburgh, C. C. & St. L. 
 C. 545; In re Packing-house Prod- Ry. Co., 22 I. C. C. 291; City of 
 ucts, 21 I. C. C. 68. Spokane v. Northern P. Ry. Co.. 
 
 25. East Jersey R. & T. Co. v. 21 I. C. C. 400; Railroad Commis- 
 Central R. of New .lersey, 36 I. sion of Nevada v. Southern P. Co., 
 I. C. C. 146; In re advances Rates 21 I. C. C. 329; In re Locomotive 
 in Chicago Switching District, 34 & Tender Rates. 21 I. (\ C. 103; 
 
 1 Coiitnil (.'aiilci-s 41
 
 642 Duties to Interstate Shippers. [§ 3G4 
 
 § 364. Amendment of 1917 Prohibiting Filing of 
 Increased Rates without Approval of Commission. A 
 further limitation was placed upon interstate carriers 
 in tiling schedules prescribing increased charges by an 
 amendment to section 15, enacted in 1917,-" which pro- 
 vides that until January 1, 1920, no increased rate, fare, 
 charge, or classification, shall be filed, except after ap- 
 proval thereof lias been secured from the Commission. 
 Such approval may, in the discretion of the Commis- 
 sion, be given without formal hearing, and, in such a 
 case, shall not affect any subsequent proceeding relative 
 to such rate, fare, charge or classification. 
 
 § 365. Rules of Carriers Governing Distribution, 
 Exchange, Interchange and Return of Cars. By an 
 amendment enacted in 1917 to the Act to Regulate Com- 
 merce,-^ the subject matter of car service, that is, the 
 rules and regulations governing the movement, distribu- 
 tion, exchange, interchange and return of cars used in 
 the transportation of property by all carriers subject to 
 the statute, was placed under the jurisdiction of the 
 Commission, This amendment is as follows: "The term 
 'car service' as used in this Act shall include the move- 
 ment, distribution, exchange, interchange, and return 
 of cars used in the transportation of property by any 
 carrier subject to the provisions of this Act. It shall 
 be the duty of every such carrier to establish, observe, 
 and enforce just and reasonable rules, regulations and 
 practices with respect to car service, and every unjust 
 and unreasonable rule, regulation, and practice with 
 respect to car service is prohibited and declared to be 
 unlawful. The Interstate Commerce Commission is here- 
 by authorized by general or special orders to require 
 all carriers subject to the provisions of the Act, or any 
 of them, to file with it from time to time their rules and 
 regulations with respect to car service, and the com- 
 
 In re Grain Product Rates, 21 I. C. 20. Act of August 9, 1917, Ap- 
 
 C. 22; Western Rate Advance pendix A, infra. 
 
 Case, 20 I. C. C. 307; Eastern Ad- 27. Act of May 29, 1917. Ap- 
 
 vance Rate Case, 20 I. C. C. 243. pendix A, infra.
 
 § 365] The Commeece Commission. 643 
 
 mission may, in its discretion, direct tliat the said rules 
 and regulations shall he incorporated in their schedules 
 showing rates, fares, and charges for transportation and 
 he suhject to any or all of the provisions of the Act 
 relating thereto. The commission shall, after hearing, 
 on a complaint or upon its own initiative without com- 
 plaint, estahlish reasonable rules, regulations, and prac- 
 tices witli respect to car service, including the classifi- 
 cation of cars, compensation to be paid for the use of 
 any car not owned by any such common carrier and the 
 penalties or other sanctions for iionobservance of such 
 rules. Whenever the commission shall be of opinion 
 that necessity exists for immediate action with respect 
 to the supply or use of cars for transportation of prop- 
 erty, the commission shall have, and it is hereby given, 
 authority, either upon complaint or ui)on its own initia- 
 tive without complaint, at once, if it so orders, without 
 answer or other formal pleading by the interested car- 
 rier or carriers, and with or without notice, hearing, 
 or the making or filing of a report, according as the com- 
 mission may determine, to suspend the operation of any 
 or all rules, regulations, or practices then established 
 with respect to car service for such time as may be 
 determined by the commission, and also authority to 
 make such just and reasonable directions with respect 
 to car service during such times as in its opinion will 
 best promote car service in the interest of the public 
 and the commerce of the people. The directions of the 
 commission as to car service may be made through and 
 by such agents or agencies as the commission shall 
 designate and appoint for that purpose. In case of fail- 
 ure or refusal on the part of any carrier, receiver, or 
 trustee to comply with any direction or order with res- 
 pect to car service, such carrier, receiver, or trustee shall 
 be liable to a penalty of not less than $100 nor more 
 than $500 for each such offense and $50 for each and 
 every day of the continuance of such offense, which 
 shall accrue to the United States and may be recover- 
 ed in a civil action brought by the Fnitod States."
 
 G44 Duties to Interstate Shippers. [§ 366 
 
 § 366. Statute Compelling Carriers to Establish 
 Through Routes and Joint Rates upon Order of Com- 
 mission, Valid. The validity and constitutionality of 
 tlie amendments of 1906 and 1910-' to section 15 of the 
 Act to Regulate Commerce compelling carriers engaged 
 in interstate and foreign commerce to establish through 
 routes and joint rates after hearing before the Commis- 
 sion when they have voluntarily failed or neglected to 
 do so, has been affirmed by the national Supreme Court.'' 
 In Paducah Board of Trade v. Illinois Cent. R. Co.,'" 
 upon a complaint that the rates on logs and lumber to 
 Paducah, Ky., from points in Louisiana and Arkansas 
 were unjustly discriminatory as compared with tlie rates 
 from the same producing territory to Cairo, 111., the Com- 
 mission ordered the carriers to establish through routes 
 to Paducah from the Louisiana and Arkansas points 
 and joint rates applicable via such through routes no 
 higher than the rates maintained from the same points 
 to Cairo, 111. Thereafter, upon a petition of the carriers 
 to set aside the order, it was held to be valid and en- 
 forcible by a federal district court," and, upon appeal 
 to the federal Supreme Court, the decree dismissing the 
 bill was sustained. "The carriers deny," said Mr. Jus- 
 tice Brandeis, "that the Commission has the power to 
 compel them to establish through routes and joint rates. 
 It is admitted that all the complaining carriers were 
 interstate railroads and were engaged otherwise in inter- 
 state commerce. It is undisputed that for many years 
 there has been over the lines of two of these carriers a 
 through route to Paducah via Cairo, and over the other 
 a through route via Memphis; and that on all the lines 
 there were through rates. But it is contended that if 
 a carrier establishes a through route and joint rate with 
 its connections, it creates in effect a relation of partner- 
 ship; that this relation must be entered into, if at all, 
 voluntarily; and that to 'compel a carrier chartered by 
 
 28. Section 72, supra. 30. 37 I. C. C. 719. 
 
 29. St. Louis Southwestern R. 31. St. Louis Southwestern Ry. 
 Co. V. United States, 245 U. S. 136, Co. v. United States, 234 Fed. 668. 
 62 L. Ed. , 38 Sup. Ct. 49.
 
 § 'A6(y\ THK CoMMKHCH COMMISSION. 645 
 
 a state' 1o ciitci- into siicli a relation Avitli a carricM- diai"- 
 toi-('(l in another state violates tlie P'iftli Amendment of 
 tlie f<'deral C'onstitution. The complaining carriers 
 having engaged in tliis jiarticnlar commerce, it is clear 
 that Congress has power to regulate it. Atlantic Coast 
 Line Case, 219 U. S. 186, 31 Sup. Ct. 164, 55 L. Ed. 167, 
 31 L. R. A. (N. S.) 7. No reason appears why the regu- 
 lation might not take the form of compelling the suh- 
 stitution of a joint rate for a through rate made hy a 
 comhination of local rates or by a combination of a local 
 rate with a joint rate to an intermediate point. Cincin- 
 nati, New Orleans «S: Texas Railway v. Interstate Com- 
 merce Commission, 162 U. S. 184, 16 Sup. Ct. 700, 40 L. 
 Ed. 935. So far as the order relates to the existing 
 routes via Cairo and Memphis respectively it did no 
 more than this: It substituted for the through rate of 
 22 cents (made up on two of the lines of a combination 
 of a joint rate or local rate of 16 cents to Cairo with a 
 local rate on the Illinois Central of 6 cents from Cairo 
 to Paducah), a joint rate of 16 cents from the 'blanket 
 territory' to Paducah; thus reducing the existing through 
 rate. The carrier connecting at Cairo (the Illinois 
 Central) and all but one of the carriers connecting with 
 these complainants in the 'blanket territory,' acquiesced 
 in the order establishing- this joint rate. The Illinois 
 Central's share of the 22-cent rate was its local rate of 
 6 cents. If these complaining carriers cannot reach 
 satisfactory agreements with the Illinois Central as to 
 what its share of the 16-cent rate should be, they may, 
 under section 15 of the Act to Regulate Commerce 
 (Comp. St. 1916, sec. 8583), apply to the Commission for 
 an appropriate order. In respect to the Rock Island 
 the situation is similar. The order entered does not re- 
 quire any complaining carriers to substitute the route 
 via Memphis for that via Cairo; nor dees it require any 
 to establish an additional route via Memphis, Carriers 
 are left free to furnish the through transportation ei- 
 ther via Cairo or via Memphis. The order merely com- 
 pels a through route and a joint rate of 16 cents to Pa- 
 ducah. If they elect to continue existing through route 
 via Cairo, the order operates merely to introduce reduced
 
 H46 Duties to Intebstate Shippers. [§ 366 
 
 joint rates. If they elect to discontinue the through 
 routes via Cairo, the order operates to establish throug^h 
 routes and joint rates via Memphis, which the findings 
 of the Commission fully justify. That Congress has 
 power to authorize the Commission to enter an order 
 for through routes and joint rates, like that here com- 
 plained of, has been heretofore assumed. No reason is 
 shown for questioning its existence now. The provisions 
 of the Act to Regulate Commerce as amended (1887, c. 
 104, sections 1, 12, 15, 24 Stat. 379; 1906, c. 3591, sec. 4, 
 34 Stat. 584; 1910, c. 309, sec. 12, 36 Stat. 539, 552 (Comp. 
 St. 1916, sections 8563, 8576, 8583) are also appropriate 
 to confer this authority upon the Commission. And 
 there is no foundation in fact or law for the contention 
 of complainants that the 'Commission disregarded the 
 provision of section 15, by which it is prohibited from 
 embracing in a through route Mess than the entire length 
 of a' railroad 'unless to do so would make the route un- 
 reasonably long.' Whether a carrier engaged solely in 
 intrastate commerce could be compelled by Congress to 
 enter interstate commerce, or even whether a carrier, 
 having entered into some interstate commerce, may be 
 compelled to enter into all, we have no occasion to con- 
 sider; for the complaining carriers had voluntarily enter- 
 ed into the particular class of interstate commerce with 
 Paducah to which alone the order related." 
 
 § 367. Powers of, and Limitations Upon, Commis- 
 sion in Establishing Through Routes and Joint Rates. 
 
 The Interstate Commerce Commission has no power to 
 establish through routes or joint rates when the trans- 
 portation is wholly by water^^ or between street electric 
 passenger railways not engaged in the general business 
 of transporting freight in addition to their passenger 
 and express business, and railroads of a different charac- 
 ter.''^ But it may, after hearing, establish through routes, 
 
 .32. For history of amendments 33. Chicago, O. & P. Ry. Co. v. 
 
 granting and extending the author- Chicago & N. W. Ry. Co., 33 I. C 
 
 Ity of Commission over joint rates C 573; Board of Trade of Louis- 
 
 and through routes, see Section 72, ville v. Indianapolis, C. & S. T. 
 
 supra. Co., 27 I. C. C. 499; St. Louis, S.
 
 § 367 
 
 Thk Commebck Commission, 
 
 04^ 
 
 joint cla.s«ilicati(nis and joint rates, and prescribe the 
 division of such rates, and the terms and conditions 
 under which through routes shall be operated, when- 
 ever carriers, subject to the Act, refuse or neglect to es- 
 tablish such through routes, joint classifications or joint 
 rates." These powers extend even when one of the con- 
 necting carriers is a water line."" In the establislinient 
 of such through routes no carrier may be compelled, 
 without its consent, to embrace in such route substantial- 
 ly less than the entire length of its railroad and of any 
 intermediate railroad operated in conjunction and under 
 a common management or control therewith which lies 
 between the termini of such proposed through route un- 
 
 &. p. H. Co. V. I'eoria & P. U. Ry. 
 Co.. 26 I. C. C. 22(j. 
 
 34. Paducah Board of Trade v. 
 Illinois Cent. R. Co., 37 I. C. C. 
 719; Federal Sugar Refining Co 
 V. Central R. of New Jersey. 35 I. 
 C. C. i?S; Nitro Powder Co. v. 
 West Shore R. Co., 35 I. C. C. 77: 
 Corporation Commission of N. C 
 V. AT.ohison. T & S. F. R. Co.. 33 
 I. C. C. 487; Michigan Bean Job- 
 bers' Ass'n V. Grand Rapids & I. 
 Ry. Co., 33 I. C. C. 318; American 
 National Live Stock Ass'n v. 
 Southern P. Co., 32 I. C. C. 438; 
 Mobile Chamber of Commerce v. 
 Mobile & 0. R. Co.. 32 I. C. C. 272. 
 Burford v. Louisville & N. R. Co., 
 HI T. C. C. 182: Tampa Board of 
 Trade v. Louisville & N. R. Co., 
 30 I. C. C. 377; Rogers & Prinkey 
 V. Baltimore & 0. R. Co., 30 I. 
 C. C. 32; In re advances Lumber, 
 Or. & Wash, to Eastern Points, 29 
 I. C. C. 609; Toledo Produce Ex- 
 change V. Ann Arbor R. Co., 27 
 I. C. C. 536; Southwestern Mo. 
 Millers' Club v. St. Louis & S. F. 
 R. Co., 26 I. C. C. 630; Omaha 
 Grain Exchange v. Chicago, B. & 
 Q. R. Co., 26 I. C. C. 553: Texas 
 Cement Plaster Co. v. St. Louis & 
 
 S. F. R. Co., 26 I. C. C. 508; Blake- 
 ly S. R. Co. v. Atlantic Coast Line 
 R. Co., 26 I. C. C. 344. 
 
 35. Port Huron & D. S. S. Co. 
 V Pennsylvania R. Co., 35 I. C. 
 C. 475; Spartanburg Chamber of 
 Commerce v. Southern Ry. Co., 34 
 I. C. C. 484; Kansas City, Missou- 
 ri River Nav. Co. v. Chesapeake & 
 O. Ry. Co. 34 I. C. C. 67; Stone's 
 Exp. V. Boston & M. R. Co., 33 I. 
 C. C. 638; Chattanooga Packet Co. 
 V, Illinois Cent. R. Co., 33 I. C. 
 C. 384; New York Dock Ry. Co. 
 V. Baltimore & O. R. Co.. 32 I. C. 
 C. 568; Eastern Shore Develop- 
 ment S. S. Co. V. Baltimore & O. R. 
 Co.. 32 I. C. C. 238; Pacific Nav. 
 Co. v. Southern P. Co., 31 I. C. 
 C. 472; Decatur Nav. Co. v. Louis- 
 ville & N. R. Co., 31 I. C. C. 281; 
 Milwaukee Produce & Fruit Ex- 
 change V. Crosby Transp. Co., 30 
 I C. C. 653; Tampa Board of 
 Trade v. Louisville & N. R. Co., 30 
 I C. C. 377; Truckers Transfer 
 Co. V. Charleston & W. C. Ry. Co.. 
 27 I. C. C. 275; Augusta & S. S. S. 
 Co. v. Ocean S. S. Co. of Savanafi, 
 26 I. C. C. 380: Murray Litherage 
 & Transp. Co. v. Delaware & H. 
 Co.. 25 I. C. C. 388.
 
 648 
 
 Duties to Interstate Shippers. 
 
 [§ 367 
 
 less such througli route would thereby be unreasonably 
 long as compared with another practicable through 
 route which could otherwise be established.^® 
 
 § 368. When Commission may Establish Through 
 Routes and Maximum Joint Rates between Rail and 
 Water Lines. AVheii common carriers transport prop- 
 erty from one point to another in the United States by 
 rail and water through the Panama Canal or otherwise, 
 ^the transportation not being entirely within the limits 
 of a single state, the Commission . has jurisdiction of 
 such transportation and of the rail and water carriers 
 participating therein to establish through routes and 
 maximum joint rates between and over such rail and 
 water lines, and may determine all the terms and condi- 
 tions under which such lines shall be operated in the 
 handling of the traffic embraced.'' 
 
 36. St. Louis, I. M. & S. Ry. Co. 
 V. United States, 217 Fed. 80; Og- 
 den Gateway Case v. Denver & R. 
 G. R. Co., 35 I. C. C. 131; Mer- 
 cliants & Manufacturers Ass'n v. 
 Central R. of New Jersey, 30 I. 
 C. C. 396; In re advances Lumber 
 from North Pacific Coast, 30 I. C. 
 C. Ill: Huglies" Creek Coal Co. v. 
 Kanawha oi M. Ry. Co., 29 I. C. 
 C. 671; Wichita Board of Trade 
 v. Abilene & S. Ry. Co., 29 I. C. C. 
 376; Richmond-Eureka Mining 
 Co. V. Eureka N. Ry. Co., 29 I. C. 
 C. 62; Waverly Oil Works Co. v. 
 Pennsylvania R. Co., 28 I. C. C. 
 621; Iowa Railroad Commission- 
 ers V. Arizona E. R. Co., 28 I. C. 
 C. 563; United States v. Union 
 P. R. Co.. 28 I. C. C. 518; Haver- 
 hill Box Board Co. v. Boston & A. 
 R. Co., 28 I. C. C. 336; In re ad- 
 vances Cotton Seed and Products, 
 from Texas, 28 I C. C. 219; In re 
 Coal Rates to Milwaukee, Wiscon- 
 sin, 27 I. C. C. 223; In re Lumber 
 Rates from Mississippi, 27 I. C. 
 C. 6; Mansfield Hardwood Lum- 
 
 ber Co. V. Tremont & G. R. Co. 26 
 I. C. C. 138. 
 
 37. Section 6 of the x\ct to Reg- 
 ulate Commerce, Appendix A; 
 Lamb-Fish Lumber Co. v. Yazoo u 
 M. V. R. Co., 38 I. C. C. 278; 
 Black & White River Transp. Co. 
 v. Missouri P. Ry. Co., 37 I. C. C. 
 244; Pine Bluff Traffic Bureau v. 
 Louisville & N. R. Co., 37 I. C. 
 C. 218; Federal Sugar Refining Co. 
 V. Central R. Co. of New .lersey, 
 35 I. C. C. 488; Port Huron & Du- 
 luth S. S. Co. V. Pennsylvania R. 
 Co., 35 I. C. C. 475; Damon v. Cros- 
 by Transp. Co., 33 I. C. C. 448; 
 Chattanooga Packet Co. v. Illinois 
 Cent. R. Co., 33 I. C. C. 384; New 
 York Dock Ry. Co. v. Baltimore & 
 O. R. Co.. 32 I. C. C. 568; Eastern 
 Shore Development S. S. Co. v. 
 Baltimore & 0. R. Co., 32 I. C. C. 
 238; Pacific Nav. Co. v. Southern 
 P. Co., 31 I. C. C. 472; Louisiana 
 Sugar Planters Ass'n v. Illinois 
 Cent. R. Co.. 31 I. C. C. 311; Bowl- 
 ing Green Business Men's Protec- 
 tive Ass'n V. Evansville & B. G.
 
 § 37(1] TlIK T'OMMEKCK CoMMISSIOX. 649 
 
 § 369. Jurisdiction of Commission in Connection 
 with Transportation to Adjacent Foreign Countries. 
 The ('oiiiiiiissioii lias no aulliurily io prescribe joint 
 tliion.i^h rates from an adjacent foreign country into the 
 Tnitcd States; })nt it can control tlie rates wliicli car- 
 riers charge from the i)ortK of entry in the United States 
 to destinations in the United States, whether they are 
 joint rates or sejiarately estahlislied rates ajiplicable to 
 tlie through transportation.'' The extent of tlie authori- 
 ty of the Commission in connection witli transportation 
 to an adjacent foreign country is over that portion on 
 tlie line within the confines of the United States.^^ The 
 Commission has not, therefore, authority to regulate 
 charges for the transportation of commodities from Vaii- 
 couver, Canada to New York.*" 
 
 § 370. Commission may not Compel a Carrier to 
 Receive and Switch Carload Freight to Industries on 
 its Terminals. Section 3 of the Act to Regulate Com- 
 merce provides that the statute shall not be construed 
 to require any carrier to give the use of its tracks or 
 terminal facilities to another carrier engaged in like 
 business; but if a carrier chooses voluntarily to throw 
 open its terminals to many branches of traffic, it there- 
 by denies itself the protection of the statute and makes 
 its terminal a public convenience.*^ Section 15 of the 
 
 p. Co., 31 I. C. C. 301; Decatur 38. Carey Mfg. Co. v. Grand 
 
 Nav. Co. V. LouisviUe & N. R. Co., Trunk W. Ry. Co.. ?,(i I. C. C -xxs 
 
 •■^1 I. C. C. 281: Tampa Board of 39. International Paper Co" v 
 
 Tiadp V. Lo.iisville & N. R. Co.. Delaware & H. Co., 33 I. C. C. 270; 
 
 Fullerton Lumber & Shingle Co. v. 
 
 30 I. C. C. 377; Seattle Shingle 
 
 Co. V. Chicago, M. & St. P. Ry. „ ,,. , 
 
 Co., 30 I. C. C. 364; Railroad Com- f«""^gham. B. & B. C. R. Co.. 2-. 
 
 mission of Florida v. Atlantic ^- ^- *^- ^'^^'- ^^^'^^ ^^"^^^ ^obar- 
 
 Coast Line R. Co., 28 L C. C. 356; ^^ ^"- ^'- Hl'nois Cent. R. Co., 17 
 
 Truckers Transfer Co. v. Charles- ^- ^- ^- ■^^^■ 
 
 ton & \V. C. Ry. Co., 27 I. C. C. ^^- Carlowitz & Co. v. Canadian 
 
 275: In re Wharfage Facilities at P- R- Co.. 46 I. C. C. .) 
 
 Pensacola, Florida, 27 I. C. C. 252; 41. Louisville & N. R. Co. v. 
 
 Augusta & S. S. S. Co v. Ocean S. United States, 238 U. S. 1. .^9 L. 
 
 S. Co. of Savannah, 26 L C. C. Ed. 1177. 35 Sup. Ct 696 
 380.
 
 650 l^T'TiEs TO Interstate Shippers. [§ 370 
 
 Act provides that no carrier may be required to join 
 in a throngh ronte which includes substantially less than 
 all its line of railroad between the termini of the route, 
 unless to do so would make such route unreasonably 
 long. Construing these provisions of the statute, the 
 Commission formerly held that terminal yards and tracks 
 of a carrier were subject to the jurisdiction of the Com- 
 mission, and in establishing through routes and joint 
 rates, such terminals stood in the same light as any other 
 part of the railroad.'' Applying this rule, an order 
 was made requiring a carrier to receive cars from an- 
 other carrier for the purpose of switching them to indus- 
 tries located on its own tracks and terminals in the 
 same city;*^ but on rehearing, the Commission held that, 
 in its original order and report, it exceeded its powers 
 under the statute in requiring the defendant to receive 
 cars of interstate freight from the complainant for de- 
 livery to industries located on its tracks in the same 
 city.** The proviso in section 3 of the act protects a 
 carrier that has secured and built up valuable terminals, 
 without which its railroad would be of little use, against 
 having those terminals utilized by a competing carrier 
 that has not provided itself with adequate terminals and 
 that desires to thus secure the line haul which the car- 
 rier owning the terminals is prepared to perform and 
 which the other carrier cannot secure unless its cars 
 have the use of the terminals of its competitor.*^ The 
 refusal of a carrier to receive from or deliver to an- 
 other carrier entering the same city, interstate ship- 
 ments destined to or originating at industries on the 
 former's tracks, is not a violation of the statute, because 
 the performance of such a switching service would re- 
 quire the carrier so refusing, to participate in through 
 routes which would include substantially less than its 
 
 42. Waverly Oil Works Co. v. 44. Iowa & S. W. Ry. Co. v. Chi- 
 Pennsylvania R. Co., 28 I. C. C. cago, B. & Q. R. Co., 42 I. C. C. 
 621; St. Louis, S. & P. R. Co. v. 389. 
 
 Peoria & P. U. R. Co., 26 I. C. C. 45. Louisville Board of Trade v. 
 
 226. Louisville & N. R. Co., 40 I. C. C. 
 
 43. lovv'a & S. W. Ry. Co. v. Chi- fi79. 
 cago, B. & Q. R. Co., 32 I. C. C. 172.
 
 $37 
 
 'I'liK ('oMMKiiCE Commission. 
 
 651 
 
 entire line of railroad hctwcH^i tlie termini of such routes, 
 and would eontravene the proviso of section 3 wliich 
 protects the terminals of a carrier/" 
 
 § 371. Commission may Authorize Carriers to 
 Charge Less for Longer than for Shorter Distance. Car- 
 riers are prohibited under the provisions of Section 4 
 of the statute from cliar^inf^ or receiving any g-reater 
 compensation in the aggregate for the transportation 
 of passengers, or of like kind of property, for a shorter 
 tlian for a longer distance over the same line or route 
 in the same direction, the shorter being included within 
 the longer distance, or to charge any greater compensa- 
 tion as a through route than the aggregate of the inter- 
 mediate rates subject to the i)rovisions of the statute.*^ 
 The Interstate Commerce Commission is, however au- 
 thorized, upon the application of a carrier, in special 
 cases, and after investigation, to permit a carrier to 
 charge less for a longer than for a shorter distance for 
 tlie transportation of passengers or property.*^ The Com- 
 
 46. Kansas City & M. Ry. Co. 
 V. St. Louis & S. F. R. Co., 4G I. 
 C. C. 464. 
 
 47. For history of amendments 
 to Section 4 see Section 79, suijra. 
 
 48. United States v. Merchants' 
 
 and Manufacturers' Traffic Ass'n 
 of Sacramento, 242 U. S. 178, 61 
 L. Ed. 233, 37 Sup. Ct. 24; United 
 States V. Louisville & N. R. Co., 
 236 U. S. 318, 59 L. Ed. 598, 35 
 Sup. Ct. 363; United States v. 
 Louisville & N. R. Co., 235 U. S. 
 314, 59 L. Ed. 245, 35 Sup. Ct. 
 113; United States v. Atchison, 
 T. & S. F. R. Co., 234 U. S. 476. 
 58 L. Ed. 1408, 34 Sup. Ct. 986: 
 Interstate Commerce Commis- 
 sion V. Louisville & N. R. Co., 190 
 U. S. 273. 47 L. Ed. 1047. 23 Sup. 
 Ct. 687; East Tennessee. V. & G. 
 Ry. Co. V. Interstate Commerce 
 Commission, 181 U. S. 1, 45 L. 
 Ed. 719, 21 Sup. Ct. 516: Louis- 
 
 ville & N. R. Co. v. Behlmer, 175 
 U. S. 648, 44 L. Ed. 309, 20 Sup. 
 Ct. 209; Interstate Commerce 
 Commission v. Alabama Midland 
 R. Co., 168 U. S. 144, 42 L. Ed. 
 414, 18 Sup. Ct. 45; Texas & P. 
 R- Co. v. Interstate Commerce 
 Commission, 162 U. S. 197, 40 L. 
 Ed. 940, 16 Sup. Ct. 666; Cincin- 
 nati, N. 0. & T. P. R. Co. V. In- 
 terstate Commerce Commission, 
 162 U. S. 184. 40 L. Ed. 935, 16 
 Sup. Ct. 700; Nashville Grain 
 Exchange v. United States, 234 
 Fed. 699; Merchants' and Manu- 
 facturers' Traffic Ass'n of Sacra- 
 mento V. United States, 231 Fed. 
 292; Louisville & N. R. Co. v. 
 United States, 225 Fed. 571: Gra- 
 ham & G. C. Traffic Ass'n v. Ari- 
 zona E. R. Co.. 40 I. C. C. 573; In. 
 land Seed Co. v. Oregon-Washing- 
 ton R. & N. Co.. 40 I. C. C. 517; 
 Young V. Louisville & N. R. Co.,
 
 652 
 
 Duties to Interstate Shippebs. 
 
 [§ 371 
 
 mission may, from time to time, prescribe the extent to 
 Trhieli a common carrier may be relieved from the oper- 
 ation of Section 4. 
 
 § 372. Commission may Authorize Rail Carriers 
 to Continue Ownership of Water Lines. Interstate rail 
 and other carriers subject to federal control are, since 
 July 1, 1914, prohibited from owning lines or having 
 any interest whatever in water lines or vessels carrying 
 freight or passengers if they actually compete or may 
 compete for traffic with such water lines or vessels.*^ 
 The question whether competition actually exists or is 
 possible between such rail carriers and water lines must 
 be determined by the Commission. However, if any serv- 
 ice bv water other than through the Panama Canal main- 
 
 40 I. C. C. 308; Berry Coal & 
 Coke Co. V. Chicago, R. I. & P. 
 Ry. Co., 40 I. C. C. 175; In re 
 Reopening Fourth Section Appli- 
 cations, 40 I. C. C. 35; Hender- 
 son Cotton Mills V. Louisville & 
 N. R. Co., 39 I. C. C. 399; City 
 of Marshall v. Texas & P. Ry. Co., 
 39 I. C. C. 249; Bennett & Son v. 
 Chesapeake & O. Ry. Co., 38 I. 
 C. C. 310; McCaull-Dinsmore Co. 
 V. Great N. Ry. Co., 38 I. C. C. 
 297; Rates on Iron & Steel Arti- 
 cles, 38 I. C. C. 237; Merchants 
 Produce Co. v. Oregon-Washing- 
 ton R. & N. Co., 38 I. C. C. 209; 
 National Rolling MiU Co. v. Chi- 
 cago & E. I. R. Co., 38 I. C. C. 
 108; Brownsville Cotton Oil & 
 Ice Co. V. Chicago, R. I. & P. Ry. 
 Co., 37 I. C. C. 503; Hottelet & 
 Co. V. Chesapeake & O. Ry. Co., 
 37 I. C. C. 382; Duncan & Co. 
 V. NashviHe, C. & St. L. R. Co., 
 35 I. C. C. 477; Board of Trade 
 of Kansas City v. Chicago, M. & 
 St. P. Ry. Co.. 34 I. C. C 208; In 
 re Commodity Rates to Pacific 
 Coast Terminals. 34 I. C. C. 13; 
 Railroad Commissioners of Mon- 
 
 tana V. Atchison, T. & S. F. R. 
 Co., 32 I. C. C. 316; Railroad 
 Coni'rs of Montana v. Butte, A. & 
 P. Ry. Co., 31 I. C. C. 641; In re 
 advances on Boots and Shoes 
 from Boston, Mass., 31 I. C. C. 
 154; In re Tropical Fruits from 
 Gulf Ports, 30 I. C. C. 621; In 
 re Fourth Section v. Southeastern 
 Roads, 30 I. C. C. 153; Stewart- 
 Greer Lumber Co. v. St. Louis, I. 
 M. & S. Ry. Co., 29 I. C. C. 120; 
 Maier & Co. v. Southern P. Co.. 
 29 I. C. C. 103; Texarkana 
 Freight Bureau v. St. Louis, I. 
 M. & S. Ry. Co., 28 I. C. C. 569; 
 Blakely S. R. Co. v. Atlantic 
 Coast Line R. Co., 26 I. C. C. 344; 
 In re Southern Ry. Co., 25 I. C. 
 C. 407; Appalachla Lumber Co. 
 v. Louisville & N. R. Co., 25 I. C. 
 C. 193; Bowling Green Business 
 Men's Protective Ass'n v. Louis- 
 ville & N. R. Co., 24 I. C. C. 228; 
 In re Fourth Section. 24 I. C. C. 
 192; City of Spokane v. Northern 
 P Ry. Co.. 21 I. C. C. 400; Rail- 
 road Commission of Nevada v. 
 Southern P. Co., 21 I. C. C. 329. 
 49. Section 97, supra.
 
 § 374] Thk Commebce Commlssiox. 653 
 
 tained by a rail carrier, is of advantage to the couven- 
 ience and comnieree of the people, is being operated in 
 the interest of (lie public and the continuance of such 
 service will not exclude, ])revent nor reduce competi- 
 tion on tlie watei- route, the Commission is authorized, 
 under llic statute, to extend the time during whi(;h such 
 service by watei- may contiiiut' to be opciatiMl b\- a coin- 
 mon carrier by railroad.''" 
 
 § 373. Commission may Prescribe the Forms of 
 all Schedules of Rates and Charges. The Interstate 
 Commerce Commission is authorized to determine and 
 prescribe the form in which tiie schedules required by 
 Section 6, to be kei)t open to public inspection, shall be 
 prepared and arranged, and is authorized to change the 
 form from time to time. No changes may be made in t he 
 rates, fares and charges of an\' common carrier or any 
 joint rates, fares and charges which shall have been filed 
 and publisluHl by any common carrier except after thirtv 
 days notice to the Commission. But the Commission 
 may, however, in its discretion and for good cause shown, 
 allow changes in such rates, fares and charges upon less 
 than the thirty days notice required." 
 
 § 374. Charges by Shippers against Carriers for 
 Services Connected with Transportation under Control 
 of Commission. AVhen a shipper of freight transported 
 in interstate or foreign commerce and subject to the 
 Interstate Commerce Act, directly or indirectly renders 
 any service connected with such transportation, or fur- 
 nishes any instrumentality used therein, the Commission 
 nuiy, after hearing on a complaint or on its own initia- 
 
 50. Central Vermont Boat C. C. 432; Ocean S. S. Co. of Sa- 
 
 Lines, 40 I. C. C. 589; Delaware vannah, 37 I. C. C. 422; In re 
 
 & H. Boat Lines, 40 I. C. C. 297; Steamer Lines on Chesapeake Bay 
 
 Maine Central Boat Lines, 40 L and Tributaries, 35 I. c. C. 692- 
 
 C. C. 272; Ashtabula-Port Mait- In re Southern P. Co., ownership 
 
 land Car Fare Service, 40 I. C. C. of Oil Steamers. 34 I. c. C. 77; 
 
 143; Southern P. Co's ownership Lake Line Applications under 
 
 of Oil Steamers, 37 I. C. C. 52S; Panama Canal Act, 33 I. C. C. G99. 
 Peninsular & O. S. S. Co., 37 I. f)!. Chapter 13, supra.
 
 654 
 
 Duties to Interstate Shippers. 
 
 [§ 374 
 
 tive, determine what shall be a reasonable charge as 
 the maximum to be paid by a carrier for the service 
 so rendered, or for the use oi the instrumentality so 
 furnished." The Commission is authorized to fix the 
 
 52. Interstate Commerce Com- 
 mission V. Atchison, T. & S. F. 
 R. Co., 234 U. S. 294, 58 L. Ed. 
 1319, 34 Sup. Ct. 814; United 
 States V. Louisiana & P. R. Co., 
 234 U. S. 1, 58 L. Ed. 1185, 34 
 Sup. Ct. 741; Atchison, T. & S. 
 F. R. Co. V. United States, 232 
 U. S. 199, 58 L. Ed. 568, 34 Sup. 
 Ct. 291; United States v. Balti- 
 more & O. R. Co., 231 U. S. 274, 
 58 L. Ed. 218, 34 Sup. Ct. 75; 
 Mitchell Coal & Coke Co. v. Penn- 
 sylvania R. Co., 230 U. S. 247, 57 
 L. Ed. 1472, 33 Sup. Ct. 916; Un- 
 ion Pac. R. Co. V. Updike Grain 
 Co., 222 U. S. 215, 56 L. Ed. 171, 
 32 Sup. Ct. 39; Interstate Com- 
 merce Commission v. Diflenbaugh, 
 222 U. S. 42, 56 L. Ed. 83, 32 Sup. 
 Ct. 22; Interstate Commerce Com- 
 mission V. Stickney, 215 U. S. 
 98, 54 L. Ed. 112, 30 Sup. Ct. 66; 
 Chicago & A. R. Co. v. United 
 States, 212 U. S. 563, 53 L. Ed. 
 653, 29 Sup. Ct. 689; Louisiana & 
 P. Ry. Co. V. United States, 209 
 Fed. 244; Wisconsin Cent. R. Co. 
 V. United States, 94 C. C. A. 444, 
 169 Fed. 76; Ohio Coal Co. v. 
 Whitcomb, 59 C. C. A. 487, 123 
 Fed. 359; Union Lumber Co. v. 
 Gulf, C. & S. F. Ry. Co., 37 I. C. 
 C. 225; Felin & Co. v. Philadel- 
 phia & R. Ry. Co., 37 I. C. C. 231; 
 In re Allowances on Anthracite 
 Coal, 36 I. C. C. 164; In re ad- 
 vances Car-spotting Charges, 34 I. 
 C. C. 609; Second Industrial Rys. 
 Case, 34 I. C. C. 596; Atchison, 
 T. & S. F. Ry. Co. v. Kansas City 
 Stock Yards Co., 33 I. C. C. 92; 
 Best Co. V. Great N. Ry. Co., 33 
 
 I. C. C. 1; New York Dock Ry. 
 Co. V Baltimore & O. R. Co., 32 
 I. C. C. 568; Inman, Akers & In- 
 man v. Atlantic Coast Line R. 
 Co., 22 I. C. C. 146; Colonial Salt 
 Co. V. Chicago, B. & Q. R. Co., 
 31 I. C. C. 559; Industrial Rys. 
 Case, 2« I. C. C. 212; Manufactur- 
 ers' Ry. Co. V. St. Louis, I. M. 
 & S. Ry. Co., 28 I. C. C. 93; South- 
 wpstcrn Missouri Millers Club v. 
 St. Louis & S. F. R. Co., 26 I. C. 
 C. 245; Traffic Bureau of St. 
 Louis v. Chicago, B. & Q. R. Co., 
 22 I. C. C. 496; Suffern Grain Co. 
 V. Illinois Cent. R. Co., 22 I. C. 
 C. 178; Sterling & Son Co. v. 
 Michigan C. R. Co., 21 I. C. C. 
 451; International Salt Co. of Il- 
 linois V. Genesee & W. R. Co., LO 
 I. C. C. 530; Industrial Lumber 
 Co. V. St. Louis W. & G. Ry. 
 Co., 19 I. C. C. 50; Fathauer 
 Co. V. St. Louis, I. M. & S. Ry. 
 Co., 18 I. C. C. 517; Crane Iron 
 Works V. Central R. Co. of New 
 Jersey, 17 I. C. C. 514; Star 
 G^-ain & Lumber Co. v. Atchison. 
 T. & S. F. Ry. Co., 17 I. C. C. 
 338; Crane R. Co. v. Philadelphia 
 & R. Ry. Co., 15 I. C. C. 248; Kaye 
 & Carter Lumber Co. v. Chicago, 
 M. & St. P. Ry. Co., 14 I. C. C. 
 G04; So]va\ Process Co. v. De'.<\- 
 ware, L. &. W. R. Co., 14 I. C. C. 
 246; General Elec. Co. v. New 
 York, C. & H. R. Co., 14 I. C. C 
 237; National Wholesale Lum- 
 ber Dealers Ass'n v. Atlantic 
 Coast Line R. Co., 14 I. C. C. 154; 
 Topeka Banana Dealers Ass'n v. 
 St. Louis & S. F. R. Co., 13 I. C. 
 r. 620; In re Elevator Allowances
 
 § 376J The Commerce Commission. 655 
 
 rnaxiniiiin eliar^c by ai)})ropriat(' order which shall have 
 the same f'oree and effect and he enforced as other orders 
 provided hy the statute. 
 
 § 375. Commission may Formulate Regulations for 
 the Transportation of Explosives. The Commission is 
 authorized by statute to formulate rej^-ulations for the 
 safe trans])ortation of explosives, which shall be binding 
 upon all common carriers engaged in interstate or for- 
 eign commerce and transporting explosives by land. The 
 Commission may also, upon its own motion, or upon 
 application by any interested party, make changes or 
 modifications in such regulations. These regulations, as 
 well as all changes or modifications thereof, shall take 
 effect ninety days after their formulation and publica- 
 tion l)y tlie Commission, and shall be in effect until 
 reversed, set aside or modified." 
 
 § 376. Switch Connections may be Ordered by the 
 Commission, When. Upon the application of any later- 
 al, branch line of railroad, or of any shipper tendering 
 interstate traffic for tran.spoi-tation, it becomes the duty 
 of any common carrier subject to the statute to construct 
 and ojierate upon reasonable terms a switch connection 
 with any such lateral, branch line of railroad or private 
 side track which may be constructed to connect with 
 its railroad, where such connection is reasonably practi- 
 cable, can be put in with safety and will furnish suf- 
 ficient business to justify its construction and main- 
 tenance. ITpon the construction of the switching con- 
 nection the carrier is required to furnish cars for the 
 movement of such traffic to the best of its ability with- 
 out discrimination in favor of or against any such ship- 
 per. If any such carrier shall fail to install and operate 
 any such switch or connection, on application therefor 
 
 by Union P. Ry. Co., 12 I. C. C. v. Louisville i N. R. Co., 1 I. C. 
 
 85; Central Yellow Pine Ass'n v. C. 503. 
 
 Illinois Cent. R. Co., 10 I. C. C. 53. Transportation of Explo- 
 
 505; Shamberg v. Delaware, L. & sives Act, 35 Stat, at L. 1134. Ap- 
 
 W. R. Co., 4 I. C. C. 630; Rice pendix P. iufra.
 
 656 Duties to Interstate Shippers. [§ 376 
 
 in writing by any shipper or owner of a lateral, branch 
 line of railroad, such shipper or owner of such lateral, 
 branch line of railroad, may make complaint to the Com- 
 mission, and the Commission is authorized to hear and 
 investigate the same and to determine as to the safety 
 and practicability of the connection and the justification 
 and reasonable compensation therefor. The Commission 
 may make an order directing any common carrier to 
 comply with the above requirements and such order 
 shall be enforced as provided by statute for the enforce- 
 ment of all other orders by the Commission, other than 
 orders for the payment of money.'* 
 
 § 377. Forms of all Accounts, Records and Memo- 
 randa of Carriers Subject to Control of Commission. 
 
 The Commission is authorized to prescribe the forms of 
 any and all accounts, records and memoranda to be 
 kept by common carriers subject to its control, including 
 the accounts, records and memoranda of tlie movement 
 of traffic as well as the receipts, and expenditures of 
 moneys. When so prescribed by the Commission, it 
 shall be unlawful for any carrier to keep any other ac- 
 counts, records or memoranda than those approved by 
 the Commission. The Commission shall, at all times, 
 have access to the accounts, records and memoranda 
 kept by the carriers, and it may employ special agents 
 or examiners who shall have authority under the order 
 of the Commission, to inspect and examine any and all 
 accounts, records and memoranda kept by the carriers 
 
 54. United States v. Baltimore I. C. C. 183; Cincinnati & C. T. 
 
 & O. S. W. R. Co., 226 U. S. 14, Co. v. Baltimore & S. W. R. Co., 
 
 57 L. Ed. 104, 33 Sup. Ct. 5; In- 20 I. C. C. 486; Imperial Wheel 
 
 terstate Commerce Commission v. Co. v. St. Louis, I. M. & S. Ry. 
 
 Northern Pac. R. Co., 216 U. S. Co., 20 I. C. C. 56; Winter's Me- 
 
 538, 54 L. Ed. 608, 30 Sup. Ct. 417; tallic Paint Co. v. Chicago, M. & 
 
 Huerfano Coal Co. v. Colorado & St. P. Ry. Co., 16 I. C. C. 587; 
 
 S. E. R. Co., 28 I. C. C. 502; Mor- Rahway V. R. Co. v. Delaware, L. 
 
 ris Iron Co.' v. Baltimore & O. R. & W. R. Co., 14 T. C. C 191; We- 
 
 Co., 26 I. C. C. 240; Ralston Town- lectka Light & Water Co. v. Fort 
 
 site Co. V. Missouri P. Ry. Co., Smith & W. R. Co., 12 I. C. C. 
 
 22 I. C. C. 354; Ridgewood Coal 503: McRae Terminal Ry. Co. v. 
 
 Co. V. Lehigh Valley R. Co., 21 Southern Ry. Co., 12 I. C. C. 270.
 
 § 378] The Commerce Commission. 657 
 
 subject to federal contiol. Tii case of failure or refusal 
 on the i)art of any canicr, receiver or trustee of a rail- 
 road to keej) such accounts, iccords and memoranda on 
 the books and in the manner pi-escribed by the Commis- 
 sion or to sul)init such accounts, records and memoranda 
 as are kept to the inspection of tlie Commission, or any 
 of its authorized a.t^-ents or examiners, sucli carrier, re- 
 ceiver, or trustee, shall forfeit to the United States the 
 sum of Five Hundred Dollars for each offense and for 
 each and every day's continuance of such offense, such 
 forfeitures to be recoverable in the same manner as othei- 
 forfeitures provided in the statute. x\ny examiner who 
 divulges any fact or information which may come to 
 his knowledge during the course of the examination of 
 the books, records and accounts of any carrier excejit 
 in so far as he may be directed by the Commission or 
 by a court or judge thereof, sliall be su])ject, upon con- 
 viction in any court of the United States of competent 
 jurisdiction, to a fine of not more than Five Thousand 
 Dollars or imprisonment for a term not exceeding two 
 years or both." 
 
 § 378. Power of Commission over Rail Carriers 
 Discriminating against Steamship Lines to Foreign 
 Countries. If a rail carrier subject to federal control 
 enters into arrangements with any water carrier oper- 
 ating from a port in the XTnited States to a foreign 
 country through the Panama Canal or otherwise, for 
 the handling of through business between interior points 
 in the United States and such foreign country, the Com- 
 mission has the power, under the statute, to require such 
 lail carrier to enter into similar arrangements with any 
 other lines of steamshii)s o])erating from the same port 
 to the same foreign country. Such orders, however, 
 cannot be made by the Commission except upon a formal 
 complaint or in proceedings instituted by the Commis- 
 sion of its own motion and after a full hearing.^" 
 
 55. Section 20 of the Act to 56. Section fi of the Act to Res;- 
 
 Regulate Commerce, Appendix A, ulate Commerce, Appendix A, in- 
 infra. fra. 
 
 1 Control rarrlers 42
 
 fc'58 Duties to Interstate Shippers. [§ 379 
 
 § 379. Rail Rates Reduced to Meet Water Competi- 
 tion may not be Raised without Permission of Com- 
 mission. Wlienever a rail carrier operating in com- 
 petition with a water carrier, reduces the rates for the 
 transportation of any specie of freight to or from a com- 
 petitive point, such rates cannot be increased thereafter 
 by tlie carrier unless the Interstate Commerce Commis- 
 sion shall find after a hearing that the proposed increase 
 rests upon changed conditions other than the elimination 
 of water competition." 
 
 § 380. Physical Connection between Line of Rail 
 Carriers and Water Carriers may be Established by 
 Commission. When property may be or is transported 
 by common carriers from one point to another in the 
 United States by cail and water, the transportation not 
 being entirely within the limits of a single state, the 
 Commission has jurisdiction of such transportation and 
 of the rail and water carriers engaged therein, to es- 
 tablish physical connections between the line of a rail 
 carrier and the dock of a water carrier by directing the 
 rail carrier to make suitable connections between its 
 line and the tracks which may have been constructed 
 from the dock to its right of way, or by directing either 
 or both the rail and water carrier, individually or in 
 connection with one another, to construct and connect 
 with the lines of the rail carrier a spur track to the 
 dock. Such connection cannot, however, be required un- 
 less it is reasonably practicable, can be made with safety 
 to the public, and the amount of business is sufficient 
 to justify the outlay. The Commission has full authori- 
 ty to determine the terms and conditions upon which 
 these connecting tracks, when constructed, shall be 
 operated, and it may, either in the construction or the 
 operation of such tracks, determine what sum shall be 
 paid to or by either carrier. The foregoing provisions 
 
 57. Section 4 of the Act to infra. This provision was insert- 
 Regulate Commerce, Appendix A, od by amendment in 1910.
 
 ^ 382] The Commebce Commission. G59 
 
 extend to cases where the dock is owned by otlier parties 
 tlian the carrier involved/*' 
 
 § 381. Maximum Proportional Rates by Rail to and 
 From Ports May be Established by Commission, When. 
 When projK'rty may be or is transported from one point 
 to another in the United States by rail and water, the 
 transportation l)eing by common carriers and not en- 
 tirely within the limits of a single state, the Commission 
 has jurisdiction of such transportation and of such car- 
 riers, both by rail and by water, which participate there- 
 in, to establish maximum proportional rates by rail to 
 and from the ports to which such traffic is brought, or 
 from which it is taken by the water carrier, and may 
 determine to what traffic and in connection with what 
 vessels and upon what terms and conditions, such rates 
 shall apply. By i)roportional rates are meant those 
 which differ from the corresponding local rates to and 
 • from the port and which apply to traffic which has been 
 brought to the port or is carried from the port by a 
 common carrier by water. An order of the Commission 
 establishing such maximum proportional rates can be 
 made only upon a formal complaint, or in a proceeding 
 instituted by the Commission of its own motion, and 
 after a full hearing.^" 
 
 § 382. Commission Without Jurisdiction to Regu- 
 late Charges in Connection with 28-Hour Livestock 
 Law. The Act of June 29, 1906'''' prohibits carriers, 
 over whose lines animals shall be conveyed, from con- 
 fining the same in cars for a period longer that 28 con- 
 secutive hours, 36 hours in excepted cases, without un- 
 loading them into properly equipped pens for rest, water 
 and feed, for a period of at least 5 consecutive hours, 
 
 58. Section 6 of the Act to Reg- infra; Charleston & N. S. S. Co 
 ulate Commerce, Appendix A, in- v. Chesapealie & O. Ry. Co., 40 I. 
 fra; Indiana Transp. Co. v. Grand C. C. 382. 
 
 Rapids, H. & C. Ry. Co.. 39 I. C. 60. 34 Stat, at L, 607, known 
 
 C. 757. as the Federal 28-Hour Livestock 
 
 59. Section 6 of the Act to Law. Appendix L, infra. 
 Regulate Commerce, Appendix A,
 
 660 Duties to Interstate Shippers. [§ 382 
 
 and also provides that the animals shall be properly 
 fed and watered during such rest, either by the owner 
 or person having custody thereof, or, in case of his de- 
 fault in SQ doing, then by the railroad transporting the 
 same, at the reasonable expense of the owner. This 
 statute does not vest in tlie Commission authority to 
 enforce its provisions. As the Commission possesses 
 only such powers as are expressly conferred upon it by 
 statute, it has no authority to pass upon the reasonable- 
 ness of a charge collected by a carrier from a shipper 
 for feeding and watering a carload of animals in com- 
 pliance with the 28-Hour Law."^ 
 
 § 383. Commission Required to Make Annual Re- 
 ports to Congress. The Commission is required to make 
 and transmit to Congress an annual report on or before 
 the iirst day of December in each year, which must con- 
 tain such information and data collected by the Com- 
 mission as may be considered of value in the deter-, 
 mination of questions connected with the regulation of 
 commerce, together with such recommendations as to 
 additional legislation relating thereto as the Commis- 
 sion may deem necessary. The report must also contain 
 the names and compensation of the persons employed 
 by the Commissi on. "- 
 
 § 384. Rules and Regulations for Inspection of 
 Locomotive Boilers Controlled by Commission. Common 
 carriers by railroad engaged in interstate or foreign com- 
 merce are required to promulgate rules and instructions 
 for the inspection of boilers of locomotive engines used 
 upon their railroads. After hearing and approval by 
 the Commission, such rules and instructions, with such 
 modifications as the Commission may reciuire, shall be- 
 come obligatory upon such carriers. If any carrier 
 
 61. Pacific Coast Beef & Provi- 62. Section 21 of the Act to 
 
 sion Co. V. Oregon Short Line R. Rtgulate Commerce, Appendix A, 
 
 Co., 46 I. C. C. ; Streever infra. 
 
 Lumber Co. v. Chicago, M. & St. 
 P. Ry. Co., 34 L C. C. 1.
 
 § 386] The Commerce Commission. GGl 
 
 shall fail to lile such rules and instructions with tiie 
 chief inspector of the Commission, he may prepare rules 
 and instructions to be obsei-v^ed by the carrier, which, 
 upon ai)proval by tlie Commission, sliall be obli«<atory 
 after a copy thereof is served upon the president, gener- 
 al manager or general sui)erintendent of such carrier. 
 No rule or regulation sliall l)e changed until the same 
 shall have been (iled with and appi'oved by the Com- 
 mission. The statute also provides for an appeal to tlie 
 Commission from the decision of the chief iusjiectcjr 
 upon the (|ues1i()ii whether any locomotive is ecjuipijed 
 as recpiired by law or is in serviceable condition.*'^ 
 
 § 385. Carriers Required to Make Monthly Reports 
 of all Accidents to Commission. Under such rules and 
 regulations that may be prescribed by the Commission, 
 every common carrier engaged in interstate or foreign 
 commerce by railroad, through its general manager, 
 superintendent or other proper officer, is required to 
 make to the Commission at its office in Washington, D. 
 C, a monthly report, under oath, of all collisions, de- 
 railments or other accidents resulting in injury to per- 
 sons, equipment or roadbed arising from the operation 
 of a railroad. Such report shall state the nature and 
 cause of the accident and the circumstances connected 
 therewith. The Commission is authoi'ized to prescribe 
 for all carriers a method and form for making such 
 reports.®* 
 
 § 386. Commission May Require Annual Reports 
 from all Common Carriers Subject to Statute. The 
 Commission is authorized to compel all common carriers 
 subject to the act and owners of all railroads engaged 
 ill interstate commerce as defined in the statute, to tile 
 with it aiiiiiial reports, to prescribe the manner in which 
 such reports shall be made, and to require from such 
 carriers specific answers to all questions upon which 
 
 63. Boiler Inspection Act, 36 G4. Accident Report Act, 36 
 
 Stat, at L. 913, Appendix J, infra. Stat, at L. 350, Appendix N, infra.
 
 (\(]- Duties to Interstate Shippers. [§ 386 
 
 the Commission may need information.'"'^' Such annnal 
 reports shall show in detail the amount of capital stock 
 issued, the amounts paid therefor and the manner of 
 ]iaynient for the same; the dividends paid, the surplus 
 fund, if any, and the number of stockholders; the fund- 
 ed and floating- debts and the interest paid thereon; the 
 cost and value of the carrier's property, franchises and 
 ec[uipments; the number of emplo^^ees and the salaries 
 paid each class; the amounts expended for improvements 
 each year, how expended, and the character of such im- 
 provements; the earnings and receipts from each branch 
 of business and from all sources; the operating and 
 other expenses; the balances of profit and loss; and a 
 complete exhibit of the financial operations of the car- 
 rier each year, including an annual l)alance sheet. Such 
 reports must also contain such information in relation 
 to rates or regulations concerning fares or freights, or 
 agreements, arrangements, or contracts affecting the 
 same as the Commission may require. The Commission 
 is also authorized to prescribe a period of time within 
 which all common carriers subject to the statute shall 
 have, as near as may be, a uniform system of accounts, 
 and the manner in which such accounts shall be kept.^*^ 
 
 § 387. Power of Commission over Safety Applian- 
 ces on Railroad Cars and Engines. The authority of 
 the Commission over the facilities and instrumentalities 
 of interstate transportation is not circumscribed and 
 limited by the provisions of the Act to Regulate Inter- 
 state Commerce. Under the safety appliance laws and 
 amendments passed from time to time, the Commission 
 has extensive powers over the safety appliances used 
 and maintained on both freight and passenger cars and 
 
 65. United States v. Louisville L. Ed. 729, 32 Sup. Ct 436; Unit- 
 
 ft N. R. Co., 236 U. S. ?18, 59 L. ed States v. Nashville, C. & St. L. 
 
 Ed. 598, 35 Sup. Ct. 363; Kansas Ry., 217 Fed. 254: In re St. Paul 
 
 City Southern Ry. Co. v. United & Puget Sound Accounts, 29 I. C. 
 
 States, 231 U. S. 423, 58 L. Ed. C. 508. 
 
 296, 34 Sup. Ct. 125; Interstate 66. Section 20 of the Act to 
 
 Commerce Commission v. Good- Regulate Con merce, Appendix A, 
 
 rich Transit Co., 224 U. S. 194, 56 infra.
 
 § 388] Tjie Commerce Commission. 6G3 
 
 engines in use on interstate railroads. Its ]iowers un- 
 der these statutes are often broader tlian under tlie 
 Interstate Commerce Act; for they extend to the appli- 
 ances on cars used solely in intrastate commerce if used 
 on a highway of interstate commerce. The sjjecific 
 powers of the Commission over these instrumentalities 
 ai'c elsewhere considered and explained."^ 
 
 § 388. Commission Empowered to Investigate Rail- 
 road Accidents and to Make Reports. All collisions, 
 derailnicnts or oilier accidents resulting in .serious injury 
 to peison or ])roperty occurring on the line of any com- 
 mon carrier hy railroad engaged in interstate or foreign 
 commerce, may be investigated by the Commission. To 
 facilitate such investigations the Conmiission, or any 
 impartial investigator authorized by it, may investigate 
 all the attending facts, conditions and circumstances, 
 and, for that ))ur])ose, may subpoena witnesses, admin- 
 ister oaths, take testimony, and recpiire the production 
 of books, papers, orders, memoranda, exhibits and other 
 evidence, and shall be ])rovided by the interestea cai- 
 rier with all reasonable facilities. When it deems it 
 to the public interest, the Commission shall make re- 
 ports of such investigations, stating the cause, togethei- 
 with such recommendations as it deems ])roper. Such 
 reports shall be made i)nblic in sucli manner as tht 
 Commission deems pro])er, l)ut shall not be admitted as 
 evidence or used for any pur])ose in any suit or action 
 for damages occurring out of any matter mentioned 
 in the report or investigation."" 
 
 67. Part IV, infra. 68. Accident Report Act, 36 
 
 Stat, at L. S.'iO. Appendix N. infra.
 
 Sec. 
 
 ^91. 
 
 Sec. 
 
 392. 
 
 Sec. 
 
 393. 
 
 Sec. 
 
 394. 
 
 Sec. 
 
 395. 
 
 CHAPTER XX 
 
 Proc'Eduke Before Interstate Commerce Commission. 
 
 Sec. 389. Who May Make Complaints to the Commission. 
 
 Sec. 390. Absence of Direct Damage to Complainant not Ground for 
 Dismissal of Complaint. 
 
 Power of Commission to Proceed when Acting upon its 
 Own Motion. 
 
 Power of Commission to Formulate Rules of Procedure. 
 Rules Governing Complaints Filed Before Commission. 
 Essentials of Complaints "When Reparation is Sought. 
 Formal Claims for Reparation Based upon Findings of Com- 
 mission 
 
 Sec. 396. Specifications of Complaints, Answers, Briefs, Petitions, Ap- 
 plications, etc. 
 
 Sec. 397. Applications to Carriers Under Fourth Section. 
 
 Sec. 398. Suspensions of Tariff Schedules under Section 15. 
 
 Sec. 399. Requirements of the Rules as to Answers Filed Before Com- 
 mission. 
 
 Sec 400. Method of Serving Papers. 
 
 Sec. 401. Amendments to Complaints or Answers in Proceedings Be- 
 fore Commission. 
 
 Sec. 402. Commission May Order Testimony to be Taken by Deposition 
 at any Stage of Proceedings. 
 Method of Hearing Before the Commission. 
 May Hold Hearings or Prosecute Inquiries Anywhere in the 
 United States. 
 
 Continuances. Extensions of Time and Stipulations. 
 Commission may Compel Attendance and Testimony of Wit- 
 nesses and Production of Papers. 
 
 Schedules, Contracts and Annual Reports Filed with Com- 
 mission Public Records Receivable as Prima Facie Evidence, 
 When. 
 
 Transcripts of Testimony to be Furnished Complainant and 
 Defendant. 
 
 Rules Governing Filing of Briefs. 
 
 Orders of the Commission — Enforcement, Service of, and 
 Duties of Carriers Thereunder. 
 Sec. 411. Applications for Rehearing or Reopening before the Com- 
 mission — Procedure. 
 Sec. 412. Employment of Attorneys to Aid Commission Authorized. 
 
 § 389. Who may Make Complaints to the Commis- 
 sion. The statute provides that any person, firm, cor- 
 poration, company, association, or any mercantile, agri- 
 
 (664) 
 
 Sec. 
 
 403. 
 
 Sec. 
 
 404. 
 
 Sec. 
 
 405. 
 
 Sec. 
 
 40fi. 
 
 Sec. 
 
 407. 
 
 Sec. 
 
 408. 
 
 Sec. 
 
 409. 
 
 Sec. 
 
 410.
 
 § 389] Pkoceduke before Commission. G65 
 
 <-iiltiiral, or luanufaeturing society or otlier organiza- 
 tion, or any body politic or municipal corporation, rail- 
 road coinniissioner or railroad commission of any state 
 or territory, or any common carrier, complaining of any- 
 thing done or omitted to be done by any common car- 
 rier subject to the provisions of the Act, in contraven- 
 tion of the provisions thereof, may ap])]y to the Com- 
 mission by petition which shall briefly state the facts. 
 Thereupon the statute provides tliat a statement of the 
 complaint thus made shall be forwanh'd l)y the Commij^- 
 sion to such common carrier, who shall be called upon 
 to satisfy the complaint, or to answer the same in writ- 
 ing, within a reasonable time, to be si)ecified by the Com- 
 mission. If such common carrier within the time speci- 
 fied shall make reparation for tlie injury alleged to 
 have been done, it shall be relieved of liability to the 
 complainant only for the particular violation of law 
 thus complained of. If the carrier shall not satisfy the 
 complaint within the time specified, or there shall ap- 
 pear to be any reasonable ground for investigating the 
 complaint, it shall be the duty of the Commission to 
 investigate the matter complained of in such manner 
 and by such means as it shall deem proper.^ 
 
 The rules of practice before the Commission pro- 
 vide that any complainant may appear and be heard 
 in person or by attorney; that two or more com- 
 plainants may join in one complaint against two or 
 more defendants, if the complaint involves substan- 
 tially the same principle, subject, or state of facts; 
 that if a complaint relates to matters in which two 
 or more carriers, engaged in transportation by con- 
 tinuous carriage or shipment are interested, the sev- 
 eral carriers participating in such carriage or shi]-)- 
 ments, are necessary parties defendant; that if a 
 complaint relates to rates, regulations or practices of 
 carriers operating different lines, and the object of 
 the proceeding is to secure correction of such rates, 
 regulations or practices on each of said lines, all the 
 
 1. Section 13 of the Act to Regulate Commerce.
 
 666 Duties to Interstate Shippers. [§ 389 
 
 carriers operating siicli lines should be made defend- 
 ants; that if a complaint relates to provisions of a 
 classification, it will ordinarily be sufficient to name 
 as defendants the carriers permitting one or more 
 through routes between the respective points of origin 
 and destination, and that if the line of a carrier is oper- 
 ated by a receiver or trustee, both the carrier and its 
 receiver or trustee must be made defendants in cases 
 involving transportation over such line.^ 
 
 § 390. Absence of Direct Damage to Complainant 
 not Ground for Dismissal of Complaint. The statute 
 provides that no complaint shall at any time be dismiss- 
 ed because of the absence of direct damage to the com- 
 plainant.^ In a proceeding before the Commission by 
 a newspaper owner against certain coal-carrying rail- 
 roads, the Commission ordered the production of certain 
 contracts between the carriers and coal operators. It 
 was contended in a suit to attack the order that the 
 complainant before the Commission had no real interest 
 in the case and that the proceeding should be dismissed. 
 In rejecting this contention, the court said:* "It is 
 urged that the complainant before the commission did 
 not show any real interest in the case brought, and that 
 the proceeding should for that reason have been dis- 
 missed. It is provided in the act to regulate commerce, 
 sec. 13, that 'any person, firm, corporation,' etc., com- 
 plaining of anything done or omitted to be done by any 
 common carrier subject to the provisions of this act, in 
 contravention of the provisions thereof may apply to 
 said commisson by petition, etc. And certain procedure 
 is provided for — and (said commission) 'may institute 
 any inquiry on its own motion in the same manner and 
 to the same effect as though complaint had been made,' 
 and the section concludes: , 'No complaint shall at any 
 
 2. Rules of Practice, Appendix 4. Interstate Commerce Com- 
 ^ infra. mission v. Baird, 194 U. S. 25, 48 
 
 3. Section 13 of the Act to Reg- U Ed. 860, 24 Sup. Ct. 563. 
 ulate Commerce, Appendix A, in- 
 fra.
 
 <§ 390] Procedure before Commission. 667 
 
 time 1)(' dismissed Ijocause of tli<* absf^nco of direet dam- 
 age to tlie complainant.' In face of tiiis mandatory 
 requirement that the complaint sliall not be dismissed 
 because of the want of direct damage to tlie complain- 
 ant, no alternative is left the commis.siou but to investi- 
 gate the complaint, if it presents matter within the pur- 
 view of the act and the powers granted to the commis- 
 sion. Pcfwer is conferred upon the commission, under 
 section 12 of the act as amended March 2, 1889, and 
 February 10, 1891 (3 U. S. Comp. Stat, of 1901, p. 3162), 
 to inquire into the management of the business of all 
 common carriers subject to the provisions of the act, and 
 to keep itself informed as to the manner and method in 
 which the same is conducted, with the right to obtain 
 from such common carriers full and complete informa- 
 tion necessary to enable the commission to perform the 
 duties and carry out the objects for which it was created. 
 In making the orders which were the basis of the appli- 
 cation to the Circuit Court and in the petition filed there- 
 in it is set forth that the commission at the time when 
 the witnesses refused to produce the contracts required, 
 was engaged *in the discharge of its duty to execute 
 and enforce the provisions of the act to regulate com- 
 merce and in the exercise of its authority to inquire in- 
 to the business of common carriers subject to the provi- 
 sions of the act, and to keep itself informed as to the 
 manner and method in which said business is conducted, 
 and to obtain from said common carriers full and com- 
 plete information necessary to enable it to perform tlu^ 
 duties and carry out the objects for which it was created; 
 and your petitioner is of the opinion that said contracts 
 are not only material and relevant to the issues on trial 
 in said proceeding, but that the production thereof as 
 recpiired by it, as aforesaid, is necessary to enable your 
 petitioner to discharge its duty and execute and enforce 
 said ]u-ovisions of said act to regulate commerce and to 
 inform your petitioner as to the manner and method in 
 which the business of said common carriers is conducted, 
 and to enable your petitioner to obtain the full and com- 
 plete information necessary to enable your petitioner to 
 perform the duties and carry out the objects for which
 
 06S Duties to Interstate Shippers. [<§ 390 
 
 it was created.' But in the present case, whatever may 
 be the right of the commission to carry on an investi- 
 gation nnder the general powers conferred in section 
 12, tills proceeding was under the complaint filed, and 
 we will examine the testimony offered with a view to 
 its comj^etency under the allegations made by the com- 
 plainant." 
 
 § 391. Power of Commission to Proceed when Act- 
 ing upon its Own Motion.. In Harriman v. Interstate 
 Commerce Commission/' the Supreme Court held that 
 when the Commission instituted an investigation upon 
 its own motion and not upon a complaint filed, wit- 
 nesses could not be compelled to testify before the Com- 
 mission except in investigations by the Commission up- 
 on matters that might have been made the object of a 
 complaint. But the effect of this decision, however, was 
 eliminated by the amendment of 1910 to section 1.3 of 
 the Act, giving the Interstate Commerce Commission 
 full authority and power at any time to institute an in- 
 quiry, upon its own motion, in any case and as to any 
 matter or thing concerning which a complaint is au- 
 thorized to be made, to or before the Commission by any 
 provisions of the Act, or concerning which any question 
 may arise under the provisions of the Act or relating 
 to the enforcement of any of the provisions of the Act, 
 and also the same power and authority to proceed with 
 any inquiry instituted on its own motion as though it 
 had been appealed to by complaint or petition under 
 any of the provisions of the Act, including the power to 
 make and enforce any order or orders in the case, or re- 
 lating to any matter or thing concerning which the in- 
 quiry is had, except orders for the payment of money. 
 Concerning this broad power of the Commission, the 
 Supreme Court said:*' "The Interstate Commerce Act 
 confers upon the Commission powers of investigation 
 in very broad language and this court has refused by 
 
 .5. 211 U. S. 407, .53 L. Ed. 253, fi. Smith v. Interstate Com- 
 
 29 Sup. Ct. 115. merce Commission, 245 U. S. 
 
 62 L. Ed. , 38 Sup. Ct. 30.
 
 § 391] Procedurk before Commission. 6G9 
 
 fu)nstnu'tion to limit it so far as tlio l)usiness of tho 
 (carriers is conofrned and their relation to the public. 
 And it would seem to be a necessary deduction from the 
 cases that the investi,i?atin^ and supervising y)owers of 
 the (/ommission extend to all of the activities of carriers 
 and to all sums expended by them which could affect in 
 any way their benefit or l)urden as agents of the ])ublic. 
 If it be grasped thoroughly and kept in attention that 
 they are public agents, we have at least the principle 
 which should determine judgment in particular instan- 
 ces of regulation or investigation; and it is not far from 
 true — it may be it is entirely true, as said by the Com- 
 mission — that 'there can be nothing private or confi- 
 dential in the activities and expenditures of a carrier en- 
 gaged in interstate commerce.' Turning to the special- 
 ties of the Interstate Commerce Act we find there that 
 all charges and treatment of all ]iassengers and ])roperty 
 shall be just and reasonable, and there is a specific prohi- 
 bition of preferences and discriminations in all the ways 
 that they can be executed, with corresponding regulatory 
 power in the Commission. And authority and means 
 are given to enable it to perform its duty. By section 
 12 it is authorized to inquire into the management of 
 the business of carriers and keep itself informed as to 
 the manner and method in which the same is conducted, 
 and has the right to obtain from the carriers full and 
 complete information. It may (section 13) institute 
 an inquiry of its own motion, and may (section 20) re- 
 quire detailed accounts of all the expenditures and reve- 
 nues of carriers and a complete exhibit of their financial 
 operations and i)rescribe the forms of accounts, records 
 and memoranda to be kept. And it is required to report 
 to Congress all data collected by it. It would seem to 
 be an idle work to point out the complete comprehensive- 
 ness of the language of these sections and we are not 
 dis]iosed to spend any time to argue that it necessarily 
 includes the power to inquire into expenditures and their 
 proper assignment in the accounts, and the questions 
 under review, we have seen, go no further. They are 
 incidental to an investigation as to the 'manner and 
 method' (section 12) in which the business of the car-
 
 670 Duties to Interstate Shippers. [§ 391 
 
 riers is condncted; ^hey are in requisition of a detailed 
 account of their expenditures and revenues and an ex- 
 hibit of their financial operations (section 20), and the 
 answers to them may be valuable as information to Con- 
 gress (section 21). A limitation, however, is deduced 
 from section 13. It is said to be confined to cases where 
 an inquiry is instituted 'as to any matter or thing con- 
 cerning which a complaint is authorized to be made, or 
 concerning which any question may arise under any 
 provisions' of the act 'or relating to the enforcement of 
 any of the provisions' of the act. In other words, that 
 the inquiry is determined by the manner of procedure. 
 The objection overlooks the practical and vigilant func- 
 tion of the Commission. To sustain it appellant seems to 
 urge that there must be put into words by some com- 
 plainant or by the Commission, if it move of itself, some 
 definite charge of evil or abuse, and put into expression 
 some definite remedy, and that an inquiry must not 
 transcend either charge or remedy. To so transcend, 
 appellant urges, would be an exercise of autocratic pow- 
 er and is condemned in Harriman v. Interstate Com- 
 merce Commission, 211 U. S. 407, 29 Sup. Ct. 115, 53 L. 
 Ed. 253. Appellant presses that case beyond its princi- 
 ple. And we may observe that section 13 has been 
 amended and broadened since the decision of that case. 
 The inquiry in the present, case is more immediate to 
 the function of the Commission than the inquiry in 
 that and comes within Interstate Commerce Commis- 
 sion V. Chicago, R. I. & P. Ry., supra, where it was said, 
 at page 103 of 218 U. S., at page 656 of 30 Sup. Ct. 
 (54 L. Ed. 946): 'The outlook of the Commission and 
 its powers must be greater than the interest of the rail- 
 roads or of that which may affect those interests. It 
 must be as comprehensive as the interest of the whole 
 country. If the problems which are presented to it 
 therefore are complex and difficult, the means of solving 
 them are as great and adequate as can be provided.' 
 And they must necessarily be expressed in generalities. 
 A precise specification of powers might work a limita- 
 tion and all not enumerated be asserted to be withheld."
 
 § 39M I Phockduke hefohk (-ommission. G71 
 
 § 392. Power of Commission to Formulate Rules 
 of Procedure. 'I'lic .^tatuti- autliorizcs the Coniiiii.ssioii 
 to conduct proceediugs before it in such manner as will 
 best conduce to the j)ro])er dis]iatch of business and to 
 ends of justice. The (!oinniission may iiiai<e or amend 
 such general rules or orders as may be required f(jr 
 the order and regulation of pnxMM-dings l)ef()re it, oi- 
 before any division of the (Commission, including forms 
 of notice and the service thereof, which shall conform, 
 as nearly as may be, to tliose in use in the courts of 
 the United States. A majority of the Commission shall 
 constitute a (luorum for the transaction of business, ex- 
 cept as may be otherwise provided by statute; but no 
 commissioner shall participate in any hearing or pro- 
 ceeding in which he has any pecuniary interest. Every 
 vote and official act of the Commission or any division 
 thereof, shall be entered of record, and its proceedings 
 shall be public upon the request of any party interested. 
 The Commission shall have an official seal, which shall 
 be judicially noticed. Any member of the Commission 
 may administer oaths and affirmations and sign sub- 
 poenaes.^ 
 
 § 393. Rules Governing Complaints Filed Before 
 Commission. Complaints filed before the Interstate 
 Commerce Commission must be typewritten on one side 
 of the paper only, or be printed. In either case the 
 complaint must conform to the specifications of rule 
 twenty-one. The names of all parties, complainant or 
 defendant, must be stated in full, without abbreviations, 
 and the address of each complainant, with the name and 
 address of his attorney, if any, must appear upon each 
 copy. The complaint need not be verified, but must 
 be signed in ink by the complainant or his duly author- 
 ized attorney. The complainant must furnish as many 
 complete copies of the complaint as there may be parties 
 defendant to be served, including receivers or trustees 
 and three additional copies for the use of the Commis- 
 
 7. Section 17 of the Act to Reg- fra. as amended by Act of August 
 ulate Commerce, appendix A, in- 9, 1917.
 
 t)72 Duties to Interstate Shippers. [§ 393 
 
 sion. The Commission will serve the complaint upon 
 each defendant by leaving a copy with its designated 
 agent in the District of Columbia, or, if no such agent 
 has been designated, by posting a copy in the office of 
 the secretary of the Commission. Complaints should 
 be so drawn as fully and completely to advise the de- 
 fendant and the Commission wherein the provisions of 
 the act have been violated and should set forth briefly 
 and in plain language the facts claimed to constitute 
 such violation. Two or more grounds of complaint in- 
 volving the same principle, subject, or state of facts, 
 may be included in one complaint, but should be sep- 
 arately stated and numbered. The several rates, regu- 
 lations, and discriminations complained of should be 
 set out by specific reference to the tariffs in which they 
 appear whenever that is practicable. Where the rate 
 attacked is one increased after January 1, 1910, the com- 
 plaint should so state. In case discrimination in viola- 
 tion of sections 3 or 4 of the act is alleged the complaint 
 should specify and describe the detail the particular 
 preference or advantage to any person, company, firm, 
 corporation, locality, or traffic, which is relied upon as 
 constituting such discrimination. Appropriate allegation 
 should also be made in such case to present for decision 
 the issue as to whether or not such rates, charges, or 
 other matters complained of are just and reasonable. 
 In case a violation of section 4 is alleged the complaint 
 should specify and describe in detail the particular vio- 
 lation of that section, giving tariff references whenever 
 practicable.^ 
 
 § 394. Essentials of Complaints When Reparation 
 is Soug'ht. Except under unusual circumstances and 
 for good cause shown, reparation will not be awarded 
 unless specifically prayed for in the complaint or in 
 an amendment thereto filed before the submission of the 
 case. After a final order has been entered upon a com- 
 plaint in which reparation is not sought or, if prayed, 
 
 8. Rule 3 of Rules of Practice before the Commission.
 
 § 394 1 Pkockduke befohk Commission. 673 
 
 has been denied, the CommiH^ioii will not ordinarily 
 award re}jaration upon a comi)laint subsequently filed 
 and based upon any finding upon the first comj^laint. 
 Where reparation is sought the complaint sliould state 
 (a) that complainant makes claim for reparation, (b) 
 the name of each individual claimant asking reparation, 
 (c) the commodities transported, (d) the names of de- 
 fendants against which claim is made, (e) the ]ieri<)d of 
 time witliin which or the specific date upon which the 
 shi])ments were made, and (f) the points of origin and 
 destination, either si)ecifically, or, where they are nu- 
 merous, by a definite indication of a defined territorial 
 or rate group of the i)oiiits of origin and destination. 
 Under a general rate adjustment challenged in the com- 
 plaint, or upon many shipments under a particular rate, 
 or where many points of origin or destination are in- 
 volved, it is the i)ractice of the Commission first to find 
 and deteniiine in its report as to the reasonableness 
 of the rate or rates in issue, and whether the parties 
 seeking reparation paid and bore the charges and are 
 entitled to reparation, thereafter giving to such parties 
 an opportunity to make proof respecting the shipments 
 u])on which reparation is claimed. In such cases freight 
 bills and other exhibits bearing on the amount of rei)ara- 
 tion should be reserved until called for and should nut 
 be filed with the complaint. The parties, however, should 
 be prepared to produce at the hearing the freight bills 
 and other exhibits bearing on the amount of reparation, 
 for the reason that they may become necessary in de- 
 veloping other facts in the case. When a claim for re- 
 paration has been before the Commission informallv 
 and the parties have been notified by the Commission 
 that the claim is of such a nature that it can not be 
 determined informally, or when the parties voluntarily 
 withdraw the claim from informal consideration, or 
 when a claim has been filed with the Commission merelv 
 to stop the running of the statute of limitations, formal 
 complaint thereon must be filed within six months from 
 the date of such notification, withdrawal or filing. Other- 
 wise the parties will be deemed to have abandoned their 
 claim and the complaint will not be entertained: Provid- 
 
 1 Control Carriers 43
 
 ()7-lr Duties to Interstate Shippers. [§ 394 
 
 ed, liowever, That this rule does not apply to formal 
 complaints for reparation liled witliin two years from 
 the date of the delivery of the shipments.^ 
 
 § 395. Formal Claims for Reparation Based upon 
 Finding's of Commission. "When the (Commission finds 
 that reparation is dne, bnt that the amonnt can not be 
 ascertained npon the record before it, the complainant 
 should immediately prepare a statement in accordance 
 with Form 5, showing as to each shipment upon which 
 reparation is claimed, the date of delivery, car initials 
 and number, points of origin and destination, route, 
 commodity, weight, rate applied, charges collected, rate 
 found reasonable and charges applicable thereunder, 
 and the amount of reparation payable upon the basis of 
 the findings. Such statements should not include any 
 shipments which were transported upon rates other 
 than those included in the Commission's findings nor 
 any shipments which were delivered at destination more 
 than two j^ears before the complaint was informally or 
 formally presented to the Commission. The statement 
 should then be forwarded to the carrier which collected 
 the charges for certification as to its accuracy. Such 
 certification should cover not only the movement of the 
 shipments and the amount of charges but also the 
 amount of reparation claimed under the Commission's 
 findings. Discrepancies, duplications, or other errors in 
 such statements should be adjusted by the parties and 
 an agreed statement submitted to the Commission in 
 accordance with Form 5.^° 
 
 § 396. Specifications of Complaints, Answers, Briefs, 
 Petitions, Applications, etc. All complaints, answers, 
 petitions, applications, depositions, or other papers to 
 
 9. Rule 3 of Rules of Practice livery of a shipment and not from 
 
 before the Commission. the date the freight charges were 
 
 In the preparation of its rules, paid. See Section 302, supra. 
 
 the Commission erroneously as- 10. Rule 5, Appendix E, infra. 
 
 sumed that the statute of limita- For Form, see Appendix E, infra. 
 tion ran from the date of the de-
 
 § 398 1 Prockdure before Commission. 675 
 
 be filed, if typewritten, iiiiii^t be on paper not more than 
 81/^ inches wide and not more than 12 inches long, and 
 weigliing not loss than IG iwunds to the ream, folio base 
 17 by 22 inches, with left-iiand margin not less than lU 
 inches wide. The impression must be on only one side 
 of the paper. Whenever such papers are printed they, 
 as well as briefs, must be in 10 or 12 point type, on 
 good unglazed paper, 5% inches wide by 9 inches long, 
 with inside margin not less than 1 inch wide, and with 
 double-leaded text and single-leaded citations." 
 
 § 397. Applications to Carriers Under Fourth Sec- 
 tion. Any common carrier subject to the act to regulate 
 commerce, as amended, may apply to the Commission, 
 under the proviso clause of the fourth section, for such 
 authorization as it is empowered to grant thereunder. 
 Such application must be verified and conform to rule 
 twenty-one. The application should specify the places 
 and trafific involved, the rates, fares, or charges on such 
 traffic for the shorter and longer distances, the car- 
 riers other than the applicant which may be interested in 
 the traffic, the special nature of the case, the character 
 of the hardship claimed to exist, and the extent of the 
 relief sought by the applicant. Upon the filing of such 
 application the Comission will take such action as the 
 circumstances of the case require. ^^ 
 
 § 398. Suspensions of Tariff Schedules under Sec- 
 tion 15. Suspensions of tariff schedules under section 
 la of the act will not ordinarily be considered unless 
 application therefor is made in writing at least 10 days 
 before the time fixed in the tariff for such rates to take 
 effect. Applications for suspensions must indicate the 
 schedule affected by its I. C. C. number and give specific 
 reference to the items against which protest is made, 
 together with a statement of the grounds thereof. When 
 application for the suspension of tarilf schedules is 
 made, seven copies of such application should be fur- 
 nished." 
 
 11. Rule 21. 13. Rule 19. 
 
 12. Rule 18.
 
 076 DuTiEwS TO Inteestate Shippees. [§ 399 
 
 § 399. Requirements of the Rules as to Answers 
 Filed Before Commission. Answers must be typewritten 
 on one side of the paper only, or be printed. In either 
 case the answer must conform to the specifications of 
 rule twenty-one. One copy of each answer must, unless 
 the Commission orders otherwise, be filed with the sec- 
 retary of the Commission at his office in Washington, 
 D. C.', within 30 days after the day of service of the 
 complaint, by defendants whose general offices are at or 
 west of El Paso, Tex., Salt Lake City, Utah, or Spokane, 
 Wash., and within 20 days by all other defendants, and 
 a copy of each such answer must be at the same time 
 served personally or by mail upon the complainant or 
 his attorney. The Commission will, when advisable, 
 shorten or extend the time for answer. Answers should 
 be so drawn as fully and completely to advise the com- 
 plainant and the Commission of the nature of the 
 defense, and should admit or deny specifically and 
 in detail such material allegation of the complaint. 
 Whenever it is apparent from the complaint, either by 
 direct allegation or otherwise, that a departure from 
 the requirements of the fourth section of the act is in- 
 volved, the answer should set forth by number the 
 particular application or order which protects such de- 
 parture. An answer denying that a discrimination is 
 undue or unjust should explain fully wherein such dis- 
 crimination is not undue or unjust. It is desired that 
 every effort be thus made to narrow the issues upon 
 hearing. If a defendant satisfies a complaint either be- 
 fore or after answering, a signed acknowledgment there- 
 of must be filed by both parties, stating when and how 
 the complaint has been satisfied." 
 
 § 400. Method of Serving Papers. Under rule 6, 
 notices and copies of papers, other than complaints, 
 depositions, and intervening petitions, must be served 
 upon all parties personally or by mail. When any 
 
 14. Rule 4 of Rules of Practice before the Commission.
 
 <§i 403] Procedure reeore Commission. 677 
 
 party has appeared by attorney, service upon such at- 
 torney will be deemed proper service upon the party. ''^ 
 
 § 401. Amendments to Complaints or Answers in 
 Proceedings Before Commission. Amendments to any 
 complaint or ans\v<'r in any i)roceeding will be allowed 
 or refused by the Commission at its discretion.^" 
 
 § 402. Commission May Order Testimony to be 
 Taken by Deposition at any Stage of Proceedings. Any 
 party in any proceeding or investigation pendinf;: before 
 the Commission may take the testimony of any witness 
 by deposition after a cause or proceeding is at issue on 
 petition and answer. The Commission may also by order, 
 permit depositions to be taken in any proceeding or in- 
 vestigation pending before it at any stage of such pro- 
 ceeding or investigation. Depositions may be taken be- 
 fore any judge of any court of the United States, or any 
 commissioner or clerk of a district court, or any chancel- 
 lor, justice, or judge of a supreme or sufjerior court, 
 mayor or chief magistrate of a city, judge of a county 
 court, or court of common pleas of any of the United 
 States or any notary public, not being of counsel or 
 attorney to either of the parties, nor interested in the 
 event of the proceeding or investigation. Reasonable 
 notice must be given in writing by the party or his 
 attorne}^ proposing to take such deposition to the op- 
 posite party or his attorney of record, as either may be 
 nearest, which notice shall state the name of the witness 
 and the time and place of the taking of the deposition. 
 Any person may be compelled to appear and depose, 
 and to produce documentary evidence, in the same man- 
 ner as witnesses may be compelled to appear and tes- 
 tify and produce documentary evidence before the Com- 
 mission as provided in the statute." 
 
 § 403. Method of Hearing Before the Commission. 
 When issue is joined upon formal complaint by service 
 of answer, or by failure of defendant to answer, the 
 
 15. Rule 6. 17. Section 12 of the Act to 
 
 16. Rule 7. Regulate Commerce, Appendix A, 
 
 infra.
 
 678 Duties to Inteestate Shippers. [§ 403 
 
 Commission will assign a time and place for hearing. 
 Witnesses will be examined orally before the Commis- 
 sion or one of its examiners, nnless their testimony be 
 taken by deposition or the facts be agreed upon as pro- 
 vided for in these rules. At hearings on formal com- 
 plaint the complainant shall open and close. At hearings 
 upon applications for relief from any provision of the 
 act the applicant shall open and close. At hearings of in- 
 vestigation and suspension proceedings the respondent 
 shall open and close. At hearings of all other investiga- 
 tions, on the motion of the Commission, the Commission 
 shall open and close, except that upon proper notice in 
 advance of the hearing the Commission may prescribe a 
 different order. In hearings of several proceedings up- 
 on a consolidated record the presiding commissioner 
 or examiner shall designate who shall open and close. 
 Interveners shall follow the party in whose behalf the 
 intervention is made, and in all cases where the inter- 
 vention is not in support of either original i^arty the 
 presiding commissioner or examiner shall designate the 
 order of procedure for such interveners.^^ 
 
 § 404, May Hold Hearings or Prosecute Inquiries 
 Anywhere in the United States. The statute prescribes 
 that the principal office of the Commission shall be in 
 Washington, I). C, where its general sessions shall be 
 held. But whenever the convenience of the public or 
 the parties may be promoted, or delay or expense pre- 
 vented, the Commission may hold special sessions in 
 any part of the United States. It may also, by one or 
 more of the commissioners, prosecute any inquiry neces- 
 sary to its duties, in any part of the United States 
 into any matter or question of fact pertaining to the 
 business of any common carrier subject to the provisions 
 of the Interstate Commerce Act." 
 
 18. Rule 10. Regulate Coramerce, Appendix A, 
 
 19. Section 19 of the ,Act to infra.
 
 § 406] PROCKDrHK MKF()I;K COMMISSION. 679 
 
 § 405. Continuances, Extensions of Time and Stip- 
 ulations. ConliimaiK'cs aixl extensions ol' lime will Ije 
 ^'ranted or denied 1)> tiie Commission at its discretion. 
 I*arties to any proceedin<i,- may, by sti))ulati()n in writin«< 
 liled witli the secretary, or presented at tlie lieariu*^, 
 a^-ree upon the facts, or any i)ortion thereof, involved 
 tlierein. It is desired tliat tlie facts l)e thns agreed upon 
 as far as and whenever ])racti('able.-" 
 
 § 406. Commission may Compel Attendance and 
 Testimony of Witnesses and Production of Papers, l^'oi 
 tlie i)urpose of effectively enforcing- the jirovisions of 
 the statute, the Commission is authorized, to require, by 
 subpoena, the attendance of witnesses and the produc- 
 tion of all books, papers, tariffs, contracts, ai^reeinents 
 and documents relating to any matter under investiga- 
 tion from any place in the United States, to any desig- 
 nated place of hearing.-' In case of disobedience to a sub- 
 poena, the Commission, or any party to a proceeding be- 
 fore the Commission, may invoke the aid of any court of 
 the United States to require the attendance and testi- 
 mony of any witness and the production of books, 
 papers or documents." Should any carrier subject to the 
 
 20. Rules 8 and 9. S. 361, 55 L. Ed. 771, 31 Sup Ct. 
 
 21. Section 12 of the Act to 538, Ann. Cas. 1912D 558; Wilsun 
 Regulate Commerce, Appendix A, v United States, 220 U. S. 614, 55 
 '■"/'•"• U Ed. 610, 31 Sup. Ct. 718; Har- 
 
 22. Ellis V. Interstate Com- rinian v. Interstate Commerce 
 merce Commission, 237 U. S. 434, Commission, 211 U. S. 407, 53 L. 
 59 L. Ed. 1036, 35 Sup. Ct. 645: Ed. 253, 29 Sup. Ct. 115; Texas 
 United States v. Louisville & N. & P. R. Co. v. Abilene Cotton Oil 
 R. Co., 236 U. S. 318, 59 L. Ed. Co., 204 U. S. 426. 51 L. Ed. 553, 
 598. 35 Sup. Ct. 363; United 27 Sup. Ct. 350, 9 Ann. Cas. 1075: 
 States V. Louisville & N. R. Co., Nelson v. United States. 201 U. S. 
 235 U. S. 314, 59 L. Ed. 245, 35 92, 50 L. Ed. 673, 26 Sup. Ct. 358: 
 Sup. Ct. 113; Interstate Com- Hale v. Henkel. 201 U. S. 43, 50 
 merce Commission v. Louisville & L. Ed. 652. 26 Sup. Ct. 370; In- 
 N R. Co.. 227 U. S. 88, 57 L. Ed. terstate Commerce Commission v 
 431, :i3 Sup. Ct. 185; Interstate Baird, 194 U. S. 25, 48 L. Ed. 860, 
 Commerce Commission v. Good- 24 Sup. Ct. 563; Adams v. New 
 rich Transit Co.. 224 U. S. 194, York. 192 U. S. 585. 48 L. Ed. 575. 
 56 L. Ed. 729, 32 Sup. Ct. 436; 24 Sup. Ct. 372; Interstate Com- 
 Wilson V. United States, 221 U. merce Commission v. Cincinnati,
 
 680 Duties to Interstate Shippers. [§ 406 
 
 act, or other persons refuse to obey a subpoena, any dis- 
 trict court within the jurisdiction of which the inquiry is 
 carried on, may issue an order requiring such carrier or 
 other persons to appear before the Commission and give 
 evidence touching the matter in question, and produce 
 books and papers, if so ordered. Any failure to obey 
 such order of the court may be punished by such court 
 as a contempt thereof. No witness shall be excused from 
 testifying and giving evidence because such testimony 
 and evidence may tend to incriminate him; but such 
 evidence or testimony shall not be used against the 
 witness on the trial of any criminal proceeding.^^ 
 
 § 407. Schedules, Contracts and Annual Reports 
 Filed with Commission — Public Records Receivable as 
 Prima Facie Evidence, When. It is further provided in 
 section 16 of the Ad that the copies of schedules and 
 classifications and tariffs of rates, fares and charges, 
 and of all contracts, agreements and arrangements be- 
 tween common carriers filed with the Commission as 
 provided by statute, and the statistics, tables, and figures 
 contained in the annual or other reports of carriers made 
 to the Commission as required under the provisions of 
 the Act shall be preserved as public records in the 
 
 N. O. & T. p. Ky. Co., 167 U. S. U. S. 603, 55 L. Ed. 873, 31 Sup. 
 
 479, 42 L. Ed. 243, 17 Sup. Ct. Ct. 676; Wilson v. United States, 
 
 896; Brown v. Walker, 161 U. S. 221 U. S. 361, 55 U Ed. 771, 31 
 
 591, 40 L. Ed. 819, 16 Sup. Ct. 644; Sup. Ct. 538, Ann. Cas. 19120 
 
 Cleveland, C, C. & St. L. Ry. Co. 558; Hammond Packing Co. v. 
 
 V. Backus, 154 U. S. 439, 38 L. State, 212 U. S. 322, 53 L. Ed. 530, 
 
 Ed. 1041, 14 Sup. Ct. 1122; Coun- 29 Sup. Ct. 370, 15 Ann. Cas. 645; 
 
 selman v. Hitchcock, 142 U. S. Consolidated Rendering Co. v. 
 
 547, 35 L. Ed. 1110, 12 Sup. Ct. state, 207 U. S. 541, 52 L Ed. 327, 
 
 195; Connecticut Mut. Life Ins. 28 Sup. Ct. 178, 12 Ann. Cas. 658; 
 
 Co. V. Schaefer, 94 U. S. 457, 24 ^^^^ ^ Henkel. 201 U. S. 43, 50 
 
 ^- ^^- ^^^- L Ed. 652, 26 Sup. Ct. 370; Brown 
 
 23. Crenshaw v. State. 227 U. ^ ^^ 
 
 S. 389, 57 L. Ed. 565, 33 Sup. Ct. ' ' 
 
 294; Baltimore & O. R. Co. v. In- ^^^' ^' ^"P- C*' '''' Counselman 
 
 terstate Commerce Commission, ^- Hitchcock, 142 U. S. 547, 35 L. 
 
 221 U. S. 612, 55 L. Ed. 878, 31 Ed. 1110, 12 Sup. Ct. 195; Boyd 
 
 Sup. Ct. 621; American Litho- v. United States, 116 U. S. 616, 29 
 
 graphic Co. v. Werckmeister, 221 U Ed. 746, 6 Sup. Ct. 524.
 
 § 409] Prockduhe BKioiiK Commission. 681 
 
 custody of tlie secretar}' of tliu Commission, and shall 
 bo receivod as pr'nna fdcir c-videnee of what they pur- 
 port to be for the i)urpose of iiivestiiL^ations by the 
 Commission and in all judicial proceedings. Copies of 
 and extracts from an>' of the said schedules, classifica- 
 tions, tariffs, contracts, agreements, arrangements, or 
 reports, made public records as aforesaid, certified ))y 
 the secretary, under the Commission's seal, shall be re- 
 ceived in evidence with like effect as the originals." 
 The rules of practice prescribe that if any portion of a 
 tariff, report, circular, or other documents on file with 
 the Commission, is offered in evidence in any proceed- 
 ing before the Commission, the party offering the same 
 must give specific reference to the items or pages and 
 lines thereof to be considered; that the Commission will 
 take notice of items in taritfs and annual or other periodi- 
 cal reports of carriers properly on file with it, or in 
 any annual, statistical, and other offioial reports of the 
 Commission and that when it is desired to direct the 
 Commission's attention to such tariffs or reports upon 
 hearing or in briefs or argument, the party offering 
 the same must give specific reference to the items or 
 pages and lines thereof to be considered. ^^ 
 
 § 408. Transcripts of Testimony to be Furnished 
 Complainant and Defendant. One copy of the testimony 
 will be furnished by the Commission for the use of the 
 complainant and one copy for the use of the defendant, 
 without charge. If two or more complainants or defend- 
 ants have appeared at the hearing, such complainants 
 or defendants must designate to whom the copy for 
 their use shall be delivered. In proceedings instituted 
 by the Commission on its own motion, including pro- 
 ceedings involving the suspension of tariffs, no copies 
 of testimon}" will be furnished without charge."" 
 
 § 409. Rules Governing Filing of Briefs. Unless 
 otherwise specifically ordered, briefs may be filed upon 
 
 24. Section 16 of the Act to 25. RuIpr of Practice, Appendix 
 
 Regulate Commerce, Appendix A, E. infra, 
 infra. 26. Rule 16.
 
 682 Duties to Interstate Shippers. [§ 409 
 
 application made at hearings or npon order of the Com- 
 mission. Briefs must be printed in conformity with the 
 specifications of rule twent.y-one, and contain an ab- 
 stract of the evidence, assembled by subjects, with ref- 
 erence to the pages of the record whereon the evidence 
 appears. There should be included requests for specific 
 findings which the parties think the Commission should 
 make. Documentary exhibits should not be reproduced 
 in briefs, but may, if it is desired, be reproduced in an 
 appendix to the brief. Analyses of such exhibits should 
 be included in the abstract of evidence under the sub- 
 jects to which they pertain. In cases involving a dis- 
 crimination in rates against one community or locality 
 and in favor of another community or locality, or other- 
 wise involving a relationship of rates, and in investiga- 
 tion and suspension cases, the party who is required to 
 file the first brief shall insert therein, opposite the 
 statement of the case, a small map or chart of the ter- 
 ritory showing the rate structure involved. The ab- 
 stract of evidence should follow the statement of the case 
 and precede the argument. Every brief of more than 
 20 pages shall contain on its front flyleaves a subject 
 index with page references, the subject index to be 
 supplemented by a list of all cases referred to alphabet- 
 ically arranged, together with references to pages where 
 the cases are cited. Briefs for the various parties shall 
 be filed in the same order as governs in the taking of 
 their testimony at hearings. At the close of the testi- 
 mony in each case the presiding commissioner or ex- 
 aminer will fix the time for filing and service of the re- 
 spective briefs as follows, unless good cause for varia- 
 tion therefrom is shown: For the opening brief, 30 days 
 from close of testimony; for the brief of the opposing 
 party, 15 days after the date fixed for the opening brief; 
 for reply brief, 10 days after the date fixed for the brief 
 of the opposing party. Briefs of interveners shall be 
 filed and served within the time fixed for the brief of 
 the party in whose behalf the intervention is made, or 
 within such other time as may be fixed by the presiding 
 commissioner or examiner. Briefs not filed with the 
 Commission and served so as to reach oi)posing counsel
 
 § 410) l'|{0("i;iU'HK HKFOHK COMMISSION. 683 
 
 on or before the (]at<'s fixed therefor will not be re- 
 ceived exee})t by sjxH'ial i)erniission of the Commission. 
 Parties wlio fail to lile ojjening brief, as required by 
 this rule, will not l)e permitted to file reply to brief of 
 opposiiift- ])arty. All l)riefs must be filed with the sec- 
 retary and be accompanied by notice, showing service 
 upon all opposing counsel who ai)peared at the hearing 
 or on brief, and 15 copies of each brief shall be furnished 
 for the use of the Commission, unless otherwise ordered. 
 A])plications for extension of time in whicli to file briefs 
 shall be by petition, in writing, stating the facts on 
 which the ai)plication rests, which must l)e filed with 
 the Commission at least five days before the time for 
 filing such brief. Oral argument will be liad only as 
 ordered by the Commission. Applications tlierefor shall 
 be made at the hearing or in writing within 10 days 
 aftei' the close of testimony.-' 
 
 § 410. Orders of the Commission — Enforcement, 
 Service of, and Duties of Carriers Thereunder. Every 
 order of the Commission must be forthwith served up- 
 on the designated agent of the company in the city of 
 Washington or in such manner as may be provided by 
 law. It shall be the duty of every common carrier, its 
 agents and employes, to observe and comply with such 
 orders as long as the same shall remain in efi^'ect. The 
 Commission is authorized to suspend or modify its 
 orders ujion such notice and in such manner as it shall 
 deem proper. Any carrier, officer, representative, or 
 agent of any carrier, or any receiver, trustee, lessee, 
 or agent of either of them, who knowingly fails or 
 neglects to obey any order made under the provisions 
 of section 15 of the Act to Regulate Commerce shall 
 forfeit to the United States the sum of Five Thousand 
 Dollars for eacli offense. Every distinct violation shall 
 be a separate offense and in case of a continuing viola- 
 tion, each day shall be deemed a separate offense. The 
 forfeiture shall be payable into tlic Treasury o.^ the 
 
 27. Rule 14.
 
 684 Duties to Interstate Shippers. [§ 410 
 
 United States, and is recoverable in a civil suit in the 
 name of the United States, brought in the district where 
 the carrier has its principal operating office, or any 
 district through which the road of the carrier runs. The 
 statute makes it the duty of the various district at- 
 torneys, under the direction of the Attorney General of 
 the United States, to prosecute for the recovery of for- 
 feitures. The costs and expenses of such prosecutions 
 shall be paid out of the appropriation for the expenses 
 of the courts of the United States. The statute further 
 provides that if any carrier fails or neglects to obey 
 any order of the Commission other than for the payment 
 of money, while the same is in effect, the Interstate 
 Commerce Commission, or any party injured thereby, 
 or the United States by its Attorney General, may apply 
 to the courts for the enforcement of such order. If, 
 after hearing, the court determines that the order was 
 regularly made and duly served, and that the carrier is 
 in disobedience of the same, the court shall enforce 
 obedience of such order by writ of injunction or other 
 proper process, mandatory or otherwise, to restrain such 
 carrier, its officers, agents or representatives from further 
 disobedience of such order, or to enjoin upon it or them 
 obedience to the same.^* The rules of practice before the 
 Commission provide that if an order has been issued, 
 the defendants named therein must promptly notify 
 the secretary of the Commission on or before the date 
 upon which such order becomes effective whether or not 
 compliance has been made therewith. If a change in 
 rates is required, the notification to the secretary must 
 be given in addition to the tiling of proper tariffs.^^ 
 
 § 411. Applications for Rehearing or Reopening be- 
 fore the Commission — Procedure. The statute further 
 jjrovides that after a decision, order or requirement has 
 been made by the Commission in any proceeding, any 
 party thereto may at any time make application for re- 
 
 28. Section 16 of the Act to 29. Rules of Practice, Appendix 
 
 Regulate Commerce, Appendix A, E, infra, 
 iiifra.
 
 ^ 4] 1 J I'HOf.'KDURP: BEFORE COMMISSION. 685 
 
 hearing- of the same, or anj' matter determined therein, 
 and the Commission may, in its discretion, grant such 
 a rehearing if sufficient reason therefor be made to ap- 
 pear. Applications for rehearing are governed by such 
 general rules as the Commission may establish. No 
 such application shall excuse any carrier from comply- 
 ing with or obeying any dechsion, order or requirement 
 of the Commission, or operate in any manner to stay or 
 postpone the enforcement thereof without the special 
 order of the Commission. When a rehearing is granted 
 the proceedings thereupon shall conform as nearly as 
 may be to the i)roceedings in an original hearing, except 
 as the Commission may otherwise direct. If, in the judg- 
 ment of the Commission after such rehearing and a con- 
 sideration of all the facts, including those arising since 
 the first hearing, it shall appear that the original deci- 
 sion, order or requirement is in any respect unjust or 
 unwarranted, the Commission may reverse, change or 
 modify the same accordingly. The statute provides 
 that any decision, order or requirement made after such 
 rehearing, reversing, changing or modifying the original 
 determination, shall be subject to the same provisions 
 as an original order.'° The rules of practice before the 
 Commission provide that applications for reopening a 
 proceeding after final submission, or for rehearing or 
 reargument after a decision, must be by petition stating 
 specifically the grounds relied upon, and copies thereof 
 must be served by the party filing the same upon all 
 opposing counsel who appeared at the hearing or on 
 brief; that an ai)plication for rehearing that part of any 
 case relating to reparation or other damage for past 
 injuries must be filed with the Commission within 60 
 days after service of the order therein; that if such ap- 
 plication be to reopen the proceeding for further evi- 
 dence, the nature and purpose of such evidence must be 
 briefly stated, and the same must not be cumulative- 
 that if the application be for a rehearing, the petition 
 
 30. Section 16a of the Act to Regulate Commerco, Appendix A, 
 
 in}ra.
 
 686 Duties to Interstate Shippers. [*^ -^11 
 
 must specify the matters claimed to be erroneously de- 
 cided with a brief statement of the alleged errors; that 
 if any order of the Commission is sought to be reversed, 
 changed, or modified on account of facts and circum- 
 stances arising subsequent to the hearing, or of conse- 
 quences resulting from compliance therewith, the matters 
 relied upon by the applicant must be fully set forth; 
 that at least 10 copies of all such applications must be 
 tiled with the Commission and be accompanied by notice 
 showing service upon all opposing counsel; that such 
 adverse parties may tile a reply to such petition for re- 
 hearing or reopening within 10 days from the date of 
 service upon them and that such reply must be served 
 upon the attorney for petitioner and 10 copies must be 
 lih'd witli the Commission. ^^ 
 
 § 412. Employment of Attorneys to Aid Commis- 
 sion Authorized. The Commission may employ such 
 attorneys as it iinds necessary for proper legal aid and 
 service of the Commission or its members in the conduct 
 of their work, or for proper representation of the public 
 interest in any investigation made by any cases or pro- 
 ceedings pending before it, either at the Commission's 
 own initiative or upon complaint, or to appear for and 
 represent the Commission in any case pending in the 
 courts.^" 
 
 31. Rules of Practice, Appendix 32. Section 16 of the Act to 
 
 E, infra. Regulate Commerce, Appendix A, 
 
 infia.
 
 PART THREE 
 
 PERSONAL INJURIES TO INTERSTATE 
 EMPLOYES OF COMMON CARRIERS 
 
 THE FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 (587)
 
 CHAPTER XXI 
 
 Scope, Purpose, Validity and Effect of Federal 
 TjIabilii'v Af;T. 
 
 Sec. 413. Source, Nature and Extent of Power of Congre-ss to Regulate 
 Relation of Master and Servant. 
 
 Sec. 414. Employers' Liability Act of 1906 Invalid. 
 
 Sec. 415. Second Federal Employers' Liability Act Valid. 
 
 Sec. 416. Scope of the Federal Employers' Liability Act. 
 
 Sec. 417. Purpose of Congress in Enactment of Federal Act— Uniform- 
 ity and Modification of Common Law Rules. 
 
 Sec. 418. Defects In Act of 1908 and Amendments of 1910. 
 
 Sec. 419. Congressional Purpose in the Enactment of the Amend- 
 ments of 1910. 
 
 Sec. 420. Extent of Power Exercised by Congress In Passing the Lia- 
 bility Act. 
 
 Sec. 421. Exclusiveness of the Federal Act and its Effect upon State 
 T..aws. 
 
 Sec. 422. State Workmen's Compensation Laws Superseded by Federal 
 Act as to Injuries Arising in Interstate Commerce. 
 
 Sec. 42.?. Common Law Right of Parents to Recover for Loss of Ser- 
 vices of Minor Employe Injured. Superseded. 
 
 Sec. 424. Remedy Provided by Statute Limited to Employes Only of 
 Common Carriers by Railroad. 
 
 Sec. 425. Employes on Ocean-going Ships Owned by Common Carriers 
 by Railroads not Included. 
 
 Sec. 426. Decisions of National Courts Construing Act Control. 
 
 Sec. 427. Laws of State Control as to Procedure. 
 
 Sec. 428. Fellow Servant Rule Abolished as to all Interstate Employes. 
 
 § 413. Source, Nature and Extent of Power of Con- 
 gress to Regulate Relation of Master and Servant. Con- 
 gress is authorized by the commerce clause of the Con- 
 stitution to regulate interstate and foreign commerce, 
 and to enact all laws necessary and proper for carrying 
 into execution the powers vested in it by the Constitu- 
 tion. The regulation of the relation of master and ser- 
 vant to the extent that the legislation adopted by Con- 
 gress on that subiect is confined to interstate and foreign 
 commerce, is within the constitutional grant to regulate 
 commerce.^ 
 
 1. Texas & P. R. Co. v. Rigsby, Sup. Ct. 482; Houston, E. & W. T. 
 241 IT. S. 33. 60 L. Ed. 874, 36 R. Co. v. United States, 234 U. 
 
 (689) 
 
 1 Control rarrlers 44
 
 690 
 
 Injuries to Interstate Employes. [^ 413 
 
 Congress cannot, however, legislate upon the re- 
 lationship of master and servant, as such, within the do- 
 main of the states; for its power is limited to the regu- 
 lation of interstate and foreign commerce, the enactment 
 of laws appropriate to the exercise of such power, and 
 to prescribe the rules by which commerce shall be gov- 
 erned.- If persons otherwise within the exclusive control 
 of the states' become engaged in interstate commerce, 
 or in work which is so closely connected therewith as 
 to be in a practical sense and in legal contemplation, 
 a part of interstate commerce, then they subject them- 
 selves to the potential control of Congress." It follows, 
 therefore, that Congress may regulate the liabilities of 
 masters to their servants for personal injuries when 
 both are engaged in interstate commerce, or even when 
 engaged in intrastate commerce if such work is so close- 
 ly or directly connected with interstate commerce that 
 the safety of the one is dependent upon the other.' 
 
 S. 342, 58 L. Ed. 1341, 34 Sup. Ct. 
 833; Baltimore & 0. R. Co. v. 
 Interstate Commerce Commission, 
 221 U. S. 612, 55 L. Ed. 878, 31 
 Sup. Ct. 621; Johnson v. South- 
 ern Pac. Co., 196 U. S. 1, 49 L. 
 Ed. 363, 25 Sup. Ct. 158; Employ- 
 ers' Liability Cases, 207 U. S. 463, 
 52 L. Ed. 297, 28 Sup. Ct. 141. 
 
 2. Wilson V. New, 243 U. S. 332, 
 61 L. Ed. 755, 37 Sup. Ct. 298, Ann. 
 Cas. 1918 A 1024; Hoke v. United 
 States, 227 U. S. 308, 57 L. Ed. 
 523, 33 Sup. Ct. 281, 43 L. R. A. 
 (N. S.) 906, Ann. Cas. 1913E 905; 
 Hipolite Egg Co. v. United States. 
 220 U. S. 45, 55 L. Ed. 364, 31 Sup. 
 Ct. 364; Northern Securities Co. 
 V. United States. 193 U. S. 197, 48 
 L. Ed. 679. 24 Sup. Ct. 436; In 
 re Debs, 158 U. S. 564, 39 L. Ed. 
 1092, 15 Sup. Ct. 900; Gloucester 
 Ferry Co. v. State, 114 U. S. 196, 
 29 L. Ed. 158, 5 Sup. Ct 826; 
 County of Mobile v. Kimball, 102 
 U. S. 691, 26 L. Ed. 238. 
 
 3. Employers Liability Cases, 
 207 U. S. 463, 52 L. Ed. 297, 28 
 Sup. Ct. 141. 
 
 4. In re Second Employers' Li- 
 ability Cases. 223 U. S. 1, 56 L. 
 Ed. 327, 32 Sup. Ct. 169, 1 N. C. 
 C. A. 875, 38 L. R. A. (N. S.) 44; 
 Southern R. Co. v. United States, 
 222 U. S. 20, 56 L. Ed. 72, 32 Sup. 
 Ct. 2; Adair v. United States, 208 
 U. S. 161, 52 L. Ed. 436, 28 Sup. 
 Ct. 277, 13 Ann. Cas. 764; Schlem- 
 mer v. Buffalo, R. & P. R. Co., 205 
 U. S. 1, 51 L. Ed. 681, 27 Sup. Ct. 
 407; Nashville, C. & St. L. Ry. Co. 
 V. Alabama, 128 U. S. 96, 32 ^. 
 Ed. 352, 9 Sup. Ct. 28; Smith v. 
 Alabama, 124 U. S. 465, 31 L. Ed. 
 508, 8 Sup. Ct. 564; Sherlock v. 
 Ailing, 93 U. S. 99, 23 L. Ed. 819; 
 Cooley V. Board Wardens Port cf 
 Philadelphia, 12 How. (U. S.) 299, 
 13 L. Ed. 996. 
 
 5. Illinois Cent. R. Co. v. Beh- 
 rens, 233 IT. S. 473. 58 L. Ed. 1051, 
 34 Sup. Ct. 646. 10 N. C. C. A. 153,
 
 >§ 41 4 J Scope, Vaudity and Effect of Act. 
 
 G91 
 
 § 414. Employers' Liability Act of 1906 Invalid. 
 The first Federal Employers' Liability Act passed by 
 Congress and approved June 11, 1906, was declared in- 
 valid by the national Supreme Court, because its terrns 
 included all who engaged in interstate commerce between 
 the states — hacks, ferries, bridges, trolley lines, tele- 
 phone and telegraph companies, and railroads — as car- 
 riers as well as all their employes, regardless of whether 
 the employer was engaged in or the injured servant was 
 employed in interstate commerce at the time of the in- 
 jury." The first act included every individual or corijo- 
 
 Ann. Cas. 1914C 163, in which the 
 Court said: "We entertain no 
 doubt tliat 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, wheth- 
 er the particular service being 
 performed at the time of the in- 
 jury, isolatedly considered, was in 
 interstate or intrastate com- 
 merce." To the same effect: 
 Southern R. Co. v. United States, 
 222 U. S. 20, 56 L. Ed. 72, 32 Sup. 
 Ct. 2. 
 
 6. First Employers' Liability 
 Cases. 207 U. S. 463, 52 L. Ed. 
 297, 28 Sup. Ct. 141, aff'g Howard 
 V. Illinois Cent. R. Co., 148 Fed. 
 997, and Brooks v. Southern Pac. 
 Co., 148 Fed. 986. "But it is ar- 
 gued," said Mr. Chief .Justice 
 White, "even though it be con- 
 ceded that the power of Congress 
 in matters of interstate com- 
 merce, that power cannot be law- 
 fully extended so as to Include the 
 regulation of the relation of mas- 
 ter and servant, or of servants 
 among themselves, as to things 
 which are not interstate com- 
 merce. From this it is insisted 
 the repugnancy of the act to the 
 Constitution is clearly shown, as 
 the face of the act makes it cer- 
 
 tain that the power which It as- 
 serts extends not only to the re- 
 lation of master and servant and 
 servants among themselves as to 
 things which are wholly inter- 
 state commerce, but embraces 
 those relations as to matters and 
 things domestic in their charac- 
 ter and which do not come within 
 the authority of Congress. To 
 test this proposition requires I's 
 to consider the text of the act. 
 From the first section it is cer- 
 tain that the act extends to every 
 individual or corporation who 
 may engage in interstate com- 
 merce as a common carrier. Its 
 all-embracing words leave no 
 room for any other conclusion. It 
 may include, for example, steam 
 railroads, telegraph lines, tele- 
 phone 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 re- 
 lates are to be controlled by its 
 provisions is that any one who 
 conducts such business be a 'com- 
 mon carrier engaged in trade or 
 commerce in the District of Co- 
 lumbia, or in any Territory of
 
 692 
 
 Injuries to Interstate Employes. [§ 414 
 
 ration engaged in interstate commerce between the states 
 and all their employes. 
 
 This statute was broader than the constitutional 
 power delegated by the states to the national govern- 
 ment, and hence was invalid as being beyond the power 
 o-iven to Congress. The act, however, was declared valid 
 
 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 com- 
 merce between the States, etc., 
 and does not confine itself to the 
 interstate commerce business 
 which may be done by such per- 
 sons. Stated in another form, the 
 statute is addressed to the indi- 
 viduals or corporations who are 
 engaged in interstate commerce 
 and is not confined solely to reg- 
 ulating 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 reg- 
 ulf.tes the persons because they 
 engage in interstate commerce 
 and does not alone regulate the 
 business of interstate commerce. 
 And the conclusion 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 lia- 
 bility of a common carrier is de- 
 clared to be in favor of 'any of 
 its employes.' As the word 'any' 
 is unqualified, it follows that lia- 
 bility to the servant is coexten- 
 sive with the business done by 
 the employers whom the statute 
 embraces; that is, it is in favor 
 of any of the employes of all car- 
 riers who engage in interstate 
 commerce. This also is the rule 
 as to 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 re- 
 cover on the part of any servant 
 will exist, although the injury for 
 which the carrier is to be held re- 
 sulted 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 impos- 
 ing a liability upon them in fa- 
 vor of any of their employes, 
 without qualification or restric- 
 tion as to the business in which 
 the carriers or their employes may 
 be engaged at the time of the 
 Injury, of necessity includes sub- 
 jects wholly outside of the power 
 of Congress to regulate commerce. 
 Without stopping to consider the 
 numerous instances where al- 
 though a common carrier is en- 
 gaged in interstate commerce such 
 carrier may in the nature of 
 things also transact busines not
 
 <^ 414] Scope, Validity and Effect of Act. 
 
 G93 
 
 as to the District of Columbia and territories of the 
 United States, for the reason that Congress has plenar}- 
 powers in all matters relating to such territories. In 
 the District of Columbia, the Panama Canal Zone, Alas- 
 ka, Porto Rico, Hawaiian Islands and Philippine 
 Islands, by the Act of 190G every common (carrier en- 
 gaged in trade or commerce was liable "to any of its 
 employes.'" As to carriers engaged in commerce be- 
 tween the states, the court, in the majority opinion, held 
 that matters under the jurisdiction of the national gov- 
 ernment and those within the exclusive jurisdiction of 
 the states, were so blended in the act that they could not 
 be separated by the court, and therefore, the whole act 
 as to common carriers and their employes engaged in 
 commerce between the states, must be held void. The 
 part of the act applying to territories, was held to be 
 
 interstate commerce, although 
 rectly be related to interstate com- 
 merce, a few illustrations showing 
 the operation of the statute as to 
 matters wholly independent of 
 interstate 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 con- 
 struction work, as well as a large 
 accounting and clerical force, and 
 having, it may be, storage eleva- 
 tors and warehouses, not to sug- 
 gest besides the possibility of its 
 being engaged in other independ- 
 ent enterprises. Take a telegraph 
 company engaged in the trans- 
 mission of interstate and local 
 messages. Take an express com- 
 pany engaged in local as well 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 re- 
 mainder crossing the state line. 
 As the act thus includes rnany 
 subjects wholly beyond the power 
 to regulate commerce and depends 
 for its sanction upon that author- 
 ity, it results that the act is 
 repugnant to the Constitution." 
 
 7. The 1906 Act was valid as to 
 these territories: El Paso & N. E. 
 R. Co. V. Gutierrez, 215 U. S. 87. 
 54 L. Ed. 106, 30 Sup. Ct. 21, aff'g 
 102 Tex. 378, 117 S. W. 426; At- 
 chison, T. & S. F. R. Co. V. Mills. 
 49 Tex. Civ. App. 349, 108 S. W. 
 480. 
 
 The Federal Em.)loyers' Liabil- 
 ity Act of 1908 did not repeal that 
 part of the Employers' Liability 
 Act of 1906 which related to the 
 District of Columbia and the Ter- 
 ritories. A seaman employed on 
 a vessel engaged in commerce 
 within the territory of Alaska was 
 permitted to recover under the 
 Act of 1906. Walsh v. Alaska 
 
 Steamship Co.. Wash. , 
 
 172 Pac. 269.
 
 694: Inwkies to Interstate Employes. [§ il-J: 
 
 capable of separation by a judicial interpretation, and, 
 as so separated, it was held valid. 
 
 In the 1906 Act Congress attempted to legislate 
 upon a subject matter wholly within the power of the 
 state and so interblended that power with its juris- 
 diction over interstate connuerce, that the several claus- 
 es could not be separated, and that i)art covering inter- 
 state commerce remain valid. 
 
 § 415. Second Federal Employers' Liability Act 
 Valid. After the national Supreme Court declared the 
 Act of 1900 invalid on January 6, 1908, for the reasons 
 mentioned in the preceding jjaragraph. Congress passed 
 the Second Federal Employers' Liability Act,^ which 
 was approved April 22, 1908.^ 
 
 The first section provides that every common car- 
 rier by railroad while engaged in interstate commerce, 
 shall be liable to every employe while employed by such 
 can'ier in such commerce or in case of his death, to 
 certain beneficiaries therein named, for such injury or 
 death, resulting in whole or in part, from the negli- 
 gence of the carrier, or its employes, or by defects or 
 insufficiencies due to negligence in any of its equipments 
 or property. The second section provides that every 
 common carrier by railroad on lands of the United States 
 other than states shall be liable in the same way to any 
 of its employes. The third section prescribes that con- 
 tributory negligence shall not bar recovery, but shall 
 
 8. 35 Stat, at L. 65, Appendix F, ing the act. Judge Nortonl, in 
 infra. that case, held that the remedy 
 
 The federal act is a remedial provided "oy the act was exclu- 
 
 statute and should have a liberal sive and that a switchman on a 
 
 construction to advance the rem- freight train carrying freight from 
 
 edy proposed and to correct the a point in a state to a point in 
 
 evils against which it was di- another was engaged in interstate 
 
 rected. Baltimore & 0. R. Co. v. commerce and that a suit by a 
 
 Branson, Md. — — , 98 Atl. widow suing in her own capacity 
 
 225. could not be maintained; in case 
 
 9. The entire act without the of death, suit must be brought by 
 1910 amendments is quoted in full the "personal representative" as 
 in Rich v. St. Louis & S. F. R. Co., required by the act. Judge Nor- 
 166 Mo. App. 379, 148 S. W. 1011, toni's ruling has since, in other 
 which was the first case by the cases, been sustained by the na- 
 Missouri appellate courts constru- tional Supreme Court.
 
 § 415] Scope, Validity and Effect of Act. 695 
 
 only diminish the dama^os, cxr-ept that no employe in- 
 jured ()!• killed where the violation of a safety law for 
 employes contrilniled to the injury, shall he held to 
 have heeii guilty of contrihutory negligence. The fourth 
 section provides tliat assinni)tion of risk shall not he a 
 defense, where the violation of a safety law coutrihuted 
 to the accident. The fifth section declares all contract 
 or devices intended to exempt the carrier from liahility 
 nnder the act to be void, except that the carrier may 
 plead as a set-off any sum it paid to the injured em- 
 ploye as insurance or relief fund. Section G i)rovides 
 that any action nnder the act is barred after two years 
 Section 7 declares that the term "common carrier," as 
 used in the statute, shall include the receiver or re- 
 ceivers or other persons or corporations charged with 
 the duty of the management and operation of the busi- 
 ness of a common carrier. Section 8 provides that the 
 act does not limit the obligation of a common carrier 
 under any other federal law or affect any i)en(ling suits 
 under the 1906 Act. 
 
 After conflictiiig dicisions by state and federal 
 courts, the constitutionality and validity of this statute 
 in all its parts was presented to the Supreme Court of 
 the United States and the act was declared constitu- 
 tional on January 15, 1912.'" In a later decision the 
 Supreme Court held Section 5 of the national act valid. '^ 
 These decisions render any discussion as to the validity 
 of the Act of 190<S purely academic and such questions 
 are now, so far as all other courts are concerned, final- 
 ly and conclusively decided. In a i)loneer case involv- 
 ing the validity of the Act, Judge Trieber, in holdino- 
 that tlic statute was a jiroper exercise of tlic ])ower of 
 (^ongress under the commerce clause, said:'- "As the 
 powers of Congress are limited to those granted by the 
 Constitution, and the only provision of that instrument 
 
 10. In re Second Employers' 11. Philadelphia, P. & W. R. Co. 
 
 Liability Cases, 223 U. S. 1, 56 v. Schubert, 224 U. S. fiO.''.. .^6 L. 
 L. Ed. 327, 32 Sup. Ct. 169, 1 Ed. 911, 32 Sup. Ct. 589, 1 N. C. 
 N. C. C. A. 875. 38 L. R. A. (N. C. A. 892. 
 
 S) 44. 12. Watson v. St. Louis. I. M 
 
 & S. Ry. Co., 169 Fed. 942.
 
 696 Injuries to Interstatk Employes. [§ 415 
 
 authorizing" sueli 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 
 can'iage. That is all the act under consideration at- 
 tempts to do. It is limited to those who are in the em- 
 ployment of railroads engaged in commerce between 
 the states and while they are actually engaged in such 
 employment. What difference does it make what the 
 employment of the fellow servant is — whether inter- 
 state or intrastate? The safety of the employes of an 
 interstate train, as well as of the passengers intrusted 
 to their care, can in no wise be affected by that. Con- 
 gress having the exclusive powder to regulate interstate 
 commerce, that power necessarily includes the right to 
 regulate the relation of the master and servant operating 
 such trains and legislate for the safety of the employes. 
 Johnson v. Southern Pacific Ry. Co., supra; Schlemmer 
 V. Buffalo, etc., Ry. Co., 205 U.' S. 1, 27 Sup. Ct. 407, 51 
 L. Ed. 681; Employers' Liability Cases, supra. If the 
 contention of defendant is sustained, the effect would 
 be that although the employe of a carrier by rail en- 
 gaged in interstate transportation is injured while en- 
 gaged on an interstate train, if the cause of the injury 
 was the negligence of a fellow servant not engaged at 
 the time in interstate 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 employe of a train operated on a 
 branch line, which is used exclusively for intrastate 
 business, the failure of Congress to except such acci- 
 dents from the provisions of the statute makes it un- 
 constitutional 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 trans- 
 mit or deliver a message from the train dispatcher di- 
 recting 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
 
 § 415J Scope, Vaudiit and Effect of Act. 697 
 
 tliere is a collision. In State v. Chicago, Milwaukee & 
 St. Paul R. Co. (Wis.) 117 N. W. 686, the court, speak- 
 ing of a similar question, said: 'The direction and dis- 
 patching of every train on an interstate railway neces- 
 sarily involves knowledge in the train disi)atcher 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 
 employe, a local train may be moving between Milwau- 
 kee and Racine over the same track at the same time, 
 or nearly so. The very switching at local stations must 
 be within the knowledge and under the control of him 
 wlio is to decide upon and direct the most important of 
 interstate transportation. Obviously division of author- 
 ity over these subjects would be fraught with great 
 perils and delays to both kinds of transportation. Hard- 
 ly 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 
 intrastate freight or passengers. Many purely domestic 
 trains carry some freight or passengers in transit to 
 extrastate destination. It would seem that any sever- 
 ance of control over state from interstate trains involved 
 so much of confusion 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 defendant. What 
 the court did decide in that case was that as the act 
 under consideration included all employes of an inter- 
 state carrier, even if they (the employes) were engaged 
 in an employment wholly disconnected from the inter- 
 state business, citing 'employes of a purely local branch 
 operated wholly within a state, employes in repair shops, 
 
 LAW LIBRARY 
 
 OF 
 
 LOS ANGELES COUNTY
 
 698 Injuries to Inteestatk Employes. [^ -1-15 
 
 constnietion work, accoimting and cleiical work, storage 
 elevators and warelionses, not to suggest, besides, the 
 possibility of it being engaged in other independent 
 enterprises,' and then held that: 'As the act thus in- 
 cludes many subjects wholly beyond the power to regu- 
 late commerce 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 departments of the common employ- 
 ment, as has been done by some of the states. See acts 
 of Arkansas, Indiana, Massachusetts, Mississippi, Mis- 
 souri, Montana, Ohio, Oregon, South Carolina, Texas, 
 Utah, and Virginia. But the failure to do so cannot in- 
 validate the act. In Northern Securities Co. v. United 
 States, 192 U. S. 197, 331, 24 Sup. Ct. 436,. 48 L. Ed. 
 679, the contention was that the defendant was not a 
 railroad company, that it was a corporation created 
 by one of the states and its corporate powers limited to 
 buying, selling, and holding stock, bonds, and other 
 securities, and for that reason Congress had no power to 
 regulate it; but the court held that, under the power to 
 regulate commerce among the several states. Congress 
 had the authority to enact the statute, and that it ap- 
 plied to the Securities Company. Another case in which 
 one of the issues was very much like that now under 
 consideration is Loewe v. Lawlor, 208 U. S. 274, 301, 28 
 Sup. Ct. 301, 52 L. Ed. 488. It was there claimed that 
 the Sherman Anti-Trust Act July 2, 1890, c. 647, 26 Stat. 
 209, was not applicable, or, if applicable, not within the 
 power of Congress to enact it, because the defendants 
 were not themselves engaged in interstate commerce; 
 but the contention was by the court overruled. The 
 same conclusion was reached in United States v. Debs 
 (C. C.) 64 Fed. 724, 745, 755, affirmed in 158 U. S. 564, 
 15 Sup. Ct. 900, 39 L. Ed. 1092. Other statutes of sim- 
 ilar nature have been repeatedly enacted by Congress, 
 and, when questioned, sustained. Act July 3, 1866, c. 
 162, 14 Stat. 81, digested as sections 5353, 5354, Rev. 
 St. makes it a criminal oifense to transport or ship, by
 
 § 4 IT) J Scope, Validity and Effect of Act. 699 
 
 a carrier engaged in interstate transportation, dangerous 
 explosives, regardless of the fact whether the shipment 
 is interstate or intrastate, provided the carrier is at the 
 time engaged in interstate transportation. The grava- 
 men of the offense is to transport, or cause to be trans- 
 ported, any of the prohibited articles on any vessel or 
 vehicle employed in interstate traffic. It was the pas- 
 sengers and employes on such vehicles or vessels whom 
 Congress sought to protect, and under the commerce 
 clause had the right to protect. The danger to them 
 was as great if the explosion occurred from an intra- 
 state shipment as an interstate. The constitutional limi- 
 tation was fully met by confining the provisions of the 
 act to vehicles employed at the time in interstate traffic. 
 The constitutionality of this act seems never to have 
 been questioned. In fact, the only reported case con- 
 struing this act, which the court has been able to find, 
 is United States v. Saul (D. C), 58 Fed. 763. In Act 
 Cong. December 21, 1898, c. 28, 30 Stat. 755, 763, 'An 
 act to amend the law relating to American seamen, for 
 the protection of such seamen, and to promote com- 
 merce,' the language used applied to all seamen, regard- 
 less of whether the vessel on which they were employed 
 was engaged in interstate or intrastate commerce. In 
 Patterson v. Bark Eudora, 190 U. S. 169, 179, 23 Sup. 
 Ct. 821, 47 L. Ed. 1002, the constitutionality of this 
 act was attacked upon the ground now raised and also 
 that it applied to foreign vessels. While the court de- 
 clined to determine what its decision might be in a 
 case relating to contracts of sailors for services to be 
 performed wholly within the state, as that question 
 was not before it, it sustained the constitutionality of 
 the act in an action in which the vessel was engaged 
 in interstate commerce, and whether the vessel is for- 
 eign or not. The argument of counsel for the govern- 
 ment, cited with approval by the court, might well be 
 applied here: ']\roreover, as 90 per cent, of all com- 
 merce in oui' ports is conducted in foreign vessels, it 
 must be obvious tliat their exemption from these ship- 
 ping laws will go far to embarrass domestic vessels in 
 obtaining their quota of seaman. To the average sailor
 
 700 Injuries to Inteestate Employes. [^ 415 
 
 it is a consideration while in port to have his wages in 
 part prepaid; and if, in a large port like New York, 90 
 per cent, of the vessels are permitted to prepay sneh 
 seamen as ship npon them, and the other 10 per cent., 
 being American vessels, cannot thus prepay, it will be 
 exceedingly difficult for American vessels to obtain 
 crews. This practical consideration, presumably, ap- 
 pealed to Congress and fully justified the provisions 
 herein contained.' 190 U. S. 179, 23 Sup. Ct. 824, 47 L. 
 Ed. 1002. It is well known that, while there may be 
 some few railroads engaged wholly in intrastate traffic, 
 there are practically none engaged in interstate trans- 
 portation which is not also engaged in intrastate car- 
 riage of freight or passengers. To limit the liability 
 of the railroad to its employes on a train employed in 
 interstate traffic for injuries caused by fellow servants 
 engaged in like employment would in many instances 
 make the act valueless and of no benefit to the employe. 
 In the language above quoted: 'This practical consider- 
 ation, presumably, appealed to Congress and fully justi- 
 fied the provisions herein contained.' The safety ap- 
 pliance acts (Act March 2, 1893, c. 196, 27 Stat. 531, 
 amended bv Act April 1, 1896, c. 87, 29 Stat. 85, amend- 
 ed by Act March 2, 1903, c. 976, 32 Stat. 943 make it 
 unlawful to haul any car in interstate transportation 
 not equipped with certain appliances deemed necessary 
 for the safety of employes. When these statutes first 
 came before the courts for construction, it was contended 
 that they could only apply to carriers whose lines tra- 
 verse more than one state; otherwise they would be in 
 excess of the powers possessed by Congress. Some of 
 the trial courts sustained this contention, but upon ap- 
 peal it has been practically uniformly held that they 
 apply to all railroads, although operating entirely within 
 a single state, independently of all other carriers, if any 
 interstate freight is carried on any car of the train. 
 The test of the application of the act is held to be the 
 transportation of any articles of interstate commerce, 
 and, as thus construed, the act has been enforced as a 
 constitutional exercise of the powers vested in Congress. 
 United States v. Colorado & N. W. E. Co., 157 Fed. 321,
 
 § 41.")] ScopK, Validity and Effkct of Act. 701 
 
 85 C. 0. A. 27, 15 L. R. A. (N. S.) 167; United States v. 
 Colorado & N. W. R. Co., 157 Fed. 342, 85 C. C. A. 48; 
 United States v. Atchison, etc. Rv. Co. (C. C. A.) 16.3 
 Fed. 517; Chicago, etc., Rv. Co.\\ T'nitod States (C. 
 C. A.) 165 Fed. 423; United States v. Southern Pacific 
 Co. (C. C. A.) 169 Fed. 407; Union Stock Yards Co. v. 
 United States (C. C. A.) 169 Fed. 404; Belt R. Co. of 
 Chicago V. United States (C. C. A.) 168 Fed. 542; Wa- 
 bash R. Co. V. United States (C. C. A.) 168 Fed. 1. 
 The constitniionality of the bankruptcy acts of Congress 
 has at different times been questioned upon similar 
 grounds, but they have been uniformly sustained. Sturcres 
 V. Crowninshield, 4 Wheat. 122, 4 L. Ed. 529; Nelson 
 V. Carland, 1 How. 265, 11 L. Ed. 126; Hanover Nat. 
 Bank v. Moyses, 186 U. S. 181, 22 Sup. Ct. 857, 46 L. 
 Ed. 1113. In The Daniel Ball, 10 Wall. 557, 566, 19 L. 
 Ed. 999, it was claimed that the provisions of Act Cong. 
 July 7, 1838, c. 191, 5 Stat. 304, amended hv Act Aug. 
 30, 1852, c. 106, 9 Stat. 61, making it unlawful for any 
 steam vessel to transport merchandise or passengers 
 upon the navigable waters of the United States with- 
 out a license, did not apply to a steamer engaged as a 
 common carrier between places in the same state, al- 
 though a portion of the merchandise transported by her 
 is destined to places in other states; she not running in 
 connection with or in continuation of any line of steam- 
 ers or other vessels, or any railway line leading to or 
 from another state. But the court overruled this con- 
 tention and held that the act applied to such cases, and 
 that it was not an infringement on the rights of the 
 states. Mr. Justice Field, who delivered the opinion of 
 the court, said on that subject: 'And we answer, fur- 
 ther, 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 commerce may be defeated.' While that case
 
 702 Injuries to Interstate Employes. [§ 415 
 
 was one arising on the navigable waters of the United 
 States, it is now well settled that the power of Congress 
 under the commerce clause is as complete upon the land. 
 In re Debs, 158 U. S. 564, 15 Sup. Ct. 900, 39 L. Ed. 
 1092; United States v. Colorado & N. W. K. Co., supra. 
 It may be proper to state that this same objection was 
 made by Messrs. Littlefield and Bannon, of the House 
 Judiciary Committee, in their minority report on this 
 bill, but failed to receive the approval of either House 
 of Congress. The only reported case involving this 
 act, which the court has been able to find, is Fulgham 
 V. Midland Valley R. Co. (C. C.) 167 Fed. 660, decided 
 by Judge Rogers of the Western district of this state; 
 but the constitutionality of the act, it seems was not 
 questioned, and not determined by the learned judge. 
 In view of the conclusion reached, it is unnecessary to 
 detennine whether that question can be raised by defend- 
 ant in this case, as the complaint shows on its face that 
 the accident was caused by reason of the negligence 
 of the conductor and locomotive engineer of the train on 
 which plaintiff's intestate was the fireman, and which 
 train, it is alleged, was at the time engaged in interstate 
 transportation. Cases on that point which may be con- 
 sulted are Supervisors v. Stanley, 105 U. S. 305, 311, 26 
 L. Ed. 1044; In re Garnett, 141 U. S. 1, 12, 11 Sup. Ct. 
 840, 35 L. Ed. 631; Clark v. Kansas City, 176 U. S. 
 114, 118, 20 Sup. Ct. 284, 44 L. Ed. 392; Patterson v. 
 Bark Eudora, supra; State of Missouri v. Dockery, 191 
 U. S. 170, 24 Sup. Ct. 53, 48 L. Ed. 133; Cooley on Const. 
 Lim. (7th Ed.) p. 250. In the opinion of the court the 
 act in controversy is a valid exercise of the powers 
 granted to Congress by the Constitution." 
 
 § 416. Scope of the Federal Employers' Liability 
 Act. The Act of Congress, commonly known as the 
 P'ederal Employers' Liability Act governs the rights, 
 duties and liabilities of common carriers by railroad 
 to their employes for personal injuries, when the injury 
 or death occurs while the carrier is engaged and the
 
 <^ 416] ScOPK^ VaLIUITV and h]FFK<T OF ACT, 
 
 '03 
 
 injured servant is employed in interstate commerce." 
 The law also applies to coninion carriers ))v railroad 
 
 13. United States. Erie K. Co. 
 
 V. Welsh, 242 IJ. S. 303, Gl L. Ed. 
 
 319, 37 Sup. Ct. IIG; Shanks v. 
 
 Delaware, L. & W. R. Co., 239 U. 
 
 S. 55(J, 60 U Ed. 436, 36 Sup. Ct. 
 
 188; Pennsylvania R. Co. v. Donat, 
 
 239 U. S. 50, 60 L. Ed. 139, 36 Sup. 
 
 Ct. 4; Delaware, L. & W. R. Co. v. 
 
 Yurkonis, 238 U. S. 439, 59 L. Ed. 
 
 1397, 35 Sup. Ct. 902; Hudson & 
 
 M. R. Co. V. lorio. 152 C. C. A. 
 
 641, 239 Fed. 855. 
 Alabama. Loveless v. Louisville 
 
 & N. R. Co., Ala. , 75 So. 
 
 7; Louisville & N. R. Co. v. Blauk- 
 
 enship, Ala. , 74 So. 960; 
 
 Western Ry. of Alabama v. Mays. 
 Ala. , 72 So. 641; Louis- 
 ville & N. R. Co. V. Carter, 195 
 Ala. 382. Ann. Cas. 1917E 292, 70 
 
 So. 655; Ex Parte Atlantic Coast 
 Line R. Co., 190 Ala. 132, 67 So. 
 256. 
 
 Connecticut. Hubert v. New 
 
 York, N. H. & H. R. Co., 90 Conn. 
 261, 96 Atl. 967. 
 
 Georgia. Alabama Great South- 
 ern R. Co. v. Tidwell, 145 Ga. 190, 
 88 S. E. 939. 
 
 Illinois. Devine v. Chicago. R. I. 
 & P. R. Co., 266 111. 248. Ann. Cas. 
 1916B 481, 107 N. E. 595. 
 
 Indiana. Chicago & E. R. Co. 
 
 V Feightner. Ind. App. , 
 
 114 N. E. 659. 
 
 Kentucky. Tjouisville & N. R. 
 -Jo. v. Netherton, 175 Ky. 159. 193 
 S. W. 1035; Schaeffer v. Illinois 
 Cent. R. Co., 172 Ky. 337, 189 S. 
 W. 237: Cincinnati, N. O. & T. P. 
 R. Co. v. Tucker, 168 Ky. 144. 181 
 S. W. 940. 
 
 Minnesota. McDonald v. Rail- 
 way Transfer Co. of Minneapolis, 
 121 Minn. 273, 141 N. W. 177. 
 
 Mississippi. Yazoo & M. V. R. 
 
 Co. v. Houston, Miss. , 
 
 75 So. 690; New Orleans, M. & C. 
 R. Co. v. Jones, 111 Miss. 852, 72 
 So. 681; Elliott v. Illinois Cent. R. 
 Co., Ill Miss. 426, 71 So. 741. 
 
 Missouri. Young v. Lusk. 268 
 Mo. 62.=3, 187 S. W. 849; Sells v. 
 Atchison, T. & S. F. R. Co., 266 
 Mo. 155, 181 S. W. 106; Miller v. 
 Kansas City Western R. Co., 180 
 Mo. App. 371, 168 S. W. 336; Hard- 
 wick V. Wabash R. Co., 181 Mc. 
 App. 156, 168 S. W. 328. 
 
 Montana. Alexander v. Great 
 Northern R. Co., 51 Mont. 505, 154 
 Pac. 914. 
 
 New Jersey. Willever v. Dela- 
 ware, L. & W. R. Co., 89 N. J. L. 
 697, 99 Atl. 321; Grybowski v 
 Erie R. Co., 88 N. .1. L. 1. 95 Atl. 
 764; Hammill v. Pennsylvania R. 
 Co.. 87 N. .T. L. 388, 94 Atl. 313. 
 
 New York. Knowles v. Now 
 Your, N. H. & H. R. Co., 177 N. Y. 
 App. Dlv. 262, 164 N. Y. Supp. 1: 
 Shanks v. Delaware. L. & W. R. 
 Co., 214 N. Y. 413, Ann. Cas. 15] 6E 
 467, 108 N. E. 644. 
 
 Oklahoma. Chicago, R. T. & P. 
 
 R. Co. V. Felder, Okla. . 
 
 155 Pac. 529. 
 
 Pennsylvania. Waina v. Penn- 
 sylvania Co., 251 Pa. 213, 96 Atl. 
 461. 
 
 Tennessee. Salmon v. Southern 
 R. Co., n^ Tenn. 223, 180 S. W. 
 16.'^. 
 
 Vermont. Carpenter v. Central 
 Vermont R. Co., 90 Vt. 35, 36 Atl. 
 373. 
 
 West Virginia. McKee v. Ohio 
 Valley Elec. R. Co.. 78 W. Va. 131, 
 88 S. E. 616.
 
 704 
 
 Injuries to Interstate Employes. [§ 416 
 
 and all their employes in the territories and other pos- 
 sessions of the United States. Nearly all railroads in 
 the United States are constantly engaged in interstate 
 commerce. 
 
 Under the controlling rulings and decisions of the 
 national Supreme Court, commencing with the Mondou 
 case in 1912,^^ it is conservatively estimated by those 
 in i^ositions to know, that a majority of the railroad 
 employes in the United States are engaged in interstate 
 commerce so that, if injured or killed, while so employed 
 in interstate commerce, the remedy for the injured man, 
 if living, and, for his dependents, if dead, is to be de- 
 termined and measured by this federal act. 
 
 Employes injured while engaged in intrastate com- 
 merce are still governed by the laws of the states where 
 the accidents occur." As to interstate employes, the 
 
 Wisconsin. Jacoby v. Chicago, 
 M. & St. P. R. Co., 165 Wis. 610, 
 161 N. W. 751, 164 N. W. 88; 
 Simiegil v. Great Northern R. Co., 
 165 Wis. 57, 160 N. W. 1057; Sul- 
 livan V. Chicago, M. & St. P. R. 
 Co., 163 Wis. 583, 158 N. W. 321; 
 Zavitovsky v. Chicago, M. & St. 
 P. R. Co., 161 Wis. 461, 154 N W. 
 974; Ruck v. Chicago, M. & St. 
 P. R. Co., 153 Wis. 158, 140 N. W. 
 1074. 
 
 "Two things must appear before 
 the federal statute is paramount: 
 First, that the railroad was en- 
 gaged at the time in interstate 
 transportation; and, second, that 
 the employee was injured while 
 employed in interstate commerce. 
 Thus, a yardmaster, who, at the 
 time of his injury was handling 
 cars for intrastate shipment, 
 would recover, if at all, under 
 the state statute; but if while 
 handling cars for interstate trans- 
 portation, the federal statute will 
 control." Chicago, R. I & G. Ry. 
 
 Co. V. Cosio, Tex. Civ. App. 
 
 , 182 S. W. 83. 
 
 14. In re Second Employers' 
 Liability Cases, 223 U S. 1, 56 
 L. Ed. 327, 32 Sup. Ct. 169, 1 N 
 C. C. R. 875, 38 L. R. A. (N. S.) 
 44. 
 
 15. United States. Raymond v. 
 Chicago, M. & St. P R. Co., 243 
 U. S. 43, 61 L. Ed. 583, 37 Sup. Ct. 
 268; New York Cent. R. Co. v. 
 White, 243 U. S. 188, 61 L. 
 Ed 667, 37 Sup. Ct. 247, 13 N. C. 
 C. A. 943, Ann. Cas. 1917D 629; 
 Chicago, B. & Q. R. Co. v. Harring- 
 ton, 241 U. S. 177, 60 L. Ed. 941, 
 36 Sup. Ct. 517; Osborne v. Gray, 
 241 U. S 16, 60 L. Ed. 865, 36 
 Sup. Ct. 486; Shanks v. Delaware, 
 L. & W. R. Co., 239 U. S. 556, 60 
 L. Ed. 436, 36 Sup. Ct. 188; Dela- 
 ware, L. & W. R. Co V. Yurkonis, 
 238 U. S. 439, 59 L. Ed. 1397, 35 
 Sup. Ct. 902; Wabash R. Co. v. 
 Hayes, 234 U. S. 86, 58 L. Ed. 
 1226, 34 Sup. Ct. 729, 6 N. C. C. A. 
 224; Central R. Co. of New .Jersey 
 V. Paslick, 152 C. C. A. 547, 239 
 Fed. 713; Erie R. Co. v. Van 
 Buskirk, 143 C. C. A. 71, 228 Fed. 
 489; Boyle v. Pennsylvania R. Co.,
 
 § 41f)j Scope, Validity and Rffect of Act. 
 
 705 
 
 remedy provided by the state, is exclusive, and as to 
 interstate employes, workin;^ for interstate railroads, 
 
 142 C. C. A. 558, 228 Fed. 206; 
 Boyle V. Pennsylvania R. Co., 221 
 Fed. 453; Illinois Cent. R. Co. v. 
 Rogers. 13G C. C. A. 530, 221 Fed 
 52. 
 
 Alabama. Mathews v. Alabama 
 
 Great Southern R. Co., Ala. 
 
 , 7G So. 17; Loveless v. Louis- 
 ville & N. R. Co., Ala. , 
 
 75 So. 7; Louisville & N. R. Co. v. 
 Carter, 195 Ala. 382, Ann. Cas. 
 1917E 292, 70 So. 655; Ex Parte 
 Atlantic Coast Line R. Co., 190 
 Ala. 132, 67 So. 25G. 
 
 Connecticut. Vickery v. New 
 London Northern R. Co., 87 Conn. 
 634, 89 Atl. 277. 
 
 Georgia. Southern Ry. Co. v. 
 v. Rhoda, Fla. , 74 So. 19. 
 
 Georgia. Southern Ry. Co. v. 
 Murphy, 9 Ga. App. 190, 70 S. E. 
 972. 
 
 Illinois. Chicago, R. I. & P. Ry. 
 Co. V. Industrial Board of Illi- 
 nois, 273 111. 528. L. R. A. 1916F 
 540, 113 N. E. 80. 
 
 Iowa. Narey v. Minneapolis & 
 St. L. R. Co.. 177 Iowa 606. 159 
 N. W. 230. 
 
 Kansas. Cole v. Atchison. T. & 
 S. F. R. Co.. 92 Kan. 132. 139 Pac. 
 1177. 
 
 Kentucky. Chesapeake & O. ^. 
 Co. v. Harmon's Adm'r, 173 Ky. 
 1, 189 S. W. 1135; Schaeffer v. 
 Illinois Cent. R. Co.. 172 Ky. 337, 
 189 S. W. 267; Cincinnati. N. O. & 
 T. P. R. Co. v. Clarke. 169 Ky. 662, 
 185 S. W. 94; Cincinnati. N. 0. & 
 T. P. R. Co. V. Tucker, 168 Ky. 
 144, 181 S. W. 940: .Tones v. Ches- 
 apeake & 0. R. Co., 149 Ky. 566, 
 149 S. W. 951. 
 
 Massachusetts. Corbett v. Bos- 
 ton & M. R. R., 219 Mass. .S51. 9 
 N. C. C. A. 691. 107 N E. 60. 
 
 1 Coutrcil Carriers 45 
 
 Michigan. Fernette v. Pere 
 Marquette R. Co., 175 Mich. 653, 
 141 N. W. 1084, 144 N. W. 834. 
 
 Mississippi. Yazoo & M. V. R. 
 
 Co. v. Houston, Miss. , 
 
 7.'"i So. 690; Illinois Cent. R. Co. v. 
 Archer. 113 Miss. 158, 74 So. 135. 
 
 New Hampshire. Cantin v. Glen 
 
 .lunrt. Transfer Co., N. H. 
 
 ■ , 96 Atl. 303. 
 
 . New York. Hoag v. Ulster & 
 D. R. Co., 177 N. Y. App. Div. 433, 
 164 N. Y. Supp. 529; Knowles v. 
 New York, N. H. & H. R. Co., 177 
 N. Y. App. Div. 262, 164 N. Y. 
 Supp. 1; Okrzesz v. Lehigh Val- 
 ley R. Co., 170 N. Y. App. Div. 
 15, 155 N. Y. Supp. 919; Fair- 
 child v. Pennsylvania R. Co., 170 
 N. Y. App. Div. 135. 155 N. Y. 
 Supp, 751. 
 
 Pennsylvania. Hogarty v. Phil- 
 adelphia & R. Ry. Co.. 255 Pa. 236, 
 99 Atl. 741; Hench v. Pennsyl- 
 vania R. Co., 245 Pa. 1. L. R. A. 
 1915D 557, Ann. Cas. 191GD 230, 
 91 Atl. 1056. 
 
 South Carolina. Minis v. Atlan- 
 tic Coast Line R. Co.. 100 S. C. 
 375, 85 S. E. 372. 
 
 Texas. Missouri. K. & T. Ry. 
 
 Co. of Texas v. Watson, Tex. 
 
 Civ. App. . 195 S. W. 1177; 
 
 Geer v. St. Louis. S. F. & T. Ry. 
 
 Co., Tex. . 194 S. W. 939; 
 
 Missouri. K. & T. Ry. Co. of Texas 
 
 V. Pace. Tex. Civ. App. , 
 
 184 S. W. 1051; San Antonio & A. 
 
 P. Ry. Co. V. Littleton. Tex. 
 
 Civ. App. , 180 S. W. 1194; 
 
 Houston & T. C. R. Co. v. Bright, 
 
 Tex. Civ. App. . 156 S. 
 
 W. 304; Missouri. K. & T. Ry. Co. 
 
 of Texas v. Sadler. Tex. Civ. 
 
 App. , 149 S. W. 1188; Mis- 
 souri. K. & T. Ry. Co. of Texas
 
 706 
 
 Injuries to Interstate Employes. [^ 416 
 
 the remedy g-iven by the federal statute, is exclusive, 
 so that a practitioner representing any employe, or an 
 employe's beneficiaries in case of death, in any action 
 for personal injuries against a common carrier by rail- 
 road, must familiarize himself with the Federal Em- 
 ployers' Liability Act to determine which law, if any, 
 furnishes a remedy for his client. 
 
 § 417. Purpose of Congress in Enactment of Feder- 
 al Act— Uniformity and Modification of Common Law 
 Rules. Prior to the enactment of the Federal Employ- 
 ers' Liability Act of 1908 the law governing the liability 
 of railroad "companies engaged in interstate commerce 
 to their employes for personal injuries while employed 
 in such commerce, depended upon the statutes and de- 
 cisions of the state in which the accident occurred.'" 
 
 V. Turner, — — Tex. Civ. App. 
 
 , 138 S. W. 1126; Missouri, K. 
 
 & T. R. Co. of Texas V. Hawley, 58 
 Tex. Civ. App. 143, 123 S. W. 726. 
 Utah. Grow v. Oregon Short 
 Line R. Co., 47 Utah 26, 150 Pac. 
 970. 
 
 Vermont. Castonguay v. Grand 
 
 Trunk Ry. Co., Vt. , 100 
 
 Atl. 908. 
 
 Washington. Killes v. Great 
 Northern R. Co., 93 Wash. 416, 
 161 Pac. 69; Bolch v. Chicago, M. 
 & St. P. R. Co., 90 Wash. 47, 155 
 Pac. 422. 
 
 West Virginia. Watts v. Ohio 
 Valley Elec. R. Co., 78 W. Va. 144, 
 88 S. E. 659. 
 
 Wisconsin. Great Northern R. 
 Co. V. King, 165 Wis. 159, 161 N. 
 W. 371; Sullivan v. Chicago, M. 
 & St. P. R. Co., 163 Wis. 583, 158 
 N. W. 321; Zavitovsky v. Chicago, 
 M. & St. P. R. Co., 161 Wis. 461, 
 154 N. W. 974. 
 
 16. New York Cent. R. Co. v. 
 White, 243 U. S. 188, 61 L. Ed. 667, 
 37 Sup. Ct. 247, 13 N. C. C. A. 
 943, Ann. Cas. 1917D 629; Erie R. 
 
 Co. v. New York, 233 U. S. 671. 
 58 L. Ed. 1149, 34 Sup. Ct. 756, 
 52 L. R. A. (N. S.) 266, Ann. Cas. 
 1915D 138; Taylor v. Taylor, 232 
 U. S. 363, 58 L. Ed. 638, 34 Sup 
 Ct. 350, 6 N. C. C. A. 436; Chicago, 
 I. & L. R. Co. V. Hackett, 228 U. 
 S 559, 57 L. Ed. 966, 33 Sup. Ct. 
 581; Chicago, R. I. & P. R. Co. v. 
 Hardwick Farmers Elevator Co., 
 226 U. S. 426, 57 L. Ed. 284, 33 
 Sup. Ct. 174, 46 L. R. A. (N. S.) 
 203; Missouri Pac. R. Co. v. Castle. 
 224 U. S. 541, 56 L. Ed. 875, 32 
 Sup. Ct. 606; LouisviUe & N. R. 
 Co. v. Melton, 218 U. S. 36, 54 L. 
 Ed. 921, 30 Sup. Ct. 676, 47 L. R. 
 A. (N. S.) 84; Tullis v. Lake Erie 
 & W. R. Co., 175 U. S. 348, 44 L. 
 Ed. 192, 20 Sup. Ct. 136; Chicago, 
 M. & St. P. Ry. Co. v. Solan, 169 
 U. S. 133, 42 L. Ed. 688, 18 Sup. 
 Ct. 289; Minneapolis & St. L. Ry. 
 Co. V. Herrick, 127 U. S. 210, 32 
 L. Ed. 107, 8 Sup. Ct. 1176; Smith 
 V. Industrial Accident Commis- 
 sion of California, 26 Cal. App. 
 560, 147 Pac. 600.
 
 § 41 7 1 Scoi'K, \'aiji)Iiv and Kffect of Act. 
 
 707 
 
 In some states the fellow servant doctrine, that is, 
 non-1 iahility of railroads for injuries to one servant by 
 the ne^lift'enee of another, was enforced, but in others 
 it had been abolished by statute or judicial rulings. 
 In some jurisdictions contributory nef?lifj:once was a 
 bar to the suit, while in others the employe's negli- 
 gence contributing to the injury merely reduced the 
 damages. Assum|)ti()ii of risk as a defense in some states 
 was applied with its full common law vigor; but in other 
 jurisdictions it had been partially abolished by statute 
 or changed by judicial legislation to a mere verbal for- 
 mula without substance as a defense to negligence. Some 
 judges liad held, that contracts with employes not to 
 sue in consideration of some form of insurance or indem- 
 nity fund, were valid, while others decided to the con- 
 trarv. 
 
 "This court has repeatedly up- 
 held the power of the State to 
 impose upon a railway company 
 liability to an employe engaged 
 In train service for an injury 
 inflicted through the negligence of 
 another employe in the same 
 service. Missouri Pacific Rail- 
 way Company v. Mackey, 127 U. S. 
 205; Minneapolis & St. L. Ry. Co. 
 v. Herrick, 127 U. S.' 210; Tullis 
 v. Lake Erie & W. Railway Com- 
 pany, 175 U. S. 348: Chicago, K. 
 & W. R. Co. v. Pontius, 157 U. S. 
 209; and Mondou v. New York, N. 
 H. & H. R. Co., 22.1 U. S. 1: 
 Obviously, the same reasons which 
 justified a departure from the 
 common-law rule in respect to 
 the negligence of a fellow-servant 
 also justify a similar departure 
 in regard to the effect of contribi- 
 tory negligence, and the cases 
 above cited in principle are there- 
 fore authoritative as to the law- 
 fulness of the modification made 
 by the second section of the stat- 
 ute under consideration of the rule 
 
 of contributory negligence as ap- 
 plied to railway employes. The 
 decision In the Mondou Case sus- 
 taining the validity of the Feder- 
 al Employers' Liability Act prac- 
 tically forecloses all questions as 
 to the authority possessed by the 
 State of Nebraska by virtue of 
 its police power to enact the stat- 
 ute in question and to confine the 
 benefits of such legislation to the 
 employes of railroad companies; 
 and as. at the time the plaintiff 
 received the injuries complained 
 of, there was no subsisting legis- 
 lation by Congress affecting the 
 liability of railway companies to 
 their employes, under the con- 
 ditions shown in this case, the 
 State was not debarred from thus 
 legislating for the protection of 
 railway employes engaged in in- 
 terstate commerce. See the 
 Mondou Case, supra, and Chicago, 
 M. & St. P. R. R. Co. V. Solan, 
 169 U. S. 133." Missouri Pac. Ry. 
 Co. V. Castle, swjjro.
 
 08 
 
 Injuries to Interstate Employes. [§ 417 
 
 From this babol of judicial voicos, with its conse- 
 quent glaring ineciuitios and inequalities, came the 
 national act, declaring one rule of liability throughout 
 the nation and with it, as a necessary concomitant, the 
 decisions of the national courts, construing the act in 
 all its parts, became binding upon all state courts. 
 The fellow servant doctrine was abolished; something 
 akin to comparative negligence was substituted for con- 
 tributory negligence; assumption of risk in certain cases 
 was abolished; contracts for a consideration of indemnity 
 waiving the right to sue were declared void and the 
 principle of compensation as a substitute for penalties 
 in the way of damages which regulated I'ecoveries in 
 certain states, was adopted. 
 
 Congress enacted this statute so that a uniform 
 law could apply to those engaged in interstate commerce 
 in all the states, and so that certain common law rules 
 determining liability might be abolished in order to 
 protect the lives and persons of employes, by securing 
 a more careful selection of employes, a closer super- 
 vision of them and a more rigid enforcement of their 
 duties." "The purpose of this bill is to change the 
 
 17. Hulac V. Chicago & N. W. 
 Ry. Co., 194 Fed. 747; Watson v. 
 St. Louis, I. M. & S. Ry. Co., 169 
 Fed. 942; Kelley v. Great North- 
 ern Ry. Co., 152 Fed. 211; Snead 
 V. Central of Georgia Ry. Co., 151 
 Fed. 608; Long v. Biddle, 124 Ark. 
 127, 186 S. W. 601; Burnett v. At- 
 lantic Coast Line R. Co., 16.3 N. 
 C. 186, 79 S. E. 414. 
 
 In Watson v. St. Louis, I. M. & 
 S. Ry. Co., supra, the court said: 
 "The object of Congress in the en- 
 actment of the law was to protect 
 the men employed in this hazarfl- 
 ous occupation, in which thous- 
 ands are annually killed or maim- 
 ed without any fault of the master 
 himself, but by the negligence of 
 other employes, over whom the 
 servant has no control, and in 
 
 whose selection he had no voice. 
 The legislation is neither new nor 
 revolutionary. It had been recom- 
 mended by President Roosevelt in 
 his annual message in 1905, and 
 again in a special message on 
 January 31, 1907. A similar act 
 was passed by the English Parlia- 
 ment as early as 1880, and among 
 the states of the Union a large 
 number have either abolished the 
 fellow-servant rule entirely or 
 modified it materially in respect 
 to employes engaged in hazardous 
 occupations; many of them limit- 
 ing the change to railroads. 
 Among these are Alabama, Arkan- 
 sas, California, Connecticut, Colo- 
 rado, Florida, Georgia, Indiana, 
 Iowa, Kansas, Massachusetts, Min- 
 nesota, Missouri, Mississippi, Mon-
 
 §■ 417] Scol'K, \'.\MI)IIV AM) IOkFKCT OK AcT. 709 
 
 common-law liability of em])loyers of labor in tliis line 
 of commerce, for personal injuries received by employes 
 in the service. It abolishes the strict common-law rule 
 of liability which bars a recovery for the personal injury 
 or death of an employe, occasioned by the negli.i^ence 
 of a fellow-servant. It also relaxes the common-law rule 
 which makes contributory neij^ligence a defense to claims 
 for such injuries. It permits a recovery by an em])loye 
 for an injury caused by the negligence of a co-employe; 
 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 diminished in 
 the same degree that the negligence of the injured one 
 contributed to the injury. It makes each party res- 
 ponsible for his own negligence, and re(|uires each to 
 bear the burden thereof. The bill also provides that, 
 to the extent that any contract, rule, or regulation 
 seeks to exempt the emi)loyer 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 through- 
 out the Union with reference to the liability of common 
 
 tana, Nebraska, Nevada, North States, evidently considered it an 
 Carolina, North Dakota, New injustice that persons injured, 
 York, Ohio, Oklahoma, Oregon, or in case of death, the surviv- 
 Pennsylvania, South Carolina, ing members of the family, should 
 South Dakota, Texas. Wisconsin, become burdens on the public 
 Virginia, and Wyoming, all of and objects of charity, and there- 
 which acted on that subject long fore considered it better public 
 before Congress. Similar statutes policy that the employer should 
 have also been for a long time in be required to make some pro- 
 force in most of the continental vision for them, charging the 
 states of Europe. This evidences moneys thus expended to expenses 
 that such legislation is in com- of management, or cost of pro- 
 plianco with the demands of an duction, and. collect it Indirect- 
 enlightened public opinion. To ly from the public. The enact- 
 effect this purpose it is wholly im- ment of such a statute not only 
 material what the employment of results in protecting the employes 
 the fellow servant is. Public opin- of carriers by rail, but at the 
 ion, as expressed through the leg- same time guards the public wel- 
 islative departments of the na- fare by securing the safety of 
 tion. as well as many of the travelers."
 
 710 Injuries to Interstate Employes. [§ 417 
 
 carriers to their employes. 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 employes for personal injuries resulting 
 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 fellowservant was first enunciated in England in 
 1837, and since that time it has been generally followed 
 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 railroad. It is possible that a century 
 ago, under industrial methods and systems as they then 
 existed, co-employes could have some influence over 
 each other tending to their personal safety. It is pos- 
 sible 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 diversi- 
 fied duties, and are distributed over larger areas and 
 often widely separated from each other. Under present 
 methods, personal injuries have become a prodigious 
 burden to the employes engaged in our industrial and 
 commercial systems. The master should be made whol- 
 ly responsible for injury to the servant by reason of 
 the negligence of a co-servant. He exercises the au- 
 thority of choosing the employes and if' made responsi- 
 ble for their acts while in line of duty he will be in- 
 duced to exercise the highest degree of care in select- 
 ing competent and careful persons and will feel bound 
 at all times to exercise over employes an authority and 
 influence which will compel the highest degree of care
 
 §i4]7| Scoi'K, V'audiiv and Ekkkct ok Act. 711 
 
 oil their part for the safety of each other in tlie ]U'\- 
 formanee of tlieir duties. These seetions make tlie em- 
 ployer liable for injury caused by defects or insuf- 
 ficiencies in the roadbed, tracks, engines, machinery, 
 and other ai)pliances used in llic oi)eration of railroads. 
 Over these things the emphjye has absolutely no au- 
 thority. The employer has complete authority over 
 them, both in their construction and in their mainten- 
 ance. It is a very hard rule, indeed, to compel men, 
 who by the exigencies and necessities of life are bound 
 to labor, to assume the risks and hazards of the em- 
 ployment, when these risks and hazards could be great- 
 ly lessened by the exercise of proper care on the part 
 of the employer in providing safe and ])roper machinery 
 and ef|uiiiment with which the employe does his work. 
 We believe that a strict rule of liability of the employer 
 to the employe for injuries received from defective ma- 
 chinery will greatly lessen i)ersonal injuries on that ac- 
 count. The common-law rules of fellow-servants and 
 assumption of risk still prevail in many of the States, 
 and without any apparent good reason. In recent years 
 many of the countries of Europe have ado]ited new 
 rules of liability, which greatly releive the liarshness 
 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 oper- 
 ation 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 rpiarter of a century it does not aj^i^ly to 
 any of the hazardous occupations. In 1869 Austria 
 passed a law making railroad companies liable for all 
 injuries to their employes except where the injury was 
 due to the victim's own negligence. The Code kapo- 
 leon made the employer answerable for all injuries re- 
 ceived 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 i)assed1aws modi-
 
 712 Injuries to Intkkstate Employes. [§ 417 
 
 fying- the doctrine as changing conditions required it 
 and justice to the employe demanded it. Alabama in 
 1885 eliminated the doctrine so far as it relates to rail- 
 roads, and in other particulars. Arkansas in 1898 
 qualified the doctrine as to railroad employment. Geor- 
 gia 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 employes actually engaged in operating- 
 trains. Minnesota did the same thing in 1887. Florida, 
 Ohio, Mississippi, and Texas have changed the doctrine 
 to the advantage of the employe. 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 regards 
 the operation of railroads. As compared with the law 
 now in force in other countries and in many of the 
 States, the changes made in the law of fellow-servant by 
 this bill are not radical. The doctrine as regards the 
 hazardous occupations is being relegated everywhere. 
 A Federal Statute of this character will supplant the 
 numerous State Statutes on the subject so far as they 
 relate to interstate commerce. It will create uniformity 
 throughout the Union, and the legal status of such em- 
 ployer'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 em- 
 ploye if caused by the carelessness of a co-employe. 
 The co-servant who is guilty of negligence resulting in 
 the injury may be liable, but as a rule he is not re- 
 sponsible, and hence the injury is not compensated. 
 The employe is not held by the employer to such strict 
 rules of caution for the safety of his co-employe, be- 
 cause the employer is not bound to pay the damages in 
 case of injury. If he were held liable for damages for
 
 <§>■ 418] Sf'OPK, Vaijditv anh Kkfkct of Act. 
 
 i;] 
 
 every injury occasioned l)y the negligence of his servant, 
 he would impose the same strict rules for tlie safety of 
 his employes as he does for the safety of passengers 
 and strangers. lie will make the emjiloyment of his 
 servant and his retention in the service dc})endent upon 
 the exercise of higher care, and this will he the stronger 
 inducement to the employe to act with a higher rcgjiid 
 for the safety of his fellow-workmen. '"" 
 
 § 418. Defects in Act of 1908 and Amendments 
 of 1910. In the enforcements of the i)rovi.sions of the 
 net of 1908, the courts held that the right of action 
 given to an injured employe did not survive to his per- 
 sonal representative in the event of his death;''' that an 
 
 18. Report of Judiciary Com- 
 mittee of House of Representa- 
 tives on Federal Employers' Lia- 
 bility Act of 1908. 
 
 19. Walsh V. New York, N. H. 
 & H. R. Co., 173 Fed. 494; Ful- 
 gham V. Midland Valley R. Co., 
 167 Fed. 660. "But it will be 
 observed on the other hand that 
 the act makes no provisions for 
 the survival of that action, so 
 given, for an injury sustained, in 
 the event of the death of the in- 
 jured employe. ♦ * * ^ ga^. 
 not be that legislation so much 
 discussed in and out of Congress, 
 and which had to be so carefully 
 matured and drawn in order to 
 meet the views of the courts, legis- 
 lation, too, which inherently 
 shows the skill of the lawyer evi- 
 dently familiar with the settled 
 principles of the common law 
 which it modifies in the interest 
 of justice and humanity, is not 
 expressive of the will of Con- 
 gress, or omits anything which 
 Congress intended to do by it. 
 It would have been so easy for 
 Congress to have said, as the 
 legislation of so many states had 
 
 previously provided, that in the 
 event the employe injured should 
 die from the injury his cause of 
 action should survive to his per- 
 sonal representative, that it can 
 scarcely be conceived that the pro- 
 vision would have been omitted 
 had Congress so intended. But 
 whatever Congress may have in- 
 tended, it has not done so, and 
 the courts must confine them- 
 selves to the administration of the 
 law, and neither add to nor take 
 from a statute where its language 
 is clear and unambiguous. In the 
 opinion of the court the right of 
 action given to the injured em- 
 ploye by the act of April 22. 1908. 
 does not survive to his personal 
 representative in the event of his 
 death, but, as at common law, 
 perishes with the injured person. 
 I might add that this conclusion 
 is in harmony with the known 
 purposes of the act, which was 
 intended to make some provision 
 for the unfortunate family of the 
 deceased employe, and not to 
 make provision for the creditors 
 of his estate." Fulgham v. Mid- 
 land Valloy R. Co.. supra.
 
 71-1: Injuries to Interstate Employes. [^ 418 
 
 action instituted in tlie state court under the federal 
 act could be removed to the proper circuit court when 
 the required amount was involved and a diversity of 
 citizenship existed"" and that when the jurisdiction of 
 a federal circuit court was based on the fact that the 
 suit arose under a law of the United States, the pLnin- 
 tiff was compelled to sue in the district of which the 
 defendant was an inhabitant, which, in case of a cor- 
 poration, was the jurisdiction in which the charter of 
 the defendant corporation was issued.^' In addition 
 to these decisions, the supreme court of Connecticut 
 even held that a cause of action under the Federal Em- 
 ployers' Liability Act could not be prosecuted in a state 
 court." 
 
 The amendatory act of 1910 resulted from the deci- 
 sions of the courts in these cases. The amendment to 
 section 6 provided that any action under the act may be 
 brouft-ht 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, and further jDrescribed that the jurisdiction 
 of the courts of the United States under the act shall 
 be concurrent with that of the courts of the several 
 states, and no case arising under the act and brought 
 in any state court of com]>etent jurisdiction, shall be 
 removed to any court of the United States. The second 
 amendment provided that any right of action given by 
 the 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 em- 
 ploye, and, if none, then of such employe's parents, 
 and, if none, then of the next of kin dependent upon 
 such em.ploye, but in such cases there shall be only one 
 recovery for the same injury. 
 
 20 Cound V. Atchison, T. & S. 501, 54 L. Ed. 300, 30 Sup. Ct. 184. 
 
 F Ry Co , 173 Fed. 527. 22. Hoxie v. New York, N. H. 
 
 21. Macon Grocery Co. v. At- & H. R. Co., 82 Conn. 352, 17 Ann. 
 
 lantic Coast Line R. Co., 215 U. S. Cas. 324, 73 Atl. 754.
 
 *^ 419] S(,'(ji'K, Vai.iditv and 1']ffect of Act. 715 
 
 § 419. Congressional Purpose in the Enactment of 
 the Amendments of 1910. The puiixji^c of (."oiigross 
 in passing the Act of 1910 was thus stated by the Judic- 
 iary Committee of the Senate in its report recommending 
 the enactment of the amendments: "Tlie proposed 
 amendments to the employers' liability bill may be con- 
 sidered under three heads: P'irst, as to the venue of 
 such an action; second, as to the concurrent jurisdic- 
 tion 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 inserting 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 commence- 
 ment of such action.' In his special message of January 
 7, 1910, President Taft, after referring to a proposed 
 amendment to give the Interstate Commerce Commis- 
 sion power to determine the uniform construction of 
 all steps, ladders, hand brakes, etc., said: 'The ques- 
 tion has arisen in the operation of the interstate com- 
 merce employers' liability act as to whether suit can 
 be brought against the employer company in any place 
 other than 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 served if upon the station 
 agent of the company upon whom 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 Eepre- 
 sentatives, and have been passed, and are now before 
 the Interstate Commerce Connuittee of the Senate. 
 I earnestly urge that they be enacted into law.' This 
 amendment is necessary in order to avoid great incon- 
 venience to suitors and to make it unnecessarv for an in-
 
 7Ui Injuries to Interstate Employes. [§ 419 
 
 jured 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 ex- 
 treme dithculty, if not impossibility, of a poor man who 
 is injured while in railroad employ, securing the at- 
 tendance of the necessary witnesses at such a distant 
 point makes the remedy given by the law of little 
 avail under such circumstances. * * * It is pro- 
 posed to further amend the act by making the jurisdic- 
 tion 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, inter 
 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 re- 
 cited by the Connecticut court lead to an opposite con- 
 clusion 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 declara- 
 tion that there is no intent on the part of Congress to 
 confine remedial actions brought on the part of Congress 
 to confine remedial actions brought under the Employ- 
 ers' Liability Act to the courts of the United States. 
 In declaring that the jurisdiction of the United States 
 courts shall be 'concurrent with the courts of the sev- 
 eral States,' Congress is clearly within its rights and 
 powers. * * * Many of the States provide by stat- 
 ute 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 in- 
 jury. In the phraseology of the existing Employers'
 
 ^ 420 1 SropK, Validity and Effect of Act. 717 
 
 Liability Act— that is, the Act of April 22, 1908— the 
 exi)res.sion used is, as to the question now under con- 
 sideration: 'Shall be liable in damages * * * in case 
 of death of such employe, to his or her personal repre- 
 sentative for the benefit of tlie surviving widow or hus- 
 baiid and children of such employe; and if none, then of 
 such emlpoye'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 its officers, agents, employes,' * * * .In 
 the case of Fulgham v. Midland Valley R, R. Company, 
 hereinbefore cited, the court said: 'In the opinion of the 
 court, right of action given to the injured employe by 
 the act of Ai)ril 22, 1908, does not survive to his per- 
 sonal representative in the event of his death, but, at 
 common law, perishes with the injured person.' * * * 
 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 tenns 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 oper- 
 ation by force of the Federal legislation upon the sub- 
 ject." 
 
 § 420. Extent of Power Exercised by Congress in 
 Passing the Liability Act. A troublesome question to 
 the practitioner will frecpiently arise as to whether the 
 facts of his case create a cause of action under the fed- 
 eral act, or under the laws of the state, since the remedy 
 in each realm is exclusive. Many conflicting decisions 
 which will be reviewed later, have been handed down 
 defining or holding when a railroad company is engaged 
 in interstate commerce" or when a servant is employed 
 in such commerce,-* for under the federal act both must 
 
 23. Chapter 22, infra. 24. Chapters 23. 24, 25 and 26, 
 
 infra.
 
 Injuries to Intebstate Employes. ['^ 420 
 
 be so engaged to reuder tlie statute applicable'' and the 
 remedy therein provided is then exclusive. 
 
 25. North Carolina R. Co. v. 
 Zachary, 232 U. S. 248, 58 L. Ed. 
 591, 34 Sup. Ct. 305, 9 N. C. C. A. 
 109; Ann. Gas. 1914C 159; Erie R. 
 Co. V. Krysienski, 151 C. C. A. 
 218, 238 Fed. 142; Grand Trunk 
 R. Co. of Canada v. Knapp, 147 C. 
 C. A. 624, 233 Fed. 950 13 N. C. 
 C. A. 1100; Lucchetti v. Phila- 
 delphia & R. Ry. Co., 233 Fed. 
 137; Lombardo v. Boston & M. R. 
 Co., 223 Fed. 427; Boyle v. Penn- 
 sylvania R. Co., 221 Fed. 453; 
 Illinois Cent. R. Co. v. Rogers, 
 136 C. C. A. 530, 221 Fed. 52; Bay 
 
 V Merrill & Ring Logging Co., 
 136 C. C. A. 277, 220 Fed. 295; 
 Central R. Co. of New Jersey v. 
 Colasurdo, 113 C. C A. 379, 192 
 Fed. 901. 
 
 Alabama. Loveless v. Louis- 
 ville & N. R. Co., Ala. , 
 
 75 So. 7; Louisville & N. R. Co. 
 
 V Blankenship, Ala. , 74 
 
 So. 960; Southern Ry. Co. y. 
 
 Fisher, Ala. , 74 So. 
 
 580. 
 
 Arkansas. Long v. Biddle, 124 
 Ark. 127, 186 S. W. 601. 
 
 Georgia. Landrum v. Western 
 & A. R. Co., 146 Ga. 88, 90 S. E. 
 710. 
 
 Illinois. Patry v. Chicago & W. 
 I. R. Co., 265 111. 310, 106 N. E. 
 843. 
 
 Indiana. Chicago & E. R. Co. 
 
 V. Feightner, Ind. App. , 
 
 114 N. E. 659; Cincinnati, H. & D. 
 
 Ry. Co. V. Gross, Ind. App. 
 
 , 111 N. E. 653. 
 
 Kansas. Barker v. Kansas City 
 M. & 0. R. Co., 88 Kan. 767, 43 L. 
 R. A. (N. S.) 1121, 129 Pac. 1151. 
 
 Kentucky. Chesapeake & O. Ry. 
 Co. V. Harmon's Adm'r, 173 Ky. 1, 
 
 189 S. W. 1135; Schaeffer v. Ill- 
 inois Cent. R. Co., 172 Ky. 337. 
 189 S. W. 237; Norfolk & W. Ry. 
 Co. V. Short's Adm'r, 171 Ky. 647, 
 188 S. W. 786. 
 
 Louisiana. Gordon v. New Or- 
 leans Great Northern R. Co., 135 
 La. 137, 64 So. 1014. 
 
 Minnesota. Hurley v. Illinois 
 Cent. R. Co., 133 Minn. 101, 157 
 N. W. 1005; Lewis v. Denver & R. 
 G. R. Co., 131 Minn. 122, 154 N. 
 W. 945; Crandall v. Chicago Great 
 Western R. Co., 127 Minn. 498, 150 
 N. W. 165. 
 
 Mississippi. New Orleans, M. & 
 C. R. Co. V. Jones, 111 Miss. 852, 
 72 So. 681. 
 
 Missouri. Miller v. Kansas City 
 Western R. Co., 180 Mo. App. 371, 
 168 S. W. 336. 
 
 Montana. Alexander v. Great 
 Northern R. Co., 51 Mont. 565, 
 154 Pac. 914. 
 
 New York. Rodgers v. New 
 York, Cent. & H. River R. Co., 
 171 N. Y. App. Div. 385, 157 N. "". 
 Supp. 83. 
 
 North Carolina. Hinson v. At- 
 lanta & C. Air Line R. Co., 172 N. 
 C. 646, 90 S. E. 772. 
 
 Oklahoma. Wichita Falls & N. 
 
 W. Ry. Co. V. Puckett, Okla. 
 
 , 157 Pac. 112; Atchison, T. 
 
 & S. F. R. Co. V. Pitts, 44 Okl'^.. 
 604, 9 N. C. C. A. 545, 145 Pac. 
 1148. 
 
 Oregon. Kamboris v. Oregon- 
 Washington R. & Nav. Co., 75 
 Ore. 358, 146 Pac. 1097. 
 
 Pennsylvania. Hogarty v. Phil- 
 adelphia & R. Ry. Co., 245 Pa. 443, 
 91 Atl. 854.
 
 ^ 420] Scope, Validity and FIffect of Act. 
 
 19 
 
 In the Second Employers' Liability Cases,-" the 
 Supreme Court of the United States formulated some 
 general rules to be applied in determining when a rail- 
 road employe is engaged in interstate commerce, but 
 these rules, necessarily so, are vague and indefinite so 
 that the question of wlien a railroad company is en- 
 gaged in interstate commerce or when a servant is em- 
 ployed in such commerce, was necessarily left to be de- 
 
 Texas. Chicago, R. I. & G. Ry. 
 
 Co. V. Cosio, Tex. Civ. App. 
 
 , 182 S. W. 83. 
 
 Utah. Grow v. Oregon Short 
 Line R. Co., 44 Utah 160, Ann. Cas. 
 1915B 481. 138 Pac. 398. 
 
 Wesrt Virginia. Watts v. Ohio 
 Valley Elec. R. Co.. 78 W. Va. 144, 
 88 S. E. 659. 
 
 Wisconsin. Jacoby v. Chicago. 
 M. & St. P. R. Co., 16.5 Wis. 610, 
 161 N. W. 7.51, 164 N. W. 88; Gray 
 V. Chicago & N. W. Co., 153 Wia. 
 637, 142 N. W. 505. 
 
 "Thus it Is essential to a right 
 of recovery under the act not 
 only that the carrier be engaged 
 in interstate commerce at the time 
 of the injury but also that the 
 person suffering the injury be 
 then employed by the carrier in 
 such commerce. And so it re- 
 sults where the carrier is also 
 engaged in interstate commerce or 
 in what is not commerce at all, 
 that one who while employed 
 therein by the carrier suffers in- 
 jury through its negligence, or 
 that of some of its officers, agents 
 or employes, must look for redress 
 to the laws of the State wherein 
 the injury occurs, save where it 
 results from the violation of some 
 Federal statute, such as the Safety 
 Appliance Acts." Shanks v. Dela- 
 ware, L. & W. R. Co., 239 U. S. 
 556, 60 L. Ed. 436, 36 Sup. Ct. 188. 
 
 "Three things must appear to 
 bring a case within the Federal 
 
 Employers' Liability Act: (1) The 
 carrier must engage in interstate 
 commerce; (2) it must at the 
 time of the injury in question be 
 engaged in commerce of that 
 character, as contradistinguished 
 from such purely local matters as 
 it may engage in; (3) the injured 
 servant must also at the time of 
 receiving his injury be engaged 
 in interstate commerce." Ross v. 
 Sheldon, 176 Iowa 618, 154 N. W. 
 499. 
 
 "To warrant a recovery, the em- 
 ployer must be a railroad com- 
 pany engaged in interstate com- 
 merce, and the employe must be 
 engaged in such commerce at 
 the time of the injury. These two 
 circumstances must exist, because 
 the right is purely statutory, and 
 the terms of the statute require 
 their concurrence." McKee v. 
 Ohio Valley Elec. R. Co., 78 W. Va. 
 131. 88 S. E. 616. 
 
 26. 223 U. S. 1. 56 L. Ed. 327, 
 32 Sup. Ct. 169, 1 N. C. C. A. 875. 
 38 L. R. A. (N. S.) 44. The Second 
 Employers' Liability Cases includ- 
 ed the following cases appealed 
 from different courts and decided 
 by the United States Supreme 
 Court at the same time and in one 
 opinion in which all the judges 
 concurred: Mondou v. New York. 
 N. H. & H. R. Co.: Northern Pac. 
 R. Co. V. Babcock: New York, N. 
 H. & H. R. Co. V. Walsh : Walsh v. 
 New York, N. H. & H. R. Co.
 
 720 Injuries to Interstate Employes. [§ 420 
 
 termined by all the facts of each particular case, and 
 conflicting views of courts on similar facts have been 
 the result. These general rules as to the extent of the 
 power of Congress in dealing with ilio relation of rail- 
 roads and their employes while the one is engaged and 
 the other is employed in interstate commerce, were 
 summarized by the courts as follows: "'The clauses in 
 the Constitution (Art. 1, sec. 8, c. I] and IS) which con- 
 fer upon Congress the power Uo regulate commerce 
 * * * among the several States' and 'to make all 
 laws which shall be necessary and proper' for the pur- 
 pose have been considered by this court so often and in 
 such varied connections that some propositions bearing 
 upon the extent and nature of this power have come 
 to be so firmly settled as no longer to be open to dis- 
 pute, among them being these: 1. The term 'commerce' 
 comprehends more than the mere exchange of goods. 
 It embraces commercial intercourse in all its branches, 
 including transportation of passengers and property by 
 common carriers, whether carried on by water or by 
 land. 2. The phrase 'among the several States' marks 
 the distinction, for the purpose of governmental regu- 
 lation, between commerce which concerns two or more 
 States and commerce which is confined to a single 
 State and does not affect other States, the power to 
 regulate the former being conferred upon Congress and 
 the regulation of the latter remaining with the States 
 severally. 3. 'To regulate,' in the sense intended, is to 
 foster, protect, control, and restrain, with appropriate 
 regard for the welfare of those who are immediately 
 concerned and of the public at large. 4. This power over 
 commerce among the States, so conferred upon Con- 
 gress, is complete in itself, extends incidentally to every 
 instrument and agent by which such commerce is car- 
 ried on, may be exerted to its utmost extent over every 
 part of such commerce, and is subject to no limitations 
 save such as are prescribed in the Constitution. But, 
 of course, it does not extend to any matter or thing 
 which does not have a real or substantial relation to 
 some part of such commerce. 5. Among the instruments 
 and agents to which the power extends are the rail-
 
 §'4l'lJ Scoj'K, \'a]. 11)11 V AM) h^FFKf'T OK AcP 
 
 '21 
 
 roads over wliicli ti-aiisi)ortatioii from oiu* state to an- 
 other is conducted, tlie en<;iiies and cars ])y wliicli sncli 
 transportation is effected, and all wlio aic in any wise 
 en^a,i;ed in sncli trjinsportat ion, wlietlier as connnon 
 carriers or as tlieir enii)loyes. (J. ^J'lie duties of common 
 (carriers in respect ol" llie safety of their employes, wliile 
 botli are en«?a^ed in commerce amon^' tlie States, and 
 the liability of the former for injuries sustained ])y the 
 latter, wliile both are so engaged, have a real or sub- 
 stantial relation to such commerce, and llici-efore are 
 within the range of this power." 
 
 § 421. Exclusiveness of the Federal Act and its Ef- 
 fect upon State Laws. As to all injuries or deaths liap- 
 pening under tiie conditions prescrilx'd in the Phnploy- 
 ers' Liability Act, i.e., while the canier is engaged 
 and the servant is employed in interstate commerce, the 
 remedy given by the statute is exclusive, and all state 
 laws in so far as they attempt to or do cover the same 
 field, are superseded." The statute supersedes all state 
 
 27. United States. Jacobs v. 
 Southern R. Co., 241 U. S. 229, 
 60 L. Ed. 970, 36 Sup. Ct. 588; 
 Texas & P. Ry. Co. v. Rigsby, 241 
 U. S. 33, 60 L. Ed. 874, 36 Sup. 
 Ct. 482; Seaboard Air Line Ry. 
 Co. V. Kenney, 240 U. S. 489, 60 
 L. Ed. 762, 36 Sup. Ct. 458; Pecos 
 & N. T. Ry. Co. V. Rosenbloom. 
 240 U. S. 439, 60 L. Ed. 730, 36 
 Sup. Ct. 390; Chicago, R. I. & F. 
 Ry. Co. V. Wright. 239 U. S. 548, 
 60 L. Ed. 431, 36 Sup. Ct. 185; 
 Chicago, R. I. & P. R. Co. v. 
 Devine, 239 U. S. 52, 60 L. Ed. 
 140, 36 Sup. Ct. 27; LouisviUe & 
 N. R. Co. V. Rhoda, 238 U. S. 608, 
 59 L. Ed. 1487, 35 Sup. Ct. 662; 
 Seaboard Air Line Ry. Co. v. 
 Thornton, 238 U. S. 60G, 59 L. 
 Ed. 1485. 35 Sup. Ct. 601; St. 
 Louis, I. M. & S. R. Co. v. Craft, 
 237 U. S. 648, 59 L. Ed. 1160. 35 
 Sup. Ct. 704: Toledo, St. L. & W. 
 
 R. Co. V. Slavin, 236 U. S. 454, 
 58 L. Ed. 671, 35 Sup. Ct. 306; 
 Wabash R. Co. v. Hayes, 234 U. 
 S. 86, 58 L. Ed. 1226, 34 Sup. Ct. 
 729, 6 N. C. C. A. 224, Seaboard 
 Air Line Ry. Co. v. Horton, 233 
 U. S. 492, 58 L. Ed. 1062, 34 Sup. 
 Ct. 635, 8 N. C. C. A. 834, L. R. 
 A. 1915C 1, Ann. Cas. 1915B 475; 
 St. Louis, L M. & S. R. Co. v. 
 Hesterly, 228 U. S. 702, 57 L. Ed. 
 10.11, 33 Sup. Ct. 703; In re Second 
 Employers' Liability Cases, 223 U. 
 S. 1, 56 L. Ed. 327. 32 Sup. Ct. 169. 
 1 N. C. C. A. 875, 38 L. R. A. (X. 
 S.) 44; St. Louis jNIerchants' 
 Bridge Terminal R. Co. v. Schuer- 
 man, 150 C. C. A. 203, 237 Fed. 1; 
 Waters v. Guile, 148 C. C. A. 298, 
 234 Fed. 532; Grand Trunk R. Co. 
 of Canada v. Knapp, 147 C. C. A. 
 624, 233 Fed. 950, 13 N. C. C. A. 
 1100. 
 
 1 Control CiiriicTj
 
 722 Injuries to Interstate Employes. [§ 421 
 
 and territorial laws over the matter with which it 
 
 Alabama. Louisville & N. R. Co. 
 V. Carter, 195 Ala. 382, Ann. Cas. 
 1917E 292, 70 So. 655; Southern 
 R. Co. V. Peters, 194 Ala. 94. 69 
 So. 611; Atlantic Coast Line R. 
 Co. V. Jones. 12 Ala. App. 419. 67 
 So. 6.32. 
 
 Arkansas. Chicago, R. I. & P. 
 R. Co. V. Pearce, 118 Ark. 6, L. R. 
 A. 1915F 551, 175 S. W. 1160. 
 
 California. Smithson v. Atchi- 
 son, T. & S. F. R. Co., 174 Cal. 
 148, 162 Pac. 111. 
 
 Colorado. Denver & R. G. R. 
 
 Co. V. Wilson, Colo. , 163 
 
 Pac. 857. 
 
 Florida. Seaboard Air Line Ry. 
 
 Co. V. Hess, Fla. , 74 So. 
 
 500; Louisville & N. R. Co. v. 
 
 Rhoda, Fla. , 74 So. 19; 
 
 Flanders v. Georgia Southern & 
 F. R. Co.. 68 Fla. 479, 67 So. 68. 
 
 Georgia. Hardy v. Atlanta & W. 
 
 P. R. Co., Ga. App. , 93 
 
 S. E. 18; Landrum v. Western & 
 A. R Co., 146 Ga. 88, 90 S. E. 
 710; Louisville & N. R. Co. v. 
 Kemp. 140 Ga. 657, 79 S. E. 558. 
 
 Illinois. Chicago Junct. R. Co. 
 v. Industrial Board of Illinois, 
 277 111. 512, 115 N. E. 647; Devine 
 v. Chicago, R. I. & P. Ry. Co., 266 
 111. 248, Ann. Cas. 1916B 481, 107 
 N. E. 595; Wagner v. Chicago & 
 A. R. Co., 265 111. 245, Ann. Cas. 
 1916A 778, 106 N. E. 809. 
 
 Indiana. Grand Trunk Western 
 
 Ry. Co. V. Thrift Trust Co., 
 
 Ind. App. , 115 N. E. 685; 
 
 Vandalia R. Co. v. Stringer, 182 
 Ind. 676, 106 N. E. 865, 107 N. E. 
 673. Southern R. Co. v. Hower- 
 ton, 182 Ind. 208, 105 N. E. 1025, 
 106 N. E. 369. 
 
 Kansas. Giersch v. Atchison, 
 T. & S. P. R. Co., 98 Kan. 452, 
 158 Pac. 54; Cole v. Atchison, T. 
 & S. F. R. Co., 92 Kan. 132, 139 
 Pac. 1177. 
 
 Kentucky. Davis' Adm'r v. Cin- 
 cinnati, N. O. & T. P. R. Co., 172 
 Ky. 55, 188 S. W. 1061; Mc- 
 Garvey's Guardian v. McGarvey's 
 Adm'r, 163 Ky. 242, 173 S. W. 765; 
 111. Cent. R. Co. v. Doherty's 
 Adm'r, 153 Ky. 363, 49 L. R. A. (N. 
 S.) 31, 155 S. W. 1119. 
 
 Louisiana. Penny v. New 
 Orleans Great Northern R. Co., 
 135 La. 962, 66 So. 313. 
 
 Massachusetts. Corbett v. Bos- 
 ton & M. R. R., 219 Mass. 351, 9 
 N. C. C. .1. 691, 107 N. E. 60. 
 
 Minnesota. Manning v. Chi- 
 cago Great Western R. Co., 135 
 Minn. 229, 15 N. C. C. A. 591, 160 
 N. W. 787. 
 
 Mississippi. New Orleans, M. & 
 C. R. Co. V. Jones. Ill Miss. 852, 
 72 So. 681. 
 
 Missouri. Koukouris v. Union 
 Pac. R. Co., 193 Mo. App. 495, 186 
 S. W. 545; Sells v. Atchison, T. & 
 S. F. R. Co., 266 Mo. 155, 181 
 S. W. 106; Moliter v. Wabash R. 
 Co., 180 Mo. App. 84, 168 S. W. 
 250; Vaughan v. St. Louis & S. 
 F. R. Co., 177 Mo. App. 155, 164 
 S. W. 144; Rich v. St. Louis & S. 
 F. R. Co., 166 Mo. App. 379, 148 
 S. W. 1011. 
 
 New Hampshire. Cantin v. Glen 
 
 Junct. Transfer Co., N. H. 
 
 , 96 Atl. 303; Shannon v. 
 
 Boston & M. R. R., 77 N. H. 349, 
 92 Atl. 167. 
 
 New Jersey. Roun.saville v. Cen- 
 tral R. Co. of New Jersey,
 
 §' 421] Scope, Validity and Effect of Act. 
 
 723 
 
 deals;'' for, when Congress legislates upon a particular 
 
 N. J. L. , 101 Atl. 182; West 
 
 Jersey Trust Co. v. Philadelphia 
 & R. Ry. Co., 88 N. J. L. 102, 95 
 Atl. 753; Parker v. Atlantic City 
 R. Co.. 87 N. J. L. 148, 93 Atl. 574. 
 New York. RiKssell v. Erie R. 
 Co., 177 N. Y. A pp. Div. 13, 163 
 N. Y. Supp. 893; Rodgers v. Now 
 York Cent. & H. River R. Co., 171 
 N. Y. App. Div. 385, 157 N. Y. 
 Supp. 83; Gee v. Lehigh Valley 
 R. Co., 163 N. Y. App. Div. 274. 
 148 N. Y. Supp. 882; Burnett v. 
 Erie R. Co., 159 N. Y. App. Div. 
 712, 144 N. Y. Supp. 969. 
 
 North Dakota. Hein v. Great 
 Northern R. Co., 34 N. D. 440, 
 159 N. W. 14; Manson v. Great 
 Northern R. Co., 31 N. D. 643, 
 155 N. W. 32. 
 Oklahoma. Chicago, R. I. & P. 
 
 Ry. Co. V. Jackson, Okla. 
 
 , 160 Pac. 736. 
 
 Oregon. Kamboris v. Oregon- 
 Washington R. & Nav. Co., 75 Ore. 
 358. 146 Pac. 1097; Oberlin v 
 Oregon-Washington R. & Nav. Co., 
 71 Ore. 177, 142 Pac. 554. 
 
 Pennsylvania. Hogarty v. Phil- 
 adelphia & R. D. Co., 255 Pa. 236. 
 99 Atl. 741. 
 
 South Carolina. Jones v. Char- 
 leston & W. C. R. Co., 98 S. C. 
 197, 82 S. E. 415. 
 
 Tennessee. Howard v. Nash- 
 ville, C. & St. L. R. Co., 133 Tenn. 
 19, L. R. A. 1916B 794, Ann. Cas. 
 1917A 844, 179 S. W. 380. 
 
 Texas. Gulf, C. & S. F. Ry. Co. 
 
 V. Hall, Tex. Civ. App. , 
 
 196 S. W. 613; Ft. Worth & R. G. 
 
 Ry. Co. V. Bird, Tex. Civ. 
 
 App. , 196 S. W. 597; Geer v. 
 
 St. Louis, S. F. & T. Ry. Co., 
 
 Tex. , 194 S. W. 939; Chicago. 
 
 R. I. & G. Ry. Co. V. De Bord. 
 
 Tex. ; 192 S. W. 767; Missouri, 
 
 K. & T. Ry. Co. of Texas v. Moon- 
 
 ey, Tex. Civ. App. , 181 
 
 S. W. 543. 
 
 Vermont. Robie v. Boston & M. 
 
 K. R.. Vt. . 100 Atl. 925; 
 
 White's Adni'x v. Central Ver- 
 mont R. Co.. 87 Vt. 330, 89 Atl. 
 618. 
 
 West Virginia. Easter y. Vir- 
 ginian R. Co., 76 W. Va. 383, 11 
 N. C. C. A. 101, 86 S. E. 37. 
 
 Wisconsin. O'Connor v. Chicago, 
 M. & St. P. R. Co., 163 Wis. 653, 
 158 N. W. 343. 
 
 The Federal act is exclusive and 
 paramount in regulating the re- 
 lations of employers and employ- 
 es engaged in interstate commerce 
 by railroad. Carey v. Grand Trunk 
 
 W. R. Co., Mich. , 166 
 
 N. W. 492. 
 
 28. United States. Erie R. Co 
 V. Winfield, 244 U. S. 170, 61 L. 
 Ed. 1057, 37 Sup. Ct. 556, 14 N. 
 C. C. A. 957; New York Cent. R. 
 Co. v. Winfield, 244 U. S. 147, 61 
 L. Ed. 1045, 37 Sup. Ct. 546, 14 
 N. C. C. A. 680, Ann. Cas. 1917D 
 1139; Spokane & I. E. R. Co. v. 
 Campbell, 241 U. S. 497, 60 L. Ed. 
 1125, 36 Sup. Ct. 683, 12 N. C. C. 
 A 1083; Chicago, R. I. & P. R. 
 Cc. V. Wright, 239 U. S. 548, 60 
 L. Ed. 431, 36 Sup. Ct. 185; Chi- 
 cago, R. I. & P. R. Co. V. De- 
 vine, 239 U. S. 52, 60 L. Ed. 140, 
 36 Sup. Ct. 27; Toledo, St. L. & 
 W. R. Co. V. Slavin, 236 U. S. 454, 
 58 L. Ed. 671, 35 Sup. Ct. 306; 
 Wabash R. Co. v. Hayes, 234 U. 
 S. 86, 58 L. Ed. 1226, 34 Sup. Ct. 
 729, 6 N. C. C. A. 224; Taylor 
 V. Taylor. 232 U. S. 363, 58 L. Ed. 
 638, 34 Sup. Ct. 350, 6 N. C. C. A. 
 436.
 
 724 
 
 Injuries to Interstate Employes. [^ 421 
 
 subject matter under its constitutional power to regulate 
 commerce, state legislatures have no right to interfere 
 by way of complementary legislation or to prescribe 
 additional regulations covering the same field. In such 
 a case the legislation of Congress, in what it does pre- 
 scribe, manifestly indicates that it does not intend that 
 there shall be any further legislation to act upon the 
 same subject matter.-" If the injury or death occurs 
 under the 'circumstances defined in the act, there is no 
 choice of remedy between a state and the federal law.^° 
 Since the statute is exclusive, a servant, injured 
 while employed in interstate commerce by a common 
 carrier by railroad engaged in such commerce, must 
 bring his action upon this statute and no other; and 
 the same is true as to the personal representative in 
 case of death.^^ State statutes upon negligence, con- 
 
 California. Smithson v. Atchi- 
 son, T. & S. P. R. Co., 174 Cal. 148, 
 162 Pac. 111. 
 
 Illinois. Staley v. Illinois Cent. 
 R. Co., 268 111. 356, L. R. A. 1916A 
 450, 109 N. E. 342. 
 
 Kentucky. Cincinnati, N. 0. & 
 T. P. R. Co. V. Clarke, 169 Ky 
 662, 185 S. W. 94. 
 
 Missouri. Koukouris v. Union 
 Pac. R. Co., 193 Mo. App. 495, 186 
 S W. 545. 
 
 Oklahoma. St. Louis & S. F. R. 
 Co. V. Snowden, 48 Okla. 115, 149 
 Pac. 1083. 
 
 Oregon. Kamboris v. Oregon- 
 Washington R. & Nav. Co., 75 Ore. 
 358, 146 Pac. 1097. 
 
 Texas. Atchison, T. & 8. F. Ry. 
 Co. V. Tack, 61 Tex. Civ. App. 551, 
 130 S. W. 596. 
 
 Washington. Lauer v. Northern 
 Pac. R. Co., 83 Wash. 465, 145 Pac. 
 606. 
 
 29. Prigg V. Pennsylvania, 16 
 Pet. (U. S.) 539, 10 L. Ed. 1060. 
 
 30. Chicago, R. I. & P. R. Co. 
 
 V. Wright, 239 U. S. 548, 60 L. Ed. 
 431, 36 Sup. Ct. 185; Wabash R. 
 Co. V. Hayes, 234 U. S. 86, 58 L. 
 Ed. 1226, 34 Sup. Ct. 729, 6 N. C. 
 C. A. 224. 
 
 31. United States. Gulf, C. & S. 
 F. R. Co. V. McGinnis, 228 U. S. 
 173, 57 L. Ed. 785, 33 Sup. Ct. 426, 
 3 N. C. C. A. 806; Michigan Cent. 
 R. Co. V. Vreeland, 227 U. S. 59, 
 57 L. Ed. 417, 33 Sup. Ct. 192, 
 Ann. Cas. 1914C 176; American 
 R. Co. of Porto Rico v. Birch, 224 
 U. S. 547, 56 L. Ed. 879, 32 Sup. 
 Ct. 603. 
 
 Connecticut. Vickery v. New 
 London Northern R. Co., 87 Conn. 
 634, 89 Atl. 277. 
 
 Massachusetts. Lynch v. Bos- 
 ton & M. R. R., Mass. , 
 
 116 N. E. 401. 
 
 Mississippi. New Orleans, M. & 
 C. R. Co. V. Jones, 111 Miss. 852, 
 72 So. 681. 
 
 New York. Gee v. Lehigh Val- 
 ley R. Co., 163 N. Y. App. Div. 
 274, 148 N. Y. Supp. 882.
 
 § 421] ScopK, Validity and Effect of Act. 725 
 
 tribiitory ne^li^ence, assumption of risk or who may ro- 
 cover in case of death, are nugatory as to all casualties 
 happening under the conditions described in the act, 
 that is, while botli carrier and employe are engaged in 
 interstate commerce.^'' **That the act is comprehensive 
 and also exclusive," said Mr. Justice Van Devanter,'^ ''is 
 distinctly recognized in rei)eated decisions of this court. 
 Thus, in Missouri, K. & T. R. Co. v. Wulf, 226 U. 8. 570, 
 576, and other cases, it is pointed out that the subject 
 which the act covers is 'the responsibility of interstate 
 carriers by railroad to their employees injured in such 
 commerce;' in Michigan C. R. Co. v. Vreeland, 227 U. 8. 
 59, 66, 67, it is said that 'we may not piece out this act of 
 Congress by resorting to the local statutes of the state 
 of procedure or that of the injury;' that by it 'Con- 
 gress has undertaken to cover the subject of the liabil- 
 ity of railroad companies to their employees injured 
 while engaged in interstate commerce,' and that it is 
 'paramount and exclusive;' in North Carolina R, Co. v. 
 Zachary, 232 U. 8. 248, 256, it is held that where it ap- 
 pears that the injury occurred while the carrier was 
 
 32. United States. Toledo, St. Massachusetts. Corbett v. Bos- 
 
 L. & W. R. Co. V. Slavin, 236 U. ton & M. li. R., 219 Mass. 351, j 
 
 5 454, 58 L. Ed. 671, 35 Sup. Ct. N. C. C. A. 691, 107 N. E. 60. 
 306; Seaboard Air Line Ry. Co. Mississippi. New Orleans, M. & 
 V. Horton, 233 U. S. 492, 58 L. C. R. Co. v. Jones, 111 Miss. 852, 
 Ed. 1062, 34 Sup. Ct. 625, 8 N. C. 72 So. 681. 
 
 C. A. 834, L. R. A. 1915C 1, Ann. Missouri. Vaughan v. St. Louis 
 
 Cas. 1915B 475; St. Louis, S. F. & S. F. R. Co., 177 Mo. App. 155, 
 
 6 T. R. Co. V. Seale, 229 U. S. 164 S. W. 144. 
 
 156, 57 L. Ed. 1129. 33 Sup. Ct. Korth Dakota. Hein v. Great 
 
 651, Ann. Cas. 1914C 156; De Northern R. Co., 34 N. D. 440, 159 
 
 Atley V. Chesapeake & O. Ry. Co., N. W. 14. 
 
 201 Fed. 591. Pennsylvania. Hogarty v. Phil- 
 California. Smithson v. Atchl- adelphia & R. R. Co., 245 Pa. 443, 
 
 son, T. & S. P. R. Co., 174 Cal. 91 Atl. 854. 
 
 148, 162 Pac. 111. Texas. St. Louis Scuthwestern 
 
 Florida. Louisville & N. R. Co. Ry. Co. v. Brothers, Tex. Civ. 
 
 V. Rhoda, — Fla. , 74 So. 19; App. , 165 S. W. 488. 
 
 Flanders v. Georgia Southern & 33. New York Cent. R. Co. v. 
 
 F. R. Co.. 68 Fla. 479, 67 So. 68. Winfield, 244 U. S. 147, 61 L. 
 
 Georgia. Landrum v. Western Ed. 1045, 37 Sup. Ct. 546, 14 N. 
 
 & A. R. Co., 146 Ga. 88, 90 S. E. C. C. A. 680, Ann. Cas.' 1917D 
 
 710. 1139.
 
 726 Injuries to Interstate Employes. [>^ 421 
 
 engaged and the employee employed in interstate com- 
 merce, the Federal act governs to the exculsion of the 
 state law; in Seaboard Air Line E. Co. v. Horton, supra, 
 pp. 501, 503, it is said not only that Congress intended 
 'to exclude responsibility of the carrier to its employees' 
 in the absence of negligence but that it is not conceiv- 
 able that Congress 'intended to permit the legislatures 
 of the several states to determine the effect of contri- 
 butory negligence and assumption of risk, by enacting 
 statutes for the safety of employees, since this would in 
 effect relegate to state control two of the essential fact- 
 ors that determine the responsibility of the employer;' 
 and in Wabash E. Co. v. Haynes, 234 U. S. 86, 89, it is 
 said: 'Had the injury occurred in interstate commerce, 
 as was alleged, the Federal act undoubtedly would have 
 been controlling, and a recovery could not have been 
 had under the common or statute law of the state; in 
 other words, the Federal act would have been exclusive 
 in its operation, not merely cumulative (citing cases). 
 On the other hand, if the injury occurred outside of 
 interstate commerce, the Federal act was without ap- 
 plication and the law of the state was controlling.' The 
 act is entitled, 'An Act relating to the Liability of Com- 
 mon Carriers by Eailroad to Their Employees in Cer- 
 tain Cases,' and the suggestion is made that the words 
 'in certain cases' require that the act be restrictively 
 construed. But we think these words are intended to do 
 no more than to bring the title into reasonable accord 
 with the body of the act, which discloses in exact terms 
 that it is not to embrace all cases of injury to the em- 
 ployees of such carriers, but only such as occur while 
 the carrier is engaging and the employee is employed 
 in 'commerce between any of the several states, etc. 
 See Employers' Liability Cases (Howard v. Illinois C. 
 E. Co.) 207 U. S. 463." 
 
 § 422. State Workmen's Compensation Laws Super- 
 seded by Federal Act as to Injuries Arising in Inter- 
 state Commerce. The Federal Employers' Liability Act 
 proceeds upon the principle which regards negligence as
 
 § 422] Scope, Validitv and Ki-fkct of Act. 727 
 
 the basis of duty to make eomponsatioii''^ and excludes 
 the existence of such a duty in the absence of negli- 
 gence; but Congress intended the statute to be as com- 
 ])roliensive in those instances in wliicli it excludes lia- 
 bility as of those in wlii(;h liability is inii)osed. It es- 
 tablished a rule or regulation which is intended to ap- 
 pear uniformly in all the states as to all employes of 
 common carriers by railroad working in interstate com- 
 merce, and, in that field, it is l)oth paramount and ex- 
 clusive. State workmen's compensation laws which pro- 
 vide a compensation to employes without regard to the 
 question of the employers' default or neglect, have 
 therefore no application to employes of common car- 
 riers by railroad killed or injured while engaged in 
 interstate and foreign commerce, even in the absence 
 of negligence;^' for, when Congress legislates concern- 
 ing a subject matter of interstate commerce, all state 
 laws covering the same field are necessarily superseded 
 by reason of the supremacy of the national authority. 
 TTnder the commerce clause, Congress may regulate the 
 liabilities of common carriers and the rights of their 
 employes arising out of injuries sustained by the latter 
 when both are engaged in interstate commerce. The 
 national legislative body acted upon the subject in pass- 
 ing the Employers' Liability Act, and hence, awards 
 under state compensation laws to employes of common 
 carriers by railroad killed or injured while engaged in 
 interstate commerce, are void.-^" 
 
 34. Chapter 27, infra. S8 N. J. L. 619, 96 Atl. 394: West 
 
 35. Erie R. Co. v. Winfield. Jersey Trust Co. v. Philadelphia 
 244 U. S. 170. 61 L. Ed. 1057, & R. R. Co., 88 N. .1. L. 102. 95 
 37 Sup. Ct. 556. 14 N. C. C. A. 957; Atl. 753; Rounsaville v. Central 
 New York Cent. R. Co. v. Win- R. Co., 87 N. J. L. 371, 94 Atl. 392. 
 field, 244 U. S. 147. 61 L. Ed. 36. The widow of an employe 
 1045. 37 Sup. Ct. 54e. 14 N. C. engaged in interstate commerce 
 C. A. 680, Ann. Cas. 1917D 1139; is not entitled to an award under 
 Smith V. Industrial Accident a state workmen's compensation 
 Commission of California, 26 Cal. law. Plass v. Central New Eng- 
 App. 560, 147 Pac. 600; Staley v. land Ry. Co., 221 N. Y. 472, 117 N. 
 Illinois Cent. R. Co., 268 111. 356, E. 952. 
 
 L. R. A. 1916A 450. 100 N. E. 342. A conductor of an interstate 
 
 Contra: Winfirld v. Krio R. Co.. train cannot recover componsa-
 
 728 Injuuies to Interstate Employes. [^ 423 
 
 § 423. Common Law Right of Parents to Recover 
 for Loss of Services of Minor Employe Injured, Super- 
 seded. AVhon it appears in any action by an cnii)loye 
 against a common carrier by railroad tliat tlie injuries 
 were sustained while the company was engaged, and 
 while he was employed in interstate commerce, the 
 company's responsibility is governed by the federal act 
 and its liability can neither be extended nor abridged 
 by common or statutory laws of any state. ^^ A suit, 
 therefore, by a father for the recovery for himself on 
 account of expenses incurred for medical attention to 
 his son and the loss of the latter 's services because of 
 an injury sustained while he was working in interstate 
 commerce for a common carrier by railroad, cannot be 
 sustained." "The point in issue here, which is whether 
 a father may maintain a suit for loss of services of his 
 minor son occasioned by injuries received while an em- 
 ploye engaged by a railroad operating an interstate 
 business, has been recently decided by the Supreme 
 Court of the United States in the case of New York 
 Central & Hudson River Railroad Co. v. Tonsellito, 244 
 U. S. 360, 37 Sup. Ct. 620, 61 L. Ed. 1194, decided 
 June 4, 1917. That case originated in the state of New 
 Jersey. The Supreme Court of that state held that the 
 federal Employers' Liability Act did not bar the 
 father's common-law right to sue for loss of services of 
 a minor child. However, on the writ of error taken to 
 the Supreme Court of the United States a majority of 
 that tribunal held to the contrary, and reversed the 
 
 tion under a workmen's compen- Ed. 671, 35 Sup. Ct. 306; Wabash 
 
 sation law aUhough his employ- R. Co. v. Hayes, 234 U. S. 86, 58 
 
 er had elected to accept the pro- L. Ed. 1226, 34 Sup. Ct. 729, 6 N. 
 
 visions of the Act. Carey v. c. C. A. 224. 
 
 Grand Trunk W. R. Co., gg ^^^ York Cent. & H. River 
 
 Mich. , 166 N. W. 492. 
 
 R. Co. V. TonseUito, 44 U. S. 360, 
 61 L. Ed. 1194, 37 Sup. Ct. 620, 
 
 37. Chicago, R. I. & P. R. Co 
 V. Wright, 239 U. S. 548, 60 L. Ed. 
 
 431, 36 Sup. Ct. 185; Seaboard ^^ N. C. C. A. 1072; Flanders v. 
 
 Air Line R. Co. v. Koennecke, 239 Georgia Southern & F. R. Co., 68 
 
 U. S. 352, 60 L. Ed. 324, 36 Sup. Fla. 479, 67 So. 68. Contra: Nel- 
 
 Ct. 126; Toledo, St. L. & W. R. son v. Illinois Cent. R. Co., 173 
 
 Co. v. Slavin, 236 U. S. 454, 59 L. Iowa 161, 155 N. W. 169.
 
 § 424] ScopK, Validity and Efkhct ok Act. 
 
 729 
 
 jud^iiK'nt ft'iveii to tlio father by the Xew Jersey courts. 
 It is the duty of tliis eourt to folh)w the federal courts 
 on federal (luestions."'' 
 
 § 424. Remedy Provided by Statute Limited to Em- 
 ployes Only of Common Carriers by Railroad. While 
 tiie I'ederal Safety Appliance Act includes both em- 
 ployes and travelers on railroads within its protection 
 when they are injured as a proximate result of a viola- 
 tion of that statute, the remedial provisions of the 
 Federal Employers' ijiability xVct are limited strictly to 
 employes of a common carrier by railroad.*" Congress 
 used the word "employe" in the statute in its natural 
 sense, and intended to describe the conventional rela- 
 tion of employer and employe." An independent con- 
 
 39. Smith v. Lusk, Mo. 
 
 App. , 198 S. W. 434. 
 
 40. United States. Oliver v. 
 Northern Pac. Ry. Co., 196 Fed. 
 432. 
 
 Illiuois. Wagner v. Chicago & 
 A. R. Co., 265 111. 245, Ann. Cas. 
 1916A 778, 106 N. E. 809. 
 
 Kentucky. Louisville & N. R. 
 Co. V. Walker's Adm'r, 162 Ky. 
 209, 172 S. W. 517. 
 
 New Jersey. Hammill v. Penn- 
 sylvania R. Co., 87 N. J. L. 388, 
 94 All. 313. 
 
 New York. Bogart v. New York 
 Cent. & H. River R. Co., 171 N. Y. 
 App. Div. 652, 157 N. Y. Supp. 420. 
 
 Oklahoma. Missouri, K. & T. R. 
 Co. V. West, 38 Okla. 581, 134 Pac. 
 655. 
 
 Texas. Ft. Worth Belt Ry. Co. 
 
 V Perryman. Tex. Civ. App. 
 
 , 158 S. W. 1181; Missouri, K. 
 
 & T. R. Co. of Texas v. Blalack, 
 105 Tex. 296, 147 S. W. 559. 
 
 41. Robinson v. Baltimore & O. 
 R. Co., 237 U. S. 84, 59 L. Ed. 849, 
 35 Sup. Ct. 491. 8 N. C. C. A. 1, In 
 which Mr. .Tustice Hughes, for the 
 court, said: "For the iiabllit: 
 
 created' by the Act is a liability 
 to the 'employes' of the carrier, 
 and not to others; and the plain- 
 tiff was not entitled to the bene- 
 fit of the provision unless he was 
 'employed' by the Railroad Com- 
 pany within the meaning of the 
 Act. It will be observed that the 
 question is not whether the Rail- 
 road Company, by virtue of its 
 duty to passengers of which it 
 cannot divest itself by any ar- 
 rangement with a sleeping car 
 company, would not be liable for 
 the negligence of a sleeping car 
 porter in matters involving the 
 passenger's safety (Pennsylvania 
 Co. V. Roy, 102 U. S. 451). Nor 
 are we here concerned with the 
 measure of the obligation of the 
 Railroad Company, in the absence 
 of special contract, to one in the 
 plaintiff's situation by reason of 
 the fact that he was lawfully on 
 the train, although not a passen- 
 ger. The inquiry is whether the 
 plaintiff comes within the statu- 
 tory description, that is, whether 
 upon the facts disclosed in the 
 record it can be said that within
 
 730 Injuries to Interstate Employes. [§ 424 
 
 tractor, tlierefore, engaged in working for a common 
 carrier bv railroad even in interstate commerce has no 
 remedy imder the statnte/- A signal operator working 
 in an interlocking plant at a grade crossing of two rail- 
 road companies, was an employe of both companies 
 within the meaning of the federal act although he was 
 employed and paid by only one of the two carriers.^^^ 
 
 § 425. Employes on Ocean-going Ships Owned by 
 Common Carriers by Railroads Not Included. The fed- 
 eral act provides that every common carrier by railroad 
 while engaging in interstate and foreign commerce 
 shall be liable to any person suffering injury while he 
 is employed by such carrier in such commerce by reason 
 of any "defect or insufficiency, due to its negligence, 
 in its boats, wharves or other equipment; but the 
 word "boats" in the statute refers to ships which 
 may be properly regarded as in substance part 
 of a railroad's extension or equipment as under- 
 stood and applied in common practice.*' The pur- 
 pose of the statute was to prescribe a rule appli- 
 cable when the parties are engaging in a business having 
 
 the sense of the Act the plaintiff judged by its results. This is 
 was an employe of the Railroad manifest from the contract under 
 Company, or whether he is not to review and from the cooperage 
 be regarded as outside that d9- contract; it is also manifest from 
 scription, being, in truth, on the his contracts with the other corn- 
 train simply in the character of a panies to whose industries the 
 servant of another master by railroad company's tracks ex- 
 whom he was hired, directed and tended. We certainly cannot say 
 paid, and at whose will he was to that he was incompetent to as- 
 be continued in service or dis- sume such relation and incur its 
 charged." consequences. Thus being of opin- 
 42. Chicago, R. I. & P. R. Co. ion that Turner was not an em- 
 V Bond, 240 U. S. 449, 60 L. Ed. pioyee of the company but an in- 
 735, 36 Sup. Ct. 403, 11 N. C. C. dependent contractor, it is not 
 A. 342, in which the court said: material to consider whether the 
 "Turner was something more than ^^^^.^^^^ ^^ ^^^^h he was engaged 
 a mere shoveler of coal under a ^^^^ .^ interstate commerce." 
 superior's command. He was an ^^^ ^^^^^^^.^ ^ ^ ^ ^^ ^ 
 
 independent employer of labor, ^^ 93 g g. 
 
 conscious of his own power to di- '""^ ^' 
 
 rect and willing to assume the re- ^^0. 
 
 sponsibility of direction and to be 43. See sec. 436, infra.
 
 §/ 426] Scope, ^^ALiniri' and Effect of Act. 
 
 ■;u 
 
 direct and substantial conneciion witli railroad oj^era- 
 tions and not witli any other kind of carriage recog- 
 nized as separate and distinct from transportation on 
 land and no mere adjunct tliereto." A longshoreman, 
 therefore, on an ocean-going steamship, while assisting 
 in unloading a cargo of lumber therefrom which had 
 been trans))orted from Galveston, Tex., to Xew York, 
 had no remedy under the federal act although the ship 
 was owned and operated by a common carrier by rail- 
 road with its princii)al office in the state of Kentucky."^ 
 
 § 426. Decisions of National Courts Construing 
 Act Control. In construing the Federal Employers' Lia- 
 bility Act, the decisions of the national courts control 
 over those of the state courts.*'' For example, in deter- 
 
 44. Southern Pac. Co. v. Jen- 
 sen, 244 U. S. 205, 61 L. Ed. 1086, 
 37 Sup. Ct. 524, 14 N. C. C. A. 597, 
 Ann. Cas. 1917D 1197. 
 
 45. Southern Pac. Co. v. Jen- 
 sen, supra. 
 
 46. United States. Southern 
 R. Co. V. Gray, 241 U. S. 333, 60 
 L. Ed. 1030, 36 Sup. Ct. 558; Sea- 
 board Air Line Ry. Co. v. Renn, 
 241 U. S. 290, 60 L. Ed. 1006, 36 
 Sup. Ct. 567; Atlantic Coast Line 
 R. Co. V. Burnette, 239 U. S. 199, 
 60 L. Ed. 226, 36 Sup. Ct. 75; Chi- 
 cago, R. I. & P. R. Co. V. Devine, 
 239 U. S. 52, 60 L. Ed. 140, 36 Sup. 
 Ct. 27; Central Vermont Ry. Co. 
 V. White. 238 U. S. 507, 59 L. Ed. 
 1433, 35 Sup. Ct. 865, 9 N. C. C. 
 A. 265. Ann. Cas. 191GB 252. 
 
 Arkansas. Treadway v. St. 
 Louis, I. M. & S. R. Co., 127 Ark. 
 211, 191 S. W. 930. 
 
 California. Smithson v. Atchi- 
 son, T. & S. F. R. Co.. 174 Cal. 
 148; 162 Pac. Ill: Southern Pac. 
 Co. V. Pillsbury, 170 Cal. 782, L. 
 R. A. 1916E 916, 151 Pac. 277. 
 
 Florida. Louisville & N. R. Co. 
 
 V. Rhoda, Fla. . 74 So. 
 
 19. 
 
 Iowa. Armbruster v. Chicago, 
 R. I. & P. R. Co., 166 Iowa, 155, 
 147 N. W. 337. 
 
 Kentucky. Chesapeake & 0. R. 
 Co. V. Kornhoff, 167 Ky. 353, 180 
 S. W. 523. 
 
 Michigan. Bement v. Grand 
 
 Rapids & I. Ry. Co., Mich. 
 
 , 160 N. W. 424; Gaines v. 
 
 Grand Trunk R. Co. of Canada. 
 193 Mich. 398. 159 N. W. 542; Jor- 
 genson v. Grand Rapids & I. R. 
 Co., 189 Mich. 537, 155 N. W. 535; 
 Holmberg v. Lake Shore & M. S. 
 R. Co., 188 Mich. 605, 155 N. W. 
 504. 
 
 Minnesota. Manning v. Chica- 
 go Great Western R. Co., 135 
 Minn. 229, 15 N. C. C. 591, 160 N. 
 W. 787. 
 
 Missouri. Newkirk v. Pryor. 
 
 Mo. App. , 183 S. W. 682; 
 
 Hawkins v. St. T^ouis & S. P. R. 
 Co., 189 Mo. App. 201, 174 S. W. 
 129; Vaughan v. St. Louis & S. 
 F. R. Co., 177 Mo. App. 155, 164 
 S. W. 144; Rich v. St. Louis & 
 S. F. R. Co., 166 Mo. App. 379. 148 
 S. W. 1011.
 
 732 
 
 Injuries to Interstate Employes. [§ 426 
 
 miuing when a carrier is ji'iiilty of negligence under the 
 act; when an employe assumes the risk; what proof 
 creates a dependency in death cases within the mean- 
 ing of the act; whether the doctrine of res ipsa loquitur 
 applies; whether there is any evidence tending to show 
 liability sufficient for the case to be submitted to the 
 jury; the measure of damages and instructions thereon, 
 are all matters upon which the decisions of the national 
 courts control.*' Where the decisions of the federal 
 courts on a question under the act are conflicting, then 
 a state court will follow those decisions of the national 
 courts which appear to it to rest on the better reason.''^ 
 
 Montana. McBain v. Northern 
 
 Pac. Ry. Co., Mont. , 160 
 
 Pac. 654. 
 
 Nebraska. Hadley v. Union Pac. 
 R. Co., 99 Neb. 349, 156 N. W. 765. 
 
 New Jersey. Rounsaville v. 
 
 Central R. of New Jersey, N. 
 
 J. L. , 101 Atl. 182; FarreU 
 
 V. Pennsylvania R. Co., 87 N. J. 
 L. 78, 93 Atl. 682. 
 
 Oklahoma. Ft. Smith & W. R. 
 
 Co. V. Holcombe, Okla. , 
 
 158 Pac. 633. 
 
 Pennsylvania. Mayers v. Un- 
 ion R. Co., Pa. , 100 Atl. 
 
 967; Hogarty v. Philadelphia & 
 R. R. Co., 245 Pa. 443, 91 Atl. 854. 
 
 Texas. Ft. Worth & R. G. R. 
 
 Co. V. Bird, Tex. , 196 S. 
 
 W. 597. 
 
 Vermont. Castonguay v. Grand 
 
 Trunk Ry. Co., Vt. , 100 
 
 Atl. 908. 
 
 Washington. Bolch v. Chicago, 
 M. & St. P. R Co., 90 Wash. 47, 155 
 Pac. 422; Lauer v. Northern Pac. 
 R. Co., 83 Wash. 465, 145 Pac. 606. 
 
 Wisconsin. Smiegil v. Great 
 Northern R. Co., 165 Wis. 57, 
 160 N. W. 1057. 
 
 47. United States. Seaboard 
 Air Line R. Co. v. Horton, 233 
 U. S. 492, 58 L. Ed. 1062, 34 Sup. 
 Ct. 635, 8 N. C. C. A. 834, L. R. A. 
 1915C 1, Ann. Cas. 1916B 475; St. 
 
 Louis, I. M. & S. R. Co. v. Mc- 
 Whirter, 229 U. S. 265, 57 L. Ed. 
 1179; 33 Sup. Ct. 858; Michigan 
 Cent. R. Co. v. Vreeland, 227 U. 
 S. 59, 57 L. Ed. 417, 33 Sup. Ct. 
 192, Ann. Cas. 1914C 176. 
 
 Georgia, Charleston & W. C. R. 
 Co. V. Brown, 13 Ga. App. 744, 79 
 S. E. 932. 
 
 Missouri. McAdow v. Kansas 
 City Western R. Co., 192 Mo. App. 
 540, 164 S. W. 188; Hardwick v. 
 Wabash R. Co., 181 Mo. App. 156, 
 168 S. W. 328. 
 
 Oregon. Montgomery v. South- 
 ern Pac. Co., 04 Ore. 597, 47 L. 
 R. A. (N. S.) 13, 131 Pac. 507. 
 
 Washington. Lauer v. Northern 
 Pac. R. Co., 83 W-ash. 465, 145 Pac. 
 606; Horton v. Oregon-Washing- 
 ton R. & Nav. Co., 72 Wash. 503, 
 47 L. R. A. (N. S.) 8, 130 Pac. 897. 
 
 Contra: on assumption of risk. 
 Fish V. Chicago, R. I. & P. R. Co., 
 263 Mo. 106, 8 N. C. C. A. 538, Ann. 
 Cas. 1916B 147, 172 S. W. 340; as 
 to what negligence under the act, 
 Louisville & N. R. Co. v. John- 
 son Adm'x, 161 Ky. 824, 171 S. W 
 847. 
 
 48. Ruck V. Chicago, M. & St. 
 P. R. Co., 153 Wis. 158, 140 N. W. 
 1074.
 
 ■^ 427] Scope, Vamdiiv anp Kffkct of Act. 
 
 733 
 
 **As ilio action is uiulcr the J^Vdcial Pjinploycrs' Lia- 
 bility Act, riglits and obligations dci)cn(l n])on it and 
 applicable principles of common law as interpreted and 
 aj)])li('d ill federal courts.*"'' 
 
 § 427. Laws of State Control as to Procedure. In 
 all actions nnder the lu'deral J^iii})l()yers' Liability Act 
 prosecuted in the state courts, the rules of practice and 
 procedure are governed by the laws of the states wliere 
 the cases are pending.''" '^^I'hiis, a state law <iivi]ig an 
 
 49. Southern Ry. Co. v. Gray, 
 241, U. S. 333, 60 L. Ed. 1030, 36 
 Sup. Ct. 558. 
 
 50. United States. Chesapeake 
 & O. R. Co. V. KeUy, 241 U. S. 485, 
 60 L. Ed. 1117, 36 Sup. Ct. 630, 1^ 
 N. CCA. 673; Chesapeake & O. 
 R. Co. V. De Atley, 241 U. S. 310. 
 60 L. Ed 1016, 36 Sup. Ct. 564; 
 Minneapolis & St. L. R. Co. v. 
 Bombplis, 241 U. S. 211, 60 L 
 Ed. 961, 36 Sup. Ct. 595, L. R. A. 
 1917A 86, Ann. Cas. 1916E 505; 
 Kansas City Western R. Co. v. 
 McAdow, 240 U. S. 51, 60 L. Ed. 
 520, 36 Sup. Ct. 252, 11 N. C. C. 
 A 857; Atlantic Coast Line R. 
 Co. V. Burnette, 239 U. S. 199. ^^0 
 L. Ed. 226. 36 Sup. Ct. 75; Kan- 
 sas City Southern R. Co. v. Les- 
 lie, 238 U. S. 599. 59 L. Ed. 1478, 
 35 Sup. Ct. 844; Central Vennojit 
 R Co. V. White, 238 U. S. 507, 59 
 L. Ed. 1433. 35 Sup. Ct. 865. 9 N. 
 C C. A. 265, Ann. Cas. 191GB .252: 
 Norfolk Southern R. Co. v. Fer^- 
 bee, 238 U. S. 269, 59 L. Ed. I.^.OS, 
 35 Sup. Ct. 781; Chicago & N. W. 
 R. Co. V. Gray. 237 U. S. 399, 59 
 L. Ed. 1018. 35 Sup. Ct. 620, 9 N. 
 C C A. 452; North Carolina R 
 Co. V. Zachary, 232 U. S. 248, 58 
 L. Ed. 591, 34 Sup. Ct. 305. 9 N. 
 C C A. 109, Ann. Cas. 1914C 159: 
 Brinkmeior v. Missouri Pac. R. 
 Co., 224 U. S. 268, 56 L. Ed. 758. 
 32 Sup. Ct. 412. 
 
 Alabama. Alabama Great South, 
 ern R. Co. v. Rkotzy, 196 Ala. 25, 
 71 So. 335. 
 
 Florida. Louisville & N. R. Co. 
 
 V. Rhoda, Fla. , 71 S<j 
 
 19. 
 
 Georgia. Bowers v. Southern 
 Ry. Co., 10 Ga. App. 307, 73 S E. 
 077. 
 
 Iowa. McCullough v. Chicago. 
 R. I. & P. R. Co., 160 Iowa 52i, 47 
 L. R. A. (N. S.) 23, 142 N. W. 67. 
 
 Kentucky. Lexington & E. R. 
 Co. V. Smith's Adm'r, 172 Ky, 117, 
 188 S. W. 1091; Louisville & N. 
 R. Co. V. Holloway's Adm'r, 163 
 Ky. 125, 173 S. W. 343; Louis- 
 ville & N. R. Co. V. Johnson's 
 Adm'x, 161 Ky. 824, 171 S. W. 
 847; Chesapeake & 0. R. Co. v. 
 Kelly's Adm'r, 161 Ky. 655, 171 S. 
 W. 185. 
 
 Minnesota. Manning v. Chi- 
 cago Great Western R. Co., 135 
 Minn. 229, 15 N. C C. A. 591, 160 
 N. W. 787; Marshall v. Chicago, 
 R. I. & P. R. Co., 133 Minn. 460, 
 157 N. W. 638; Bombolis v. Min- 
 neapolis & St. L. R. Co., 128 Minn. 
 112, 150 N. W. 385. 
 
 Missouri. Sells v. Atchison, T. 
 & S. F. R. Co., 266 Mo. 155, ISl 
 S. W. 106: Mcintosh v. St. Louis 
 & S. F. R. Co.. 182 ]\Io. App. 288. 
 168 S. W. 821; McAdow v. Kan- 
 sas City Western R. Co., 192 Mo. 
 App. 540. 164 S. W. 188.
 
 734 Injuries to Interstate Employes. [^ 427 
 
 attorney a lien upon the cause of action of his client is 
 applicable to actions prosecuted in the state courts un- 
 der the federal act.^^'' Questions as to whether amend- 
 ments shall be permitted to petitions or answers; when 
 motions to elect should be sustained or overruled; the 
 rules of evidence; variances; excessiveness of verdicts 
 and similar questions of practice and procedure, are 
 matters to be determined solely by the state courts in 
 accordance with the statutes of the state and their rules 
 applying the same/^ 
 
 New York. Tyudall v. New 
 York Cent. & H. River R. Co., 21.3 
 N. Y. 691, 107 N. E. 577. 
 
 North Carolina. Renn v. Sea- 
 hoard Air Line R. Co., 170 N. C. 
 128, 86 S. E. 964; Fleming v. Nor- 
 folk Southern R. Co., 160 N. C. 
 196, 76 S. E. 212. 
 
 Oklahoma. St. Louis & S. F. R. 
 Co. V. Brown, 45 Okla. 143, 144 
 Pac. 1075. 
 
 South Carolina. Mulligan v. At- 
 lantic Coast Line R. Co., 104 S. 
 C. 173, 88 S. E. 445; Howell v. At- 
 lantic Coast Line R. Co., 99 S. C. 
 417, 83 S. E. 639; Bennett v. 
 Southern Ry. Carolina Division, 
 98 S. C. 42, 79 S. E. 710. 
 
 Vermont. White's Adm'x v. 
 Central V. Ry. Co., 87 Vt. 330, 89 
 Atl. 618. 
 
 Virginia. Going's Adm'x v. Nor- 
 folk & W. R. Co., 119 Va. 543, 89 
 S. E. 914; Chesapeake & 0. R. 
 Co. V. Meadows, 119 Va. 33, 13 N. 
 C. C. A. 376, 89 S. E. 244. 
 
 Washington. Murker v. North- 
 ern P. Ry. Co., 95 Wash. 280, 163 
 Pac. 756. 
 
 Wisconsin. Sweet v. Chicago & 
 N. W. R. Co., 157 Wis. 400, 147 N. 
 W. 1054. 
 
 The rule of the federal courts 
 as to the right of a judge to sug- 
 gest what the verdict should he 
 does not apply to a case tried in 
 
 the state court even where the 
 cause of action is given under a 
 federal act. Horton v. Seaboard 
 Air Line R. Co., 169 N. C. 108, 85 
 S. E. 218. 
 
 50a. Dickinson v. Stiles, 246 U. 
 
 S. , 62 L. Ed. , 38 Sup. 
 
 Ct. 415, affirming Minn. , 
 
 163 N. W. 791. 
 
 51. United States. Illinois Cent. 
 R. Co. V. Skaggs, 240 U. S. 66, 60 
 L. Ed. 528, 36 Sup. Ct. 249; Wa- 
 bash R. Co. V. Hayes, 234 U. S. 86, 
 58 L. Ed. 1226, 34 Sup. Ct. 729, 6 
 N. C. C. A. 224; Southern Ry.— 
 Carolina Division v. Bennett, 233 
 U. S. 80, 58 L. Ed. 860. 34 Sup. 
 Ct. 566, 10 N. C. C. A. 853; Gib- 
 son V. Bellingham & N. Ry. Co., 
 213 Fed. 488; Bankson v. Illinois 
 Cent. R. Co., 196 Fed. 171. 
 
 Arkansas. Kansas City South- 
 ern R. Co. V. Leslie, 112 Ark. 305, 
 167 S. W. 83; Midland Valley R. 
 Co. V. Ennis, 109 Ark. 206, 159 S. 
 W. 214. 
 
 Georgia. Atkinson v. Bullard, 
 14 Ga. App. 69, 80 S. E. 220. 
 
 Iowa. Armbruster v. Chicago, 
 R. I. & P. R. Co., 166 Iowa 155, 
 147 N. W. 337. 
 
 Kentucky. Louisville & N. R. 
 Co. V. Moore, 156 Ky. 708, 161 S. 
 W. 1129; Louisville & N. R. Co. 
 V. .Stewart's Adm'x, 156 Ky. 550, 
 161 S. W. 557; Louisville & N. R.
 
 ^ 427] Scope, Validity and Effect of Act. 
 
 735 
 
 But a substantive ri<^ht or defense arising under the 
 federal act cannot be lessened or destroyed by a rule of 
 practice or procedure of the state courts." For ex- 
 ample, under tlie decisions of the national courts the 
 burden of proving contributory negligence in personal 
 injury actions by an employe against a master, is upon 
 the defendant.^"' Such a rule is a matter of substance 
 and not of procedure and the plaintiff, under the federal 
 act, is entitled to have it enforced even in actions pro- 
 secuted in the courts of a state where the burden, in 
 personal injury actions, of proving himself free from 
 contributory negligence is upon tiie plaintiff and not 
 upon the defendant.^* 
 
 Co. V. Strange's Ailin'x, 156 Ky. 
 4H9. nil S. W. 239. 
 
 Minnesota. Winters v. Minne- 
 apolis & St. L. R. Co., 126 Minn. 
 260, 148 N. W. 106. 
 
 New Hampshire. Tinkham v. 
 Boston & M. R. R., 77 N. H. Ill, 
 88 Atl. 709. 
 
 North Carolina. Burnett v. At- 
 lantic Coast Line R. Co., 163 N. 
 C. 186, 79 S. E. 414. 
 
 Vermont. Bouchard v. Central 
 Vermont R. Co., 87 Vt. 399, L. R. 
 A. 1915C 33, 89 Atl. 475. 
 
 Wisconsin. Sweet v. Chicago & 
 N. W. R. Co., 157 Wis. 400, 147 N. 
 W. 1054. 
 
 State statutes requiring notice 
 of injury not applicable under 
 Federal Act. El Paso & N. E. 
 R. Co. V. Gutierrez, 215 U. S. 87, 
 54 L. Ed. 106, 30 Sup. Ct. 21. 
 
 52. Norfolk Southern R. Co. 
 V. Ferebee, 238 U. S. 269, 59 L. 
 Ed. 1303, 35 Sup. Ct. 781. 
 
 53. Seaboard Air Line Ry. Co. 
 V. Moore, 228 U. S. 433, 57 L. 
 Ed. 907, 33 Sup. Ct. 580; Wash- 
 ington & G. R. Co. V. Harmon, 147 
 U. S. 571. 37 L. Ed. 284. 13 Sup. 
 Ct. 557: Inland & S. C. Co. v. 
 Tolson, 139 U. S. 551. 35 L. Ed. 
 270, 11 Sup. Ct. 653; Hough v. 
 
 Te.xas & P. R. Co., 100 U. S. 213, 
 25 L. Ed. 612; Heminway v. Illi- 
 nois Cent. R. Co., 52 C. C. A. 477, 
 114 Fed. 843. 
 
 54. Central Vermont R. Co. v. 
 White, 238 U. S. 507, 59 L. Ed. 
 1433, 35 Sup. Ct. 865. 9 N. C. C. 
 A. 265, Ann. Cas. 1916B 252, in 
 which the court said: "There 
 can, of course, be no doubt of the 
 general principle that matters re- 
 specting the remedy — such as the 
 form of the action, sufficiency of 
 the pleadings, rules of evidence, 
 and the statute of limitations — de- 
 pend upon the law of the place 
 where the suit is brought. Mc- 
 Niel V. Holbrook, 12 Pet. 89. But 
 matters of substance and proced- 
 ure must not be confounded be- 
 cause they happen to have the 
 same name. For example, the 
 time within which a suit is to 
 be brought Is treated as pertain- 
 ing to the remedy. But this is 
 not so if, by the statute giving the 
 cause of action, the lapse of time 
 not only bars the remedy but de- 
 stroys the liability. Phillips v. 
 Grand Trunk Ry.. 2.36 U. S. 662: 
 Boyd V. Clark, 8 Fed. Rep. 849; 
 Hollowel V. Horwick, 14 Massa- 
 chusetts, 188; Cooper v. Lyons, 77
 
 I 
 
 736 Inji^eies to Interstate Employes. [§ 428 
 
 § 428. Fellow Servant Rule Abolished as to all 
 Interstate Employes. The common law rule which ab- 
 solved the master from liability for injuries to a servant 
 caused by the negligence of a fellow servant, was abol- 
 ished as to all interstate employes of carriers by the 
 adoption of the Federal Employers' Liability Act; for 
 Section 1 of the Act specifically provides that the car- 
 rier shall be liable for any injury or death resulting 
 
 Tennessee, 597 (2); Newcombe v. 
 Steamboat Co., 3 Iowa (G. 
 Greene), 295. In that class of 
 cases the law of the jurisdiction, 
 creating the cause of action and 
 fixing the time within which it 
 must be asserted, would control 
 even where the suit was brought 
 in the courts of a state which 
 gave a longer period within which 
 to sue. So, too, as to the burcjen 
 of proof. As long as the question 
 involves a mere matter of pro- 
 cedure as to the time when and 
 the order in which evidence 
 should be submitted the state 
 court can, in those and similar 
 instances, follow their own prac- 
 tice even in the trial of suits 
 arising under the Federal 1 aw. 
 But it is a misnomer to say that 
 the question as to the burden of 
 proof as to contributory negli- 
 gence is a mere matter of state 
 procedure. For, in Vermont, and 
 in a few other States, proof of 
 plaintiff's freedom from fault is 
 a part of the very substance of 
 his case. He must not only sat- 
 isfy the jury (1) that he was in- 
 jured by the negligence of the 
 defendant, but he must go furthe;- 
 and, as a condition of his rigl.t 
 to recover, must also show (2) 
 that he was not guilty of contribu- 
 tory negligence. In those States 
 the plaintiff is as much under the 
 necessity of proving one of these 
 
 facts as the other; and as to nei- 
 ther can it be said that the bur- 
 den is imposed by a rule of pro- 
 cedure, since it arises out of the 
 gereral obligation imposed upon 
 every plaintiff, to establish all of 
 the facts necessary to make out 
 his cause of action. But the 
 United States courts have uni- 
 formly that as a matter of gen- 
 eral law the burden of proving 
 contributory negligence is on the 
 defendant. The Federal courts 
 have enforced that principle even 
 in trials in States which hold that 
 the burden is on the plaintiff. 
 Railroad v. Gladman, 15 Wall. 
 401 (1), 407-408; Hough v. Rail- 
 way Co., 100 U. S. 225: Inland 
 etc. Co. V. Tolson, 139 U. S. 551 
 (4), 557; Washington, etc., R. R. 
 V Harmon, 147 U. S. 581; Hem- 
 ingway V. 111. Cent. R. R., 114 
 Fed. Rep. 843. Congress in pass- 
 ing the Federal Employers' Lia- 
 bility Act evidently intended that 
 the Federal statute should be con- 
 strued in the light of these and 
 other decisions of he Federal 
 courts. Such construction of the 
 statute was, in effect, approved in 
 Sea Board Air Line v. Moore, 228 
 U. S. 434. There was, therefore, 
 no error in failing to enforce 
 what the defendant calls the 
 Vermont rule of procedure as co 
 the burden of proof."
 
 ^ 428 1 Scope, ^'AJ.Il'll^ and Mki-k( t of Act. 737 
 
 in whole or in part from the iie^-ligence of iuiy of the 
 officers, -a,ii:eTits or cTn])1oyes of siicli carrier."''' 
 
 55. United States. Chesapeake 
 & 0. R. Co. V. De Alley, 241 U. S. 
 310, CO L. Ed. 1016, 36 Sup. Ct. 
 564; Central Vermont R. Co. v. 
 White, 238 U. S. 507, 59 L. Ed. 
 1433, 35 Sup. Ct. 865. 9 N. C. C. A. 
 265, Ann. Cas. 1916B 252; Sea- 
 board Air Line R. Co. v. Horton, 
 233 U. S. 492, 58 L. Ed. 1062, 34 
 Sup. Ct. 635, 8 N. C. C. 834, L. R. 
 A. 1915C 1, Ann. Cas. 1915B 475; 
 San Pedro, L. A. & S. L. R. Co. 
 V. Davide, 127 C. C. A. 454, 210 
 Fed. 870; Illinois Cent. R. Co. v. 
 Porter, 125 C. C. A. 55, 207 Fed. 
 311; Northern Pac. R. Co. v. 
 Maerkl, 117 C. C. A. 237, 198 Fed. 
 1; Zikos V. Oregon R. & Nav. Co.. 
 179 Fed. 893. 
 
 Georgia. Bowers v. Southern 
 R. Co., 10 Ga. App. 367, 73 So. 677. 
 
 Illinois. Devine v. Chicago, R. 
 I. & P. R. Co., 266 111. 248, Ann. 
 Cas. 1916B 481, 107 N. E. 595. 
 
 Indiana. Pittsburgh. C, C. & 
 St. L. R. Co. V. Farmers' Trust & 
 Savings Co., 183 Ind. 287. 108 N. 
 E. 108; Southern R. Co. v. How- 
 erton, 182 Ind. 208. 105 N. E. 
 1025, 106 N. E. 369. 
 
 Kansas. Westling v. Atchison. 
 
 T. & S. R. Ry. Co.. Kan. — , 
 
 165 Pac. 669. 
 
 Louisiana. Lanis v. Illinois 
 Cent. R. Co., 140 La. 1. 72 So. 
 788. 
 
 Maryland. Baltimore & O. R. 
 Co. V. Branson, 128 :\Id. 678. 98 
 Atl. 225. 
 
 Mississippi. Elliott v. Illinois 
 Cent. R. Co., Ill Miss. 426. 71 So. 
 741. 
 
 Missouri. Koukouris v. Union 
 I'ac. K. Co.. 193 Mo. App. 495, 186 
 S. W. 545. 
 
 New Hampshire. Tapore v. Bos- 
 ton & M. R. R., N. H. , 
 
 100 Atl. 153: Caverhill v. Boston 
 & M. R. R., 77 N. H. 330, 91 Atl. 
 
 ruT. 
 
 New Jersey. Crybowski v. Erie 
 R. Co.. 88 N. .1. L. 1, 95 Atl. 764. 
 
 North Dakota. Manson v. North- 
 ern R. Co.. 31 N. D. 643, 155 N. 
 W. 32. 
 
 Texas. Carter v. Kansas City 
 
 S. Ry. Co.. Tex. Civ. App. 
 
 , 155 S. W. 638. 
 
 Vermont. Robie v. Boston & M. 
 R. R.. Vt. , 100 Atl. 925. 
 
 West Virginia. Culp v. Virgini- 
 an Ry. Co., W. Va. , 92 
 
 S. E. 236; Easter v. Virginian R. 
 Co., 76 W. Va. 383. 11 N. C. C A. 
 101, 86 S. E. 37. 
 
 Wisconsin. Callahan v. Chicago 
 & N. W. R. Co., 161 Wis. 288, 154 
 N. W. 449; Graber v. Duluth. S. 
 S. & A. R. Co., 159 Wis. 414, 150 
 N. W. 489. 
 
 A risk which arose out of the 
 negligence of a fellow servant was 
 not assumed under the Federal 
 Act. Fried v. New York. N. H. & 
 
 H. R. Co.. App. Div. . 170 
 
 N. Y. Supp. 697. 
 
 The right of action of a loco- 
 motive fireman upon an engine 
 drawing a train engaged in inter- 
 state commerce is governed by the 
 federal law and the fellow servant 
 rule does not apply. Royer v. 
 
 Pennsylvania R. Co.. Pa. — . 
 
 103 Atl. 276. 
 
 1 CV>titn>l Carriers 47
 
 Sec. 
 
 429. 
 
 Sec. 
 
 430. 
 
 Sec. 
 
 431. 
 
 Sec. 
 
 432. 
 
 Sec. 
 
 433. 
 
 CHAPTER XXII. 
 
 Common Garrieks Subject to the Liability Act. 
 
 General Rule as to When Railroad Companies are En- 
 gaged in Interstate and Foreign Commerce. 
 Railroads Within the Act Defined — Spur Tracks. 
 Railroad Must be a Common Carrier — Tap Lines and Log- 
 ging Roads. 
 Carriers Owning and Operating Lines Wholly Within a 
 
 Single State Subject to Federal Act, When. 
 Railroad Carriers Engaged in Foreign Commerce Subject 
 to the Statute. 
 
 Sec. 434. Lessor of Railroad Engaged in Interstate Commerce Lia- 
 ble, When. 
 
 Sec. 435. Interurban Electric Railroads Included Within the Act. 
 
 Sec. 436. Railroads Carrying Passengers and no Freight. 
 
 Sec. 437. Ships or Vessels not a Part of a Railroad System. 
 
 Sec. 438. Street Railroads not Within the Terms of the National Act. 
 
 Sec. 439. Receivers of Railroad Corporations Included Within the 
 Act. 
 
 Sec. 440. Sleeping Car Companies not Common Carriers by Railroad. 
 
 Sec. 441. Express Companies not Common Carriers by Railroad Un- 
 der Federal Act. 
 
 Sec. 442. All Carriers by Railroad and all their Employes Within Ter- 
 ritories Included. 
 
 Sec. 443. Beginning and Ending of Interstate Character of Ship- 
 ments. 
 
 Sec. 444. Hauling Empty Cars or Company Property over State Line. 
 
 Sec. 445. Transportation from Point to Point in One State Passing 
 Through Another State in Transit. 
 
 Sec. 446. When Reshipment from Point of Delivery Changes Inter- 
 state Character of TraflSc. 
 
 Sec. 447. When Reshipment from Point of Delivery Does Not Change 
 Interstate Character of Traffic. 
 
 Sec. 448. Proof that Injured Servant is Employed in Interstate Com- 
 merce Sufficient to show that the Railroad is so Engaged. 
 
 § 429. General Rule as to When Railroad Compa- 
 nies Are Engaged in Interstate and Foreign Commerce. 
 
 If a common carrier by railroad transports passengers, 
 freight, express, baggage or other merchandise from 
 one state in the United States to another, or from a 
 state or territory to a territory or rice versa, or from 
 the District of Columbia to a state or territory or vice 
 versa, or from a state or territory to a foreign nation 
 
 (738)
 
 •§ 430 J Carriers Under Liability Apt. 739 
 
 or vice versa, the carrier is ongagod in intorstatp com- 
 merce or foreign commerce within llie meaning of tlie 
 Federal Em})loyers' Liability Act. Carriers engag<H3 
 in foreign commerce while within the boundary of tlie 
 United Slates are included in the act as well as carriers 
 engag<'d in intei'»tate connnerce. 
 
 § 430. Railroads Within the Act Defined— Spur 
 Tracks. The Federal Employers' Liability Act is con- 
 fined solely to common carriers engaged in interstate 
 commerce by railroad.^ The Hepburn amendment of 
 1906 to the Interstate Commerce Act^ prescribes that a 
 railroad, as used in that statute, shall include "all 
 bridges and feiTies used or operated in connection 
 with any railroad, and also all the road in use by any 
 corporation operating a railroad, whether owned or 
 operated under a contract, agreement, or lease, and 
 shall also include all switches, spurs, tracks, and termi- 
 nal facilities of every kind used or necessary in the 
 transportation or delivery of any of said property." 
 It would seem that this definition following the applica- 
 tion of analogous principles by the courts in other 
 cases, would apply in construing what is or is not a 
 railroad within the meaning of the liability act though 
 the question has not apparently been directly passed 
 upon. The Federal Circuit Court of Appeals for the 
 sixth circuit, in 1904, construing the Safety Appliance 
 Act decided that the Interstate Commerce Act and the 
 Saftey Appliance Act were in j^ari materia so that the 
 definition of a railroad given in the former controlled 
 in construing the latter.^ After the passage of the Hep- 
 
 1. United States. Erie R. Co. v. New Jersey. Higgins v. Erie R. 
 
 Jacobus. 137 C. C. A. 151, 221 Fed. co., 89 N. J. L. 629, 99 Atl. 98. 
 
 335; Shade v. Northern Pac. Ry. ^exas. Ft. W^orth Belt Ry. Co. 
 Co., 206 Fed. 353; The Pawnee, 
 
 V. Perryman, Tex. Civ. App. 
 
 , 158 S. W. 1181. 
 
 2. Act June 20, 1916, c. 3591. 
 
 205 Fed. 333. 
 
 Connecticut. Kennerson v. 
 Thames Towboat Co., 89 Conn. 367. 
 L. R. A. 1916A 436, 94 Atl. 372. ^^ ^^^'- ^^■*- 
 
 New Hampshire. Cantin v. Glen 3. United States v. Geddes, 65 
 
 Junct. Transfer Co.. N. H. , C. C. A. 320, 131 Fed. 452. 
 
 96 Atl. 303.
 
 740 Injurtks to Interstate Employes. [§ 430 
 
 burn Amendment, which defined a railroad witliin the 
 meaning- of the Interstate Commerce Act as (]uoted 
 lierein, it was held in another case that this definition 
 of a railroad governed in construing what was a rail- 
 road nnder the Safety Appliance Act and the court 
 decided that a private switch leading to a mill used by 
 a railroad company in transporting cars in interstate 
 commerce to and from tlie mill as they were consigned, 
 with the railroad's own engines and cars constituted 
 a "railroad" within the meaning of the Safety Appli- 
 ance Act/ The national Supreme Court, in a subse- 
 quent case, held that a common carrier by railroad was 
 liable under the Employers' Liability Act for the death 
 of a brakeman who was killed while engaged in switch- 
 ing a car on a private switch running through the 
 premises of an industrial establishment and which con- 
 nected with the main line of the defendant.^ 
 
 § 431. Railroad Must Be a Common Carrier— Tap 
 Lines and Logging Roads. In order to recover under 
 the national act, the injured employe must not only 
 show that the defendant owned or operated a railroad, 
 but he must further show that such railroad is operated 
 as a common earner.*' A common carrier is one who 
 
 4. Gray v. Louisville & N. R. A section foreman riding on a 
 Co., 197 Fed. 874. hand car over an interstate line 
 
 5. Kanawha & M. R. Co. v. to the scene of a w^ash-out was 
 Kerse, 239 U. S. 576, 60 L. Ed. subject to the federal act although 
 448, 36 Sup. Ct. 174. it later developed that the wash- 
 
 A laborer on a private spur out was on a private connecting 
 
 track not owned by the railroad spur .track owned by a different 
 
 company but over which it de- corporation and not on the line 
 
 livered interstate shipments, was of his employer. Atlantic C. L. 
 
 held not to be engaged in inter- R. Co. v. Tomlinson, — Ga. App. 
 
 state commerce. Liberti v. Statin , 94 S. B. 909. 
 
 Island Ry. Co., N. Y. App. 6. Pedersen v. Delaware, L. & 
 
 Div. , 197 N. Y. Supp. 478. W. R. Co., 229 U. S. 146, 57 L. Ed. 
 
 But this decision is erroneous for 1125, 33 Sup. Ct. 648, 3 N. C. C. A. 
 
 Liberti was an employee of the 779, Ann. Cas. 1914C, 153; In re 
 
 rairoad company repairing the Second Employers' Liability 
 
 spur track. The mere fact that Cases, 223 U. S. 1, 56 L. Ed. 327, 
 
 it was owned by another did not 32 Sup. Ct. 169, 1 N. C. C. A. 875, 
 
 affect his interstate status. 38 L. R. A. (N. S.) 44; Bay v.
 
 § 431] Carriers Under Liabii.ity Af t. 741 
 
 undertakes to transport for hire from one jdace to an- 
 other, passengers or goods of sucli as clioose to em- 
 ploy liim.'' A company owned a ti'act of ti!nl)er land 
 which it was engaged in logging and al^^o owned a rail- 
 road on which it transported its logs from the woods 
 to Puget Sound, eighty per cent, of the output being 
 shipped to other states or countries. The company's 
 articles of incorporation authorized it to do business as 
 a common carrier; but in fact the services rendered on 
 its road had all been private and only for the purpose 
 of carrying the logs to the Sound. The court held that 
 the transportation of logs did not constitute interstate 
 commerce within the rule that a commodity is not mov- 
 ing in interstate commerce until it has entered on its 
 final passage to another state or foreign country, and, 
 hence, the company was not liable under the Federal 
 Employers' Liability Act.** 
 
 In the Tap Line Cases, decided by the United 
 States Supreme Court,-' the question presented was 
 whether certain logging railroads in Louisiana were 
 common carriers by railroad or were mere "plant facil- 
 ities" as tiiat doctrine has been expounded by the Inter- 
 state Commerce Commission and the courts. The proof 
 
 MerriU & Ring Lumber Co., 211 tural Iron Works v. Hurlbut, 158 
 
 Fed. 717; Shade v. Northern Pac. N. Y. 34, 70 Am. St. Rep. 432; 52 
 
 Ry. Co., 206 Fed. 353; The Pawnee, N. E. 665; Ft. Worth Belt Ry. Co. 
 
 205 Fed. 333; Union Stock Yards v. Perryman, Tex. Civ. App. 
 
 Co. of Omaha v. United States, 94 , 158 S. W. 1181. 
 
 C. C. A. 626, 169 Fed. 404; United 8. Bay v. Merrill & Ring Log- 
 States V. Union Stock Yards Co. ging Co., 243 U. S. 40, 61 L. Ed. 
 of Omaha, 161 Fed. 919; Ft. Worth 580, 37 Sup. Ct. 376; IMcCluskey 
 
 Belt Ry. Co. v. Perryman, v. Marysville & N. R. Co., 243 U. 
 
 Tex. Civ. App. , 158 S. W. S. 36, 61 L. Ed. 578, 37 Sup. Ct. 
 
 1181; Chicago, R. I. & G. Ry. Co. 374; Coe v. Errol, 116 U. S. 517, 29 
 
 V. Trout. Tex. Civ. App. , L. Ed. 715, 6 Sup. Ct. 475; Daniel 
 
 152 S. W. 1137. Ball Case, 10 Wall. (U. S.) 557, 19 
 
 7. Nordgard v. Marysville & N. L. Ed. 999; Nordgard v. IMarys- 
 
 Ry. Co., 211 Fed. 721, aff'd in 134 ville & N. Ry. Co., 211 Fed. 721: 
 
 C. C. A. 415, 218 Fed. 737, Judge, Bay v. Merrill & Ring Lumber Co., 
 
 Ross dissenting on the proposition 211 Fed. 717. 
 
 as to whether the railroad was a 9. Atchison, T. & S. F. R. Co. v. 
 
 common carrier; 2 Words & Victoria, F. & W. R. Co., 234 U. S. 
 
 Phrases, 1312; Jackson Architec- 1. 58 L. Ed. 1185. 34 Sup. Ct. 741.
 
 742 Injuries to Interstate Employes. [^ 431 
 
 was different from that in the Bay case, supra, as the 
 evidence disclosed that these roads held themselves out 
 as common carriers to some extent though most of the 
 trailic consisted of the logs and timbers belonging to the 
 owners of the roads. The Supreme Court held that they 
 were common carriers by railroad and that the extent 
 to M'liich a railroad is in fact used by the public does 
 not determine whether it is a common carrier, but the 
 right of the public to demand services of it is the cri- 
 terion to determine whether the roads were plant facil- 
 ities or common carriers. An order of the Interstate 
 Commerce Commission prohibiting these tap lines from 
 sharing in rates on commodities shipped over them on 
 the ground that they were not common carriers, was 
 set aside. 
 
 § 432. Carriers Owning and Operating Lines 
 Wholly Within a Single State Subject to Federal Act, 
 When. Common carriers by railroad whose lines are 
 wholly within the limits of a single state and who are 
 engaged exclusively in intrastate commerce, are not sub- 
 ject to the Federal Employers' Liability Act, and hence 
 the employes of such carriers, if injured, or if killed, 
 their beneficiaries, must look to the law of a state for a 
 remedy; for no power has been delegated to Congress 
 to regulate the exclusively internal commerce of a 
 state, this is, such traffic as is carried on by carriers 
 entirely within the limits of a state and which does not 
 affect or extend to other states.^*' 
 
 10. United States. Michigan 18; Chicago, I. & L. R. Co. v. 
 Cent. R. Co. v. Michigan R. R. Haclcett, 228 U. S. 559, 57 L. Ed. 
 Commission, 236 U. S. 615, 59 L. 966, 33 Sup. Ct. 581; Missouri Pac. 
 Ed. 750, 35 Sup. Ct. 422; R. Co. v. Castle, 224 U. S. 541, 56 
 Atlantic Coast Line R. Co. v. L. Ed. 875, 32 Sup. Ct. 606; South- 
 Georgia, 234 U. S. 280, 58 L. Ed. ern R. Co. v. Reid, 222 U. S. 424, 
 1312, 34 Sup. Ct. 829; Grand 56 L. Ed. 257, 32 Sup. Ct. 140; 
 Trunk R. Co. v. Michigan R. R. Asbell v. State, 209 U. S. 251, 52 
 Commission, 231 U. S. 457, 58 L. L. Ed. 778, 28 Sup. Ct. 485, 14 Ann. 
 Ed. 310, 34 Sup. Ct. 152; Simpson Cas. 1101; Howard v. Illinois Cent. 
 V. Shephard, 230 U. S. 352, 57 L. R. Co., 207 U. S. 463, 52 L. Ed. 297, 
 E(}. 1511, 33 Sup. Ct. 729, 48 L. R. 28 Sup. Ct. 141; Gulf, C. & S. F. 
 A. (N. S.) 1151, Ann. Cas. 1916A R. Co. v. State, 204 U. S. 403, 51
 
 § 4321 
 
 Cakhikhs Undkk Liabiijty Act. 
 
 ■4;-; 
 
 But since it is well established that wlioii a com- 
 modity has been delivered to a common eanier for con- 
 
 L. Ed. 540, 27 Sup. Ct. 3G0; Mis- 
 sissippi R. R. Commission v. 
 Illinois Cent. R. Co., 203 U. S. 335, 
 51 L. Ed. 209, 27 Sup. Ct. 90; 
 Martin v. Pittsburgh & L. E. R. 
 Co., 203 U. S. 284, 51 L. Ed. 184, 
 27 Sup. Ct. 100, 8 Ann. Cas. 87, 
 McNeill V. Southern R. Co., 202 U. 
 S. 543, 50 L. Ed. 1142, 2G Sup. Ct. 
 722; Houston & T. C. R. Co. v. 
 Mayes, 201 U. S. 321, 50 L. Ed. 772. 
 26 Sup. Ct. 491; New York ex rel. 
 Pennsylvania R. Co. v. Knight, 192 
 U. S. 21, 48 L. Ed. 325, 24 Sup. Ct. 
 202; Pennsylvania R. Co. v. 
 Hughes, 191 U. S. 477, 48 L. Ed. 
 268, 24 Sup. Ct. 132; Western U. 
 Tel. Co. V. New Hope, 187 U. S. 
 419, 47 L. Ed. 240, 23 Sup. Ct. 204; 
 Cleveland. C, C. & St. L. Ry. Co. 
 V. People, 177 U. S. 514, 44 L. Ed. 
 868, 20 Sup. Ct. 722; Addyston 
 Pipe & Steam Co. v. United States, 
 175 U. S. 211, 44 L. Ed. 136, 20 Sup. 
 Ct. 96; Missouri, K. & T. Ry. Co. 
 V. Haber, 169 U. S. 613, 42 L. Ed. 
 878, 18 Sup. Ct. 488; Chicago, M. 
 & St. P. Ry. Co. v. Solan, 169 U. S. 
 133, 42 L. Ed. 688, 18 Sup. Ct. 289; 
 Hennington v. State, 1G3 U. S. 299, 
 41 L. Ed. 166, 16 Sup. Ct. 1086; 
 Cincinnati, N. 0. & T. P. R. Co. v. 
 Interstate Commerce Commission, 
 162 U. S. 184, 40 L. Ed. 935, 16 
 Sup. Ct. 700; Louisville & N. R. 
 Co. V. State. 161 U. S. 677, 40 L. 
 Ed. 849, 16 Sup. Ct. 714; Geer v. 
 State, 161 U. S. 519, 40 L. Ed. 793, 
 16 Sup. Ct. 600; Pittsburg & S. 
 Coal Co. V. Bates, 156 U. S. 577. 
 39 L. Ed. 538, 15 Sup. Ct. 415; In- 
 terstate Commerce Commission v. 
 Brimson. 154 U. S. 447, 38 L. Ed. 
 1047, 14 Sup. Ct. 1125; Wabash. St. 
 L. & P. Ry. Co. V. People. 118 U. S. 
 557, 30 L. Ed. 244, 7 Sup. Ct. 4; 
 
 Stone V. Farmers' Loan & Trust 
 Co., 116 U. S. 307, 29 L. Ed. 636, 
 6 Sup. Ct. 334, 388, 1191; Wiggins 
 Ferry Co. v. City of East St. Louis, 
 107 U. S. 365, 27 L. Ed. 419. 2 
 Sup. Ct. 257; Lord v. Goodall, 
 Nelson & Perkins Steamship Co., 
 102 U. S. 541, 26 L. Ed. 224; 
 Keokuk Northern Line Packet Co. 
 v. City of Keokuk, Iowa, 95 U. S. 
 80, 24 L. Ed. 377; Sherlock v. 
 Ailing, 93 U. S. 99, 23 L. Ed. 819; 
 Slaughter House Cases, 16 Wall, 
 (U. S.) 36. 21 L. Ed. 394; Walker 
 V. Western Transp. Co.. 3 Wall. (U. 
 S.) 150, 18 L. Ed. 172; Moore v. 
 American Transp. Co., 24 How. 
 (U. S.) 1, 16 L. Ed. 674; Sinnot v. 
 Davenport, 22 How. (U. S.) 227, 
 16 L. Ed. 243; Smith v. Maryland, 
 18 How. (U. S.) 71, 15 L. Ed. 269; 
 Martin v. Waddell, 16 Pet. (U. S.) 
 367, 10 L. Ed. 997; United States 
 V. De Witt, 9 Wall. (U. S.) 41, 19 
 L. Ed. 593; License Tax Cases, 5 
 Wall. (U. S.) 462, 18 L. Ed. 497. 
 
 Alabama. Alabama Great South- 
 ern R. Co. V. McClesky, 160 Ala. 
 630, 49 So. 433. 
 
 Arkansas. Chicago, R. I. & P. 
 Ry. Co. V. State, 86 Ark. 412, 111 
 S. W. 456. 
 
 Colorado. Rio Grande South- 
 ern R. Co. V. Campbell, 44 Colo. 
 1, 96 Fac. 986. 
 
 Delaware. Winkler v. Phila- 
 delphia & R. Ry. Co., 4 Penn. 
 (Del.) 80, 53 Atl. 90. 
 
 Florida. State v. Atlantic Coast 
 Line R. Co.. 56 Fla. 617, 32 L. R. 
 A. (N. S.) 639, 47 So. 969; Pensa- 
 cola & A. R. Co. V. State, 25 Fla. 
 310, 3 L. R. A. 661. 5 So. 833. 
 
 Georgia. Stephens v. Central of 
 Georgia R. Co.. 138 Ga. 625, 42 L.
 
 744 
 
 Injuries to Interstate Employes. 
 
 [§ 432 
 
 tinuoiis transportation to a point in another state, 
 interstate commerce then be2'ins and continues 
 
 R. A. (N. S.) 541, Ann. Cas. 1913E 
 609, 75 S. E. 1041. 
 
 Illinois. Staley v. IHinois Cent. 
 R. Co., 268 111. 356, L. R. A. 191GA 
 450, 109 N. E. 342; Luken v. Lake 
 Shore & M. S. R. Co., 248 111. 377, 
 140 Am. St. Rep. 220, 21 Ann. Cas. 
 82, 94 N. E. 175; People ex rel. 
 Stead V. Chicago, I. & L. R. Co., 
 223 III. 581, 7 Ann. Cas. 1, 79 N. E. 
 144; Chicago, B. & Q. R. Co. v. 
 Jones, 149 111. 361, 24 L. R. A. 
 141, 41 Am. St. Rep. 278, 37 N. E. 
 247, writ of error dismissed 41 L. 
 Ed. 1184, 17 Sup. Ct. 992 (mem. 
 dec). 
 
 Indiana. Southern R. Co. v. 
 Railroad Commission of Indiana 
 179 Ind. 23, 100 N. E. 337; Pitts- 
 burg, C, C. & St. L. R. Co. V. 
 State, 172 Ind. 147, 87 N. E. 1034; 
 Pittsburgh, C, C. & St. L. R. Co. 
 V. Hartford City, 170 Ind. 674, 20 
 L. R. A. (N. S.) 461, 82 N. E. 787, 
 
 85 N. E. 362; Brechbill v. Randall, 
 102 Ind. 528, 52 Am. Rep. 695, 1 
 N. E. 362; Sears v. Warren, 36 Ind. 
 267, 10 Am. Rep. 62, 
 
 Iowa. State v. Chicago, M. & St 
 P. R. Co., 152 Iowa 317, 130 N. W 
 802; McGuire v. Chicago, B. & Q 
 R. Co., 131 Iowa 340, 38 L. R. A 
 (N. S.) 706, 108 N. W. 902; Mer 
 chants' Transfer Co. v. Board of 
 Review City of Des Moines, 128 
 Iowa 732, 2 L. R. A. (N. S.) 662, 
 
 5 Ann. Cas. 1016, 105 N. W. 211. 
 Kansas. Ratcliff v. Wichita 
 
 Union Stockyards Co., 74 Kan. 1, 
 
 6 L. R. A. (N. S.) 834, 118 Am. 
 St. Rep. 298, 10 Ann. Cas. 1016, 
 
 86 Pac. 150. 
 
 Massachusetts. Baker Co. v. 
 Brown, 214 Mass. 196, 100 N. E. 
 1025; Com. v. Mulhall, 162 Mass. 
 
 496, 44 Am. St. Rep. 387, 39 N. E. 
 183. 
 
 Missouri. Lusk v. Atkinson, 268 
 Mo. 109, 186 S. W. 703; State v. 
 Missouri Pac. R. Co., 242 Mo. 339, 
 147 S. W. 118; State v. Missouri 
 Pac. R. Co., 212 Mo. 658, 111 S. 
 W. 500; Wilson v. Kansas City, St. 
 .T. & C. B. R. Co., 60 Mo. 184. 
 
 Montana. State v. Northern Pac. 
 R. Co., 36 Mont. 582, 15 L. R. A. 
 (N. S.) 134, 13 Ann. Cas. 144, 93 
 Pac. 945. 
 
 New York. People v. Erie R. 
 Co., 198 N. Y. 369, 29 L. R. A. (N. 
 S.) 240, 139 Am. St. Rep. 828, 19 
 Ann. Cas|. 811,, 91 N. E. 849; 
 People V. Budd, 117 N. Y. 1, 5 L. 
 R. A. 559, 15 Am. St. Rep. 460, 22 
 N. E. 670, 682. 
 
 Ohio. Detroit, T. & I. R. Co. v. 
 State, 82 Ohio St. 60, 137 Am. St. 
 Rep. 758, 91 N. E. 869. 
 
 Oklahoma. Chicago, R. I. & P. 
 
 Ry. Co. V. State, Okla. , 
 
 157 Pac. 1039; Chicago, R. I. & 
 
 P. Ry. Co. V. Bruce, Okla. 
 
 , 150 Pac. 880. 
 
 Pennsylvania. Pennsylvania R. 
 Co. V. Ewing, 241 Pa. 581, 49 L. 
 R. A. (N. S.) 977, Ann. Cas. 1915B 
 157, 88 Atl. 775. 
 
 South Carolina. McCutchen v. 
 Atlantic Coast Line R. Co., 81 S. 
 C. 71, 61 S. E. 1108; De Lorme v. 
 Atlantic Coast Line R. Co., 79 S. 
 C. 370, 60 S. E. 440. 
 
 Texas. Galveston, H. & S. A. 
 Ry. Co. V. J. H. Nations Meat & 
 
 Supply Co., Tex. Civ. App. 
 
 , 136 S. W. 833; Wood, Hagen- 
 
 barth Cattle Co. v. Galveston, H. 
 
 & S. R. Ry. Co., Tex. Civ. App. 
 
 , 130 S. W. 857; Texas & P. R. 
 
 Co. v. Taylor, 103 Tex. 367, 126
 
 § 432] 
 
 Cahrjkrs UxitKK Liability Act. 
 
 ■40 
 
 tliroiiglioiii until the freiglit readies tlie point wliere 
 II1C iiai'ties intcMidcd tliat llie movement should fiiinlly 
 
 S. W. 1117, 1200; Texas & N. O. 
 
 R. Co. V. Sabine Tram Co., 
 
 Tex. Civ. App. , 121 S. W. 
 
 256; Gulf, C. & S. F. R. Co. v. 
 State, 97 Tex. 274, 78 S. W. 495. 
 
 Virginia. Norfolk & W. R. Co. 
 V. Com. 93 Va. 749, 34 L. R. A. 
 (N. S.) 105, 15 Am. St. Rep. 827, 
 24 S. E. 837. 
 
 Wisconsin. State v. Chicago, 
 M. & St. P. R. Co., 136 Wis. 407, 19 
 L. R. A. (N. S.) 326, 117 N. W. 
 686. 
 
 "It follows that all the powern 
 which inhere in the people of a 
 state, and which have not been 
 expressly granted to the United 
 States and not prohibited to the 
 states, still reside with the peo- 
 ple with respect to common car- 
 riers of interstate commerce as 
 well as to persons and companies 
 engaged in other lines of busi- 
 ness." People ex rel. Chicago, I. 
 & L. R. Co., 223 111. 581, 7 Ann. 
 Cas. 1, 79 N. E. 144. 
 
 11. United States. Chicago, K. 
 & S. R. Co. V. Kindlesparker, 148 
 C. C. A. 17, 234 Fed. 1; United 
 States ex rel. Attorney General 
 V. Union Stockyards & Transit 
 Co. of Chicago, 192 Fed. 330; St. 
 Joseph Stockyards Co. v. United 
 States, 110 C. C. A. 432, 187 Fed. 
 104; United states v. Illinois Ter- 
 minal R. Co., 168 Fed. 546; Belt 
 R. Co. of Chicago v. United States, 
 93 C. C. A. 666, 168 Fed. 542, 22 
 L. R. A. (N. S.) 582; United 
 States V. ('hicagu Great Western 
 Ry. Co.. 162 Fed. 775; United 
 States V. Standard Oil Co. of Indi- 
 ana, 155 Fed. 305; United States 
 V. Northern Pac. Terminal R. Co.. 
 144 Fed. 861. 
 
 Alabama. Western Ry. of Ala- 
 bama V. Mays, Ala. , 72 
 
 So. 641. 
 
 Illnois. Devine v. Chirago & C. 
 River R. Co., 257 111. 449, 102 N. 
 E. 803. 
 
 Iowa. Ross v. Sheldon, 176 
 Iowa 618, 154 N. W. 499. 
 
 Louisiana. Louisiana Ry. & Nav. 
 Co. v. Holly, 127 La. 615, 53 So. 
 882. 
 
 Massachusetts. Morrison v. Com- 
 mercial Towljoat Co.. Mass. 
 
 , 111; N. E. 499. 
 
 Michigan. Gaines v. Detroit, G. 
 H. & M. R. Co., 181 Mich. 376, 
 148 N. W. :-^97. 
 
 Missouri. Trowbridge v. Kansas 
 City & W. B. Ry. 192 Mo. App. 52. 
 179 S. W. 777. 
 
 Texas. Gulf, C. & S. F. Ry. Co. 
 
 v. Mathis. Tex. Civ. App. 
 
 , 194 S. W. 1135. 
 
 Washington. Anset v. Colum- 
 bia & P. S. R. Co., 89 Wash. 609, 
 154 Pac. 1100. 
 
 West Virginia. Findley v. Coal 
 & Coke Co., 76 W. Va. 747. 87 S. 
 E. 198. 
 
 "True, defendant's railroad, in 
 a physical sense, was entirely 
 within the limits of the state of 
 Michigan, but this did not prevent 
 defendant from connecting the 
 road with admittedly interstate 
 lines and so engaging in inter- 
 state commerce; in every practi- 
 cal sense, according to the present 
 record, defendant had at the time 
 in question appropriated its road 
 as well as its yards to the trans- 
 portation and handling of inter- 
 state traffic as definitely as it had 
 of traffic of an intrastate charac-
 
 '4i; 
 
 In.i TRIES TO Interstate Employes. 
 
 [§ 432 
 
 end, such carriers, by accepting any freight for ship- 
 ment to or from another state, or by participating to 
 any extent in the movement thereof, are thereby en- 
 gaged in interstate commerce, within the purview of the 
 federal act. notwithstanding their operation may be 
 confined within the limits of a single city, county or 
 state.'' This is true though the shipment is made by 
 the carrier without any common control, management 
 or arrangement with another carrier for a continuous 
 carriage or shipment.'^ 
 
 The rule that a earner engaged in transportation 
 between points in the same state and whose lines do 
 not extend beyond the boundaries of a single state, is 
 under the potential control of Congress by virtue of 
 the commerce clause when it participates in the con- 
 tinuous movement of commerce from one state to another 
 even without any common arrangement or through bill- 
 ing with another carrier, was first definitely established 
 by the national Supreme Court as to vessels on the 
 navigable waters of the United States'^ and subsequent- 
 
 ter, and these conditions existed 
 at the time of the accident and 
 afterwards. When a company 
 thus in effect dedicates such a 
 road and the yards to a dual use 
 — interstate and intrastate — it in- 
 vests the road with the character- 
 istics of an interstate line and 
 subjects it to the obligations of 
 that sort of a line. It makes it a 
 part of the through line and be- 
 comes entitled to a part of the re- 
 ceipts derived from the through 
 service." Chicago, K. & S. R. Co. 
 V. Kindlesparker, 148 C. C. A. 17, 
 2.34 Fed. 1. 
 
 "It appears, however, that by 
 means of connections with other 
 lines of railway more than 80 
 per cent of the business of the 
 interurban line was interstate 
 business. It received freight from 
 connecting lines originating with- 
 
 out the state and destined to 
 points upon the line of the de- 
 fendant. The defendant railway 
 was therefore engaged in inter- 
 state commerce." Ross v. Shel- 
 don, 176 Iowa 618, 1.54 N. W. 499. 
 
 12. Baer Bros. Mercantile Co. 
 V. Denver & R. G. R. Co., 233 U. 
 S. 479, 58 L. Ed. 1055, 34 Sup. Ct. 
 641; United States v. Union Stock- 
 yard & Transit Co. of Chicago, 226 
 U. S. 286, 57 L. Ed. 226, 33 Sup. 
 Ct. 83; United States v. Union 
 Stockyard & Transit Co. of Chi- 
 cago, 192 Fed. 330; United States 
 V. Colorado & N. W. R. Co., 85 C. 
 C. A. 48, 157 Fed. 342; United 
 States V. Colorado & N. W. R. Co., 
 85 C. C. A. 27, 157 Fed. 321, 15 L. 
 R. A. (N. S.) 167, 13 Ann. Cas. 
 893. 
 
 13. The Daniel Ball, 10 Wall. 
 (U. S.) 557, 19 L. Ed. 999.
 
 § 432] Carriers ITndkk Liability Act. i-^> 
 
 ly as to carriei-s on land." Tin; court lield in the Daniel 
 Ball case, that a steam vessel engaged as a common 
 carrier on Grand River exclusively between Grand "Rap- 
 ids and Grand Haven, Mich., in receiving and trans- 
 porting goods in continuous transportation from one 
 state to another, was engaged in commerce l)etween the 
 states, although the steamer did not ran in connection 
 with or in continuation of any line of vessels or rail- 
 ways leading to other states. In this case the court laid 
 stress on the fact tliat the entire authority of Congress 
 over interstate commerce would l)e successfully defeated 
 and thwarted if several agencies, acting independently 
 of one another but performing links in the continuous 
 transpoi-tation of interstate freight, might, free from 
 federal control, take up commodities at the boundary 
 line of a state and leave them at the boundary line at 
 the other end. "There is undoubtedly an internal com- 
 merce," said the court, "which is subject to the control 
 of the States. The power delegated to Congress is 
 limited to commerce 'among the several States,' with 
 foreign nations, and with the Indian tribes. This lim- 
 itation necessarilj^ excludes from Federal control all 
 commerce not thus designated, and of course that com- 
 merce which is carried on entirely within the limits of 
 a State, and does not extend to or affect other States. 
 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 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 en- 
 tirely 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 con- 
 
 14. Pennsylvania R. Co. v. 27 Sup. Ct. 159, New York ex rel. 
 
 Clark Bros. Coal Min. Co., 238 U. Pennsylvania R. Co. v. Knight, 
 
 S. 456, 59 L. Ed. 1406, 35 Sup. Ct. 192 U. S. 21, 48 L. Ed. 325, 24 Sup. 
 
 896; Illinois Cent. R. Co. v. De Ct. 202; Norfolk & W. R. Co. v. 
 
 Fuentes, 236 U. S. 157, 59 L. Ed. Pennsylvania, 136 U. S. 114, 34 
 
 517, 35 Sup. Ct. 275; Rearick v. L. Ed. 394, 10 Sup. Ct. 958. 
 Com.. 203 U. S. 507, 51 L. Ed. 295,
 
 7-1:8 Injuries to Interstate Employes. [§ 432 
 
 tended that she was engaged entirely in domestic com- 
 merce. But this conclusion does not follow. So far as 
 she was emploj'ed in transporting goods destined for . 
 other States, or goods In'ought from without the limits of 
 Michigan and destined to places within that State, she 
 was engaged in commerce between the States, and how- 
 ever 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 commerce; 
 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 act- 
 ing 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 regula- 
 tion of Congress." 
 
 Whether a carrier operating entirely within a single 
 state transporting articles of commerce shipped in con- 
 tinuous passage from places without the state to sta- 
 tions on its road, or from stations on its road to points 
 without the state, free from any common control, man- 
 agement or arrangement with another carrier for a con- 
 tinuous carriage or shipment, is engaged in interstate 
 commerce, was formerly denied'' by one Federal Circuit 
 Court of Appeals and affinned''' by another, but this 
 controversy arose largely from a disagreement between 
 the courts as to the construction that should be placed 
 upon the Act to Regulate Commerce before the Hepburn 
 amendment of 1906.^'^ In the Geddes case, cited, the 
 
 15. United States v. Geddes, 65 follows: "The provisions of this 
 C. C. A. 320, 131 Fed. 452. act shall apply to any common 
 
 16. United States v. Colorado & carrier or carriers engaged in 
 N. W. R. Co., 85 C. C. A. 27, 157 the transportation of passengers 
 Fed. 321, 15 L. R. A. (N. S.) 167, or property wholly by railroad, or 
 13 Ann. Cas. 893. partly by railroad and partly by 
 
 17. Act Feb. 4, 1887, c. 104, sec. water, when both are used, under 
 1, 24 Stat. 379 (3 Fed. Stat. Ann., a common control, management or 
 p. 809). That definition was as arrangement, for a continuous
 
 § 433] Cakkikhs Under Liauit.tty Act. 749 
 
 court held that tlie plirase "common control, manage- 
 ment or arrangement" applied to carriers wholly by 
 railroad as well as those partly ))y railroad and partly 
 by waloi'. In the oilier case, cited, it was held that the 
 l)lii-ase (|U()t(Ml onlx api)lied 1o carriers partly by rail- 
 road and ])ar1ly by water. Which of these two courts 
 was correct in interpreting- the Interstate Commerce Act 
 as it then read, need not concern a lawyer bringing a 
 suit under the Federal Employers' Liability Act for 
 the reason that the Interstate Commerce Act was amend- 
 ed in ]1)06 so that the clause "under a common control, 
 management or arrangement" now (lualifies carriers 
 partly by railroad and partly l)y water and has no ap- 
 plication to carriers wholly l)y railroad/^ 
 
 § 433. Railroad Carriers Engaged in Foreign Com- 
 merce Subject to the Statute. The provisions of the na- 
 tional Employers' Liability Act apply not only to car- 
 riers by railroad engaged in commerce between the 
 states, but also to carriers by railroad engaged in com- 
 merce between the states or territories and foreign na- 
 tion or nations. From the language of the statute, 
 therefore, it necessarily follows that any common car- 
 rier by railroad engaged in transporting projoerty from 
 any point in the United States to Canada and to Mexico, 
 and vice versa, is subject to the act. 
 
 A carrier engaged in transporting property from a 
 point in a state to a port in the same state for trans- 
 shipment to a foreign country is engaged in foreign 
 commerce within the statute although its line may be 
 confined within the boundary of that state. For example, 
 a shipment from a point in Louisiana to New Orleans, 
 La., by rail for export constitutes foreign commerce and 
 not intrastate commerce, so that railroad employes en- 
 gaged in such work are within the federal act. The 
 
 carriage or sliipmeut from one 18. Act of June 29, 1906 c. 3591, 
 
 state or territory of the United sec. 1 and sec. 11, 34 Stat. 584, 595 
 
 States, or the District of Coluia- (Fed. Stat. Ann. 1909 Supp., p. 
 
 bia, to another state or territory 255). See section 90, supra. 
 of the United States, or the Dis- 
 trict of Columbia."
 
 750 Injuries to Interstate Employes. [§ 433 
 
 phrase "engaging in commerce between any of the states 
 or territories and any foreign nation or nations," found 
 in the first section of the Employers' Liability Act, 
 has been assigned a definite meaning by the national 
 courts in construing other statutes containing similar 
 terms.'^ 
 
 § 434. Lessor of Railroad Engaged in Interstate 
 Commerce Liable, When. If, under the laws of the state, 
 the lessor of a railroad remains responsible for the acts 
 of the lessee as tlie statutes of several of the states pro- 
 vide, a railroad company which leases its entire line to 
 another railroad company doing an interstate business, 
 creates the lessee its agent and the lessor is a common 
 carrier by railroad engaging in interstate commerce, 
 and the federal act controls as to its liability for in- 
 juries to employes of the lessee engaged in interstate 
 commerce. This is true even though the railroad leased 
 is confined within the boundaries of one state. Both 
 such companies, while the lessee is engaged in inter- 
 state commerce, are within the tenns of the national 
 statute.^" In the Zachary case, cited, the deceased loco- 
 motive fireman was an employe of the Southern Eail- 
 way Company, the lessee of the defendant in the case. 
 The lessor's activity in the operation of the railroad 
 was confined solely to receiving annual rents from the 
 Southern Railway Company and distributing them 
 among its stockholders. The state law of North Car- 
 olina provided that the lessor of a railroad, notwith- 
 standing the lease, was liable for all of the lessee's acts 
 of commission and omission in operating the road, al- 
 though the lessor was not actually engaged in either. 
 
 Construing such leases under the Federal Employ- 
 ers' Liability Act, the court said: "It is plain enough, 
 
 19. See section 4, supra. ville & N. Ry. Co., 211 Fed. 721; 
 
 20. North Carolina R. Co. v. Copper River & N. W. R. Co. v. 
 Zachary, 232 U. S. 248, 58 L. Ed. Heney, 128 C. C. A. 131, 211 Fed. 
 591, 34 Sup. Ct. 305, 9 N. C. C. A. 459; Campbell v. Canadian North- 
 109, Ann. Cas. 1914C 159; Erie R. ern R. Co., 124 Minn. 245, 144 N. 
 Co. V. Krysienski, 151 C. C. A. 218, W. 772. 
 
 238 Fed. 142; Nordgard v. Marys-
 
 <^ 434] Carrikhs ljNi>hi{ LiAKij.iTY Act. 7.'>1 
 
 liowever, that tlie effoci of Hie rule thus laid down, 
 especially in view of the grounds upon wliieh it is based, 
 is, that although a railroad lease as between tlie parties 
 may have the force and effect of an ordinary lease, yet 
 with respect to the railroad operations conducted under 
 it, and everything that relates to the performance of the 
 l)ublic duties assumed by the lessor under its chaKer, 
 such a lease — certainly so far as concerns the rights of 
 third parties, including employes as well as patrons — 
 constitutes the lessee the lessor's substitute or agent, 
 so that for whatever tlie lessee does or fails to do, 
 whether in interstate or in intrastate commerce, the 
 lessor is responsible. This being the legal situation 
 under the local law, it seems to us that it must and does 
 result, in the case before us, that the lessor is a 'com- 
 mon carrier by railroad engaging in commerce between 
 the states,' and that the deceased was 'employed by 
 such carrier in such commerce,' within the meaning of 
 the federal act; provided, of course, he was employed 
 by the lessee in such commerce at the time he was kill- 
 ed." But the Supreme Court of Illinois held, in a case 
 decided ten months after the opinion in the Zachary 
 case was delivered, that under the federal act the owner 
 of a railroad track was not liable to an employe of a 
 licensee of the same track, both being engaged in inter- 
 state commerce, for the reason that the relation of mas- 
 ter and servant did not exist between the employe of 
 the licensee and the owner of the track. '^ In the Wag- 
 ner case, A, a railroad .company and the defendant in 
 the case, owned a Y-track which was a part of its tracks 
 on a certain street in Chicago. This Y-track ran north- 
 east and connected at one end with the tracks belong- 
 ing to B and at the other end with tracks belonging to 
 C. Alongside of the Y-track and on A's property was 
 a semaphore post 16 feet high which, however, was 
 erected by and belonged to C The plaintilT, a con- 
 
 21. Wagner v. Chicago & A. R. judges in this case concurred In 
 Co., 265 in. 245, Ann. Cas. 1916A the ruling, but two judges dis- 
 778, 106 N. E. 809. All of the sented on another point.
 
 752 Injuries to Interstate Employes. [§ 434 
 
 ductor in charge of a switching crew, was an employe 
 of D. At the time of his injury he was assisting in the 
 movement of interstate cars and was hanging on the 
 side of a car on the Y-track when, owing to its close 
 proximity, he was strnck by the semaphore post and 
 was severly injured. D company nsed the Y-track and 
 had been nsing it for several years to transfer its cars 
 and to make deliveries to other companies. The track 
 was nsed by D with the consent of A and nearly every 
 month D had received a bill from A for the use of this 
 track and regularly paid the same. The semaphore 
 post had been in the same place for several years. While 
 on A's property and close to the Y-track on which plain- 
 tiff was injured, the post was not maintained or con- 
 trolled by A or D but by C whose tracks connected with 
 the Y-track at one end. Although the semaphore was 
 not erected or maintained by it, the court held that A 
 was liable if it permitted it to negligently remain there; 
 that A and D were joint tort-feasors and that A was 
 negligent in permitting the operation of trains by its 
 licensee D over the track. On the question of A's lia- 
 bility, being the sole defendant, under the Federal Em- 
 ployers' Liability Act, to the plaintiff, the employe of 
 D, the court said: "Defendant in error had no cause of 
 action against plaintiff in error under the Federal Em- 
 ployers' Liability Act, as that act applies only where 
 the relation of master and servant exists." 
 
 § 435. Interurban Electric Railroads Included 
 Within the Act. Interurban electric railroad compa- 
 nies carrying passengers, express or freight from one 
 state to another are common carriers within the terms 
 of the Federal Employers' Liability Act.'' An inter- 
 
 22. Washington Ry. & Elec. Co. States, 241 U. S. 344, 60 L. Ed. 
 
 V. Scala, 244 U. S. 630, 61 L. Ed. 1037, 36 Sup. Ct. 668; Kansas City 
 
 1360, 37 Sup. Ct. 654; Spokane Western R. Co. v. McAdow, 240 U. 
 
 & I. E. R. Co. V. Campbell, 241 S. 51, 60 L. Ed. 520, 36 Sup. Ct. 
 
 U. S. 497, 60 L. Ed. 1125, 36 Sup. 252, 11 N. C. C. A. 857; Omalaa 
 
 Ct. 683, 12 N. C. C. A. 1083; & C. B. St. Ry. Co. v. Interstate 
 
 Spokane & I. E. R. Co. v. United Commerce Commission, 230 U. S.
 
 § 435] C/AHHIKI5S rNDKU JjlAIWLlTV AcT. 753 
 
 urban electric railway coiiiijaiiy opcratiji.i^- a line from a 
 point in Kansas to ai^oiiit in Missouri, was on^a^od in 
 interstate coinmcrcc alt li()ii,i;li att'-r icacliiiig Kansas 
 (yity, Kansas, and then inlo Kansas City, Missouri, a 
 street car ('()ini)any rurnislied tli(! eleeti'ic i)ower and tlie 
 conductor, and tlie interurban company, the niotornian, 
 and the cars were run over the tracks of the street rail- 
 way company."' "It is ch'ar, " said Mr. Justice Clark 
 of the national Supreme Court, in holding tliat an inter- 
 urban electric railroad was within the act,-* "that the 
 defendant was incorporated as, and at the time of tlie 
 accident complained of was, a railway comi)any, not a 
 street railway company; that it had full powers of 
 eminent domain; that at the lime of the ac(?ident com- 
 plained of it owned and operated a line of electi-ic rail- 
 way extending from a terminus within the Disli'ict of 
 Columbia to a terminus at Cabin John Creek, in the 
 State of Maryland, a large part of the line being con- 
 structed on a private right of way, and that it was at 
 that time a common carrier of passengers for hire be- 
 tween its termini. It is argued that under the decision 
 in Omaha & Council Bluffs Street Ry. Co. v. Interstate 
 Commerce Commission, 230 U. S. 324, the railway of the 
 defendant was a street railroad and that -therefore the 
 
 324, 57 L. Ed. 1501, 33 Sup. Ct. common carrier by railroad with- 
 
 890. 46 L. R. A. (N. S.) 385; in the statute. To the same ef- 
 
 United States v. Baltimore & O. S. feet: Watts v. Ohio Valley Elec. 
 
 W. R. Co., 226 U. S. 14, 57 L. Ed. R. Co., 78 W. Va. 144, 88 S. E. 659. 
 104, 33 Sup. Ct. 5, Southern Pac. 23. IMcAdow v. Kansas City 
 
 Co. V. Industrial Accident Com- Western R. Co., 192 Mo. App. 540, 
 
 mission of California, 174 Cal. 19, 164, S. W. 188. 
 161 Pac. 1143; Ross v. Sheldon, An interurban electric railroad 
 
 176 Iowa 618, 154 N. W. 499: receiving packages for shipment 
 
 Washington, B. & A. Elec. Co. v. to another state is a carrier with- 
 
 Owons, Rid. , 101 Atl. in the federal act although it han- 
 
 532. dies no cars into or out of the 
 
 McKee v. Ohio Valley Elec. R. state. Cholerton v. Detroit, J. & 
 
 Co., 78 W. Va. 131, 88 S. E. 616, C. Ry. Co., Mich. , 163 N. 
 
 in which the court held that an W. 606. 
 
 interurban electric railway extend- 24. Washington Ry. & Elec. Co. 
 
 ing from the city of Huntington, v. Scala, 244 U. S. 630, 61 L. Ed. 
 
 W. Va. to Ashland. Ky., was a 1360, 37 Sup. Ct. 654. 
 
 1 Control Caniors 48
 
 754 Injuries to Interstate Employes. ["^ 435 
 
 defendant was not a 'common carrier by railroad' with- 
 in the terms of the Act of 1908 as amended. Tliat case 
 dealt with a purely street railway in the streets of two 
 cities, and the decision was that it was not a 'railroad' 
 such as was intended to be placed under the jurisdiction 
 of the Interstate Commerce Commission by the Inter- 
 state Commerce Act of 1887. The case is of negligible 
 value in determining either the construction of the act 
 we are considering in this case, or the classification of 
 the defendant, which clearly enough is a suburban rail- 
 road common carrier of passengers within the scope of 
 the Federal Employers' Liability Act." 
 
 § 436. Railroads Carrying Passengers and no 
 Freight. Although a common carrier by railroad car- 
 ries only passengers from one state to another and 
 handles no freight, it is nevertheless engaged in inter- 
 state commerce within the terms of the federal act.^"^ 
 
 § 437. Ships or Vessels not a Part of a Railroad 
 
 System. While the first section of the Act of 1908 in- 
 cludes a railroad company's boats used in interstate 
 commerce and makes it liable for defects or insufficien- 
 cies in such lx)ats, due to negligence, causing injuries to 
 its employes while employed in such commerce, yet the 
 federal statute does not apply to a vessel not a part of 
 a railroad system. ^"^ On the other hand, a ferry-boat 
 used by a railroad company in the transportation of 
 freight and passengers from Jersey City across the river 
 to New York state, is used in interstate commerce with- 
 in the meaning of the federal statute. ^^ In the last 
 case cited the court also held that the Federal Employ- 
 ers' Liability Act did not, by implication, repeal the 
 federal statutory provision permitting shipowners to 
 
 25. Washington Ry. & Elec. Co. 26. The Pawnee, 205 Fed. 333. 
 
 V. Scala, 244 U. S. 630, 61 L. Ed. See Section 425, supra. 
 1360, 37 Sup. Ct. 654; Washington 27. The Passaic, 190 Fed. 644, 
 
 R. Co. V. Downey, 40 A pp. Cas. aff'd in 122 C. C. A. 466, 204 Fed. 
 (D. C.) 147. 266; Wilcznski v. Pennsylvania R. 
 
 Co., N. J. L. - — , 100 Atl. 226.
 
 '^ 438] Caju{JKJ{s Undkk Liabiijty Act. 75;") 
 
 limit the liability as api)lied to actions for injuries to 
 employes on a vessel o])erato(l ))y a railfoarl r-oinpnny as 
 a part of its interstate linc''^ 
 
 § 438. Street Railroads not Within the Terms of the 
 National Act. Street rail\va\s which transport passen- 
 gers or freight across state lines or from one state to 
 another, are not included within the terms of the act, 
 for the statute mentions only common carriers "by 
 railroad" and the TTnited States Supreme Court has 
 defined the term "railroad" by interpretation as not 
 including street railroads,'" The same conclusion was 
 reached by the Kansas City Court of Appeals in a case 
 brought under the Federal Employers' Liability Act."*" 
 In the case cited before the United States Sujn"eme 
 Court, counsel for appellant cited decisions from twelve 
 states, holding that in a statute the word "railroad" 
 did not mean "street railroads" and the counsel for 
 defendant cited decisions to the contrary from an equal 
 number of states. A similar disagreement was shown 
 in the briefs in federal tribunals. Speaking of this 
 conflict among the decisions of the various courts, Justice 
 Lamar, speaking for the court, said: "This conflict is 
 not so great as at first blush would appear. For all rec- 
 ognize that while there is similarity between railroads 
 and street railroads, there is also a difference. Some 
 courts, emphasizing the similarity, hold that in stat- 
 utes the word 'railroad' includes street railroad, unless 
 the contrary is required by the context. Others, em- 
 phasizing the dissimilarity, hold that 'railroad' does 
 not include street railroad unless required by the con- 
 text, since, as tersely put by the Court of Appeals of 
 Kentucky, 'a street railroad, in a technical and popular 
 sense, is as different from an ordinary railroad as a 
 
 28. Section 4283 R. S. (4 Fed. S.) 385, rev'g 191 Fed. 40, 179 
 Stat. Ann., p. 839). Fed. 243. 
 
 29. Omaha & C. B. St. Ry. Co. 30. Mc.\dow v . Kansas City 
 V. Interstate Commerce Commis- Western R. Co., 192 Mo. App. 540, 
 sion, 230 U. S. 324, 57 L. Ed. 1501, 164 S. W. 188. 
 
 33 Sup. Ct. 890, 46 L. R. A. (N.
 
 756 Injuries to Inteestate Employes. [§ 438 
 
 street is from a road.' Louisville & Portland R. Co. v. 
 Louisville City E. Co., 2 Duvall 175. But all the deci- 
 sions hold that the meaning of the word is to he deter- 
 mined hy construing- the statute as a whole. If the 
 scope of the act is such as to show that hoth classes of 
 companies were within the legislative contemplation, 
 then the word 'railroad' will include street railroad. 
 On the other hand, if the act was aimed at railroads 
 proper, then street railroads are excluded from the pro- 
 visions of tlie statute. Applying this universally ac- 
 cepted rule of construing this word, it is to be noted that 
 ordinary railroads are constructed on the companies' 
 own property. The tracks extend from town to town, 
 and are usually connected with other railroads, which 
 themselves are further connected with others, so that 
 freight may be shipped, without breaking bulk, across 
 the continent. Such railroads are channels of inter- 
 state commerce." 
 
 § 439. Receivers of Railroad Corporations Included 
 Within the Act. It is provided in section 7 of the fed- 
 eral act that the term "common carrier" in the first 
 section of the act shall include the receiver or receivers 
 or other persons or corporations charged with the man- 
 agement and operation of the business of a common 
 carrier. Courts have both affirmed'' and denied'' the 
 proposition that it is necessary for the plaintiff to show 
 by proof that the receiver has been duly appointed, is 
 in charge of and has authority to operate the railroad. 
 In view of this conflict the "safety first" propaganda 
 as applied to legal procedure would seem to suggest to 
 the careful practitioner, if representing the plaintiff, 
 that he obtain a certified copy of the receiver's ap- 
 pointment and authority and offer it in evidence. 
 
 § 440. Sleeping Car Companies not Common Car- 
 riers by Railroad. A sleeping car company furnishing 
 
 31. Hudkins v. Bush, 69 W. Va. 32. McNulta v. Lockridge, 137 
 
 194 71 S. E. lOG, Ann. Cas. 1913A 111. 270, 31 Am. St. Rep. 362, 24 
 533' N. E. 452, arg-32 111. App. 86,
 
 § 441 1 C'aiuukks Undkk Liauility Act. 757 
 
 sleeping- cars iiiidei- a contract with a railroad company 
 to bo used l)y the common can-ior does not thereby as- 
 sume 01- acquire tlie status of a common carrier by rail- 
 road altiiou^h it may be eii^a^ed in interstate com- 
 merce." Em))loyes of such companies are not therefore, 
 within the i)urvie\v of the Federal Emi)loyers' Lial)ility 
 Act. If, however, a person is employed joint 1\ hy a 
 sleeping- car com])any and a railroad company, he is 
 under the Federal Act in so far as the liability of rail- 
 road companies is concerned, if iii.juicd while engaged in 
 interstate commerce.''* 
 
 § 441. Express Companies not Common Carriers by 
 Railroad Under Federal Act. Express companies receiv- 
 ing, transporting and delivering articles of merchandise 
 for hire in facilities provided therefor by railroad com- 
 })anies are not common carriers by railroad within the 
 meaning of the Employers' Liability Act.-^^ A similar 
 conclusion was reached as to the status of exj^ress com- 
 panies under the Interstate Commerce Act prior to the 
 amendment of 1906 specifically including express com- 
 panies."'" Such companies are common carriers of freight 
 
 aff'd 141 U. S. 327, 35 L. Ed. 79fi, In Taylor v. WeUs, Fargo & 
 
 12 Sup. Ct. 11; WcNulta v. Ensch. Co., C. C. A. , 249 Fed. 
 
 134 111. 46, 24. N. E. 631, rev'g 31 109, the Federal Circuit Court of 
 
 111. App. 100. Appeals for the Fifth Circuit held 
 
 33. Robinson v. Baltimore & O. that an express company was a 
 R. Co., 237 U. S. 84, 59 L. Ed. 849, common carrier by railroad with- 
 35 Sup. Ct. 491, 8 N. C. C. A. 1; in the provisions of the Federal 
 Martin v. New York, N. H. & H. Employers' Liability Act. But a 
 R. Co., 241 Fed. 696; Pullman Co. writ of certiorari was granted by 
 V. Linke, 203 Fed. 1017; Mc- the Supreme Court and this cause 
 Dermon v. Southern Pac. Co., 122 was pending in that court at the 
 Fed. 669; Lemon v. Pullman time of the publication of this 
 Palace Car Co., 52 Fed. 262; Chi- work. 
 
 cago, R. I. & P. R. Co. V. Hamler, 36. United States v. Morsman, 
 
 215 111. 525, 1 L. R. A. (N. S.) 674, 42 Fed. 448. 
 
 106 Am. St. Rep. 187, 74 N. E. '"The interstate commerce act 
 
 705, rev'g 114 111. App. 141. has, so far as express companies 
 
 34. See Section 424, supra. not operating railway lines are 
 
 35. Higgins v. Erie R. Co., 89 N. concerned, wrought no change of 
 J. L. 629, 99 Atl. 98. See Section the common law in this regard. 
 522, infra. At an early day the question was
 
 '58 
 
 Injuries to Interstate Employes. [§ 441 
 
 but not "by railroad" a.ltbonii]i tliey use tlie facilities 
 and cars furnished by railroad companies. In the case of 
 Chapman v. United States Express Company,'" the de- 
 fendant's counsel admitted that the federal act con- 
 trolled the liability of the company. 
 
 § 442. All Carriers by Railroad and all their Em- 
 ployes Within Territories Included. As Congress has 
 full and complete power over territories and other pos- 
 sessions of the United States, section 2 of the federal 
 act, which applies to all common carriers by railroad 
 and all their employes in the territories, the District of 
 Columbia, the Panama Canal Zone, or other possessions 
 of the United States is valid.'' Although the act of 
 1906 was declared invalid as to carriers engaged in 
 interstate and foreign commerce, even that law as to 
 all carriers and all their employes in territories and 
 other possessions of the United States, was declared 
 valid.^^ However, by section 2, supra, of the act of 1908 
 
 raised whether express companies 
 were subject to the provisions of 
 the Interstate Commerce Act, and, 
 after full argument and deliberate 
 consideration, the interstate com- 
 merce commission unanimously 
 decided that the act did not ap- 
 ply to express companies proper- 
 ly so termed; that is to say, to 
 independent organizations that 
 carried on an express or parcel 
 business in the usual manner, and 
 which did not operate railway 
 lines." Southern Indiana Exp. 
 Co. V. United States Exp. Co., 88 
 Fed. 659. 
 
 37. 192 Mich. 654, 159 N. W. 
 308. 
 
 38. Santa Fe Cent. R. Co. v. 
 Friday, 232 U. S. 694, 58 L. Ed. 
 802, 34 Sup. Ct. 468; American R. 
 Co. of Porto Rico v. Didricksen, 
 227 U. S. 145, 57 L. Ed. 456, 33 Sup. 
 Ct. 224; PhHadelphia, B. & W. R. 
 Co. V. Schubert, 224 U. S. 603, 56 
 
 L. Ed. 911, 32 Sup. Ct. 589, 1 N. C. 
 C. A. 892; American R. Co. of 
 Porto Rico V. Birch, 224 U. S. 547, 
 56 L. Ed. 879, 32 Sup. Ct. 603; El 
 Paso & N. E. R. Co. v. Gutierrez, 
 215 U. S. 87, 54 L. Ed. 106, 30 
 Sup. Ct. 21; Cound v. Atchison, 
 T. & S. F. Ry. Co., 173 Fed. 527; 
 Friday v. Santa Fe Cent. R. Co., 
 16 N. M. 434, 120 Pac. 316; Atchi- 
 son, T. & S. F. Ry. Co. v. Tack, 61 
 Tex. Civ. App. 551, 130 S. W. 596; 
 Atchison, T. & S. F. Ry. Co. v. 
 Pickens, (Tex. Civ. App.), 118 S. 
 W. 1133; Atchison, T. & S. F. Ry. 
 Co. V. Mills, 49 Tex. Civ. App. 349, 
 108 S. W. 480. 
 
 39. Washington, A. & Mt. V. R. 
 Co. V. Downey, 236 U. S. 190, 59 L. 
 Ed. 533, 35 Sup. Ct. 406, in which 
 the court said: "The law here in- 
 volved, as we have said, is the 
 Employers' Liability Act of 1906. 
 Undoubtedly that law as enacted 
 was in form one of general ap-
 
 § 442] 
 
 Cahiuhrs tender Liability Act. 
 
 7:)!» 
 
 whicli regulates only carriers by ra'droad in t<'n'itories 
 and otlioi" jiossossions of tlio United States, llir- act of 
 
 plication, but it was hold (o be un- 
 constitutional as such a law in 
 The Employers' Lial)ility Cases, 
 207 [J. S. 463.' Notwithstanding 
 that ruling, however, the provi- 
 sions of the Statute, so far as they 
 apply to the District of Columbia, 
 have been decided to be within 
 the power of Congress to enact 
 because of its plenary authority 
 as the local legislature of the Dis- 
 trict, and because the intention to 
 make the provisions of the law ap- 
 plicable to the District locally 
 was manifest and separable from 
 the purpose to enact a statute 
 which would be applicable gen- 
 erally throughout the United 
 States. El Paso & N. E. Ry. v. 
 Gutierrez. 215 U. S. 87, 97-98: 
 Philadelphia, Rait. & Wash. R. R. 
 v. Schubert, 224 U. S. 603. 610: 
 Santa Fe Central Ry. v. Friday. 
 232 U. S. 694, 698: and see Butts 
 V. Merchants Transportation Co., 
 230 U. S. 126, 137. Under this 
 condition there is no ground to 
 maintain the proposition that the 
 statute as applicable to the Dis- 
 trict of Columbia was adopted as 
 one of a general charter, and that 
 therefore we have power to re- 
 view the questions involved. But 
 it is said, the trolley cars were in 
 transit from the State of Virginia 
 to the District and therefore were 
 engaged in a movement from State 
 to Territory not purely local in its 
 character and hence there is juris- 
 diction. But this rests upon the 
 mistaken assumption that the test 
 of jurisdiction is the character 
 of the act to which the statute 
 applies, and not the nature of the 
 .statute itself, that is. whether it 
 is general or local to the District. 
 
 And this difficulty is not answer- 
 ed by the argument that becau.se 
 the statute was made controlling 
 concerning acts not purely local, 
 therefore as the effect cannot be 
 greater than the cause, the statute 
 must itself be said to be for the 
 purposes of jurisdiction not of a 
 local character. But again the 
 proposition rests upon an errone- 
 ous assumption. The test of 
 whether the statute is general or 
 local depends not upon the partic- 
 ular question to which it may be 
 exceptionally applied in a given 
 case, but upon the exertion of leg- 
 islative power which the statute 
 manifests and its general opera- 
 tion, that is to say, whether it was 
 enacted as a statute of general 
 application under the general leg- 
 islative power or whether it took 
 being as the result of the exercise 
 of the purely local power of Con- 
 gress to govern the District of 
 Columbia, and was as a general 
 rule intended to be so applicable. 
 The error of the argument could 
 not be better illustrated than by 
 saying that if the proposition 
 wore admitted, it would necessi- 
 tate deciding that a statute which 
 has been held to be beyond the 
 constitutional power of Congress 
 to enact so far as it embodied any- 
 thing but the exertion of local 
 power may yet be enforced and 
 applied as a general statute. The 
 want of foundation for the con- 
 tention is besides made plainer by 
 looking at the subject from an- 
 other point of view. While the 
 transit in which the train was en- 
 gaged was not purely local, the 
 accident complained of occurred 
 within the confines of the District
 
 760 Injuries to Intekstatk Employes. [§ 442 
 
 1906 was repealed. But it was specifically provided 
 in section S of the act of 1908 that "nothing in this' 
 act shall be held to limit the duty or liability of com- 
 mon carriers or to imjiair the rights of their employes 
 nnder any other act or acts of Congress, or to affect the 
 prosecution of any pending proceeding or right of action 
 nnder the act of Congress entitled 'An act relating to 
 liability of common 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 employes,' approved June 
 eleventh, nineteen hundred and six." 
 
 § 443. Beginning and Ending of Interstate Charac- 
 ter of Shipments. The phrase "engaging in commerce" 
 between the several states, as used in the first section 
 of the Federal Employers' Liability Act, has a well- 
 defined meaning under the decisions of the national 
 courts as the same term has been frequently construed 
 in interpreting other federal statutes passed pursuant 
 to the power of Congress under the commerce clause. 
 When applied to transportation by railroad, to which 
 the Employers' Liability Act is limited, commerce be- 
 tween the several states is not to be determined by the 
 billing or contract but by the actual movement and 
 character of the traffic.*" There must be a point of 
 time when traffic intended for shipment to another state, 
 ceases to be governed exclusively by the law of the 
 state and begins to be governed by the federal law. 
 
 The transportation of a commodity from one state 
 to another does not commence until it has been actual- 
 
 of Columbia and the statute be- 229 U. S. 336, 57 L. Ed. 1215, 33 
 
 came applicable concerning it be- Sup. Ct. 837; Lusk v. Atkinson, 
 
 cause as a local statute it govern- 2G8 Mo. 109, 186 S. W. 703. 
 ed in the absence of legislation "It is the nature of the service 
 
 by Congress of a general charac- performed by the carrier, and not 
 
 ter governing the subject." the way in which goods are billed, 
 
 40. Baer Bros. Mercantile Co. that determines whether carriage 
 
 v. Denver & R. G. R. Co., 233 U. is interstate or not." — Trimble, J., 
 
 S. 479, 58 L. Ed. 1055, 34 Sup. Ct. in Trowbridge v. Kansas City & 
 
 641; Railroad Commission of W. B. Ry. 192 Mo. App. 52, 179 
 
 Louisiana v. Texas & P. R. Co., S. W. 777.
 
 ^ 443] 
 
 Carrtehs Txdkr Ltakiijiv x\ct 
 
 7(;i 
 
 ly launched on its way to another state or lias been 
 conimittod to a eoniiiion earri(;r for trans[)ortation to 
 such state/' J^'roni the moment, therefore, that a ship- 
 ment for a point in another state is accepted by a com- 
 mon carriei-, tliat carrier is en.i^aged in interstate com- 
 merce during- the entire period from the time of ac- 
 ceptance at the point of origin until the shipment is 
 finally delivered to and accepted by the consignee at 
 the point of destination;'- for tralific which, by reason of 
 
 41. Bay v. Merrill & Ring Log- 
 ging Co., 243 U. S. 40, 61 L. Ed. 
 580, 37 Sup. Ct. 376; McCluskey 
 V. Marysville & N. R. Co., 243 U. 
 S. 36, 61 L. Ed. 578, 37 Sup. Ct. 
 374; Coe v. Errol, 116 U. S. 517, 29 
 L. Ed. 715, 6 Sup. Ct. 475. 
 
 42. United States. Kanawha & 
 M. R. Co. V. Kerse, 239 U. S. 576, 
 60 L. Ed. 448, 36 Sup. Ct. 174; 
 Pennsylvania R. Co. v. Mitchell 
 Coal & Coke Co., 238 U. S. 251, 
 59 L. Ed. 1293, 35 Sup. Ct. 787; 
 Illinois Cent. R. Co. v. De Fuentes, 
 23G U. S. 157, 59 L. Ed. 517, 35 
 Sup. Ct. 275; Texas & N. O. R. 
 Co. V. Sabine Tram Co., 227 U. S. 
 Ill, 57 L. Ed. 442, 33 Sup. Ct. 229; 
 Chicago, R. I. & P. R. Co. v. Hard- 
 wick Farmers Elevator Co., 226 
 U. S. 426, 57 L. Ed. 284, 33 Sup. 
 Ct. 174, 46 L. R. A. (N. S.) 203; 
 Southern Pac. Terminal Co. v. 
 Interstate Commerce Commission, 
 219 U. S. 498, 55 L. Ed. 310, 31 
 Sup. Ct. 279; McNeill v. Southern 
 R. Co., 202 U. S. 543, 50 L. Ed. 
 1142, 26 Sup. Ct. 722; United 
 States V. Pere IMarquette R. Co., 
 211 Fed. 220; Jewel Tea Co. v. 
 Lee's Summit, Missouri, 198 Fed. 
 532: Belt R. Co. of Chicago v. 
 United States, 93 C. C. A. 666, 168 
 Fed. 542, 22 L. R. A. (N. S.) 582. 
 
 Arizona. Southern Pac. Co. v. 
 
 State, — — Ariz. , 165 Pac. 
 
 303. 
 
 Illinois. Wagner v. Chicago, R. 
 I. & P. R. Co., 277 111. 114, 115 N. 
 E. 201; Devine v. Chicago & C. 
 River R. Co., 259 111. 449, 102 N. 
 E. 803. 
 
 Kansas. Easdale v. Atchison, 
 T. & S. F. R. Co., 100 Kan. 305, 
 1(]4 Pac. 104. 
 
 Kentucky. Louisville & X. R. 
 Co. v. Meadors' Adm'r, 176 Ky. 
 7G5, 197 S. W. 440. 
 
 Minnesota. Breske v. Minne- 
 apolis & S. L. R. Co., 115 Minn. 
 386, 132 N. W. 337. 
 
 Missouri. Collier v. Wabash R. 
 
 Co., Mo. App. , 190 S. W. 
 
 969; Reynolds v. St. Louis South- 
 western Ry. Co., Mo. App. 
 
 , 190 S. W. 423; Bowles v. 
 
 Quincy, 0. & K. C. R. Co., 
 
 Mo. App. , 187 S. W. 131; 
 
 Werner Saw Mill Co. v. Kansas 
 City Southern R. Co., 194 Mo. App. 
 618; 186 S. W. 118; Lusk v. Atkin- 
 son, 268 Mo. 109, 186 S. W. 703. 
 
 New Jersey. Moran v. Central 
 R. Co. of New Jersey, 88 N. J. 
 L. 730, 96 Atl. 1023. 
 
 New York. Whalen v. New 
 Cent. & H. River R. Co.. 173 N. 
 Y. App. Div. 268, 159 N. Y. Supp. 
 244; Parsons v. Delaware. & H. 
 Co., 167 N. Y. App. Div. 536. 153 
 N. Y. Supp. 179. 
 
 Vermont. Lynch's Adm'r v. 
 Central Vermont R. Cu . 89 Vt. 
 363, 95 Atl. 683.
 
 762 Injuries to Interstate Employes. [§ 443 
 
 its origin and destination, is interstate, does not lose 
 its distinctive character as such when taken np and 
 carried forward by a state carrier to a destination in 
 the state in which such carrier operates or when so car- 
 ried to be delivered to another carrier in the same state 
 for further transportation within the state. The fact 
 that several different and independent agencies are em- 
 ployed in transporting a commodity, some acting entire- 
 ly in one state and some acting through two or more 
 states, does, in no respect, affect the character of the 
 transportation.*^ 
 
 When freight is delivered to and accepted by a 
 carrier for transportation to another state, it becomes 
 a part of interstate commerce. The interstate charac- 
 ter thus acquired continues, at least, until the load 
 reaches the point where the "parties originally intended 
 that the movement should finally end." The Employ- 
 ers' Liability Act is not, therefore, limited to the actual 
 transportation itself, but as acceptance and delivery of 
 freight is a part of interstate transportation, the stat- 
 ute covers the handling and the delivery of interstate 
 traffic by common carriers at terminal points.*' 
 
 43. New York ex rel. Penn- 44. Illinois Cent. R. Co. v. De 
 sylvania R. Co. v. Knight, 192 U. Fuentes, 236 U. S. 157, 59 L. Ed. 
 S. 21, 48 L. Ed. 325, 24 Sup. Ct. 517, 35 Sup. Ct. 275; Railroad 
 202; Cincinnati, N. O. & T. P. R. Commission of Louisiana v. Tex- 
 Co. V. Interstate Commerce Com- as & P. R. Co., 229 U. S. 336, 57 
 mission, 162 U. S. 184, 40 L. Ed. L. Ed. 1215, '33 Sup. Ct. 837; 
 935, 16 Sup. Ct. 700; Harman v. Texas & N. O. R. Co. v. Sabine 
 City of Chicago, 147 U. S. 396, 37 Tram Co., 227 U. S. Ill, 57 L. 
 L. Ed. 216, 13 Sup. Ct. 306; The Ed. 442, 33 Sup. Ct. 229; Rail- 
 Daniel Ball, 10 Wall. (N. S.) 557, road Commission of Ohio v. 
 19 L. Ed. 999; Corcoran v. Louis- Worthington, 225 U. S. 101, 56 L. 
 ville & N. R. Co., 125 Ky. 634, 101 Ed. 1004, 32 Sup. Ct. 653. 
 S. W. 1185; St. Louis Southwest- 45. Jacobs v. Southern R. Co., 
 em R. Co. of Texas v. Arkansas 241 U. S. 229, 60 L. Ed. 970, 36 
 & T. Grain Co., 42 Tex. Civ. App. Sup. Ct. 588; Pecos & N. T. R. 
 125, 95 S. W. 656; Texas & P. Ry. Co. v. Rosenbloom, 240 U. S. 439, 
 Co. V. Davis, 93 Tex. 378, 54 S. W. 60 L. Ed. 730, 36 Sup. Ct. 390; 
 381, 55 S. W. 562; Houston Direct Southern R. Co. v. Lloyd, 239 U. 
 Nav. Co. V. Insurance Co. of North S. 496, 60 L. Ed. 402, 36 Sup. Ct. 
 America, 89 Tex. 1, 30 L. R. A. 210; Interstate Commerce Com- 
 713, 59 Am. St. Rep. 17, 32 S. W. mission v. Atchison, T. & S. F. 
 889. R. Co., 234 U. S. 294, 58 L. Ed.
 
 § 444] 
 
 CaRKIKHS UnI>KH LlABIIylTV AcT. 
 
 763 
 
 § 444. Hauling Empty Cars or Company Property 
 over State Line. A coiiiioon carrier by railroad wliiie 
 lran.s])orliiig empty cars, or cars containing only })ro])- 
 erty owned by the railroad company, from one state to 
 another, is engaged in interstate commerce within the 
 meaning of the national statute.*'' But after an inter- 
 state journey of empty cars has come to an end by a 
 delivery at the intended destination point in another 
 state, a subsequent new and independent movement be- 
 tween two points in the same state does not constitute 
 
 1319, 34 Sup. Ct. 814; North Caro- 
 lina R. Co. V. Zachary, 232 U. S. 
 248, 58 L. Ed. 591, 34 Sup. Ct. 
 305, 9 N. C. C. A. 109, Ann. Cas. 
 1914C 159; St. Louis, S. F. & T. 
 R. Co. V. Seale, 229 U. S. 156, 57 
 L. Ed. 1129, 33 Sup. Ct. 651, Ann. 
 Cas. 1914C 156; Seaboard Air 
 Line Ry. Co. v. Moore, 228 U. S. 
 433, 57 L. Ed. 907, 33 Sup. Ct. 
 580; Chicago, R. I. & P. Ry. Co. 
 V. Hardwick Farmers Elevator 
 Co., 226 U. S. 426, 57 L. Ed. 284, 
 33 Sup. Ct. 174, 46 L. R. A. (N. 
 S.) 203; United States v. Union 
 Stockyard & Transit Co. of Chi- 
 cago, 226 U. S. 286, 57 L. Ed. 226, 
 33 Sup. Ct. 83; Interstate Com- 
 merce Commission v. Stickney, 
 215 U. S. 98, 54 L. Ed. 112, 30 
 Sup. Ct. 66; Louisville & N. R. 
 Co. V. Central Stock Yards Co., 
 212 U. S. 132, 53 L. Ed. 441, 29 
 Sup. Ct. 246; Interstate Com- 
 merce Commission v. Chicago, B. 
 & Q. R. Co., 186 U. S. 320, 46 L. 
 Ed. 1182, 22 Sup. Ct. 824; Coving- 
 ton Stock-Yards Co. v. Keith, 139 
 U. S. 128, 35 L. Ed. 73, 11 Sup. Ct. 
 461; North Pennsylvania R. Co. 
 V. Commercial Nat. Bank of Chi- 
 cago, 123 U. S. 727, 31 L. Ed. 287, 
 8 Sup. Ct. 266. 
 
 46. United States. Chicago, R. 
 I. & P. R. Co. V. Wright. 239 U. 
 S. 548, 60 L. Ed. 431, 36 Sup. Ct. 
 
 185; North Carolina R. Co. v. 
 Zachary, 232 U. S. 248, 58 L. Ed. 
 591, 34 Sup. Ct. 305, 9 N. C. C. A. 
 109, Ann. Cas. 1914C 159; St. 
 Joseph & G. I. R. Co. v. United 
 States, 146 C. C. A. 397, 232 Fed. 
 349; Chicago, M. & St. P. R. Co. 
 v. United States, 91 C. C. A. 373, 
 165 Fed. 423, 20 L. R. A. (N. S.) 
 473; United States v. Chicago & 
 N. W. Ry. Co., 157 Fed. 616; 
 United States v. St. Louis, I. IM. 
 & S. R. Co., 154 Fed. 516; United 
 States V. Chicago, M. & St. P. Ry. 
 Co., 149 Fed. 486; Voelker v. Chi- 
 cago, M. & St. P. Ry. Co., 116 Fed. 
 867. 
 
 Alabama. Atlantic Coast Line 
 R. Co. V. Jones, 9 Ala. App. 499, 
 63 So. 693. 
 
 Arkansas. St. Louis Southwes- 
 tern R. Co. V. Anderson, 117 Ark. 
 41, 173 S. W. 834; St. Louis & S. 
 F. R. Co. V. Conarty, 106 Ark. 421. 
 155 S. W. 93; Kansas City South- 
 ern R. Co. V. Cook, 100 Ark. 467, 
 140 S. W. 579. 
 
 Indiana. Chicago & E. R. Co. 
 
 V. Feightner, Ind. App. , 
 
 114 N. E. 659. 
 
 Iowa. Bruckshaw v. Chicago. 
 R. I. & P. R. Co., 173 Iowa 207. 
 155 N. W. 273. 
 
 Kansas. Barker v. Kansas City, 
 M. & O. R. Co., 94 Kan. 176, 146 
 Pac. 358; Barker v. Kansas City,
 
 764 
 
 In.titrtes to Interstate Employes. [§ 444 
 
 a Diovoment in interstate commerce.*^ "But it is also 
 certain that a particular interstate movement mnst 
 come to an end," said the court in the Knox case, cited, 
 "and that the act may cease to apply when the move- 
 ment ceases. If these cars had been billed from New 
 York state to Pitcairn, so that the journey had been 
 defined and the end of the journey had been determined, 
 there would be much reason in the contention that the 
 interstate movement was still going on. On the other 
 hand, if they had been expressly billed to Brookville and 
 Irvineton, respectively, it would not be easy to avoid 
 the conclusion that the interstate movement had ceased 
 at these points, and that the movement afterwards was 
 wholly within the state. But the evidence shows that 
 
 M. & O. R. Co., 88 Kan. 767, 43 
 L. R. A. (N. S.) 1121, 129 Pac. 
 1151. 
 
 Kentucky. Louisville & N. R. 
 Co. V. Holloway's Adm'r, 163 Ky. 
 125, 173 S. W. 343. 
 
 Missouri. Trowbridge v. Kan- 
 sas City & W. B. Ry. Co., 192 Mo. 
 App. 52, 179 S. W. 777; Hearst v. 
 St. Louis, I. M. & S. R. Co., 188 
 Mo. App. 36, 173 S. W. 86; Thomp- 
 son V. Wabash R. Co., 262 Mo. 468, 
 171 S. W. 364. 
 
 North Carolina. Ingle v. South- 
 ern R. Co., 167 N. C. 636, 83 S. E. 
 744. 
 
 North Dakota. Hein v. Great 
 Northern R. Co., 34 N. D. 440, 159 
 N. W. 14. 
 
 Pennsylvania. Moyer v. Penn- 
 sylvania R. Co., 247 Pa. 210, 93 
 Atl. 282. 
 
 Texas. Kansas City, M. & O. 
 
 Ry. Co. of Texas v. Pope, Tex. 
 
 Civ. App. , 152 S. W. 185. 
 
 Washing-bon. Wesseler v. Great 
 Northern R. Co., 90 Wash. 234, 155 
 Pac. 1063, 157 Pac. 461. 
 
 "It frequently happens that the 
 railway companies load cars with 
 livestock or farm produce in the 
 
 western states, and carry the 
 same to the eastern markets, and 
 then return these cars without a 
 load; but it cannot be true that 
 on the eastern trip the provisions 
 of the act of Congress would be 
 binding upon the company, be- 
 cause the cars were loaded, but 
 would not be binding upon the re- 
 turn trip, because the cars are 
 empty."- — Judge Shiras in Voelker 
 V. Chicago, M. & St. P. Ry. Co., 
 siipra, construing the Safety Ap- 
 pliance Act. 
 
 In Norfolk & W. R. Co. v. Com., 
 93 Va. 749, 34 L. R. A. 105, 57 
 Am. St. Rep. 827, 24 S. E. 837, the 
 court held that a railroad com- 
 pany was not engaged in interstate 
 commerce while moving a train of 
 empty coal cars over its line 
 from a point in Virginia to a 
 point in West Virginia; but this 
 decision is erroneous. 
 
 47. Pennsylvania R. Co. v. 
 Knox, 134 C. C. A. 426, 218 Fed. 
 748; Louisville '%; N. R. Co. v. 
 Strange's Adm'x 156 Ky. 439, 161 
 S. W. 239; Fairchild v. Pennsyl- 
 vania R. Co., 170 N. Y. App. Div. 
 135, 155 N. Y. Supp. 751.
 
 § 444] Cakrikus IxitKH LiAJULiTv Act. 7Cy7) 
 
 Hie cars wei"o not l)iII(Ml ;i1 all, and llioroforc, as tlio 
 character of tlic inovciiicnt dcix'tidcd on tlio iiiicoritra- 
 dictod testimony of tlie witnesses, we feel bound oti tliis 
 record to accept the facts as the witnesses state tlicm. 
 And, if tliey are so accei)ted, we cannot avoid tlie con- 
 clusion that these cars had finished their interstate 
 journey wlien they reached the first halting place in 
 Pennsylvania. They had no more distant destination; 
 they did not leave New York with any other terminus in 
 view; they were then immediately available for any use; 
 in a word, to use the expressive phrase of one of the 
 witnesses, they were 'drifting,* waiting to be assigned 
 for service. Moreover, they were in the owner's pos- 
 session, and he was in full control, so that they did not 
 need to go further in order to be 'at home.' When, 
 indeed, it may be asked, would such cars lose their inter- 
 state character, if they had not lost it under the facts 
 before us! It is difficult to see what other satisfactory 
 test can be applied, for it is clear that they could not 
 remain interstate cars indefinitely. They might have 
 been sent, to the repair shop at the first halting ])lace, 
 or have actually been used to carry freight between 
 Pennsylvania points, and in either event it could not be 
 denied that their interstate character had ceased. Be- 
 ing bound nowhere, we think they became domestic 
 cars after the owner had them in his possession and un- 
 der his control at the first appropriate distributing 
 ])oint within the state. If the end of a journey has been 
 defined, that presents one situation; if in fact the end 
 has not been expressly detennined, the law must deter- 
 mine it in accordance with what is reasonable and just. 
 In the Zachary case, there was no such evidence as is 
 now before us; the court found it to be a reasonable 
 inference that the cars then in question were in the proc- 
 ess of being 'carried forward as a part of a. through 
 movement of interstate commerce.' " "It is entirely 
 clear that taking the road engine from Pliillipsburg, 
 Kansas, to Council Bluff's, Iowa, was an act of interstate 
 commerce, and that the intestate, while particii>ating in 
 that act, was employed in such commerce. That the 
 engine was not in commercial use but merely on the
 
 766 
 
 Injuries to Interstate Employes. [^ 444 
 
 way to a repair shop is immaterial. It was being taken 
 from one State to another and this was the true test of 
 whether it was movin": in interstate commerce."**' 
 
 § 445. Transportation from Point to Point in One 
 State Passing Through Another State in Transit. All 
 
 common carriers are subject to regulation as to their 
 liabilities to emploj'es for injuries. Those operating 
 exclusively within a state are subject to the laws of the 
 state; those operating among the states are subject to 
 federal control. Formerly, a. few courts held that the 
 transportation of commodities by railroad between two 
 points in the same state which, in transit, passed over a 
 portion of another state, constituted intrastate com- 
 merce, and, hence, was under the control of the state.*" 
 But to bring the transportation of a common carrier 
 within the control of a state as a part of its domestic 
 commerce, the commodity transported must be, during 
 the entire journey, under the exclusive jurisdiction of 
 that state. ^'^ Hence, transportation between points with- 
 in a single state over a route partly outside of the 
 state, constitutes interstate commerce. Carriers en- 
 gaged therein are, therefore, under the exclusive con- 
 trol of the national Employers' Liability Act in so far 
 as their liabilities for injuries arising in interstate com- 
 merce are concerned." 
 
 48. Chicago, R. I. & P. R. Co. 
 V. Wright, 239 U. S. 548, 60 L. Ed. 
 431, 36 Sup. Ct. 185. 
 
 49. Campbell v. Chicago, M. & 
 St. P. Ry. Co., 86 Iowa 587, 17 L. 
 R. A. 443, 53 N. W. 351; State v. 
 Seagraves, 111 Mo. App. 353, 85 S. 
 W. 925; Seawell v. Kansas City, 
 Ft. S. & M. R. Co., 119 Mo. 222, 24 
 S. W. 1002; Leavell v. Western 
 U. Tel. Co., 116 N. C. 211, 27 L. R. 
 A. 843, 47 Am. St. Rep. 798, 21 S. 
 E. 391; Railroad Com'rs v. West- 
 ern U. Tel. Co., 113 N. C. 213, 22 
 L. R. A. 750, 18 S. E. 389; West- 
 ern U. Tel. Co. V. Hughes, 104 Va. 
 240, 51 S. E. 225. 
 
 50. Hanley v. Kansas City 
 Southern R. Co., 187 U. S. 617, 
 47 L. Ed. 333, 23 Sup. Ct. 214; 
 Lord V. Goodall, Nelson & Perkins 
 Steamship Co., 102 U. S. 541, 26 
 L. Ed. 224; Pacific Coast Steam- 
 Ship Co. V. Board Railroad Com'rs, 
 18 Fed. 10; State v. Chicago, St. 
 P., M. & O. Ry. Co., 40 Minn. 267, 
 3 L. R. A. 2:38, 12 Am. St. Rep. 730, 
 41 N. W. 1047. 
 
 51. United States. United 
 States V. Erie R. Co., 166 Fed. 352; 
 United States v. Chicago Great 
 Western Ry. Co., 162 Fed. 775; 
 United States v. Delaware, L. & 
 W. R. Co., 152 Fed. 269.
 
 § 446] 
 
 Carkiekh T'ndkk Liability Act. 
 
 767 
 
 § 446. When Reshipment from Point of Delivery 
 Changes Interstate Character of Traffic. Wlic^n a sliiij- 
 iiK'iit I'ruiii point A in one state to point B in anotlier 
 state, is delivered to and accepted by the consignee at 
 B and the consignee thereafter reships such a com- 
 modity from B to C in the same state — tlie line between 
 the two points being wholly within tlio one state — the 
 last shipment is an intrastate one and the carrier, in 
 hauling it between B and C is not engaged in interstate 
 commerce. For the interstate shipment under such con- 
 ditions w^as concluded and determined by a final deliv- 
 ery at B, the place intended by the shipper and carrier 
 for final delivery." 
 
 Arkansas. St. Louis, I. M. & S. 
 R. Co. V. Spriggs, 113 Ark. 118. 
 167 S. W. 96; St. Louis & S. F. R. 
 Co. V. State, 87 Ark. 562, 113 S. 
 W. 203. 
 
 California. Cowden v. Pacific 
 Coast S. S. Co., 94 Cal. 470, 18 L. 
 R. A. 221, 28 Am. St. Rep. 142, 
 29 Pac. 873. 
 
 Idaho. Crescent Brewing Co. v. 
 Oregon Short Line R. Co., 24 Ida- 
 ho 106, 132 Pac. 975. 
 
 Kansas. Leibengood v. Missou- 
 ri, K. & T. R. Co., 83 Kan. 25, 
 28 L. R. A. (N. S.) 985, 109 Pac. 
 988; Patterson v. Missouri Pac. 
 R. Co., 77 Kan. 236, 15 L. R. A. 
 (N. S.) 733, 94 Pac. 138. 
 
 Kentucky. Cincinnati, N. 0. & 
 T. P. R. Co. V. Goode, 155 Ky. 153, 
 159 S. W. 695; Louisville & N. R. 
 Co. V. Allen, 152 Ky. 145, 153 S. 
 W. 198. 
 
 Maryland. State v. Cumberland 
 & P. R. Co., 105 Md. 478, 66 Atl. 
 458. 
 
 Hardwick Farmers' 
 V. Chicago, R. 1. & 
 P. R. Co., 110 Minn. 25, 19 Ann. 
 Cas. 1088, 124 N. W. 819. 
 
 Missouri. Bowles v. Quincy, O. 
 
 & K. C. R. Co., Mo. App. , 
 
 187 S. W. 131; Howard v. Chicago, 
 
 Minnesota. 
 Elevator Co. 
 
 R. I. & P. Ry. Co., Mo. App. 
 
 , 184 S. W. 906; Potter v. 
 
 Kansas City Southern R. Co., 187 
 Mo. App. 56, 172 S. W. 1153; 
 Deardorf v. Chicago, B. & Q. R. 
 Co., 263 Mo. 65, 172 S. W. 333; 
 Mires v. St. Louis & S. F. R. Co., 
 134 Mo. App. 379, 114 S. W. 1052. 
 
 Oklahoma. Western U. Tel. Co. 
 
 V. Kaufman, Okla. , 162 
 
 Pac. 708. 
 
 Texas. Wichita Falls & W. Ry. 
 
 Co. of Texas v. Asher, Tex. 
 
 Civ. App. , 171 S. W. 1114. 
 
 52. United States. Lehigh Val- 
 ley R. Co. V. Barlow, 244 U. S. 
 183, 61 L. Ed. 1070, 37 Sup. Ct. 
 515; Chicago, B. & Q. R. Co. v. 
 Harrington, 241 U. S. 177, 60 
 L. Ed. 941, 36 Sup. Ct. 517; Penn- 
 sylvania R. Co. V. Knox, 134 C. C. 
 A. 426, 218 Fed. 748; Oregon R. 
 & Nav. Co. V. Campbell, ISO Fed. 
 253. 
 
 Arizona. Southern Pac. Co. v. 
 
 State, Ariz. , 165 Pac. 
 
 303. 
 
 Indiana. Chicago & E. R. Co. v. 
 
 Feightner, Ind. App. , 
 
 114 N. E. 65U. 
 
 Kentucky. Louisville & N. R. 
 Co. V. Meador's Adm'r, 176 Ky. 
 765, 197 S. W. 440.
 
 7'6S K^JURiES TO Interstate Employes. [§ 446 
 
 For instaDco, a car of corn was carried upon a bill 
 of lading from Hudson, S. Dak., to Texarkana, Tex., 
 and five days afterwards it was reshipped from Texar- 
 kana to Goldtliwaite, both points being in the state of 
 Texas. It was sought to hold the railroad company 
 liable for violation of the regulations of the state rail- 
 road commission applicable to intrastate carriers in the 
 state of Texas. On the other hand the railroad company 
 contended that the shipment was interstate from Hudson 
 to Goldthwaite. The court held that the shipment from 
 Texarkana to Goldthwaite was an intrastate shipment 
 unaffected by the fact that the shipper intended to re- 
 ship the corn from Texarkana to Goldthwaite, for the 
 corn had been carried to Texarkana upon a contract 
 for interstate shipment and the reshipment five days 
 later upon a new contract was an independent intra- 
 state shipment. ^^ 
 
 A close case on the facts in which the same prin- 
 ciple was applied, was decided by the Kentucky Court 
 of Appeals. A train consisting of 19 empty coal cars 
 was brought into Eussellville, Ky., some of the cars 
 hiaving been brought from Tennessee. The conductor 
 of the train in which the cars were brought to Eussell- 
 ville, had been directed to take the cars to Eussellville 
 and no further orders had been given for their destina- 
 tion and no one had orders to carry them further. After 
 reaching Eussellville a new order was issued directing 
 that they be taken to another point in the same state. 
 Decedent was a flagman on the train leaving Eussell- 
 ville and each car in the train, including the coal cars, 
 was destined to another point within the same state. 
 The court held that the interstate journey of the cars 
 ended at Eussellville and that, after leaving Eussell- 
 
 Mississippi. Batesville South- App. 269, 1G4 S. W. 132. 
 
 western R. Co. v. Minis, 111 Miss. Texas. Missouri, K. & T. Ry. 
 
 574, 71 So. 827. Co. of Texas v. Pace, Tex. 
 
 Missouri. State ex rel. Cliicago, Civ. App. , 184 S. W. 1051. 
 
 M. & St. P. R. Co. V. Public Serv- 53. Gulf, C. & S. F. R. Co. v. 
 
 ice Commission of Missouri, 269 State, 204 U. S. 403, 51 L. Ed. 540, 
 
 Mo. 63, 189 S. W. 377; Smitli v. 27 Sup. Ct. 360. 
 Gulf, C. & S. F. R. Co., 177 Mo.
 
 '^ 44G] Cariuers Under Liability Act. 769 
 
 ville, the train was movinj^ solely in intrastate commerce 
 and that no action for d«uKlont's death could be main- 
 tained under tlie federal statute. The court properly 
 assumed that liauling even enii)ty coal cars from a point 
 in one state to a poiiit in another constituted interstate 
 commerce, hut in view of the controlling fact that the 
 cars originating in Tennessee were only destined to Rus- 
 sellville. and that at the latter point orders were issued 
 for their further destination, which was in the same 
 state, the interstate journey ended at Russellville.^* 
 
 In another case it appeared that a coal company 
 shipped cars of coal over certain railroads from points 
 in Illinois to Davenport, la., and there reshipped the 
 cars of coal over another railroad to points in Iowa. 
 In a suit to have declared invalid an order of the Iowa 
 commission, it was held that the shipments from Daven- 
 port to points in Iowa were intrastate. Justice Hughes, 
 speaking for the United States Supreme Court in that 
 case, said: "It is undoubtedly true that the question 
 whether commerce is interstate or intrastate must be 
 determined by the essential character of the commerce 
 and not by mere billing or forms of contract. Ohio 
 Railroad Commission v. Worthington, 225 U. S. 101; 
 Texas & N. 0. R. Co. v. Sabine Tram Co., 227 U. S- 111; 
 Railroad Commission of Louisiana v. Texas & Pacific 
 Ry. Co., 229 U. S. 336. But the fact that commodities 
 received on interstate shipments are reshipped by the 
 consignee, in the cars in which they are received, to 
 other points of destination, does not necessarily estab- 
 lish a continuity of movement or prevent the reship- 
 ment to a ]-)oint within the same state from having an 
 independent and intrastate character. Gulf, C. & S. F. 
 Ry. Co. V. Texas, 204 U. S. 403; Ohio Railroad Com- 
 mission V. Woi-thington, 225 U. S. 101, 109; Texas & N. 
 0. R. R. Co., V. Sabine Tram Co., 227 U. S. Ill, 129, 130. 
 The question is with respect to the nature of the actual 
 movement in the particular case; and we are unable to 
 
 54. Louisville & N. R. Co. v. R. Co. v. Knox. 134 C. C. A. 426, 
 Strange's Adm'x, '150 Ky. 439, 161 218 Fed. 748. 
 S. W. 239. Accord: Pennsylvania 
 
 1 Control Caniei-9 -la
 
 770 
 
 Injuries to Interstate Employes, [§ 446 
 
 say upon this record tliat the state court has improperly 
 characterized the traflfic iu question here. In the light 
 of its decision, the order of the commission must be 
 taken as referring solely to intrastate transportation 
 originating at Davenport. "^^ 
 
 § 447. When Reshipment from Point of Delivery 
 Does not Change Interstate Character of Traffic. But 
 
 where a shipper intends from tlie beginning that the 
 transportation shall be continued beyond the destina- 
 tion originally indicated, then the interstate transporta- 
 tion continues, and a rebilling or reshipment enroute 
 does not, of itself, break the continuity of the movement 
 or require that any part of the transportation be classi- 
 fied differently from the remainder.^'' 
 
 55. Chicago, M. & St. P. R. Co. 
 V. Iowa, 233 U. S. 334, 58 L. Ed. 
 988, 34 Sup. Ct. 592. 
 
 56. United States. Western 
 Oil Refining Co. v. Lips- 
 comb, 244 U. S. 346, 61 L. 
 Ed. 1181, 37 Slip. Ct. 623; West- 
 ern Transit Co. v. A. C. Leslie & 
 Co., 242 U. S. 448, 61 L. Ed. 423, 
 37 Sup. Ct. 133; Atchison, T. & S. 
 F. R. Co. V. Harold, 241 U. S. 371, 
 60 L. Ed. 1050, 36 Sup. Ct. 665; 
 South Covington & C. St. R. Co. 
 V. City of Covington, 235 U. S. 
 537, 59 L. Ed. 350, 35 Sup. Ct. 
 158; Railroad Commission of 
 Louisiana v. Texas & P. R. Co., 
 229 U. S. 336, 57 L. Ed. 1215, 33 
 Sup. Ct. 837; Texas & N. O. R. 
 Co. V. Sabine Tram Co., 227 U. S. 
 Ill, 57 L. Ed. 442, 33 Sup. Ct. 
 229; Railroad Commission of 
 Ohio V. Worthington, 225 U. S. 101, 
 56 L. Ed. 1004, 32 Sup. Ct. 653; 
 Southern Pac. Terminal Co. v. In- 
 terstate Commerce Commission, 
 219 U. S. 498, 55 L. Ed. 310, 31 
 Sup. Ct. 279; McNeill v. South- 
 ern R. Co., 202 U. S. 543, 50 L. 
 Ed. 1142, 26 Sup. Ct. 722; Ala- 
 
 bama Great Southern R. Co. v. 
 George H. McFadden & Bros., 232 
 Fed. 1000; Belt R. Co. of Chicago 
 V. United States, 93 C. C. A. 666, 
 168 Fed. 542, 22 L. R. A. (N. S.) 
 582; Chicago, M. & St. P. Ry. Co. 
 V. Voelker, 65 C. C. A. 226, 129 
 Fed. 522, 70 L. R. A. 264; Kanotex 
 Refining Co. v. Atchison, T. & S. 
 F. Ry. Co., 34 I. C. C. 271. 
 
 Kansas. Missouri, K. & T. R. 
 Co. V. New Era Milling Co., 80 
 Kan. 141, 101 Pac. 1011. 
 
 Kentucky. Louisville & N. R. 
 Co. V. Meador's Adm'r, 176 Ky. 
 765, 197 S. W. 440; Howard & 
 Callahan v. Illinois Cent. R. Co., 
 161 Ky. 783, 171 S. W. 442. 
 
 Missouri. Reynolds v. St. Louis 
 
 Southwestern Ry. Co., Mo. 
 
 App. , 190 S. W. 423; Werner 
 
 Saw Mill Co. v. Kansas City 
 Southern R. Co., 194 Mo. App. 618, 
 18G S. W. 1118. 
 
 Oregon. Baldwin Sheep & Land 
 Co. V. Columbia R. Co., 58 Ore. 
 285, 114 Pac. 469. 
 
 Rhode Island. Glenlyon Dye 
 Works V. Interstate Exp. Co., 36 
 R. I. 558, 91 Atl. 5.
 
 '5' 447] Carriers Under Liability Act. 771 
 
 A shipper consigned a commodity from St. Louis, 
 Missouri, to Loadville, Colo. It was transported over 
 one railroad from St. Tjouis to Pueblo, Colo., the receiv- 
 ing carrier giving a receipt showing that the commodity 
 was to be delivered to the consignee at Leadville via 
 another railroad. No through bill of lading was issued 
 and no llivougli loute had Ix'cn entablislu'd. The first 
 company issued a bill of lading for the shipment from 
 St. TiOuis to Pueblo at a local rate. The car was there 
 delivered to another railroad company at a local rate 
 which company named the first railroad company as 
 consignor to the consignee. The freight charges were al- 
 ways collected either at point of origin or at destination 
 and divided according to the local rates of each. It was 
 held by the United States Supreme Court that while there 
 was no through rate or through route, there was in fact 
 a through shipment from St. Louis, Mo., to Leadville, 
 Colo., and the interstate character of the shipment 
 could not be destroyed by ignoring the points of origin 
 and destination, separating the rate into its component 
 parts and by charging local rates and issuing local way 
 bills and thus attemi)ting to convert an interstate ship- 
 ment into an intrastate shipment. The court quoting 
 from a former decision, said: "When goods shipped 
 from a point in one state to a point in another, are re- 
 ceived in transit by a state common carrier, under a 
 conventional division of the charges, such carrier must 
 be deemed to have subjected its road to an arrange- 
 ment for a continuous carriage or shipment within the 
 meaning of the act to regulate commerce.""'" 
 
 In another case shippers delivered to a carrier at 
 certain stations in the state of Louisiana eighteen car- 
 loads of logs and staves to be transported by railway 
 from said stations to Alexandria, La., and there deliv- 
 
 Texas. Gulf, C. & S. F. Ry. Co. 1200. 
 
 V. IMathis, Tex. Civ. App. — , Wisconsin. Duluth-Superior 
 
 194 S. W. 1135; Galveston, H. & Milling Co. v. Northern Pac. R. 
 
 S. A. R. Co. v. Wood-Hagenbarth Co., 152 Wis. 528, 140 N. W. 1105. 
 
 Cattle Co., 105 Tex. 178, 14U S. 57. Baer Bros. v. Denver & R. 
 
 W. 538; Texas & P. R. Co. v. Tay- G. R. Co., 233 U. S. 479, 58 L. Ed. 
 
 lor, 103 Tex. 367, 126 S. W. 1117, 1055, 34 Sup. Ct. 641.
 
 772 Injuries to Interstate Employes. [^ 447 
 
 ered to another railroad company which transported 
 them to New Orleans, La., where they were unloaded 
 from the cars, put on board ship and exported to for- 
 eigTi countries. The bills of lading in each instance 
 provided for the delivery of the freight from the initial 
 point to New Orleans, there to be delivered to the ship- 
 per or consignee's order. The consignee resided at 
 New Orleans and was a broker engaged in negotiating 
 for foreign shipments and attending to shipments for 
 consignors in the United States. But notwithstanding 
 the bills of lading the staves and logs were intended by 
 the shippers to be exported to foreign countries and 
 were treated by both shippers and carriers accordingly, 
 the shippers always holding the cars on the railroad 
 track at New Orleans until they could accumulate cargo 
 to till their export orders and arrange for transportation. 
 The railroad company allowed shippers twenty days' 
 time for delivery, as in the case of all export shipments, 
 without charging demurrage which the company would 
 have had the right to charge after the expiration of 
 four days if the shipments had been considered and 
 treated as purely intrastate. The sole question before 
 the United States Supreme Court was whether the ship- 
 ments were foreign or intrastate commerce while moving 
 through Louisiana. The court held that they were for- 
 eign shipments, and that the cargo took that character 
 when it was actually started in the course of transporta- 
 tion to a foreign country, although it was transported 
 within the state under local bills of lading. The staves 
 and logs were intended by the shippers to be exported 
 to foreign countries and there was no interruption of 
 their transportation to their destination except what 
 was necessary for transshipment at New Orleans.^* 
 
 § 448. Proof that Injured Servant is Employed in 
 Interstate Commerce Sufficient to show that the Railroad 
 is so Engaged. To permit an employe to recover under 
 the federal act, it must be shown that at the time of the 
 
 58. Railroad Commission of U. S. 336, 57 L. Ed. 1215, 33 Sup. 
 Louisiana v. Texas & P. R. Co., 229 Ct. 837.
 
 <^ 448] Carriebs Under Liabiijty Act. 773 
 
 accident, first, tlio carrier was eii^a^'ed in interstate 
 commerce, and, second, tliat the injured servant was 
 employed by it in such commerce.'^' Since tlie act of a 
 servant within the scope of his employment is in le,i?al 
 contemi)lation the act of the master, if it is shown tliat 
 the injured employe at the time of the accident was 
 engaged in interstate conmiei-ce hy virtue of his employ- 
 ment on the i-ailroad, then it necessarily follows that 
 the carrier is so engaged."" Hence in an action under 
 the act, evidence that the employe was emploved in 
 such commerce at the time of the 'accident is sufficient 
 to show that the carrier was so engaged. But the con- 
 verse of the proposition stated is not true, for proof 
 that the carrier at the time of the injury was engaged 
 generally in interstate commerce, does not prove that 
 the injured servant was also employed by it in such 
 commerce unless the specie of evidence introduced to 
 show the carrier was so engaged, is the act and work 
 of the servant when injured. Since, therefore^ by virtue 
 of a well-known principle in the law of agency the act 
 of servant is the act of master, decisions of the courts 
 construing when an employe is engaged in interstate 
 commerce, are quite applicable under questions dis- 
 cussed in this chapter and opinions there cited are 
 relevant here."^ 
 
 59. United States. Lucchetti Oklahoma. Atchison, T. & S. 
 
 V. Philadelphia & R. Ry. Co., 233 F^. R. Co. v. Pitts, 44 Okla. 604, 9 
 
 Fed. 137; Erie R. Co. v. Jacobus, N. C. C. A. 545, 145 Pac 1148* 
 
 137 C: C. A. 151, 221 Fed. 335; Pennsylvania. Hogarty v. Phila- 
 
 Bravis v. Chicago, M. & St. P. R. delphia & R. R. Co., 245 Pa 443 
 
 Co., 133 C. C. A. 228, 217 Fed. 234. 91 Atl. 854. 
 
 Louisiana. Gordon v. New Or- Utah. Grow v. Oregon Short 
 
 ^"!,?'!f ,^"?'!T" ""• """" ''' ^^^^ ^- C°' '' Utah 160, Ann. 
 
 M, ' ^ ■ Tn- • C^«- 191-5B 481, 138 Pac. 398. 
 
 Minnesota. Hurley v. Illinois -.tt ^ ^. ■ . 
 
 Cent. R. Co., 133 Minn. 101. 157 N. ^''^ '^^'^''^^- ^'^^'«« ^- 0^'« 
 
 W. 1005. Valley Elec. R. Co., 78 W. Va. 131. 
 
 Mississippi. New Orleans. M. & ^^ ^- ^- ^^^• 
 C. R. Co. V. Jones, 111 IMiss. 852, ^*^- GrybowskI v. Erie R. Co., 
 
 72 So. 681. 88 N. J. L. 1, 95 Atl. 764. 
 
 Montana. Alexander v. Great 61. Colasurdo v. Central R. R. 
 
 Northern R. Co., 51 Mont. 5G5, 154 of New Jersey, ISO Fed. 832. aff'd 
 
 P^c- 91^- in 113 C. C. A. 379, 192 Fed. 901.
 
 CHAPTER XXIII. 
 
 Employes Engaged in Interstate Commerce — -General 
 
 Principles. 
 
 Sec. 449. Statute Includes Only Employes Injured While Engaged in 
 Interstate Commerce. 
 
 Sec. 450. Employment in Interstate Commerce not Restricted or 
 Limited to Actual Transportation from One State to 
 Another. 
 
 Sec. 451. Same Act May Constitute Interstate Employment in One 
 Relation and not in Another. 
 
 Sec. 452. Criterion Adopted by United States Supreme Court in De- 
 termining Employment in Interstate Commerce. 
 
 Sec. 453. Employes Presumed to be Engaged in Intrastate Commerce. 
 
 Sec. 454. Prior or Subsequent Employment Immaterial in Deter- 
 mining Applicability of Federal Statute. 
 
 Sec. 455. Servants Employed in Both Intrastate and Interstate Com- 
 merce. 
 
 Sec. 456. Employes on Premises of Railroad Company Going to or 
 from Work. 
 
 Sec. 457. Status of Employes Injured While Going to or from Day's 
 Work Partly in Interstate and Partly in State Com- 
 merce. 
 
 Sec. 458. Employer not Liable to Employe Injured After Day's Work 
 is Over — Sleeping in Cars. 
 
 Sec. 459. Effect of Temporary Cessation in or Abandonment of Work 
 in Interstate Commerce. 
 
 Sec. 4G0. Employes of Private Carriers Transporting their Own Prop- 
 erty not Subject to Statute. 
 
 Sec. 461. When Questions of Employment in Interstate Commerce 
 should be Submitted to Jury. 
 
 Sec. 462. Decisions Construing Federal Safety Appliance Act not al- 
 ways Applicable in Construing Employers' Liability Act. 
 
 Sec. 463. Instances where Employes were Engaged in Interstate Com- 
 merce but Erroneously Held to Have Been Engaged in In- 
 trastate Commerce. 
 
 Sec. 464. Instances Where Employes Were Engaged Exclusively in 
 Intrastate Commerce but Erroneously Held to have been 
 Engaged in Interstate Commerce. 
 
 Sec. 465. Burden of Proving Interstate Employment is Upon the 
 Plaintiff. 
 
 Sec. 466. Burden of Proving Interstate Employment upon Defend- 
 ant, When. 
 
 § 449. Statute Includes Only Employes Injured 
 While Engaged in Interstate Commerce. The statute 
 
 (774) 
 
 }f
 
 § 449J 
 
 Employes Subject to Act. 
 
 Ill 
 
 provides that a common earner by rail, wliile engaging,' 
 in interstate commerce, is liable for injuries or death 
 to an employe, due to negligence, "while lie is employed 
 by such carrier in such commerce." The employe must 
 have been at the time of the injury engaged in inter- 
 state commerce.' Fre(iuently a troublesome question 
 
 1. United States. Erie R. Co. 
 V. Welsh, 242 U. S. 303, 61 L. 
 Ed. 319, 37 Sup. Ct. 116; lUiuois 
 Cent. R. Co. v. Behrens, 233 U. S. 
 473, 58 L. Ed. 1051, 34 Sup. Ct. 
 646, 10 N. C. C. A. 153, Ann. Cas. 
 1914C 163; Hudson & M. R. Co. 
 V. lorio, 152 C. C. A. 641, 239 Fed. 
 855; Erie R. Co. v. Krysienski, 
 151 C. C. A. 218, 238 Fed. 142; 
 Kelly V. Pennsylvania R. Co., 151 
 C. C. A. 171, 238 Fed. 95; Coal & 
 Coke Co. V. Deal, 145 C. C. A. 490, 
 231 Fed. 604; Erie R. Co. v. Van 
 Buskirk, 143 C. C. A. 71, 228 Fed. 
 489; Erie R. Co. v. .Tacobus, 137 
 C. C. A. 151, 221 Fed. 335. 
 
 Alabama. Mathews v. Alabama 
 
 Great Southern R. Co., Ala. 
 
 , 76 So. 17; Loveless v. Louis- 
 ville & N. R. Co., Ala. , 
 
 75 So. 7; Louisville & N. R. Co. 
 
 V. Blankenship, Ala. , 74 
 
 So. 960; Western Ry. of Alabama 
 
 V. Mays, Ala. , 72 So. 
 
 641: Louisville & N. R. Co. v. Car- 
 ter, 195 Ala. 382, Ann. Cas. 1917E 
 292, 70 So. 655: Southern R. Co. 
 V. Poters, 194 Ala. 94, 69 So. 611; 
 Ex parte Atlantic Coast Line R. 
 Co., 190 Ala. 132, 67 So. 256. 
 
 Arkansas. Long v. Biddle, 124 
 Ark. 127, 186 S. W. 601. 
 
 California. Southern Pac. Co. v. 
 Industrial Accident Commission 
 of California, 174 Cal. 8, 161 Pac. 
 1139. 
 
 Colorado. Denver & R. G. R. 
 
 Co. v. Wilson, Colo. , 103 
 
 Pac. 857. 
 
 Georgia. Hardy v, Atlantic & 
 
 W. P. R. Co., Ga. App. 
 
 93 S. E. 18. 
 
 Illinois. Patry v. Chicago & W 
 I. K. (,'u., 265 111. 310, lOU N. E 
 843. 
 
 Indiana. Chicago & E. R. Co. v 
 Feightner, — Ind. App. — , 114 N 
 E. 659; Cincinnati, H. & D. Ry 
 
 Co. V. Gross, Ind. App. 
 
 111 N. E. 653. 
 
 Kentucky. Louisville & N. R. 
 Co. V. Netherton, 175 Ky. 159, 193 
 S. W. 1035; Cincinnati, N. 0. & 
 T. P. R. Co. V. Hansford, 173 Ky. 
 126, 190 S. W. 690; Chesapeake & 
 0. R. Co. v. Harmon's Adm'r, 173 
 Ky. 1, 189 S. W. 1135; Schaeffer v. 
 Illinois Cent. R. Co., 172 Ky. 337, 
 189 S. W. 237; Norfolk & W. R. 
 Co. v. Short's Adm'r, 171 Ky. 647, 
 188 S. W. 786; Illinois, Cent. R. 
 Co. V. Kelly, 167 Ky. 745, 181 S. 
 W. 375. 
 
 Louisiana. Gordon v. New Or- 
 leans Great Northern R. Co., 135 
 La. 137, 64 So. 1014. 
 Maryland. Washington. B. & A. 
 
 Elec. R. Co. V. Owens, Md. 
 
 , 101 Atl. 532. 
 
 Massachusetts. Lynch v. Bos- 
 ton & M. R. R., Mass. , 
 
 116 N. E. 401; Corbett v. Boston 
 & M. R. R., 219 Mass. 351, 9 N. 
 C. C. A. 691, 107 N. E. 60. 
 
 Minnesota. Hurley v. Illinois 
 Cent. R. Co., 133 Minn. 101, 157 
 N. W. 1005. 
 
 Mississippi. Yazoo & M. V. R. 
 
 Co. V. Houston, Miss. , 75 
 
 So. 690.
 
 776 
 
 Injuries to Interstate Employes. [^ 449 
 
 arises as to whether a servant is emploj^ed in interstate 
 or intrastate commerce at the time of the accident, for, 
 if the former, the remedy, if any, given by the federal 
 act is exclusive; while if the latter, the state law alone 
 furnishes the remedy, even though at the time the car- 
 rier itself was engaged in interstate commerce. Both 
 must be so engaged to render the federal act appli- 
 cable.^ 
 
 Montana. McBain v. Northern 
 Pac. R. Co., 52 Mont. 578, 160 Pac. 
 654. 
 
 New York. Saxon v. Erie R. 
 Co., 221 N. Y. 179, 116 N. E. 983; 
 Shanks v. Delaware, L. & W. R. 
 Co., 214 N. Y. 413, Ann. Cas. 
 1916E 467, 108 N. E. 644; Hoag 
 V. Ulster & D. R. Co., 177 N. Y. 
 App. Div. .433. 164 N. Y. Siipp. 
 529; Knowles v. New York, N. 
 H. & H. R. Co., 177 N. Y. App. 
 Div. 262, 164 N. Y. Supp. 1; Gio- 
 vio V. New York Cent. R. Co., 176 
 N. Y. App. Div. 230, 162 N. Y. 
 Supp. 1026; Shanks v. Delaware, 
 L. & W. R. Co., 163 N. Y. App. 
 Div. 565, 148 N. Y. Supp. 1034; 
 Norton v. Erie R. Co., 163 N. Y. 
 App. Div. 466, 148 N. Y. Supp. 769. 
 
 North CaroUna. Saunders v. 
 Southern R. Co., 167 N. C. 375, 83 
 S. E. 573. 
 
 Oklahoma. Chicago, R. I. & 
 
 P. R. Co. v. Felder, Okla. — , 
 
 155 Pac. 529. 
 
 Texas. Missouri, K. & T. Ry. 
 
 Co. of Texas v. Watson, Tex. 
 
 Civ. App. , 195 S. W. 1177. 
 
 Washington. Aldread v. North- 
 ern Pac. R. Co., 93 Wash. 209, 160 
 Pac. 429; Bolch v. Chicago, M. & 
 St. P. R. Co., 90 Wash. 47, 155 Pac. 
 422. 
 
 Wisconsin. Karras v. Chicago 
 & N. W. R. Co., 165 Wis. 578, 162 
 N. W. 923; .Tacoby v. Chicago, M. 
 & St. P. R. Co., 165 Wis. 610. 161 
 
 N. W. 751, 164 N. W. 88; Graber 
 V. Duluth, S. S. & A. R. Co., 159 
 Wis. 414, 150 N. W. 489; Ruck v 
 Chicago, M. & St. P. R. Co, 153 
 Wis. 158, 140 N. W. 1074. 
 
 2. Erie R. Co. v. Winfleld, 244 
 U. S. 170, 61 L. Ed. 1057, 37 Sup. 
 Ct. 556, 14 N. C. C. A. 957; New 
 York Cent. R. Co. v. Winfield, 244 
 U. S. 147, 61 L. Ed. 1045, 37 Sup. 
 Ct. 546, 14 N. C. C. A. 680, Ann. 
 Cas. 1917D 1139; Southern Pac. 
 Co. v. Jensen, 244 U. S. 205, 61 L. 
 Ed. 1086, 37 Sup. Ct. 524, 14 N. 
 C. C. A. 597, Ann. Cas. 1917E 900; 
 Lehigh Valley R. Co. v. Barlow, 
 244 U. S. 183, 61 L. Ed. 1070, 37 
 Sup. Ct. 515; Baltimore & O. 
 R. Co. V. Branson. 242 U. S. 623, 
 61 L. Ed. 534, 37 Sup. Ct. 244; 
 Minneapolis & St. L. R. Co. v. 
 Nash, 242 U. S. 619. 61 L. Ed. 
 531, 37 Sup. Ct. 239; Atlantic 
 Coast Line R. Co. v. Mims, 242 
 U. S. 532, 61 L. Ed. 476, 37 Sup. 
 Ct. 188; Illinois Cent. R. Co. v. 
 Williams, 242 U. S. 462, 61 L. 
 Ed. 437, 37 Sup. Ct. 128; Minne- 
 apolis & St. L. R. Co. V. Winters, 
 242 U. S. 353, 61 L. Ed. 358, 37 
 Sup. Ct. 170, 13 N. C. C. A. 1127; 
 Erie R. Co. v. Welsh, 242 TJ. S. 
 303, 61 L. Ed. 319, 37 Sup. Ct. 
 116; Baltimore & O. R. Co. v. 
 Wilson, 242 U. S. 295, 61 L. Ed. 
 3r2, 37 Sup. Ct. 123; Great North- 
 ern R. Co. V. Capital Trust Co.. 
 242 U. S. 144, 61 L. Ed. 208, 37
 
 ^ 449] 
 
 Employes Subject to Act. 
 
 / 1 i 
 
 If the reader bears in mind that Congress in passinir 
 the act, was not regulating the rights and liabilities of 
 employers and em])loyo.s as such, but was primarily 
 regulating and promoting the safety of those engaged 
 in interstate commerce, and, for that purpose, incident- 
 ally declared the riglits and lialfilities of all railroad.^ 
 and employes only while both were engaged in such 
 commerce, many difficulties in the solution of such a 
 question disappear.^ 
 
 Sup. Ct. 41. L. R. A. 1917E 1050; 
 LouisviUe & N. R. Co. v. Parker, 
 242 U. S. 13, 61 L. Ed. 119, 37 
 Sup. Ct. 4; Illinois Cent. R. Co. 
 V. Cousins, 241 U. S. 641, 60 L. 
 Ed. 1216, 36 Sup. Ct. 446; Chica- 
 go, B. & Q. R. Co. V. Harrington, 
 241 U. S. 177, 60 L. Ed. 941, 36 
 Sup. Ct. 517, 11 N. C. C. A. 992; 
 Osborne v. Gray, 241 U. S. 16, 60 
 L. Ed. 865, 36 Sup. Ct. 48G; Sea- 
 board Air Line Ry. Co. v. Kenney, 
 240 U. S. 489, 60 L. Ed. 762, 36 
 Sup. Ct. 458; Kanawha & M. R. 
 Co. V. Kerse, 239 U. S. 576, 60 L. 
 Ed. 448, 36 Sup. Ct. 174; Shanks 
 V. Delaware, L. & V/. R. Co., 239 
 U. S. 556, 60 L7 Ed. 436, 36 Sup. 
 Ct. 188; Chicago, R. I. & P. R. 
 Co. V. Wright, 239 U. S. 548, 60 
 L. Ed. 431, 36 Sup. Ct. 185; South- 
 ern R. Co. V. Lloyd, 239 U. S. 496, 
 60 L. Ed. 402, 36 Sup. Ct. 210; 
 Delaware, L. & W. R. Co. v. Yur- 
 konis. 238 U. S. 439, 59 L. Ed. 
 1397, 35 Sup. Ct. 902; New York 
 Cent. & H. River R. Co. v. Carr. 
 238 U. S. 260, 59 L. Ed. 1298, 35 
 Sup. Ct. 780; St. Louis, I. M. & 
 S. Ky. Co. V. Craft, 237 U. S. 648, 
 59 L. Ed. 1160, 35 Sup. Ct. 704. 9 
 N. C. C. A. 754; Toledo, St. L. 
 & M. R. Co. V. Slavin, 236 U. S. 
 454, 58 L. Ed. 671, 35 Sup. Ct. 306; 
 Wabash R. Co. v. Hayes, 234 U. 
 S. 86, 58 L. Ed. 1226, 34 Sup. Ct. 
 729, 6 N. C. C. A. 224; Illinois 
 
 Cent. R. Co. v. Behrens, 233 U. 
 S. 86, 58 L. Ed. 1226, 34 Sup. Ct. 
 646, 10 N. C. C. A. 153, Ann. Cas. 
 1914C 163; North Carolina R. Co. 
 V. Zachary, 232 U. S. 248, 58 L. 
 Ed. 591, 34 Sup. Ct, 305, 9 N. C. 
 C. A. 109, Ann. Cas. 1914C 159; 
 St. Louis, S. F. & T. Ry. Co. v. 
 Seale, 229 U. S. 156, 57 L. Ed. 1129. 
 33 Sup. Ct. 651, Ann. Cas. 1914C 
 156; Pedersen v. Delaware, L. & 
 W. R. Co., 229 U. S. 146, 57 L. 
 Ed. 1125, 33 Sup. Ct. 648, 3 N. C. 
 C. A. 779, Ann. Cas. 1914C 153; 
 Norfolk & W. R. Co. v. Earnest. 
 229 U. S. 114, 57 L. Ed. 1096, 33 
 Sup. Ct. 654, Ann. Cas. 1914C 
 172: Missouri, K. & T. R. Co. v. 
 Wulf. 226 U. S. 570, 57 L. Ed. 355, 
 33 Sup. Ct. 135, Ann. Cas. 1914B 
 134; Employers' Liability Cases, 
 207 U. S. 463, 52 L. Ed. 297, 28 
 Sup. Ct. 141. 
 
 3. First Employers' Liability 
 Cases, 207 U. S. 463, 52 L. Ed. 297. 
 28 Sup. Ct. 141, in which the Su- 
 preme Court declared the Federal 
 Employers' Liability Act of 1906 
 unconstitutional: In re Second 
 Employers' Liability Cases, 223 
 U. S. 1, 56 L. Ed. 327, 32 Sup. Ct. 
 169, 1 N. C. C. A. 875. 38 L. R. A. 
 (N. S.) 44, in which the Federal 
 Employers' Liability Act of 1908 
 was held constitutional and valid. 
 Knowles v. New York, N. H. & H. 
 R. Co., 177 N. Y. App. Div. 262.
 
 778 Injuries to Interstate Employes. [§ 450 
 
 § 450. Employment in Interstate Commerce not Re- 
 stricted or Limited to Actual Transportation from One 
 State to Another. The Federal Act prescribes that its 
 provisions shall apply to all injuries sustained while 
 the employe is engaged in interstate commerce; but 
 employment in interstate commerce is not limited or re- 
 stricted to the work of actually transporting articles 
 of commerce from one state to another.* Transporta- 
 tion or caiTiage is an essential element of commerce be- 
 tween the states, but it does not constitute the entire 
 field covered by the Employers' Liability Act. When 
 the commerce involved is transportation from one state 
 to another, the act of interstate commerce is done by 
 the labor of men and with the help of things. These 
 men and things are the agents and the instruments of 
 the commerce. If the agents or instruments, while they 
 are so employed, are destroyed or interrupted, inter- 
 state commerce is affected and interrupted. Commerce, 
 therefore, within the federal Act, includes more than 
 the mere carriage of commodities. Whenever employes 
 are engaged in work which is so directly connected 
 with interstate commerce as to be a part of it, they are 
 within the purview of the federal Act. Many illustra- 
 tions of this principle will be found in the succeeding 
 paragraphs. 
 
 § 451. Same Act May Constitute Interstate Employ- 
 ment in One Relation and not in Another. The test of in- 
 terstate employment is the relation or connection to inter- 
 state transportation of the work at which the employe is 
 engaged at the time of the injury. The same act of work 
 in one relation or situation may constitute employment 
 in such commerce while in another or different con- 
 nection or situation, it may not be a part of interstate 
 transportation. Thus, a switchman engaged in moving 
 a carload of coal to a coal chute for the purpose of 
 supplying interstate engines with coal was held not to 
 be engaged in interstate commerce by the national Su- 
 
 164 N. y. Supp. 1, citing Roberts' 4. McKee v. Ohio VaUey Elec. 
 
 Injuries to Interstate Employes. R. Co., 78 W. Va. 131, 88 S. E. 616.
 
 § 452] Employes Subject to Act. 779 
 
 preme Court ;'^ wliile on the other liaiid, a l)rak<'iiiaii 
 engaged in doing exactly the same kind of work was, 
 by tlie Supreme Court of Texas, properly held to be 
 engaged in interstate commerce." The switchman, in 
 the Harrington case, however, was a member of a 
 terminal crew and at the time of the injury was en- 
 gaged in moving intrastate traffic, that is, from the 
 storage tracks for coal to a chute in the same yard; 
 but, in the De Bord case, the employe injured was a 
 brakeman on an interstate train between two terminals. 
 His act in moving a carload of coal to the coal chute 
 for the purpose of supplying the interstate engines, was 
 performed at a way station between tenninals. It was 
 a part of his duty in switching cars out of an inter- 
 state train so that his work in moving the coal to the 
 chute came within the purview of the decision of the 
 Supreme Court in another case," holding that an em- 
 ploye engaged in switching a car, even though contain- 
 ing intrastate commerce out of an interstate train, was 
 still employed in interstate commerce. To determine 
 the status of an employe with reference to whether the 
 state or federal law controls, each case must be examined 
 in the light of its particular facts with a view of ascer- 
 taining whether, at the time of the injury, the employe 
 was engaged in interstate transportation or in an act so 
 directly and immediately connected with such trans- 
 l)ortation as substantially to form a part or a necessary 
 incident thereof, 
 
 § 452. Criterion Adopted by United States Supreme 
 Court in Determining Employment in Interstate Com- 
 merce. The test in determining whether an emijloye of 
 a common carrier by railroad is engaged in interstate 
 commerce within the meaning of the Federal Employ- 
 ers' Liability Act, is well established by the controlling 
 
 5. Chicago, B. & Q. R. Co. v. Co. v. De Bord, Tex. . 19J 
 
 Harrington, 241 U. S. 177. 60 L. S. W. 7G7. 
 
 Ed. 941, 36 Sup. Ct. 517, 11 N. C. 7. New York Cent. & H. River 
 
 C. A. 992. R. Co. V. Carr, 238 U. S. 260. 59 L. 
 
 6. Chicago, R. I. & G. Ry. Ed. 1298, 35 Sup. Ct. 780, 9 N. C. 
 
 C. A. 1.
 
 780 Injuries to Inteestate Employes. [§ 452 
 
 decisions of tlie United States Supreme Court, but the 
 difficulty lies in its application to the concrete facts of 
 each case. The following excerpts from leading opinions 
 of that court illustrate the criterion applied: '-Having 
 in mind the nature and usual course of the business to 
 which the act relates and the evident purpose of Con- 
 gress in adopting the act, we think it speaks of 
 interstate commerce, not in a technical legal sense, but 
 in a practical one better suited to the occasion (see 
 Swift & Co. V. United States, 196 U. S. 375, 398), and 
 that the true test of employment in such commerce in 
 the sense intended is, was the employe at the time of 
 the injury engaged in interstate transportation or in 
 work so closely related to it as to be practically a part 
 of it;'" "Among the questions which naturally arise 
 in this connection are these: Was that work being done 
 independently of the interstate commerce in which the 
 defendant was engaged, 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?";^ "Each case must be decided in the 
 light of the particular facts with a view of determining 
 whether, at the time of the injury, the employe is en- 
 gaged in interstate business, or in an act which is so 
 directly and immediately connected with such business 
 as substantially to form a part or a necessary incident 
 thereof";" "Giving to the words 'suffering injury while 
 he is employed by such carrier in such commerce' their 
 natural meaning, as we think must be done, it is clear 
 that Congress intended to confine its action to injuries 
 occurring when the particular service in which the em- 
 ploye is engaged is a part of interstate commerce";" 
 
 8. Shanks v. Delaware, L. & W. 10. New York Cent. & H. River 
 R Co 239 U. S. 556, 60 L. Ed. R. Co. v. Carr, 238 U. S. 260, 59 
 436. 36 Sup. Ct. 188. L. Ed. 1298, 35 Sup. Ct. 780, 9 N. 
 
 9. Pedersen v. Delaware, L. & C. C. A. 1. 
 
 W. R. Co., 229 U. S. 146, 57 L. Ed. H. Illinois Cent. R. Co. v. 
 
 1125, 33 Sup. Ct. 648, 3 N. C. C. A. Behrens, 233 U. S, 473, 58 L. Ed. 
 779, Ann. Cas. 1914C 153. 1051, 34 Sup. Ct. 646, 10 N. C. C. 
 
 A. 153, Ann. Cas. 1914C 163.
 
 § 453] Employes Subject to Act. 781 
 
 "By the term of the Employers' Liability Act the true 
 test is the nature of the work being done at the time 
 of the injury, and the more expectation that plaintiff 
 would presently be called upon to perform a task in 
 interstate commerce is not sufficient to bring the case 
 within the act.'"^ 
 
 § 453. Employes Presumed to be Engaged in Intra- 
 state Commerce. Until the contrary is shown, it will 
 be presumed in an action for injunos to a railroad em- 
 ploye through the negligence of his emjjloyer, in the 
 use or operation of its railway within the state, that 
 he was engaged in intrastate commerce and that he is 
 seeking a remedy under the laws of the state." But 
 another court held that, in such actions, the court will 
 take judicial notice that the railroad company was en- 
 gaged in interstate commerce,^* "It is apparent that 
 there was no evidence requiring the conclusion that the 
 deceased was engaged in interstate commerce at the 
 time of his injury, and we are asked to supply the de- 
 ficiency by taking judicial notice that the cars came from 
 without the State. This contention we are unable to 
 sustain. The make-up of trains and the movement of 
 cars are not matters which we may assume to know 
 without evidence. The state court, with its intimate 
 
 12. Erie R. Co. v. Welsh. 242 U. 101 Atl. 532. 
 
 S. 303, Gl L. Ed. 319, 37 Sup. Ct. Ohio. Erie R. Co. v. Helsh, 89 
 
 116. Ohio St. 81, 105 N. E. 189. 
 
 13. United States. Osborne v. Oklahoma. Chicago, R. I. & P. 
 Gray, 241 U. S. 16, 60 L. Ed. 8G5, ^ ^^ ^. ^^^^^^^ ^- q^^^ 192, 145 
 36 Sup. Ct. 486. p^^ 33^ 
 
 Illinois. Chicago, R. I. & P. R. 
 _ T J . ■ , T> „„j ^o Til- In the absence of an allegation 
 
 Co. V. Industrial Board of Illi- . .^ .,, 
 
 nois. 273 111. 528, L. R. A. 1916F ^^ P^^^^ '^ ^^^f contrary, it will 
 
 540. 113 N. E. 80. ^^ presumed that the work per- 
 
 T J- oo,- p XT' r> n^ ,r formed by an employe of a rail- 
 
 Indiana. Chicago & E. R. Co. V. . ^ ^ . , 
 
 „.,. TJA 11^ road company was intrastate and 
 
 Feightner, Ind. App. ,114 '""" . ,. . n, 
 
 ^, t, -_- not interstate in character. Ter- 
 N. Jii. boa. , ^ ^ /-> 1 
 
 r> ^1 ,. nv.A^^^^ tj rv V. Southern Pac. Co., Cal. 
 
 Iowa. Bradbury v. Chicago, R. 
 
 I. & P. R. Co., 149 Iowa 51, 40 L. • ^^'^ P^^" ^^• 
 
 R. A. (N. S.) 684, 128 N. W. 1. !•<• ^Iclntosh v. St. Louis & S. 
 
 Maryland. Washington, B. & A. F. R. Co., 182 Mo. App. 2S8, 108 
 
 E. R. Co. V. Owens. Md. , S. W. 821.
 
 782 Injuries to Interstate Employes. [§ 453 
 
 knowledge of the local situation, thought that such an 
 assumption on its part would be wholly unwarranted and 
 we cannot say that it erred in this view. The fact that 
 Chattanooga and its surburb, Alton Park, were near the 
 state line did not establish that the cars had crossed 
 it. The defendants knew the actual movement of the 
 cars, and failing to inform the court upon this point 
 cannot complain that they have been deprived of a Fed- 
 eral right. '"^ 
 
 § 454. Prior or Subsequent Employment Immater- 
 ial in Determining Applicability of Federal Statute. The 
 nature of an employe's work at the very time of an in- 
 jury is the test in determining whether his rights and 
 the liability of the defendant are governed by the federal 
 statute to the exclusion of all state laws. Whether he 
 had previously been engaged in interstate commerce, or 
 whether it was contemplated that he would be so en- 
 gaged after his immediate duty at the time of the in- 
 jury had been performed, is immaterial.^^ ''That he 
 was expected, upon the completion of that task, to en- 
 gage in another which would have been a part of the 
 interstate commerce, is immaterial under the statute, for 
 by its terms the true test is the nature of the work 
 being done at the time of the injury."^' "By the terms 
 of the Employers' Liability Act the true test is the 
 nature of the work being done at the time of the injury, 
 and the mere expectation that plaintiff would presently 
 be called upon to perform a task in interstate com- 
 
 15. Osborne v. Gray, 241 U. S. U S. 556, 60 L. Ed. 436, 36 Sup. 
 
 16, 60 L. Ed. 865, 36 Sup. Ct. 486. St. 188; New York Cent. & H. 
 
 See Section 465, in-fra. River R. Co. v. Carr, 238 U. S. 
 
 10. Illinois Cent. R. Co. v. 260, 59 L. Ed. 1298, 35 Sup. Ct. 
 
 Cousins, 241 U. S. 641, 60 L. Ed. ^g^^ 9 N C C A. 1 
 1216, 36 Sup. Ct. 446; Chicago, B. 
 
 & Q. R. Co. V. Harrington, 241 U. l^" ""^^^^ ^^^t- ^- ^^- ^- ^eh- 
 
 S. 177, 60 L. Ed. 941, 36 Sup. Ct. rens, 233 U. S. 473, 58 L. Ed. 1051, 
 
 517, 11 N. C. C. A. 992; Shanks 34 Sup. Ct. 646, 10 N. C. C. A. 153, 
 
 V. Delaware, L. & W. R. Co., 239 Ann. Cas. 1914C 163.
 
 § 455] 
 
 Employes Subject to Act. 
 
 783 
 
 merce is not snfliciont to })rin;^ the case witliin tlio 
 act.'"« 
 
 § 455. Servants Employed in Both Intrastate and 
 Interstate Commerce. Although an employe is at the 
 time engaged in intrastate commerce as well as inter- 
 state commerce, as, for instance, an employe on a train 
 hauling both kinds of commerce or a carpenter repair- 
 ing a bridge over which both kinds of commerce are 
 carried, yet if injured under such circumstances, he 
 cannot take his choice of remedy under the state and 
 federal law, for the courts hold that he is then engaged 
 in interstate commerce and the remedy given by the 
 national act is exclusive.''' An extreme and a proper 
 application of this principle is the following: A brake- 
 man injured on a train containing nothing but intra- 
 
 18. Erie R. Co. v. Welsh, 242 
 U. S. 303, 1)1 L. Ed. :il9, 37 Sup. 
 Ct. 116. But see Section 505, in- 
 fra. 
 
 19. United States. New York 
 Cent. & H. River R. Co. v. Carr, 
 238 U. S. 260, 59 L. Ed. 1298, 35 
 Sup. Ct. 780, 9 N. C. C. A. 1; 
 Pedersen v. Delaware, L. & W. 
 R. Co., 229 U. S. 146, 57 L. Ed. 
 1125, 33 Sup. Ct. G48, 3 N. C. C. A. 
 779, Ann. Cas. 1914C 153; rev'g 
 117 C. C. A. 33, 197 Fed. 537, which 
 aff'd 184 Fed. 737; Michigan 
 Cent. R. Co. v. Vreeland, 227 U. 
 S. 59, 57 L. Ed. 417, 33 Sup. Ct. 
 192, Ann. Cas. 1914C, 176; Waters 
 V. Guile, 14S C. C. A. 298, 234 Fed. 
 532. 
 
 Alabama. Western Ry. of Ala. 
 
 V. Mays. Ala. , 72 So. 
 
 441. 
 
 Indiana. Vandalia R. Co. v. 
 Holland, 183 Ind. 438, 108 N. E. 
 580. 
 
 Iowa. Bruckshaw v. Chicago, 
 R. I. & P. R. Co., 173 Iowa 207, 
 155 N. W. 273: Ross v. Sheldon, 
 176 Iowa 618, 154 N. W. 499. 
 
 Massachusetts. Morrison v. 
 
 Commercial Towboat Co., 
 
 Mass. , 116 N. E. 499. 
 
 Michigan. Fernette v. Pere Mar- 
 quette R. Co., 175 Mich. 653, 141 
 N. W. 1084, 144 N. W. 834. 
 
 Minnesota. Crandall v. Chicago 
 Great Western R. Co.. 127 Minn. 
 498, 150 N. W. 165. 
 
 Missouri. Noel v. Quincy, 0. & 
 K. C. R. Co., Mo. App. , 
 
 182 S. W. 787. 
 
 Montana. McBain v. Northern 
 Pac. R. Co., 52 Mont. 578, 160 
 Pac. 654. 
 
 North Carolina. Horton v. Sea- 
 board Air Line R. Co., 157 N. C. 
 146, 72 S. E. 958. 
 
 Texas. Texas & P. Ry. Co. v. 
 Sherer, Tex. Civ. App. , 
 
 183 S. W. 404; Southern Pac. Co. 
 
 V. Vaughn, Tex. Civ. App. 
 
 , 165 S. W. 885. 
 
 Vermont. Lynch's Adm'r v. 
 Central Vermont R. Co., 89 Vt. 
 363. 95 Atl. 683. 
 
 Washin^'ton. Bolch v. Chicago, 
 M. & St. P. R. Co., 90 Wash. 47. 
 155 Pac. 422; Snyder v. Great
 
 784: 
 
 Injuries to Interstate Employes. [§ 455 
 
 state shipments lias no remedy under the federal act 
 but the minute that any specie of merchandise destined 
 to a point beyond the state is placed in that train, then 
 if the brakeman on that train is injured, he is engaged 
 in interstate commerce, although every other commodity 
 in that train is a shipment between two points in the 
 same state.'° 
 
 § 456. Employes on Premises of Railroad Company 
 Going to or from Work. The federal statute not only 
 includes employes actually engaged in interstate com- 
 merce but it also covers such employes on the railroad 
 premises while going to or from their work; for, in such 
 cases, they are only doing that which is essential to 
 enable them to discharge their duties as employes en- 
 gaged in interstate commerce.^' For instance, a railroad 
 
 Northern R. Co., 88 Wash. 49, 
 152 Pac. 703. 
 
 West Virginia. Findley v. Coal 
 & Coke R. Co., 76 W. Va. 747, 87 S. 
 E. 198. 
 
 20. United States v. Colorado 
 & N. W. R. Co., 85 C. C. A. 48, 157 
 Fed. 342, 15 L. R. A. (N. S.) 167, 
 13 Ann. Cas. 893. Decedent was 
 brakeman with a switching crew 
 in a freight yard. He was killed 
 while switching cars. The evi- 
 dence was silent as to whether the 
 cars contained interstate ship- 
 ments. It was held that his wid- 
 ow suing as administratrix could 
 not recover under the federal act. 
 Hench v. Pennsylvania R. Co., 246 
 Pa. 1, L. R. A. 1915D 557, Ann. 
 Cas. 1916D 230, 91 Atl. 1056. 
 
 21. United States. Pry or v. 
 Bishop. 148 C. C. A. 25, 234 Fed. 
 9; Chicago, K. & S. R. Co. v. 
 Kindlesparker, 148 C. C. A. 17, 
 234 Fed. 1; Grand Trunk R. Co. 
 of Canada v. Knapp, 147 C. C. A. 
 624. 233 Fed. 950, 13 N. C. C. A. 
 1100; Delaware & H. Co. v. Ketz, 
 
 147 C. C. A. 101, 233 Fed. 31; 
 Great Northern R. Co. v. Mustell, 
 138 C. C. A. 305, 222 Fed. 879; 
 Bravis v. Chicago, M. & St. P. 
 R. Co., 133 C. C. A. 228, 217 Fed. 
 234; San Pedro, L. A. & S. L. R. 
 Co. V. Davide, 127 C. C. A. 454, 210 
 Fed. 870; Feaster v. Philadelphia 
 & R. Ry. Co., 197 Fed. 580; Lam- 
 phere v. Oregon R. & Nav. Co., 
 116 C. C. A. 156, 196 Fed. 336, 47 
 L. R. A. (N. S.) 1; Harvey v. 
 Texas & P. R. Co., 92 C. C. A. 
 237, 166 Fed. 385; St. Louis 
 Southwestern R. Co. v. Harvey, 75 
 C. C. A. 536, 144 Fed. 806; Ells- 
 worth V. Metheney, 44 C. C. A. 
 484, 104 Fed. 119, 51 L. R. A. 389. 
 
 Alabama. Virginia Bridge & 
 Iron Co. V. .lordan, 143 Ala. 603, 
 5 Ann. Cas. 709, 42 So. 73. 
 
 Georgia. Savannah & N. W. Ry.' 
 V. Roach, 19 Ga. App. 388, 91 S. 
 E. 506; Macon, D. & S. R. Co. v. 
 Robinson, 19 Ga. App. 370, 91 S. 
 E. 492; Seaboard Air-Line Ry. 
 Co. V. McMichael, 143 Ga. 689, 85 
 S. E. 891.
 
 ^ 456] 
 
 Employes Subject to Act. 
 
 785 
 
 section man had been engaged in l^allasting the main 
 track of a railroad which carried i'reiglit and i)assen- 
 
 Illinois. Staley v. Illinois Cent. 
 R. Co.. 268 III. 356, L. R. A. 1916A 
 450, 109 N. E. 342. 
 
 Kansas. McQueen v. Central 
 Branch U. P. R. Co., 30 Kan. 689, 
 1 Pac. l.'^O. 
 
 Kentucky. Louisville & N. R. 
 Co. V. Walker's Adm'r, 162 Ky. 
 209, 172 S. W. 517. 
 
 Massachusetts. Oilman v. East- 
 ern R. Corporation, lJ06 Allen^ 
 (Mass.) 233, 87 Am. Dec. 635. 
 
 Michigan. Salalirin v. Ann Ar- 
 bor R. Co., Mich. , 160 N. 
 
 W. 552. 
 
 Minnesota. Davis v. Chicago, 
 R. I. & P. R. Co.. 134 Minn. 49, 
 1.58 N. W. 911. 
 
 Missouri. Smith v. Pryor 195 
 Mo. App., 259, 190 S. W. 69. 
 
 Nebraska. Huxoll v. Union Pac. 
 R. Co., 99 Neb. 170, 155 N. W. 
 900. 
 
 New York. Ames v. New York 
 
 Cent. R. Co., N. Y. App. Div. 
 
 , 165 N. Y. Supp. 84; Vick 
 
 V. New York Cent. & H. River R. 
 Co., 95 N. Y. 267, 47 Am. Rep. 
 36. 
 
 Rhode Island. Allen v. Gerard, 
 21 R. I. 467, 49 L. R. A. 351, 79 
 Am. St. Rep. 816, 44 Atl. 592. 
 
 Texas. Texas & P. Ry. Co. v. 
 
 White, Tex. Civ. App. , 
 
 177 S. W. 1185; Missouri, K. & T. 
 
 Ry. Co. of Texas v. Rentz, 
 
 Tex. Civ. App. , 162 S. W. 959. 
 
 Utah. Grow v. Oregon Short 
 Line R. Co., 44 Utah 160, Ann. Cas. 
 1915B 481, 138 Pac. 398. 
 
 Washington. Horton v. Oregon- 
 Washington R. & Nav. Co., 72 
 "Wash. 503. 47 L. R. A. (N. S.) 8. 
 1.10 Pac. 897. 
 
 West Virginia. Easter v. Vir- 
 ginian R. Co., 76 W. Va. 383, 11 
 
 1 Control Carriors r.O 
 
 N. C. C. A. 101, 86 S. E. 37. 
 
 Wisconsin. Molzoff v. Chicago, 
 M. & St. P. R. Co., 162 Wis. 451, 
 11 N. C. C. A. 273, 156 N. W. 467; 
 Ewald V. Chicago & N. W. Ry. Co., 
 70 Wis. 420, 5 Am. Sf. Rep. 178, 
 36 N. W. 12, 591. 
 
 A section man, killed at a tool 
 house of a railroad company a few 
 minutes before 7 o'clock in the 
 morning, the hour prescribed for 
 the commencement of his work, 
 was engaged in interstate com- 
 merce although at the time he 
 was not engaged in any labor for 
 the carrier. Stool v. Northern P. 
 R. Co., Or. , 172 Pac. 101. 
 
 An electrical engineer employed 
 by a common carrier to instruct 
 its motormen how to operate elec- 
 tric motors over a part of its rail- 
 way was engaged in interstate 
 commerce although at the time 
 he received an injury he was re- 
 turning to his headquarters. 
 Dumphy v. Norfolk & W. R. Co., 
 W. Va. , 95 S. E. 863. 
 
 A locomotive fireman who had 
 returned from his regular run on 
 a Saturday evening and who was 
 to go out again at 3:45 a. m. on 
 ]\Ionday morning, was not engaged 
 in interstate commerce when 
 walking through the railroad 
 yards on Sunday for the purpose 
 of taking his tools from an en- 
 gine on which he had worked at 
 some previous time but not on 
 the preceding day. to the engine 
 upon which he was scheduled to 
 leave on the following morning, 
 because his act in going for the 
 tools, the court held, was not di- 
 rectly and immediately connected 
 with the work on which he ex- 
 pected to be employed on the fol-
 
 786 
 
 Injuries to Interstate Employes. [§ 456 
 
 gers between different stations. At the time he was 
 injured he was returning to the camp at the conclusion 
 of liis day's labor on the handcar. The court held that 
 he was still engaged in interstate commerce within the 
 terms of the national statute." But another court er- 
 roneously held that a member of a track-laying gang 
 which worked during the usual hours in the daytime, 
 was employed in interstate commerce while asleep at 
 night in a bunk car on a side track.-^ A track laborer, 
 while walking along a railroad track from a bridge or 
 trestle where he has been at work during the day to 
 "boarding cars" on the right of way of the railroad 
 company, was within the protection of the federal act.^* 
 A locomotive fireman in the employ of a railroad 
 company was ordered to proceed from his home to the 
 railway station of the defendant in that town and there 
 secure transportation and go on a certain interstate 
 
 lowing day. Hansen v. New York 
 
 C. & H. R. R. Co., N. J. , 
 
 103 Atl. 200. 
 
 22. San Pedro, L. A. & S. L. R. 
 Co. V. Davide, 127 C. C. A. 454, 
 210 Fed. 870. Accord: Grow v. 
 Oregon Short Line R. Co., 44 Utah 
 160, Ann. Cas. 1915B 481, 138 Pac. 
 398. 
 
 23. Sanders v. Charleston & W. 
 C. Ry. Co., 97 S. C. 50, 81 S. E. 
 283. See section 458, infra. 
 
 24. Louisville & N. R. Co. v. 
 Walker's Adm'r, 162 Ky. 209, 172 
 S. W. 517. In that case the court 
 said: "It is very clear that whii" 
 actually engaged at work for the 
 company he was an employee en- 
 gaged in interstate commerce, and 
 we think it equally clear that the 
 moment his day's work ended he 
 was not thereby converted into 
 some other kind of an employe, 
 hut that he either retained his 
 character as an interestate em- 
 ploye, or became, when his work 
 ended, and while going to the 
 boarding car under the circum- 
 
 stances stated, a licensee. After 
 giving to this question careful 
 consideration our opinion is that 
 in going from his place of work 
 to his boarding car he continued 
 in the character of an employe of 
 the company, engaged in inter- 
 state commerce. The boarding 
 cars in which he took his meals 
 and remained at night were own- 
 ed by the company. * * * And 
 so we think that under those cir- 
 cumstances an employe such as 
 Walker was, should be treated as 
 engaged in interstate commerce, 
 not only when actually employed 
 at his work, but while using the 
 premises of the company in go- 
 ing to and from the place set 
 apart for him to eat and sleep 
 and his work on the premises of 
 the company. In other words, 
 within the contemplation of the 
 act, the course of his employment 
 covered, not only the time he was 
 actually engaged at work, but the 
 time he was engaged in going to 
 and from his work."
 
 •^ 456] Employes Subject to Act. 787 
 
 train to another town in the same state wliorc ho was 
 to assist in relieving a train crew whicli liad been em- 
 ployed continuously for more than 16 hours on an inter- 
 state train. After receiving this order the fireman 
 hastened to the depot and had reached a crossing in 
 the yards of the railroad company where the cars were 
 cut, when, without warning, the cars were suddenly 
 closed by reason of other cars being negligently "kick- 
 ed" against them and he thereby sustained injuries 
 causing his death. In a subsequent action under tlie 
 federal act the petition alleged that at the time of the 
 happening of the injury and death "and immediately 
 l)rior thereto, he was engaged in the performance of his 
 duty in the employment of the said Oregon Railroad & 
 Navigation Company in doing and performing exclusive- 
 ly the acts and things necessary and proper to be done 
 in the performance of his said duties in obedience to 
 the order of said company, and as a part of the neces- 
 sities and requirements of the said company in aid of 
 and as a part of the operation of its cars, engines and 
 trains in carrj'ing on defendant's business of interstate 
 commerce by railroad." Under these facts it was held 
 by the Federal Circuit Court of Appeals that the dece- 
 dent was employed in interstate commerce, the court say- 
 ing: "The decedent when he was killed was not only 
 on his way to work for his employer, but he was pro- 
 ceeding under the direct and peremptory command of 
 the railroad company to do a designated specific act in 
 the service of the company, to-wit, to move a train then 
 engaged in interstate commerce. He was on the premises 
 of the railroad company and in the discharge of his 
 duty when he met his death and the train which struck 
 him and caused his death was engaged in interstate 
 commerce, and belonged to the same railroad com- 
 pany. ' '^^ 
 
 25. Lamphere v. Oregon R. & souri, K. & T. Ry. Co. of Texas 
 
 Nav. Co.. 116 C. C. A. 156. 196 v. Rentz. Tex. Civ. App. — , 
 
 Fed. 336. 47 L. R. A. (N. S.) 1, 162 S. W. 959. 
 rev'g 193 Fed. 248. Accord: Mis-
 
 788 Injuries to Interstate EivrpLOYES. [<^ 456 
 
 Assuming that the employe was either returning 
 from or going to work for the company in interstate 
 commerce, the question as to whether he was engaged 
 in interstate commerce while so going to or from his 
 work, will depend upon the further question as to when 
 the relation of master and servant commences or ends, 
 as the case may be and the solution of this problem 
 must be made in the light of common law decisions ap- 
 plicable. The relation of master and servant in so far 
 as the obligation to protect the employe is concerned 
 begins when the employe is necessarily on the premises 
 of the master pursuant to his contract of employment.'® 
 A fireman left his engine in the railroad yards and went 
 to his boarding house on a personal errand. While he 
 was walking through the yards he was struck by some 
 cars. On his return he expected to fire an engine pull- 
 ing an interstate train. It was held that he was en- 
 gaged in interstate commerce at the time of the casual- 
 ty.-^ A hostler who worked in a roundhouse on engines 
 used in hauling both interstate and intrastate commerce 
 was held not to be engaged in interstate commerce while 
 he was walking through the yards to a rest shanty on 
 the property of the railroad company.'^ An extra brake- 
 
 26. Uni'ted States. Fletcher v. Texas. Missouri, K. & T. Ry. 
 
 Baltimore & O. R. Co., 168 U. S. Co. of Texas v. Rentz, Tex. 
 
 1:35, 42 L. Ed. 411, 18 Sup. Ct. 35; Civ. App. , 162 S. W. 959. 
 
 Packet Co. v. McCue, 17 Wall. (U. Washington. Hobbs v. Great 
 
 S.) 508, 21 L. Ed. 705; Lamphere Northern R. Co., 80 Wash. 678, L. 
 
 V. Oregon R. & Nav. Co.. 116 C. R. A. 1915D 503, 142 Pac. 20. 
 
 C. A. 156, 196 Fed. 336, 47 L. R. Wisconsin. Gray v. Chicago & 
 
 A. (N. S.) 1; Harvey v. Texas & N. W. R. Co.. 153 Wis. 637, 142 
 
 P. R. Co., 92 C. C. A. 237, 166 Fed. N. W. 505; Ewald v. Chicago & 
 
 385; Dishon v. Cincinnati. N. O. N. W. Ry. Co., 70 Wis. 420, 5 Am. 
 
 & T. P. Ry. Co., 126 Fed. 194. St. Rep. 178, 36 N. W. 12. 
 
 Kansas. Bumstead v. Missouri 27. North Carolina R. Co. v. 
 
 Pac. R. Co., 99 Kan. 589, L. R. A. Zachary. 232 U. S. 248, 58 L. Ed. 
 
 1917E 734, 162 Pac. 347. 591, 34 Sup. Ct. 305, 9 N. C. C. A. 
 
 Kentucky. Chesapeake & O. R. 109, Ann. Cas. 1914C 159. 
 
 Co. v. Harmon's Adm'r. 173 Ky. 1, 28. Gray v. Chicago & N. W. 
 
 189 S. W. 1135. R. Co.. 153 Wis. 637, 142 N. W. 
 
 Massachusetts. Olsen v. An- 505. The court in this case also 
 
 drews, 168 Mass. 261, 47 N. E. 90. held that hostlers working on en- 
 New York. Eoldt v. New York !rino=^ used indiscriminately in car- 
 
 Crnt. R. Co.. 18 N. Y. 432. rying both interstate and intra-
 
 § 456] Employes Subject to Act. 789 
 
 man, working for a railroad company, having been sent 
 out on a passenger train carrying interstate passengers 
 as a brakeman, was, at tlie time of his injuries, return- 
 ing on anotlier train on a "pass" back to tlie division 
 point. In railway parlance he was ''dead-heading" 
 back to his headquarters. The court held that he was 
 engaged in interstate commerce although he was not 
 employed on the train he was riding on.^'* A member 
 of a track-laying gang while resting on Sunday in a 
 camp on the right of way was directed by one of the 
 foremen to get on a passing train in order to get the 
 mail for the camp at the next station. When he tried 
 to get on the train he fell and was injured. The court 
 held that he was not engaged in interstate commerce.'" 
 A railroad employe at the time he was injured had 
 completed his work for the day and had left the work 
 shop and the premises of the railroad company. lie 
 was walking along a street when he was struck by a 
 piece of timber thrown from a train belonging to the 
 railroad company for which he worked. The court held 
 that the relation of master and servant did not exist so 
 as to render the company liable for the act of another 
 employe in negligently throwing the timber.^^ A rail- 
 road employe while riding home on one of the company's 
 trains was held not employed in interstate commerce as 
 there was no evidence introduced to show that he was 
 then or had been employed in interstate commerce.^- 
 The opinion does not disclose the nature of his employ- 
 state commerce were not engaged Ct. 651, Ann. Cas. 1914C 15G; Ped- 
 in interstate commerce. See sec- ersen v. Delaware, L. & W. R. Co., 
 lion 488, infra. 117 c. C. A. 33, 197 Fed. 537;' 
 
 29. St. Louis & Southwestern Lamphere v. Oregon R. & Nav 
 
 Ry. Co. V. Brothers, Tex. Civ. ^^^ ^93 ^^^ ^^^ CCA 
 
 App. , 165 S. W. 488. 
 
 30. Myers v. Norfolk & W. R. 
 Co., 162 N. C. 343, 48 L. R. A. (N. 
 ^.) 987, 78 S. E. 280. The court 
 in this case based Its decision on ^- ^^■' ^^^ U. S. 135, 42 L. Ed. 
 three cases subsequently over- • ^* Sup. Ct. 35, 6 App. Cas. 
 ruled in a higher court, St. Louis, (D- C.) 385. 
 
 S. F. & T. R. Co. V. Scale, 229 32. Bennett v. Lehigh Valley R. 
 
 U. S. 156, 57 L. Ed. 1129, 33 Sup. Co., 197 Fed. 578. 
 
 156, 196 Fed. 336, 47 L. R. A. (N. 
 S.) 1. 
 31. Fletcher v. Baltimore & P.
 
 7i90 Injuries to Interstate Employes. [^ 456 
 
 meut for the railroad company. A section laborer re- 
 turning to his sleeping quarters on a hand car after 
 working hours was within the protection of the federal 
 act, provided he was so going under the command of 
 his emploYer."\ When an employe is summoned for 
 duty in connection with interstate transportation, he 
 is within the protection of the federal act as soon as he 
 comes upon the premises of the railway company; and, 
 he is also under the same protection while, after leaving 
 his duties, he is passing out of the premises of his em- 
 ployer, provided it is done within a reasonable time 
 and along the usual route.^* 
 
 § 457. Status of Employes Injured While Going to 
 or From Day's Work Partly in Interstate and Partly in 
 State Commerce. That the relationship of master and 
 servant exists at the time of an injury is not sufficient 
 to permit a recovery under the federal act. There must 
 be, in addition thereto, a close and direct connection at 
 the time of the injury with interstate commerce to 
 justify the application of the national statute. The 
 cases discussed and cited in the foregoing paragraph 
 amply sustain the rule that an employe injured on his 
 master's premises while going to or from his place of 
 labor where he is exclusively engaged in interstate 
 commerce during the day, is governed by the federal 
 act. On the other hand, an employe injured while on 
 his way to such work for a carrier that constitutes intra- 
 state commerce exclusively, or in work that is not inter- 
 state commerce, must look to the laws of the, state for a 
 remedy.^^ 
 
 But there are many railroad employes whose work 
 during the day is not devoted exclusively to either kind 
 
 33. Salabrin v. Ann Arbor R. during the day, and by the same 
 
 Co., Mich. , 160 N. W. mark he was not so employed 
 
 552. while he was going on the hand- 
 
 34. Davis v. Chicago, R. I. & car to and returning from his 
 P. R. Co., 134 Minn. 49, 158 N. worlc." Sanborn, J., in Bravis v. 
 W. 911. Chicago, M. & St. P. R. Co., 133 
 
 35. "The plaintiff was not em- C. C. A. 228, 217 Fed. 234. 
 ployed in interstate commerce
 
 § 457] Employes Subject to Act. 791 
 
 of commerce. For example, switchmen, during their 
 period of work, are sometimes engaged in interstate 
 and, at other times, in intrastate oomniercc. What, 
 then, in so far as the applicability of the federal act 
 is concerned, is the status of such an employe if injured 
 on the master's premises while going to or from his 
 place of work? He camiot take his choice of remedy be- 
 tween the state law and the federal act; for both never 
 apply to the same injury. A New York court held, 
 that, under such circumstances, the employe was not 
 engaged in interstate commerce.^'' In that case, it ap- 
 peared that the employe, a member of a switching crew, 
 was on. his way to begin his day's work and was killed 
 while crossing a track in the yard of his employer. His 
 work during the day was not exclusively in interstate 
 commerce, but at times he assisted in the movement of 
 cars containing intrastate traffic, and, at other times, 
 cars containing interstate commerce. His initial work 
 on that day, had he not been killed, was to move inter- 
 state cars. A recovery under the federal act was denied, 
 although the court conceded that the relation of master 
 and sen-ant existed at the time of the injury. 
 
 The ruling of this court, however, was, no doubt, 
 in effect, overruled by a subsequent decision of the 
 national Supreme Court." In the Winfield case, the em- 
 ploye was in charge of a switch engine in a terminal 
 yard and was engaged, during the day, in switching 
 freight cars. In some, the freight was interstate, in 
 others, intrastate, and in still others, it was of both class- 
 es. This was true of the cars moved on the day he was in- 
 jured. Upon the conclusion of his day's work, he took 
 his engine to the place where it was to remain for the 
 night, and then started to leave the yard for his home. 
 While crossing one of the tracks, he was killed. These 
 facts sustained the conclusion that the deceased was 
 employed in interstate commerce at the time of his 
 death. ''In leaving the carrier's yard," said the court, 
 
 36. Knowles v. New York, N. 37. Erie R. Co. v. Winfield, 244 
 
 H. & H. R. Co., 177 N. Y. App. U. S. 170, 61 L. Ed. 1057, 37 Sup. 
 Div. 262. 164 N. Y. Supp. 1. Ct. 556, 14 N. C. C. A. 957.
 
 7i9'2 Injuries to Interstate Employes. ["^ 457 
 
 "at the close of Ms day's work the deceased was but 
 discharginsi" a dutv of his employment. See North Car- 
 olina B. Co. V. Zachary, 232 U. S. 248, 260, 58 L. Ed. 
 591, 596, 34 Sup. Ct. Eep. 305, 9 N. C. C. A. 109, Ann. 
 Cas. 1914C, 159. Like his trip through the yard to his 
 engine in the morning, it was a necessary incident of 
 his day's work, and partook of the character of that 
 work as a whole, for it was no more an incident of one 
 part than of another. His day's work was in both inter- 
 state and intrastate commerce, and so, when he was 
 leaving the yard at the time of the injury, his employ- 
 ment was in both. That he was employed in interstate 
 commerce is therefore plain, and that his employment 
 also extended to intrastate commerce is, for present pur- 
 poses, of no importance." 
 
 § 458. Employer not Liable to Employe Injured 
 After Day's Work is Over— Sleeping in Cars. A com- 
 mon carrier by railroad is liable only to the servant 
 when the latter is actually in its service, and the relation 
 does not exist where it appears that the performance 
 of the master's work has been completed.^^ For ex- 
 ample, a car accountant who had turned in his report 
 to the office, had left the last place at which all his duties 
 were to be performed, and had, in fact, completed his 
 work for the day, was held not to be employed in inter- 
 state commerce while he was leaving the premises of 
 the defendant without any immediate intention of re- 
 turning to complete any of his duties.^^ A section labor- 
 er after quitting work for the day and sometime after 
 6 p. m. and while returning home, stepped under a box 
 car to protect himself from the rain. While in that 
 
 38. Seaboard Air Line Ry. Co. chison, T. & S. F. Ry. Co., 
 
 V. Padgett, 236 U. S. 668, 59 L. Tex. Civ. App. , 192 S. W. 
 
 Ed. 777, 35 Sup. Ct. 481, aff'g 99 274; Beaumont & G. N. R. Co. v. 
 
 S. 0. 364, 83 S. E. 633; Fletcher ^ , n^ n- ^ 
 
 Gonzales, Tex. Civ. App. — , 
 
 V. Baltimore & P. R. Co., 168 U. 
 
 S. 135, 42 L. Ed. 411, 18 Sup. Ct. ^^^ ^- ^- ^^^• 
 
 35; Ames v. New York Cent. R. ^9. Jacoby v. Chicago, M. & St. 
 
 Co., N. Y. App. Div. , P- Ry- Co., 165 Wis. 610, 161 N. 
 
 165 N. Y. Supp. 84; Perez v. At- W. 751, 164 N. W. 88.
 
 <§ 458] Employes Subject to Act. 793 
 
 position tlie car was moved. It was lield tliat lie was not 
 employed within the purview of the Federal Act.*" 
 
 In a case before the Supreme Court of South Car- 
 olina,** it appeared that the plaintiff was a track labor- 
 er, and, during: working- hours, assisted a ^anj^ in relay- 
 ing rails on the defendant's lines of railway and had 
 been so engaged for some weeks. At night he slept on a 
 bunk in a shanty car of a woi-k train which stood on a 
 side track. AVhile asleep at night in the car he was in- 
 jured in a collision with another train. The Su])reme 
 Court of South Carolina, under these facts, held that 
 the plaintiff at the time of his injury was engaged in 
 interstate commerce. In answering the contention of 
 counsel that the plaintiff was not at the time employed 
 in interstate commerce, the court said: ''When the 
 plaintiff was in the bunk of his shanty in 'sleep that 
 knits up the ravelled sleeve of care' and getting strength 
 to lay rails next day, the law imi)uted to him actual 
 service on the track and extended to him the rights of 
 such a worker; 'for the letter (of the law) killeth but 
 the spirit giveth life.' " The ruling of the court in 
 this case was palpably erroneous, for railroad employes 
 while asleep at night and not on duty are not then 
 employed by the carrier in interstate commerce, no 
 matter whether they are taking their rest and sleep in 
 their own homes or in places furnished them by the 
 railroad company by reason of the transitory nature of 
 their work.*- 
 
 The federal statute was enacted only with reference 
 to those railroad employes who, while in the actual dis- 
 charge of their duties in interstate commerce, are in- 
 jured. A member of a train crew, therefore, regularly 
 employed in moving trains from a terminal in one state 
 to a terminal in another, was not engaged in interstate 
 commerce while asleep in the caboose at one of the ter- 
 
 40. Perez v. Atchison, T. & S. C". Ry. Co., 97 S. C. 50. 81 S. E. 
 F. Ry. Co.. Tex. Civ. App. 283. 
 
 , 192 S. W. 274. 42. See Section 456. 
 
 41. Sanders v. Charleston & W.
 
 704 Injuries to Interstatk Employes. [§ 458 
 
 minals between trips." "If, however, he could be 
 deemed to be in the employment of the company at the 
 time of the injury, nevertheless he was not then actually 
 employed in interstate commerce. His actual employ- 
 ment at the time was holding himself ready in the city 
 of Chicago to respond to a call for service. That the 
 call, when it came, would be for an interstate trip, does 
 not make the waiting in Chicago an actual engagement 
 in interstate commerce, within the terms of the federal 
 act. Plaintiff's claim that, by the hitching on of the 
 caboose in question to the transfer train, decedent's 
 crew was called, and that his interstate service had thus 
 actually begun, does not commend itself to our judg- 
 ment. It was not, noi* was it intended as such. Clearly 
 the crew had not started with the caboose upon their 
 home run. Neither does it appear from the evidence 
 tliat the caboose and train crew were at the place of the 
 injury for the benefit of defendant, or that they were 
 wanted there at the time, or that there was any under- 
 standing that they should be at Landers at or near that 
 time, or that they were at the place of the accident with 
 other right than the mere sufferance of defendant, that 
 being the most convenient way for them to get to Land- 
 ers and secure sleep and other accomodations for the 
 night, or that they were under any expectancy of a call, 
 or that their acts in the premises had any bearing upon 
 interstate commerce, or that the facts of the case brought 
 the decedent within the provisions of the federal Em- 
 ployers' Liability Act. We are unable to discover from 
 the evidence or the law upon what ground plaintiff's 
 decedent's x^resence at or near Landers at the time of 
 the accident can be said to have been a step in the per- 
 formance of any actual service to defendant in inter- 
 state commerce. He was there in no sense under the 
 direction of defendant growing out of the relation of 
 master and servant. He was his own master. As was 
 said in Illinois Central R. R. v. Behrens, supra: 'That 
 he (the servant) was expected, upon the completion of 
 
 43. Pryor v. Bishop, 148 C. C. A. 25, 234 Fed. 9.
 
 § 459'] Employes Snn.iF.cT to Act. 795 
 
 that task (moving intrastate cars), to engage in another 
 whic.li would have l)een a part of interstate commerce, 
 is immateiial under the statute, for by its terms tlie 
 true test is tlie nature of the work being done at the 
 time of the injury.' To hold that decedent was, at tlie 
 time of the injury — some 4 or 5 liours l)efore he was 
 wanted by defendant— employed in interstate commerce, 
 would practically make tlie defendant liable to him as 
 engaged in interstate commerce at all times. Such is 
 not the ])ur])ose of the act."^' 
 
 § 459. Effect of Temporary Cessation in or Abandon- 
 ment of Work in Interstate Commerce. AVhen an em- 
 ploye is engaged in work that constitutes interstate 
 commerce under tlie Federal Act, a temporary cessation 
 in or temporary absence from his employment does not 
 deprive him of the benefit of the federal statute. Thus, 
 where an employe was engaged in removing snow from 
 railway tracks, a temporary interruption due to the in- 
 clemency of the weather during which time the employe 
 took refuge from a storm in a covered car near the 
 tracks, was not an abandonment of his interstate em- 
 ployment.*^ In another case it appeared that a fireman, 
 who had been preparing his engine for an interstate 
 trip, left the engine to go to his boarding house on a 
 personal errand with the expectation of returning with- 
 in a few minutes. "There is nothing to indicate that 
 this brief visit," said the court,*® "to the boarding- 
 house was at all out of the ordinary, or was inconsistent 
 with his duty to his emploj^er. It seems to us clear that 
 the man was still 'on duty,' and employed in commerce, 
 notwithstanding his temporary absence from the loco- 
 motive engine." 
 
 44. See also Bumstead v. Mis- terstate commerce, 
 
 souri Pac. R. Co., 99 Kan. 589, L. 45. Armbrecht v. Delaware, L. 
 
 R. A. 1917E 734, 162 Pac. 347, in & W. R. Co., N. J. L. , 
 
 which the court held that a freight 101 Atl. 203. 
 
 conductor while dressing and 46. North Carolina R. Co. v. 
 
 getting breakfast in his waycar Zachary, 232 U. S. 248. 58 L. Ed. 
 
 where he was accustomed to sleep 591, 34 Sup. Ct. 305, 9 N. C. C. A. 
 
 before he was called for the re- 109, Ann. Cas. 1914C 159. 
 turn trip, was not engaged in in-
 
 7i96 Injuries to Interstate Employes. [§ 460 
 
 § 460. Employes of Private Carriers Transporting 
 their Own Property not Subject to Statute. The Em- 
 
 ployer8' Liability Act is limited to servants of common 
 carriers by railroad. The Act does not, therefore, apply 
 to employes of a private carrier by railroad hauling its 
 own property to a point where the interstate transporta- 
 tion over tlie line of a common carrier commences.*' 
 In the McCluskey case, cited, it appeared that a brake- 
 man in the employ of a logging railroad owned by a 
 mill company, was injured while moving logs from a 
 forest to tide water where they were sold. In denying 
 a recovery under the Federal Act, the court said: ''The 
 conclusion of the court below that under these facts the 
 defendants were not engaged in interstate or foreign 
 commerce when the injuries were suffered was based 
 upon the decisions in Coe v. Errol, 116 U. S. 517, and 
 The Daniel Ball, 10 Wall. 557, from the former of 
 which the following quotations were made: 'When the 
 products of the farm or the forest are collected and 
 brought in from the surrounding country to a town or 
 station serving as an entrepot for that particular region, 
 whether on a river or a line of railroad, such products 
 are not yet exports, nor are they in process of exporta- 
 tion, nor is exportation begun until they are committed 
 to the common carrier for transportation out of the 
 State to the State of their destination, or have started 
 on their ultimate passage to that State.' 116 U. S. 517, 
 525. 'But this movement (that is, interstate commerce 
 movement) does not begin until the articles have been 
 shipped or started for transportation from one State 
 to the other. The carrvang of them in carts or other 
 vehicles, or even floating them, to the depot where the 
 journey is to commence is no part of that journey. 
 . . . Until actually launched on its way to another 
 State, or committed to a common carrier for transpor- 
 tation to such State, its destination is not fixed and 
 certain. It may be sold or otherwise disposed of within 
 
 47. Bay v. Merrill & Ring Log- v. Marysville & N. R. Co., 243 U. 
 ging Co., 243 U. S. 40, 61 L. Ed. S. 36, 61 L. Ed. 578, 37 Sup. Ct. 
 580, 37 Sup. Ct. 376; McCluskey 374.
 
 § 4G0] Employes Subject to Act. 797 
 
 the State, and never put in course of transportation out 
 of the State.' 116 U. S. 517, 528. After pointing out 
 that these rulings had not been modified, but on the 
 contrary had been re-affirmed by tlie subsequent cases 
 relied ui)on by the plaintiff in error (Texas & New 
 Orleans K. R. Co. v. Sabine Tram Co., 227 U. S. Ill; 
 Louisiana Railroad Commission v. Texas & Pacific Ry. 
 Co., 229 U. S. 336; Southern Pacific Terminal Co. v. 
 Interstate Commerce Commission, 219 U. S. 498; Ohio 
 Railroad Commission v. Worthington, 225 U. S. 101) 
 the court said: 'In the case at bar there was no initial 
 shipment of the goods. The transportation of the poles 
 from the forest in which they were cut to tidewater, 
 where they were sold, was not a shipment. There was 
 no contract of carriage; there was no bill of lading; 
 there was no consignor or consignee. The goods were 
 not committed to a carrier. The defendant Mill Com- 
 pany simply carried over its own road, on its own cars, 
 its own goods to a market where it sold and delivered 
 them. It had no concern with the subsequent disposi- 
 tion of them. It was under no obligation to deliver 
 them to another carrier, and no other carrier was under 
 obligation to receive them or carry them further. The 
 selling of the poles after the first sale by the Mill Com- 
 pany, or whether they were going outside of the State, 
 depended upon change or the exigencies of trade. The 
 movement of the poles did not become interstate com- 
 merce until by the act of the purchasers thereof the 
 poles were started on their way to their destination in 
 another State or country. The beginning of the transit 
 which constitutes interstate commerce is defined in Coe 
 V. Errol, to be the point of time than an article is com- 
 mitted to a carrier for transportation to, the State of 
 its destination, or started on its ultimate passage. Gen- 
 eral Oil Co. V. Crain 209 U. S. 211, 229. The conclusion 
 of the court below that the defendants were not en- 
 gaged in interstate or foreign commerce when the ac- 
 cident occurred is, we think, clearly demonstrated by 
 the reasoning bv which it sustained its conclusion and
 
 7i96 Injuries to Interstate Employes. [^ 460 
 
 the authorities upon which it relied as above stated, 
 and its judgment should be afifirmed." 
 
 § 461. When Questions of Employment in Inter- 
 state should be Submitted to Jury. AVhere, under all 
 the evidence in the case, any essential matter bearing on 
 the question of whether the employe was at the time 
 of the injury engaged in interstate commerce, is in 
 doubt, the question should be submitted to the jury 
 under proper instructions.*^ In an action for damages 
 under the federal act the plaintiff may state a cause 
 of action under one count under the state law and in 
 another count under the federal act and if the evidence 
 is such at the close of the introduction of the testimony 
 that it is doubtful in which commerce he was engaged, 
 it becomes a mixed question of law and fact to be sub- 
 mitted to the jury under proper instructions." But the 
 Supreme Court of Oregon held that it was error to sub- 
 mit to the jury whether the common law, state law or 
 federal act, applied.^" 
 
 If it appears at the close of the evidence as a 
 matter of law which statute applies, no doubt it would 
 be error to submit the question to the jury as the court 
 should pass on all questions of law;'' but if the evidence 
 
 48. North Carolina R. Co. v. Georgia. Macon, D. & S. R. Co. 
 Zachary, 232 U. S. 248, 58 L. Ed. v. Robinson, 19 Ga. App. 370, 91 
 591, 34 Sup. Ct. 305, 9 N. C. C. A. S. E. 492. 
 
 109, Ann. Cas. 1914C 159; rev'g Iowa. Pelton v. Illinois Cent, 
 
 same case on other grounds in R. Co., 171 Iowa 91, 150 N. W. 236. 
 
 156 N. C. 496, 72 S. E. 858; Kentucky. Cincinnati, N. O. & 
 
 Southern Pac. Co. v. Vaughn, — t. P. R. Co. v. Hansford, 173 Ky. 
 
 Tex. Civ. App. , 165 S. W. 885. ;^26, 190 S. W. 690; Davis' Adm'r 
 
 49. Atkinson v. Bullard, 14 Ga. ^ Cincinnati, N. O. & T. P. R. 
 App. 69. 80 S. E. 220. See Sec- ^^ ^^^ j^^ ^^^ ^gg g ^ ^jgi 
 
 tion 687. infra. Michigan. Collins v. Michigan 
 
 50. Oberlin v. Oregon-Wash- 
 
 Ccnt. R. Co., 193 Mich. 303, 159 
 N. W. 535. 
 
 ington R. & Nav. Co., 71 Ore. 177, 
 142 Pac. 554. 
 
 51. United States. Hudson & Minnesota. Peery v. Illinois 
 
 M. R. Co. V. lorio. 152 C. C. A. 641, Cent. R. Co., 123 Minn. 264, 143 
 239 Fed. 855. N. W. 724.
 
 § 4G1 
 
 Employes Subject to Act. 
 
 •99 
 
 is siicli that reasonable men could draw different con- 
 clusions as to whether the defendant and the injured em- 
 ploye were engaged in intrastate commerce or inter- 
 state commerce, then it would be error for the court to 
 decide that issue as all questions of facts should be sub- 
 mitted to the jury under proper charges declaring the 
 law applicable." The conflict between the decisions 
 cited is more appareiit than real." 
 
 Oklahoma. Atchison, T. & S. F. 
 Ry. Co. V. Pitts, 44 Qkla. 604, 9 
 N. C. C. A. 545, 145 Pac. 1148. 
 
 Pennsylvania. Moyer v. Penn- 
 sylvania R. Co.. 247 Pa. 210, 93 
 Atl. 282. 
 
 Texas. Geer v. St. Louis, S. F. 
 
 & T. Ry. Co., Tex. , 194 
 
 S. W. 939; Chicago, R. I. & G. 
 
 Ry. Co. V. Cosio, Tex. Civ. 
 
 App. , 182 S. W. 83. 
 
 Vermont. Castonguay v. Grand 
 
 Trunk Ry., ■ Vt. -, 100 Atl. 
 
 908. 
 
 Washington. Bolch v. Chicago, 
 M. & St. P. R. Co., 90 Wash. 
 47, 155 Pac. 422. 
 
 Wisconsin. Graber v. Duluth, S. 
 S. & A. R. Co., 159 Wis. 414, 150 
 N. W. 489. 
 
 52. United States. Pennsyl- 
 vania Co. V. Donat, 239 U. S. 50, 
 60 L. Ed. 139. 36 Sup. Ct. 4; Hud- 
 son & M. R. Co. V. lorio, 152 C. 
 C. A. 641, 239 Fed. 855; Carolina. 
 C. & 0. R. Co. V. Stroup, 152 C. 
 C. A. 125, 239 Fed. 75; Erie R. 
 Co. V. Krysienski, 151 C. C. A. 
 218, 238 Fed. 142; Erie R. Co. v 
 Van Buskirk, 143 C. C. A. 71, 228 
 Fed. 489; Pennsylvania Co. v. 
 Donat, 139 C. C. A. 665. 224 Fed. 
 1021; Pittsburgh, C, C. & St. 
 L. Ry. Co. V. Glinn, 135 C. C. A. 
 46. 219 Fed. 148. 
 
 Georgia. Macon, D. & S. R. Co. 
 V. Robinson. 19 Ga. App. 370, 91 
 S. E. 492. 
 
 Iowa. Bruckshaw v. Chicago, R. 
 I. & P. Ry. Co., 173 Iowa 207, 155 
 N. W. 273; Clark v. Chicago 
 Great Western R. Co., 170 Iowa 
 452, 152 N. W. 035. 
 
 Kentucky. Cincinnati, N. 0. & 
 T. P. R. Co. v. Hansford, 173 Ky. 
 126, 190 S. W. 690. 
 
 Minnesota. Cherpeski v. Great 
 Northern R. Co., 128 Minn. 360, 
 ]50 N. W. 1091. 
 
 Oklahoma. Chicago, R. I. & P. 
 
 R. Co. V. Felder, Okla. , 
 
 155 Pac. 529. 
 
 Pennsylvania. Falyk v. Penn- 
 sylvania R. Co., 256 Pa. 397, 100 
 Atl. 961. 
 
 South Carolina. Kocnnecke v. 
 Seaboard Air Line Ry. Co., 101 
 S. C. 8G, 85 S. E. 374; Camp v. 
 Atlanta & C. Air Line Ry. Co., 
 100 S. C. 294, 84 S. E. 825; How- 
 ell V. Atlantic Coast Line R. Co., 
 99 S. C. 417, 83 S. E. 639. 
 
 Washington. Bolch v. Chicago, 
 M. & St. P. R. Co., 70 Wash. 47, 
 155 Pac. 422. . 
 
 'Wisconsin. Graber v. Duluth. 
 S. S. & A. R. Co., 159 Wis. 414, 150 
 N. W. 489. 
 
 53. Patry v. Chicago & W. I. 
 Ry. Co., 2G5 111. 310, 106 N. E. 843, 
 rev'g 185 111. App. 361; Atchison, 
 T. & S. F. Ry. Co. v. Pitts, 44 
 Okla. 604. 9 N. C. C. A. 545, 145 
 Pac. 1148.
 
 800 Injuries to Interstate Employes. [^ 462 
 
 § 462. Decisions Construing Federal Safety Appli- 
 ance Act not always Applicable in Construing Employ- 
 ers' Liability Act. In determiniug when an employe is 
 engaged in interstate commerce under the Federal Em- 
 ployers' Liability Act, some courts have been led into 
 error by following federal decisions construing the Fed- 
 eral Safety Appliance Act. Such decisions may or may 
 not be applicable, depending altogether whether they 
 were construing that act as it was before the amendment 
 of 1903 or since. Prior to the 1903 amendment to the 
 Safety Appliance Act, it was necess^y for the plain- 
 tiff to prove in order to recover for an injury due to a 
 violation of that law, that the car having a defect, was 
 at the time of the injury ''hauled or permitted to be 
 hauled or used on its line in moving interstate traffic." 
 Decisions construing the act as it thus read would no 
 doubt throw light on similar questions under the liability 
 act. 
 
 But since the amendment of 1903, the Federal Safety 
 Appliance Act is very much broader than the Employers' 
 Liability Act for by that amendment every interstate 
 railroad is required to equip all its cars as provided by 
 the safety act whether used in intrastate or interstate 
 commerce.'* This broad exercise of power extending 
 
 54. United States. Spokane & United States v. Pere Marquette 
 
 I. E. R. Co. V. CampbeU, 241 U. R- Co.. 211 Fed. 220; United 
 
 S 497 60 L. Ed. 1125, 36 Sup. Ct. States v. International & G. N. 
 
 683 12 N C C A. 1083; San An- R- Co., 98 C. C. A. 392, 174 Fed. 
 
 tonio & A. P. R. Co. V. Wagner, 638; Wabash R. Co. v. United 
 
 241 U S 476 60 L. Ed. 1110, 36 States, 93 C. C. A. 393, 168 Fed. 1. 
 
 Sup Ct. 626; Texas & P. R. Co. Illinois. Devine v. Chicago & C. 
 
 River R. Co., 259 lU. 449, 102 N. 
 
 V. Rigsby, 241 U. S. 33, 60 L. Ed. 
 874, 36 Sup. Ct. 482; Great North- 
 ern R. Co. V. Otos, 239 U. S. 349, 
 60 L. Ed. 322, 36 Sup. Ct. 124; 
 
 E. 803. 
 Iowa. Stearns v. Chicago, R. I. 
 
 & P. R. Co., 166 Iowa 566, 148 N. 
 
 W. 128. 
 
 United States v. Chicago, B. & Q. Kansas. Thornbro v. Kansas 
 
 R. Co., 237 U. S. 410, 59 L. Ed. ^^.^^^ j^ ^ ^ ^ ^0., 91 Kan. 684, 
 1023, 35 Sup. Ct. 634; United ^un. Cas. 1915D 314, 139 Pac. 410. 
 States V. Erie R. Co., 237 U. S. Minnesota. Hurley v. Illinois 
 
 402, 59 L. Ed. 1019, 35 Sup. Ct. cent. R. Co., 133 Minn. 101, 157 
 621; Southern R. Co. v. Railroad n. W. 1005; Burho v. Minneapolis 
 Commission of Indiana, 236 U. S. & st. L. R. Co., 121 Minn. 326, 141 
 439, 59 L. Ed. 661, 35 Sup. Ct. 304; N. W. 300.
 
 § 462] 
 
 Employes Subject to Act. 
 
 801 
 
 tlie Safety Appliance Act to all cars on interstate higli- 
 ways l)y railroad has ])een sustained by the national Su- 
 preme Court.'"'' As practically all railroads in llio I'nited 
 States are interstate higliways, the Safety Ai)pliance 
 Act ai)plies to all cars on such railroads. 
 
 The decisions cited in the notes, holding that even 
 cars used in intrastate commerce are included within 
 the provisions of the Safety Appliance Act, have some- 
 times been cited as throwing light on the proposition 
 as to when an employe is engaged in interstate commerce 
 under the Federal Employers' Liability Act. Such de- 
 cisions are not applicable; for if an employe is injured 
 while working on cars hauling only intrastate traffic on 
 an interstate railroad due to any violation of the Federal 
 Safety A])i)liance Act, he has his remedy under that 
 statute although he was not engaged at the time in inter- 
 state commerce.^® "In many cases it is difficult," said 
 the court in Boyle v. Pennsylvania R. Co.," "to find the 
 line distinguishing intrastate and interstate commerce; 
 nevertheless the line exists. It is the function of the 
 
 South Carolina. Lorick v. Sea- 
 board Air Line Ry. Co., 102 S. C. 
 276, Ann. Cas. 1917D 920, 86 S. E. 
 675. 
 
 Texas. State v. Beaumont & G. 
 
 N. R. Co., Tex. Civ. App. — , 
 
 183 S. W. 120; State v. Orange 
 
 & N. W. Ry. Co., Tex. Civ. 
 
 App. , 181 S. W. 494. 
 
 The Federal Safety Appliance 
 Act embraces all cars used on any 
 railroad that is a highway of in- 
 terstate commerce, whether the 
 particular cars are at the time em- 
 ployed in such commerce or not. 
 Ewing V. Coal & Coke Ry. Co., — 
 W. Va. , 96 S. E. 73. 
 
 55. Southern R. Co. v. Crockett, 
 234 U. S. 725, 58 L. Ed. 1564, 34 
 Sup. Ct. 897; Southern R. Co. v. 
 United States. 222 U. S. 20, 56 L. 
 Ed. 72, 32 Sup. Ct. 2, 3 N. C. C. 
 A. 822; Stearns v. Chicago, R. I. 
 & P. R. Co., 166 Iowa 566, 148 N. 
 
 W. 128. 
 
 56. Southern Ry. Co. v. United 
 States, 222 U. S. 20, 56 L. Ed. 72, 
 32 Sup. Ct. 2, 3 N. C. C. A. 822. 
 
 "The cause of action stated in 
 the petition does not seem to be 
 one based upon a violation of the 
 Safety Appliance Act. If it were, 
 then, since clearly the car was 
 used 'on a railroad engaged in in- 
 terstate commerce' as provided in 
 the amendment of March 2, 1903, 
 to the Safety Appliance Act, it 
 would not matter whether plain- 
 tiff was or was not engaged in in- 
 terstate commerce at the very mo- 
 ment of his injury. Roberts on 
 Injuries to Interstate Employes, 
 paragraph 50, p. 119." Trowbridge 
 v. Kansas City & W. B. Ry. Co., 
 192 P.Io. App. 52, 179 S. W. 777. 
 
 57. 142 C. C. A. 558, 228 Fed. 
 266. 
 
 1 Control C'aiTiors
 
 802 Injuries to Interstate Employes. [§ 462 
 
 courts to maintain the line of distinction and to promul- 
 gate rules by which it may be found. We are urged in 
 this case, however, to advance a principle which would 
 not aid in discovering the line of distinction between 
 the two kinds of commerce, but, we conceive, would ob- 
 literate it. We are urged to this i)osition upon authori- 
 ty of the decisions under the Safety Appliance Act (Act 
 March 2, 1893, c. 196, 27 Stat. 531 (Comp. St. 1913, sees. 
 8605-8612) with which it has been said the Employers' 
 Liability Act is in pari maria. Under the Safety Ap- 
 pliance Act, all cars of an interstate railroad, in what- 
 ever kind of commerce used, are required to be equipped 
 with safety appliances, upon the theory that such uni- 
 versal equipment is necessary to the safety of interstate 
 traffic. It has therefore been held in Southern Ry. Co. 
 V. United States, 222 U. S. 20, 26, 27, 32 Sup. Ct. 2, 56 
 L. Ed. 72, that a car used for intrastate traffic only, when 
 hauled over tracks used for interstate traffic, is within 
 the Safety Appliance Act. In the Second Employers' 
 Liability Act Cases, 223 U. S. 1, 51, 52, 32 Sup. Ct.^ 169, 
 176 (56 L, Ed. 327, 38 L. R. A. (N. S.) 44), it was held 
 that: 'It is not a valid objection that the act embraces 
 instances where the causal negligence is that of an em- 
 ploye engaged in intrastate commerce; for such negli- 
 gence, when operating injuriously upon an employe en- 
 gaged in interstate commerce, has the same effect upon 
 that commerce as if the negligent employe were also en- 
 gaged therein.' Relying upon this expression and the 
 Safety Appliance Act decision, last cited, the plaintiff 
 in error urges the contention that the effect of inspection 
 of an intrastate train is so immediately and necessarily 
 related to the safe movement of interstate commerce as 
 to be a part of it. We are of opinion that the decision 
 cited under the Safety Appliance Act may be considered 
 as a logical interpretation of the means intended by 
 Congress to effect and obtain the safety to interstate 
 commerce contemplated by the Safety Appliance Act. 
 The decision in the Second Employers' Liability Cases, 
 supra, to the extent in which it was cited, dealt only 
 with the liability of employers for injuries to their em-
 
 § 463] Employes Subject to Act. 803 
 
 ployes, and related only to tlie matter of injuries sus- 
 tained by an employe in interstate commerce, occasioned 
 by an employe in intrastate commerce. Neither case is 
 authority for tlie contention so broadly made, that acts 
 which are primarily intrastate, become interstate in their 
 nature when they affect the safety or movement of inter- 
 state commerce. AVhile the movement of an intrastate 
 train, like the use of an intrastate instrument, may in 
 some measure affect the safe movement of interstate 
 commerce, we believe that in the present case, the in- 
 spection of such an intrastate train is so remotely re- 
 lated to interstate commerce that under the tests pre- 
 scribed by the Supreme Court it cannot be considered a 
 part of it." 
 
 Although the amendatory statute, placing all cars 
 used on interstate railroads, including cars used thereon 
 in intrastate trathc, was passed in 1903, the supreme 
 court of Pennsylvania in 1915 erroneously held that the 
 Federal Safety Appliance Act was not applicable unless 
 the car was used in moving interstate traffic.''® 
 
 § 463. Instances where Employes were Engaged 
 in Interstate Commerce but Erroneously Held to Have 
 Been Engaged in Intrastate Commerce. Since the 
 numerous decisions of the federal Supreme Court con- 
 struing the clause "while he is employed by such car- 
 rier in such commerce," found in the first section of the 
 act have been delivered the uncertainty as to when rail- 
 road employes are engaged in interstate commerce has 
 been, to a large extent, removed, and decisions in con- 
 flict with the rulings of the Supreme Court are erroneous, 
 for it is the final arbiter as to when a railroad servant 
 is employed in that commerce within the control of the 
 federal goveiToiient. A few of these erroneous decisions 
 will now be briefly reviewed. 
 
 A Georgia Court of Appeals held'^Hliat a member 
 of a track gang repairing a track on a railroad carry- 
 
 58. Moyer v. Pennsylvania R. 59. Charleston & W. C. R. Co. 
 
 Co., 247 Pa. 210, 93 Atl. 282. v. Anchors, 10 Ga. App. 322, 73 S. 
 
 E. 551.
 
 804 Injuries to Tnterstate Employes. [§ 463 
 
 ing both intrastate and interstate commerce, was not 
 engaged in interstate commerce, bnt tliis decision is con- 
 trary to the ruling of the Supreme Court in the Peder- 
 sen case.*^" A New Jersey court held^^ that an employe 
 unloading new rails with which the track was to be re- 
 paired, was not engaged in interstate commerce; but as- 
 suming that the proof in that case developed that which 
 is true of practically eveiy railroad in the United States, 
 that interstate and intrastate commerce were carried 
 over the track indiscriminately, the court's ruling was 
 wrong.®^ The same court, in a later case, held that an 
 employe was engaged in intrastate commerce when he 
 was clearly, under the facts, engaged in interstate com- 
 merce. ^^ The plaintiff in the Granger case was injured 
 while placing a cover over the mechanism of a switch 
 which he had just oiled. The switch connected two lines 
 of track, one used for freight and the other for passenger 
 trains for either interstate or intrastate business, as the 
 necessities of the railroad company required. While 
 so engaged, the plaintiff was struck by a car which was 
 not, at the time, being used for the transportation of 
 freight, nor did it appear that the movement of the car 
 had any relation to the making of a train for the pur- 
 pose of engaging in interstate commerce. It was held 
 that the plaintiff's cause of action was not governed by 
 the federal act and that he was not engaged in interstate 
 commerce. ' This ruling was erroneous for the reason 
 that the switch on which the plaintiff was working had 
 a direct and immediate connection with interstate com- 
 merce. The question whether the car was being used 
 in interstate commerce was entirely immaterial for the 
 reason that the federal act includes the causal negligence 
 of agencies wholly used in intrastate commerce."* 
 
 60. Pedersen v. Delaware, L. & 63. Granger v. Pennsylvania R. 
 W. R. Co., 229 U. S. 146, 57 L. Co., 84 N. J. L. 338, 86 Atl. 264. 
 Ed. 1125, 33 Sup. Ct. 648, 3 N. C. 64. In je Second Employers' Li- 
 C. A. 779, Ann. Cas. 1914C 153. ability Cases, 223 U. S. 1, 56 L. 
 
 61. Pierson v. New York, S. & Ed. 327, 32 Sup. Ct. 169, 1 N. C. 
 W. R. Co., 83 N. J. L. 661, 85 Atl. C. A. 875, 38 L. R. A. (N. S.) 44: 
 233. Colasurdo v. Central R. R. of New 
 
 62. Section 478, infra. Jersey, 180 Fed. 832.
 
 ^ 463] 
 
 Employes Subject to Act. 
 
 805 
 
 A federal district court held that a cai7)eiiter work- 
 ing on a railroad bridge on a track carrying both kinds 
 of commerce, was not engaged in interstate commerce 
 within the meaning of the federal Employers' Liability 
 Act;®° but this case has long since been overruled."" The 
 supreme court of Nebraska decided that an engineer 
 running a ''light" engine between two points in that 
 state, which, defendant claimed, was ultimately destined 
 to a point in another state, was not engaged in inter- 
 state commerce."^ But a contrary conclusion was reached 
 by the federal Supreme Court in the same case."* 
 
 65. Taylor v. Southern Ry. Co., 
 178 Fed. 380. 
 
 66. Section 469, infra. 
 
 67. Wright v. Chicago, R. I. & 
 P. R. Co., 94 Neb. 317, 143 N. W. 
 220. 
 
 68. Chicago, R. I. & P. R. Co. 
 V. Wright, 239 U. S. 548, 60 L. 
 Ed. 431, 36 Sup. Ct. 185, in which 
 Mr. .Justice Van Devanter said: 
 "It is entirely clear that taking 
 the road engine from Phillips- 
 burg, Kansas, to Council Bluffs. 
 Iowa, was an act of interstate 
 commerce, and that the intestate, 
 while participating in that act, 
 was employed in such commerce. 
 That the engine was not in com- 
 mercial use but merely on the way 
 to a repair shop is immaterial. 
 It was being taken from one State 
 to another and this was the true 
 test of whether it was moving in 
 interstate commerce. See North 
 Carolina R. R. v. Zachary, 232 U. 
 S. 248, 259. The courts of the 
 State rested their decision to the 
 contrary upon t"he train order un- 
 der which the intestate was pro- 
 ceeding and upon the decisions in 
 Chicago & Northwestern Ry. v. 
 United States. 168 Fed. Rep. 236, 
 and United States v. Rio Grande 
 Western Ry.. 174 Fed. Rep. 399. 
 In this they misconceived the 
 
 meaning of the Irain order and 
 the effect of the decisions cited. 
 The order was given by a division 
 train dispatcher and meant that 
 between the points named therein 
 the engine would have the status 
 of an extra train, and not that it 
 was going merely from one of 
 those points to the other. The 
 cases cited arose under the Safety 
 Appliance Acts of Congress and 
 what was decided was that those 
 acts were not intended to penalize 
 a carrier for hauling to an adja- 
 cent and convenient place of re- 
 pair a car with defective appli- 
 ances, when the sole purpose of 
 the movement was to have the de- 
 fect corrected, and the car was 
 hauled alone and not in connec- 
 tion with other cars in commer- 
 cial use. It was not held or sug- 
 gested that such a hauling from 
 one State to another was not a 
 movement in interstate commerce, 
 but only that it was not penalized 
 by those acts. As the injuries 
 resulting in the intestate's death 
 were sustained while the compa- 
 ny was engaged, and while he was 
 employed by it, in interstate com- 
 merce, the company's responsibil- 
 ity was governed by the Employ- 
 ers' Liability Act of Congress."
 
 806 Injuries to Interstate Employes. [^ 464 
 
 § 464. Instances Where Employes Were Engaged 
 Exclusively in Intrastate Commerce but Erroneously 
 Held to have been Engaged in Interstate Commerce. 
 
 lu the cases discussed in the preceding paragraph the 
 courts erroneously held that the employes were engaged 
 in intrastate commerce. There are other cases where 
 employes were engaged exclusively in intrastate com- 
 merce but were erroneously held by the courts to have 
 been engaged in interstate commerce. The supreme court 
 of Oregon decided that a member of a switching crew 
 while coupling a switch engine to a private car used 
 wholly within the state in intrastate commerce and in- 
 jured while so working, was employed in interstate com- 
 merce. The proof, however, disclosed that the switch- 
 ing crew was engaged indiscriminately in moving cars 
 containing both intrastate and interstate commerce but 
 at the time of receiving the injury they were engaged 
 solely in moving the intrastate car mentioned.''^ Al- 
 though the decision in this case was handed down after 
 the opinion of the Supreme Court of the United States 
 in the Behrens case,'" that case was not called to the 
 attention of the court and no doubt a different conclu- 
 sion would have been reached had the court considered 
 the facts in the light of the ruling in the Behrens case. 
 The supreme court of Minnesota held that a freight 
 conductor was engaged in interstate commerce when 
 under the facts it seems that he was engaged in intra- 
 state commerce. ■^^ The evidence in that case disclosed 
 that the injured conductor was generally employed in 
 interstate commerce. But at the time he was injured 
 in a head-end collision the train did not contain any 
 interstate commerce and was moving between two points 
 in the same state. At the time of the accident he had 
 in his train the engine, way car and also another dis- 
 
 69. Oberlin v. Oregon-Washing- A. 153, Ann. Cas. 1914C 163. 
 
 ton R. & Nav. Co., 71 Ore. 177, 142 71. Peery v. Illinois Cent. R. 
 
 Pac. 554. Co., 123 Minn. 264, 143 N. W. 724; 
 
 70. Illinois Cent. R. Co. v. s. c, 128 Minn. 119, 150 N. W. 
 Behrens, 233 U. S. 473, 58 L. Ed. 382, 110.3. 
 
 1051, 34 Sup. Ct. 646, 10 N. C. C.
 
 § 465] Employes Subject to Act. 807 
 
 abled locomotive. No facts api)eared as to tlie use of 
 tlic disaljlod locomotive. Under these circumstances tlie 
 conductor is presumed to liave been engaged in intra- 
 state commerce /"* and on wiit of error to the United 
 States Supreme Coui-t, is was held that Peery was not, 
 under the circumstances, engaged in interstate commerce 
 for the reason that his train was handling no interstate 
 traffic at the time." In another case a federal district 
 court held that a switching crew generally engaged in 
 moving interstate commerce but at the time employed 
 in moving intrastate commerce solely, was engaged in 
 interstate commerce within the meaning of the federal 
 act;'* but tiiis case was reversed when it reached the 
 Supreme Court of the United States. 
 
 § 465. Burden of Proving Interstate Employment 
 is Upon the Plaintiff. In all actions for damages against 
 common carriers by railroad under the Federal Emi)loy- 
 ers' Liability Act, the burden of proving that the plain- 
 tiff or the decedent was, at the time of the injury or 
 death, employed in interstate commerce and that the 
 carrier was also engaged in commerce among the states, 
 is upon the plaintiff."^ 
 
 72. Section 453, supra. 949. 
 
 73. Illinois Cent. R. Co. v. Maryland. Baltimore & 0. R. 
 Peery, 242 U. S. 292. 61 L. Ed. Co. v. Branson, 128 Md. 678, 98 
 309, 37 Sup. Ct. 122. Atl. 225. 
 
 74. Behrens v. Illinois Cent. R. Minnesota. Hurley v. Illinois 
 Co., 192 Fed. 581. Cent. R. Co., 133 Minn. 101, 157 
 
 75. United States. Osborne v. N. W. 1005, citing Roberts, Inju- 
 Gray, 241 U. S. 16, GO L. Ed. 865, ries to Interstate Employes. 
 
 36 Sup. Ct. 486; Southern R. Co. New York. Knowles v. New 
 
 V. Lloyd, 239 U. S. 496, 60 L. Ed. York, N. H. & H. R. Co., 164 N. Y. 
 
 402, 36 Sup. Ct. 210; Lucchetti v. App. Div. 711, 150 N. Y. Supp. 99. 
 
 Philadelphia & R. Ry. Co., 233 Fed. Pennsylvania. Hench v. Penn- 
 
 137. .sylvania R Co., 246 Pa. 1. L. R. 
 
 Alabama. Southern R. Co. v. A. 1915D 557, Ann. Cas. 1916D 
 
 Peters, 194 Ala. 94, 69 So. 611. 230. 91 Atl. 1056. 
 
 Indiana. Cincinnati, H. & D. Ry. Washington. Tsmura v. Great 
 
 Co. V. Gross, Ind. App. , Northern R. Co.. 58 Wash. 310, 108 
 
 111 N. E. 653. Pac. 774. 
 
 Kansas. Cole v. Atchison. T. & West Virginia. Easter v. Vir. 
 
 S. F. R. Co., 97 Kan. 461, 155 Pac. ginian R. Co., 76 W. Va. 383, 11
 
 808 Injuries to Intkrstate Employes. [§ 466 
 
 § 466. Burden of Proving Interstate Employment 
 upon Defendant, When. When an employe of a com- 
 mon carrier by railroad prosecutes an action for person- 
 al injuries and predicates a right of recovery upon the 
 laws of a state or the common law, and the defendant 
 seeks to prevent a recovery under the state law by show- 
 ing that the federal act controls, it has the burden of 
 proving that the employe was engaged in interstate com- 
 merce at the time of the injury.^" 
 
 N. C. C. A. 101, 86 S. E. 37. 76. Zavitovsky v. Chicago, M. 
 
 Wisconsin. Zavitovsky v. Clii- & St. P. R. Co., 161 Wis. 461, 154 
 
 cago, M. & St. P. R. Co., 161 Wis. N. W. 974. 
 461, 154 N. W. 974.
 
 CHAPTER XXIV 
 
 Employes Engaged in Construction and Repair Work. 
 
 Sec. 467. Employes Engaged in Construction of Instrumontalities for 
 Future Use in Interstate Commerce. 
 
 Sec. 468. Distinction between Original Construction Work and Re- 
 pair or Maintenance of Interstate Highways by Rail. 
 
 Sec. 4<;9. Bridges Workers and Carpenters Employed in Interstate 
 Commerce, When. 
 
 Sec. 470. Far Reaching Effect of Pedersen case in Extending Na- 
 tional Control over Railroad Employes. 
 
 Sec. 471. Erecting Foundation for New Bridges under Old Bridges 
 Forming Parts of Interstate Lines. 
 
 Sec. 472. Removing Bolts from Timbers after Having Been Taken 
 Out of Interstate Bridges. 
 
 Sec. 473. Repairing Tracks of Interstate Carriers — Section Men and 
 Track Laborers. 
 
 Sec. 474. Status of Laborers Repairing Side Tracks, Spur Tracks and 
 Switches. 
 
 Sec. 475. Maintenance and Repair of Turntables on Interstate Rail- 
 roads. 
 
 Sec. 476. Clearing Debris from Interstate Lines after Wrecks and 
 Constructing Temporary Tracks. 
 
 Sec. 477. Employes Surveying Track to Improve Condition of Road- 
 bed. 
 
 Sec. 478. Employes Handling Rails on Tracks of Interstate Carriers. 
 
 Sec. 479. Picking up Old Rails and Storing New Ones Along Track 
 for Future Use. 
 
 Sec. 480. When Laborers Handling Ties for Common Carriers are 
 Under the Federal Act. 
 
 Sec. 481. Employes Handling Ballast, Gravel, Sand, Etc., for Use 
 in Repairing Interstate Tracks. 
 
 Sec. 482. Excavating and Deepening Ditches Along Railroad Tracks 
 for Drainage Purposes. 
 
 Sec. 483. Repairing or Rebuilding Depots, Roundhouses, Sheds, etc. 
 not Employment in Interstate Commerce. 
 
 Sec. 484. Employes Working in Machine and Repair Shops, Round- 
 houses and Other Like Buildings. 
 
 Sec. 485. Earlier Decisions Overruled by Rulings of National Su- 
 preme Court Cited in Two Foregoing Paragraphs. 
 
 Sec. 486. When Car and Engine Repairers are Employed in Inter- 
 state Commerce. 
 
 Sec. 487. Employes Repairing Engines and Cars in Transit or Tem- 
 porarily Delayed. 
 
 Sec. 488. Status of Shopmen Repairing Empty Cars in Terminal 
 Yards and Engines in Roundhouses. 
 
 (809)
 
 810 
 
 Injuries to Interstate Employes. [§ 467 
 
 Sec. 489. Subsequent Cases Applying the Doctrine of the Winters 
 Case to Car and Engine Repairers. 
 
 Sec. 490. Differentiating Factors Between Rulings in Winters and 
 Pedersen Cases. 
 
 Sec. 491. Illustrative Cases in which Car and Engine Repairs were 
 not Employed in Interstate Commerce. 
 
 Sec. 492. Repairing Cars and Engines Used Exclusively in Inter- 
 state Commerce. 
 
 Sec. 493. Interstate Status of Employes Painting Instrumentalities 
 of Commerce Among the States. 
 
 Sec. 494. Linemen Repairing Telegraph and Telephone Lines of In- 
 terstate Carriers. 
 
 § 467. Employes Engaged in Construction of In- 
 strumentalities for Future Use in Interstate Commerce. 
 
 Employes assisting in the original construction of tracks, 
 tunnels, bridges, buildings, telegraph lines, engines or 
 cars which have never been used as instrumentalities of 
 interstate commerce, are not employed in interstate com- 
 merce within the meaning of the statute.' An interstate 
 
 1. United States. New York 
 Cent. R. Co. v. White, 243 U. S. 
 188, 61 L. Ed. 667, 37 Sup. Ct. 247, 
 13 N. C. C. A. 943, L. R. A. 1917D 
 1, Ann. Cas. 1917D 629; Raymond 
 V. Chicago, M. & St. P. R. Co., 243 
 U. S. 43, 61 L. Ed. 583, 37 Sup. 
 Ct. 268; Minneapolis & St. L. R. 
 Co. V. Winters, 242 U. S. 353, 61 
 L. Ed. 358. 37 Sup. Ct. 170, 13 N. 
 C. C. A. 1127; Pedersen v. Dela- 
 ware, L. & W. R. Co., 229 U. S. 
 146, 57 L. Ed. 1125, 33 Sup. Ct. 
 648, 3 N. C. C. A. 779; Ann. Cas. 
 1914C 153, rev'g 117 C. C. A. 33, 
 197 Fed. 537, which aff'd 184 Fed. 
 737; Raymond v. Chicago, M. & St. 
 P. R. Co., 147 C. C. A. 245, 233 
 Fed. 239; Canadian Pac. R. Co. v. 
 Thompson, 146 C. C. A. 401, 232 
 Fed. 353: Bravis v. Chicago, M. & 
 St. P. R. Co., 133 C. C. A. 228, 217 
 Fed. 234. 
 
 Alabama. Louisville & N. R. Co. 
 V. Carter, 195 Ala. 382, Ann. Cas. 
 1917E 292, 70 So. 655. 
 
 Arkansas, Long v. Biddle, 124 
 
 Ark. 127, 186 S. W. 601. 
 
 Indiana. Chicago & E. R. Co. v. 
 Steele, 183 Ind. 444, 108 N. E. 4. 
 Iowa. Ross V. Sheldon, 176 
 Iowa 618, 154 N. W. 499; Clark v. 
 Chicago Great Western R. Co., 170 
 Iowa 452, 152 N. W. 635. 
 
 Kentucky. Young v. Norfolk & 
 W. R. Co., 171 Ky. 510, 188 S. W. 
 621; Thompson v. Cincinnati, N. 
 O. & T. P. R. Co.. 165 Ky. 256, Ann. 
 Cas. 1917A 1266, 176 S. W. 1006. 
 
 Michigan. Collins v. Michigan 
 Cent. R. Co., 193 Mich. 303, 159 
 N. W. 535. 
 
 Missouri. Voris v. Chicago, M. 
 & St. P. R. Co., 172 Mo. App. 125, 
 157 S. W. 835. 
 
 Oklahoma. Ft. Smith & W. R. 
 Co. V. Blevins, 35 Okla. 378, 130 
 Pac. 525. 
 
 Pennsylvania. Glunt v. Pennsyl- 
 vania R. Co., 249 Pa. 522, 95 Atl. 
 109. 
 
 Texas. Chicago, R. I. & 0. Ry. 
 
 Co. V. Trout, Tex. Civ. App. 
 
 — , 152 S. W. 1137.
 
 <§► 467] Employes In Repair Work. 811 
 
 railroad company was constructing a "cut-off" so as 
 to shorten a route used by it which, when completed, 
 would have been used for hauling interstate commerce. 
 A teamster was engaged in driving a horse which ])ulled 
 cars filled with dirt and rock along the tiack out of a 
 tunnel which was a part of the '*cut-off" line. He was 
 not engaged in interstate commerce and the mere fact 
 that the line, when completed, would be used in trans- 
 porting interstate commerce, would make no difference.^ 
 In that case the court said: "Stripped of the conclu- 
 sions in the complaint, we have the fact that the defend- 
 ant is engaged in constructing a 'cut-off' on its line of 
 road so as to shorten the route used by it now and elim- 
 inate some of the inconveniences, and possible expense, in 
 the operation of the line at the present time. There 
 is no statement that this line, upon which the work is 
 being performed, is now used, but the complaint in para- 
 graph 3 says, 'and through which, when completed, the 
 interstate commerce * * * ^[\\ ^e routed.' The 
 plaintiff was not himself engaged upon any interstate 
 commerce, nor was he injured by any one connected 
 with the operation of any of the agencies which actually 
 transported interstate commerce. The building of this 
 cut-off is a facility which is to be used by the defend- 
 ant, when completed, as an engine or cars, or any other 
 appliance under construction might be considered for 
 use when completed. Can it be said that a person en- 
 gaged in the building of engines or cars, or any other 
 facilities to be used by a common carrier engaged in 
 interstate commerce, comes within the provisions of the 
 Employers' Liability Act! The act deals only with the 
 liability of a carrier engaged in interstate commerce for 
 injuries sustained by its employes while engaged in such 
 commerce. Second Employers' Liability Cases, 223 LT. 
 
 West Virginia. McKee v. Ohio 2. Jackson v. Chicago. M. & 
 
 Valley Elec. R. Co., 78 W. Va. 131, St. P. Ry. Co., 210 Fed. 495. See 
 
 88 S. E. 616. dissenting opinion in Grow v. 
 
 Wisconsin. Sullivan v. Chicago, Oregon Short Line R. Co., 44 Utah 
 
 M & St. P. R. Co., 163 Wis. 583, 160, Ann. Cas. 1915B 481, 138 Pac. 
 
 158 N. W. 321. 398.
 
 812 Injuries to Interstate Employes. [^ 467 
 
 S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 
 44. The act is not 'concerned with the construction 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 dur- 
 ing their use as such.' Pedersen v. Del., Lack. & West. 
 R. R., 229 U. S. 146, 152, 33 Sup. Ct. 648, 57 L. Ed. 1125. 
 The language of the complaint, 'when completed, the 
 interstate commerce * * * will be routed' through 
 the tunnel, conclusively shows that it is not now so em- 
 ploj^ed; hence the act cannot apply, and Supreme Court 
 decisions supra are decisive. Tested by the requirements 
 of the act, I do not think that the tunnel was used as 
 an appliance in transporting interstate commerce, nor 
 was the plaintiff employed in such commerce. All of the 
 cases cited, I think, are in harmony with this conclu- 
 sion." An employe, assisting in the construction of a 
 second track along an existing track so that, when com- 
 pleted, the railroad company might have a double, in- 
 stead of, a single track railway, was held to be engaged 
 in original construction work and therefore not within 
 the federal act." In Chrosciel v. New York Cent. & 
 River R. Co.,^ the court held that a machine drill runner 
 drilling holes in a concrete wall, being a part of his em- 
 ployment in constructing a new terminal station for an 
 interstate carrier, was employed in interstate commerce 
 within the meaning of the Federal Act; but the decision 
 of the court is palpably erroneous. 
 
 3. Chicago & E. R. Co. v. Steele, was tlien used in interstate com- 
 
 183 Ind 444, 108 N. E. 4, where- merce, and the ties were thrown 
 
 in^he court said: "Appellee was to the side along the line of the 
 
 1 ^A ^r, new grade. The operation of the 
 
 one of a tram crew employed on , , . x, „ • ^v 
 
 a work train engaged in hauling 
 
 work train was wholly in this 
 
 state, and no part of the proposed 
 railroad ties for distribution along ^^^^^ ^^^ ^^^^ ^^^^ ^^^ ^^^ p^^_ 
 
 the right of way, which ties were ^^^^^ ^^^ ^^^^ ^^^ ^^^^^ ^^^^^^ 
 
 intended to be used on the grade j-^^^^ ^^gg^^ completed it was in- 
 
 of the proposed second track. tended by appellant to use the 
 
 The grade was not then finished. same in interstate commerce." 
 
 The work train moved along the 4. 174 N. Y. App. Div. 175, 159 
 
 rails of the existing track, which N. Y. Supp. 924.
 
 '^ 468] Employes In Repair Work. 813 
 
 § 468. Distinction between Original Construction 
 Work and Repair or Maintenance of Interstate High- 
 ways by Rail. The distiiictioii between original con- 
 struction work and the repair or maintenance of inter- 
 state highways by rail is important under the statute, 
 as an employe engaged in the former must look to the 
 laws of the state while, if employed in tlie latter, tlie 
 federal act governs. Tlie line of demarcation between 
 the two fields of employment was well stated by Judge 
 Evans of the Iowa Supreme Court, as follows: "The 
 contention of the appellant is that the work in which 
 the decedent was engaged was not repair or mainte- 
 nance work, but was new construction work. That there 
 may be a distinction between repair work and construc- 
 tion work is recognized in the Pedersen Case, supra. 
 The argument for appellant is that the line and instru- 
 mentalities of the defendant were complete, and, as such, 
 in repair without the addition of new cross-arms, and 
 without the proposed addition of new wires, and without 
 the proposed 'automatic' system; that, while the auto- 
 matic system was proposed to be used upon the line 
 (and therefore in interstate commerce), it had not yet 
 been thus used. The line of demarcation between re- 
 j^air work, on one hand, and construction work, on the 
 otii9r, is not always easily discernible. Eepair often, 
 if not usually, involves more or less construction and 
 substitution. It likewise involves betterment and im- 
 provement. The recent decisions of the Supreme Court 
 are, in effect, declaring the rules of construction which 
 shall guide all the courts and litigants in determining 
 whether the facts in a given case bring it within the 
 federal act. It is highly desirable that such rules a^~ 
 tain as great a degree of certainty as practicable, and 
 such is the manifest aim of the high court. To such 
 end the distinction between 'repair' and 'construction' 
 work must not be drawn too fine. The trend of the 
 cases thus far decided indicate that labor and better- 
 ment upon an interstate line of railway will uot be deem- 
 ed as new construction work unless it is clearly such. 
 That is to say, mere doubt will be resolved in favor of
 
 814 
 
 Injuries to Interstate Employes. [^ 468 
 
 'repair aud maintenance.' Tlie substitution of a 90- 
 pound rail for a 60-pound rail partakes of tlie nature 
 both of repair and construction; likewise the substitu- 
 tion of five wires for one or the addition of four wires 
 to one. In the case before us the new cross-arms were 
 attached to the old poles. They were intended for the 
 support of the old wire and others. They were not an 
 independent construction. They could not stand alone. 
 They had no function to perform, except as a part of 
 the electrical system of the defendant railway, which 
 system was in actual operation at the time of the in- 
 jury."' 
 
 § 469. Bridge Workers and Carpenters Employed 
 in Interstate Commerce, When. If the railroad tracks 
 of a common carrier are used indiscriminately for the 
 purpose of carrying both interstate and intrastate com- 
 merce, then bridge workers, painters and carpenters em- 
 ployed on such tracks are engaged in interstate com- 
 merce within the meaning of the federal act.** The Peder- 
 
 5. Ross V. Sheldon, 176 Iowa 
 618, 154 N. W. 499, in which the 
 court held that a lineman, while 
 working for an interurban elec- 
 tric railroad and installing an 
 automatic signal system as a sub- 
 stitute for a "hand system," was 
 engaged in repair work within 
 the meaning of the act. To the 
 same effect: Glunt v. Pennsyl- 
 vania R. Co., 249 Pa. 522, 95 Atl. 
 109. 
 
 6. United States. Norfolk & W. 
 R. Co. V. Holbrook, 235 U. S. 625, 
 59 L. Ed. 392, 35 Sup. Ct. 143, 7 
 N. C. C. A. 814; Pedersen v. Dela- 
 ware, L. & W. R. Co., 2?9 U. S. 
 146, 57 L. Ed. 1125, 33 Sup. Ct. 
 648, 3 N. C. C. A. 779, Ann. Cas. 
 194C, 153, rev'g 184 Fed. 737 and 
 117 C. C. A. 33, 197 Fed. 587. 
 (Lamar, Holmes and Lurton, J. .T., 
 dissenting) ; Grand Trunk R. Co. 
 of Canada v. Knapp, 147 C. C. A. 
 
 624, 233 Fed. 950, 13 N. C. C. A. 
 1100; Columbia & P. S. R. Co. v. 
 Sauter, 139 C. C. A. 150, 223 Fed. 
 604; Norfolk & W. R. Co. v. Hol- 
 brook, 131 C. C. A. 621, 215 Fed. 
 687; Thomson v. Columbia & P. 
 S. R. Co., 205 Fed. 203, 4 N. C. C. 
 A. 925. 
 
 Alabama. Louisville & N. R. Co. 
 
 V. Blankenship, Ala. , 74 
 
 So. 960. 
 
 Arkansas. Long v. Biddle, 124 
 Ark. 127, 186 S. W. 601. 
 
 Kansas. Spinden v. Atchison, 
 T. & S. F. R. Co., 95 Kan. 474, 148 
 Pac. 747. 
 
 Kentucky. Louisville & N. R. 
 Co. V. Netherton, 175 Ky. 159, 193 
 S. W. 1035; Louisville & N. R. Co. 
 V. Walker's Adm'r, 162 Ky. 209, 
 172 S. W. 517. 
 
 Missouri. Mcintosh v. St. Louis 
 & S. F. Co., 182 Mo. App. 288, 168 
 S. W. 821.
 
 "^ 469] Employes In Repair Work. 815 
 
 sen case, cited in the notes, was one of the first and lead- 
 ing cases before the Sni)reme Court of tlie United States 
 presenting the question as to wlien a railroad employe 
 was engaged in interstate commerce by virtue of his 
 employment and the court held that an iron worker em- 
 ployed in repairing a bridge on a railroad track, used 
 indiscriminately for l)()tli interstate and intrastate com- 
 merce, was engaged in interstate commerce while he 
 was carrying bolts or rivets from a tool car to the bridge 
 altliough struck by a train carrying exclusively intra- 
 state commerce. When struck, the plaintiff was not 
 engaged in removing the old girder and inserting the 
 new one but was merely carin-ing to the place some of 
 the materials to be used there. These facts were pre- 
 sented to three courts and three different conclusions 
 of law were drawn from them. In the final decision of 
 the national Supreme Court, Justices Lamar, Holmes 
 and Lurton dissented. Tlie federal circuit court in which 
 the case was tried held that an injury resulting from a 
 co-employe engaged in intrastate commerce, was not 
 within the terms of the act. The federal circuit court 
 of appeals disapproved the ruling of the lower court but 
 decided that the plaintiff was not engaged in interstate 
 commerce. The Supreme Court disapproved both rulings 
 and held that it was not essential where the causal negli- 
 gence was that of a co-employe that he must also be 
 employed in interstate commerce "for, if the other con- 
 ditions be present, the statute gives a right of recoverv 
 for injury or death resulting from the negligence of 'any 
 of the * * * om]iloyes of such carrier' and this in- 
 
 Minnesota. Marshall v. Chicago, C. A. 947. 140 Pac. 685. 
 
 R I. & P. R. Co., 131 Minn. 392, A bridge carpenter, injured 
 
 15.5 N. W. 208. M-hile acting as a member of a 
 
 Oklahoma. Ft. Smith & W. R. crew in charge of a work train on 
 
 Co. V. Holcombe, Okla. , which was a pile driver, service 
 
 158 Pac. 633. water tank, etc., on the way to 
 
 South Carolina. Camp v. At- repair a railway bridge used for 
 
 lanta & C. A. L. R. Co., 100 S. C. the passage of interstate traffic. 
 
 294, 84 S. E. 825. was engaged in interstate com- 
 
 Washington. Smith v. Northern merce. Grand Trunk Ry. Co. of 
 
 Pac. R. Co., 79 Wash. 448, 5 N. C. Canada v. Knapp, supra.
 
 816 Injuries to Interstate Employes. [§ 469 
 
 chides an employe engaged in intrastate commerce." 
 On this feature all the judges concurred. The court 
 also held that the plaintiff was employed in interstate 
 commerce, because the work of keeping bridges in re- 
 pair is so closely related to interstate commerce as to 
 be in practice and legal contemplation a part of it. Tried 
 by the true test, is the work in question a part of the 
 interstate commerce in which the carrier is engaged, the 
 court found that bridges on interstate railroads, are as 
 indispensable to such commerce as cars and engines, and 
 that the security and efficiency of such commerce re- 
 quires such bridges to be kept in repair. In the minority 
 opinion, Justice Lamar held that carrying bolts to be 
 used in repairing such a bridge was not a part of com- 
 merce but an incident which precedes it; that such an 
 act was not commerce in any sense and that the Federal 
 Employers' Liability Act applied to those engaged in 
 transportation and not to those employed in building, 
 manufacturing or repairing. In holding that the plain- 
 tiff was engaged in interstate commerce, Mr. Justice 
 Van Devanter, speaking for the court in the majority 
 opinion, said: ''That the defendant was engaged in 
 interstate commerce is conceded; and so we are only 
 concerned with the nature of the work in which the 
 plaintiff was employed at the time of his injury. Among 
 the questions which naturally arise in this connection 
 are these: Was that work being done independently 
 of the interstate commerce in which the defendant was 
 engaged, or was it so closely connected therewith as to 
 be a part of it? Was its performance a matter of in- 
 difference so far as that commerce was concerned, or 
 was it in the nature of a duty resting upon the carrier? 
 The answers are obvious. Tracks and bridges are as 
 indispensable to interstate commerce by railroad 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, expe- 
 dition, and efficiency of the commerce depends in large 
 measure upon this being done. Indeed, the statute now 
 
 1 Control Carriers 52
 
 <§. 469] Employes In Repair Work. 817 
 
 before ii8 proceeds upon the theory lliat tlif carrier is 
 charged with the duty of exercising appropriate care to 
 prevent or correct 'any defect or insufficiency * * * 
 in its cars, engines, appliances, niacliinery, track, road- 
 bed, works, boats, wharves, or otlier e(iuipment' used 
 in interstate commerce. But independently of the stat- 
 ute, we are of o]nnion that the work of kee])ing such 
 instrumentalities in a proper state of repair which tlius 
 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 commerce by railroad can be separated 
 into its several elements, and the nature of each deter- 
 mined regardless of its relation to others or the business 
 as a whole. But this is an erroneous assumption. The 
 true test always is: Is the work in question a i)art of 
 the interstate commerce in which the carrier is engaged? 
 See McCall v. California, 136 U. S. 104, 109, 111, 34 L. 
 Ed. 391, 392, 393, 3 Inters. Com. Rep. 181, 10 Sup. Ct. 
 Rep. 881; Second Emplovers' Liability Cases (Mondou 
 V. New York, N. H. & H. R. Co.), 223 U. S. 6, 59, 56 
 L. Ed. 329, 350 (1 N. C. C. A. 875), 38 L.R. A. (N. S.) 
 44, 32 Sup Ct. Rep. 169; Zikos v. Oregon R. & Nav. Co., 
 179 Fed. 893, 897, 898 (3 N. C. C. A. 783n, 784) ; Central 
 R. Co. v. Colasurdo, 113 C. C. A. 379, 192 Fed. 901 (4 
 N. C. C. A. 645) ; Darr v. Baltimore & 0. R. Co., 197 
 Fed. 665; Northern P. R. Co. v. Maerkl, 117 C. C. A. 
 237, 198 Fed. 1. Of course, ysb are not here concerned 
 with the construction 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 instru- 
 mentalities and during their use as such. True, a track 
 or bridge may be used in both interstate and intrastate 
 commerce, but when it is so used it is none the less an 
 instrumentality of the former; nor does its double use 
 prevent the employment of those who are engaged in 
 its repair or in keejnng it in suitable condition for use 
 from being an employment in interstate commerce. The 
 point is made that the ]~>laintiff was not, at the time of
 
 818 Injuries to Interstate Employes. [§ 469 
 
 his injury, engaged in removing the old girder and in- 
 serting the new one, but was merely carrying to the 
 place where that work was to be used therein. We think 
 there is no merit in this. It was necessary to the repair 
 of the bi-idge 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." 
 
 § 470. Far Reaching Effect of Pedersen Case in 
 Extending National Control over Railroad Employes. 
 
 The decision of the national Supreme Court in the Peder- 
 sen case, discussed in the foregoing paragraph, stands 
 as a landmark in the extension of federal control and 
 the elimination of state authority over railroad em- 
 ployes. The specific point at issue was the simple ques- 
 tion whether the carrying of a bolt from a tool car to 
 a bridge on an interstate highway by rail was employ- 
 ment in interstate commerce; but the affirmative answer 
 to the question by the court with the ''last guess" in 
 effect, transferred thousands of railroad employes from 
 the control of state laws to the domain of the rights and 
 liabilities created by the national statute. By the princi- 
 ples adopted in this case to determine employment in 
 interstate commerce, all laborers in the United States 
 repairing or working upon highways of interstate com- 
 merce by rail, including bridges, switches, trestles, tracks 
 and roadbeds became immune from the dominion of state 
 laws in so far as their rights for injuries were concerned. 
 
 § 471. Erecting Foundation for New Bridges under 
 Old Bridges Forming Parts of Interstate Lines. A con- 
 flict of opinion has arisen among state courts as to the 
 interstate status of employes erecting and building foun- 
 dations for new bridges under old bridges constituting 
 parts of interstate highways by rail when employed on 
 such new bridges before they have become a part of or 
 attached to the tracks above them. In one case it was
 
 ^ 472] Employes In Repair Wokk. 819 
 
 held that an employe injured while excavating under 
 a wooden trestle bridge which was a part of the main 
 line, I'or the purpose of placing thereunder a pier for a 
 new^ steel bridge wliiclr was to take the place of the old 
 wooden trestle then used, was engaged in original con- 
 struction work and not the repair of an interstate line 
 so as to be engaged in interstate commerce/ A Wash- 
 ington court, on the other hand, held that an employe 
 doing quite similar work was engaged in interstate com- 
 merce.* In the Bates case it appeared that concrete 
 piers were being built under a wooden bridge. The 
 piers were eventually to be used as a foundation for a 
 new bridge for a w^ooden bridge then being used. The 
 wooden bridge was continuously used for carrying inter- 
 state commerce while the concrete piers were being built 
 underneath it. AVhen the piers were linished, some time 
 after the accident, the wooden bridge rested upon them. 
 An employe engaged in building the concrete piers be- 
 fore being attached to, or becoming a part of, the bridge, 
 was held to be engaged in interstate commerce. 
 
 § 472. Removing Bolts from Timbers after Having 
 Been Taken out of Interstate Bridges. Employes en- 
 gaged in removing bolts from timbers which had con- 
 
 7. McKee v. Ohio Valley Elec. Under these circumstances, it 
 
 R. Co., 78 W. Va. 131, 88 S. E. seems that Kinzell's connection 
 
 616. with interstate commerce was suf- 
 
 A laborer employed in construct- ficiently close to place him wUH- 
 ing a dirt fill beneath a wooden in the protection of the Federal 
 trestle supporting an interstate act. The correctness of the ruling 
 track, which fill, when completed, is exceedingly doubtful. 
 was to be used to support the track A section man employed in put- 
 instead of the trestle bridge, it was ting ties and other rubbish into 
 held, could not maintain an action a "fill" for the purpose of streng- 
 under the Federal act. Kinzell v. thening and making the track of 
 Chicago, M. & St. P. Ry. Co., an interstate line safer, was en- 
 Idaho , 171 Pac. 1136. At the gaged in interstate commerce. 
 
 time Kinzell was injured, the fill Ohio Valley E. Ry. Co. v. Brum- 
 
 had progressed to the extent that field, Ky. , 203 S. W. 541. 
 
 it had in places reached the rail- 8. State v. Bates & Rogers 
 
 road ties and it became nece.ssary Const. Co., 91 Wash. 181, 157 Pac. 
 
 to spread the dirt away from the 482. 
 track and thereby widen the fill.
 
 820 Injuries to Interstate Employes. [^ 472 
 
 stitiited a part of a bridge on an interstate line, are un- 
 der the protection of the federal act, although the tim- 
 bers had been removed and were lying on the side of 
 the railroad road-bed clear of passing trains.^ In the 
 cited case, an employe was a bridge repairer. At the 
 time of his death, his duties consisted in removing drift 
 bolts from the bridge timbers so that the timbers might 
 be carried away and used in other bridges. "Counsel 
 point to the fact that the caps or bents had been re- 
 moved from the bridge," said the court, "and were 
 lying by the side of the dump far enough to be clear 
 of passing trains. For this reason they insist that the 
 employe was through with constructing the bridge, and 
 that the work he was engaged in at the time of his in- 
 jmy was not a part of interstate commerce. It must 
 be admitted that this is a border-line case, but when 
 tested by the rule already laid down by the Supreme 
 Court of the United States, we think the employe was 
 employed in interstate commerce at the time he received 
 his injuries. It will be remembered that when the tim- 
 bers taken from the bridge are old and worthless they 
 are piled up and burned. When they are sound enough 
 to be used again the bolts are removed from them and 
 they are piled up on the right of way and thereafter 
 carried to the place where they are to be again used. 
 It is not sufficient that they should be moved far enough 
 away from the track so that they would not be struck 
 by passing trains. The work of constructing and repair- 
 ing the bridge would not be accomplished by removing 
 the bridge timbers only this far. Their presence so near 
 the track would not only be a constant source of danger 
 to the employes engaged in operating trains, and the 
 traveling public, but would also materially hinder the em- 
 ployes in operating the train. The engineer is required 
 to keep a constant lookout, and would be frequently at 
 a loss to know whether the logs lying so near the track 
 were obstructions on the track or not. Again it will be 
 readily seen that when the timbers became dry and 
 rotten they would easily catch fire from the passing 
 
 9. Long V. Biddle, 124 Ark. 127, 186 S. W. 601.
 
 ^ 473] Employes In Repair Work. 821 
 
 trains and the fire thus put out would endanger the 
 bridges and tracks near which they were piled. Many 
 other reasons readily suggest themselves why it would 
 be dangerous to leave these timbers so near the track. 
 We think it was a part of the work of constructing the 
 bridge to remove the timbers a safe distance away from 
 the track after they were taken from the bridge, and 
 that a pai-t of this work consisted in drawing bolts out 
 of the timber so that they might be more easily stacked 
 and made ready for shipment. Therefore we are of the 
 opinion that the deceased was employed in interstate 
 commerce at the time he was injured, and the plaintiff 
 is not entitled to recover." 
 
 § 473. Repairing Tracks of Interstate Carriers- 
 Section men and Track Laborers. All section men and 
 track laborers while working on or repairing any part 
 of the track or switches used by a common carrier by 
 railroad, indiscriminately, for both interstate and intra- 
 state commerce, are employed in interstate commerce 
 within the meaning of the national statute.'" For in- 
 
 10. United States. New York California, 174 Cal. 8, ICl Pac. 
 
 Cent. R. Co. v. Winfield, 244 U. S. 1139. 
 
 147, 61 L. Ed. 1045, 37 Sup. Ct. Colorado. Denver & R. G. R. 
 
 546; St. Joseph & G. I. R. Co. v. Co. v. De Vella, Colo. , 
 
 United States, 146 C. C. A. 397, 165 Pac. 254; Denver & R. G. R. 
 
 232 Fed. 349; Philadelphia, B. & Co. v. Wilson, Colo. , 163 
 
 W. R. Co. V. McConnell, 142 C. C. Pac. 857. 
 
 A. 555, 228 Fed. 263; Columbia & Georgia. Southern R. Co. v. 
 
 P. S. R. Co. V. Sauter, 139 C. C. A. Puckett, 16 Ga. App. 551, 85 S. E. 
 
 150, 223 Fed. 604; Lombardo v. 809; Louisville & N. R. Co. v. 
 
 Boston & M. R. R., 223 Fed. 427; Kemp, 140 Ga. 657, 79 S. E. 558; 
 
 Tralich v. Chicago, M. & St. P. Ry. Charleston & W. C. R. Co. v. 
 
 Co., 217 Fed. 675; San Pedro, L. A. Anchors, 10 Ga. App. 322, 73 S. E. 
 
 & S. L. R. Co. V. Davide, 127 C. C. 551. 
 
 A. 454, 210 Fed. 870; Central R. Indiana. Grand Trunk Western 
 
 Co. of New Jersey v. Colasurdo, Ry. Co." v. Thrift Trust Co., 
 
 113 C. C. A. 379, 192 Fed. 901; Ind. App. , 115 N. E.' 685; 
 
 Zikos v. Oregon R. & Nav. Co., 179 Chicago & E. R. Co. v. Steele, 183 
 
 Fed. 893. Ind. 444, 108 N. E. 4; Southern R. 
 
 Arkansas. Treadway v. St. Co. v. Howerton. 182 Ind. 208, 105 
 
 Louis, I. M. & S. R. Co., 127 Ark. N. E. 1025, 106 N. E. 309. 
 
 211, 191 S. W. 930. Iowa. Clark v. Chicago Great 
 
 California. Southern Pac. Co. Western R. Co., 170 Iowa 452, 152 
 
 V. Industrial Ace. Commission of N. W. 635.
 
 822 
 
 Injuries to Interstate Employes. [^ 473 
 
 stance, a section man on an interstate railroad, killed 
 while sweeping snow from the switches at a station be- 
 tween terminals, was held to be engaged in interstate 
 
 Kansas. Spinden v. Atchison. 
 T. & S. F. R. Co., 95 Kan. 474, 
 148 Pac. 747; Land v. St. Louis & 
 S. F. R. Co.. 95 Kan. 441, 148 Pac. 
 612. 
 
 Kentucky. Louisville & N. R. 
 Co. V. Williams' Adm'r, 175 Ky. 
 679, 194 S. W. 920; Jones v. South- 
 ern Ry. in Kentucky, 175 Ky. 455. 
 194 S. W. 558; Cincinnati, N. O. 
 & T. P. R. Co. V. Hansford, 173 
 Ky. 126, 190 S. W. 690; Lexington 
 & E. R. Co. V. Smith's Adm'r, 172 
 Ky. 117, 188 S. W. 1091; Cincin- 
 nati, N. O. & T. P. R. Co. V. Clay- 
 bourne's Adm'r, 169 Ky. 315, 183 
 S. W. 903; Cincinnati, N. O. & T. 
 P. R. Co. V. Tucker, 168 Ky. 144, 
 181 S. W. 940; Louisville & N. R. 
 Co. V. Parker's Adm'r, 165 Ky. 
 658, 177 S. W. 465; Louisville & 
 N. R. Co. V. Walker's Adm'r, 1G2 
 Ky. 209, 172 S. W. 517; Truesdell 
 V. Chesapeake & O. R. Co., 159 Ky. 
 718, 169 S. W. 471; Jones v. Chesa- 
 peake & 0. R. Co., 149 Ky. 566, 
 
 149 S. W. 951. 
 
 Michigan. Salabrin v. Ann 
 
 Arbor R. Co., Mich. , 160 
 
 N. W. 552; Holmberg v. Lake 
 Shore & M. S. R. Co., 188 Mich. 
 605. 155 N. W. 504. 
 
 Minnesota. Maijala v. Great 
 Northern R. Co., 133 Minn. 301, 
 158 N. W. 430; Cherpeski v. Great 
 Northern R. Co., 128 Minn. 360, 
 
 150 N. W. 1091. 
 
 Mississippi. Elliott v. Illinois 
 Cent. R. Co., Ill Miss. 426, 71 So. 
 741. 
 
 Missouri. Dowell v. Wabash Ry. 
 
 Co., Mo. App. , 190 S. W. 
 
 939; Sells v. Atchison, T. & S. F. 
 R. Co., 266 Mo. 155, 181 S. W. 106; 
 
 Hardwick v. Wabash R. Co., 181 
 Mo. App. 150, 168 S. W. 328. 
 
 Montana. Sorenson v. Northern 
 Pac. R. Co., 53 Mont. 268, 163 Pac. 
 560. 
 
 New Jersey. Armbrecht v. Dela- 
 ware, L. & W. R. Co., N. J. 
 
 L. , 101 Atl. 203; Willever v. 
 
 Delaware, L. & W. R. Co., 89 N. J. 
 L. 697, 99 Atl. 321; Willever v. 
 Delaware, L. & W. R. Co., 87 N. J. 
 L. 348, 94 Atl. 595; Coyne v. Penn- 
 sylvania R. Co., 87 N. J. L. 257, 
 93 Atl. 595. 
 
 New York. Rodgers v. New York 
 Cent. & H. River R. Co., 171 N. Y. 
 App. Div. 385, 157 N. Y. Supp. 83; 
 Bitondo v. New York Cent. & H. 
 River R. Co., 163 N. Y. App. Div. 
 823, 149 N. Y. Supp. 339; Shanks 
 v. Delaware, L. & W. R. Co., 163 
 N. Y. App. Div. 565, 148 N. Y. 
 Supp. 1034. 
 
 Oregon. Evanhoff v. State In- 
 dustrial Accident Commission, 78 
 
 Ore. 503, 154 Pac. 106. 
 
 Pennsylvania. Waina v. Penn- 
 sylvania Co., 251 Pa. 213, 96 Atl. 
 
 461. 
 
 Texas, Houston, E. & W. T. Ry. 
 
 Co. V. Samford, Tex. Civ. 
 
 App. , 181 S. W. 857; Missouri, 
 
 K. & T. Ry. Co. of Texas v. 
 
 Mooney, Tex. Civ. App. , 
 
 181 S. W. 543; Texas & P. Ry. Co. 
 
 V. White, Tex. Civ. App. , 
 
 177 S. W. 1185. 
 Vermont. Robie v. Boston & M. 
 
 R. R., Vt. , 100 Atl. 925; 
 
 Lynch's Adm'r v. Central Vermont 
 
 R. Co., 89 Vt. 363, 95 Atl. 683. 
 Wisconsin. Karras v. Chicago 
 
 & N. W. R. Co., 165 Wis. 578, 162 
 
 N. W. 923.
 
 § 474] Employes In Repair Work. 823 
 
 commerce.^' A member of a track gang engaged in 
 ballasting a railroad track used in transporting freight 
 and passengers between different states was held to be 
 employed in interstate commerce while so engaged/^ A 
 section hand injnred wliile placing a rail in a side track 
 near a main line over which trains carrying interstate 
 commerce habitnally passed, was held to be employed 
 in interstate commerce.'-' A track walker, at the time 
 lie was struck and injured by an intrastate train, was 
 repairing a switch on a track used for both intrastate 
 and interstate commerce and he was held to have a 
 remedy under the federal act.'* A section man while 
 driving spikes on a railroad track on which the rail- 
 road company transported interstate commerce was de- 
 clared to be employed in interstate commerce.'^ A sec- 
 tion foreman of a railroad company operating a line 
 which traversed several states and injured through the 
 negligence of trainmen operating a train hauling intei'- 
 state commerce, was held to have a remedy under the 
 federal act.'^ A railroad employe engaged in relaying 
 rails on a switch track near a station on a main line 
 and over which interstate commerce was carried, was 
 held to have a remedy under the federal act.'^ An em- 
 ])loye while riding upon a ''speeder" and inspecting a 
 railway line used for both intrastate and interstate 
 commerce, was engaged in interstate commerce.'^ 
 
 § 474. Status of Laborers Repairing Side Tracks, 
 'Spur Tracks and Switches. The federal act is not con- 
 fined to employes repairing main and branch lines of 
 railroads. Tjaborers emyiloyed in re]iairing s]iur tracks, 
 
 11. Hardwick v. Wabash R. Co., Co., 179 Fed. 89."?. 
 
 181 Mo. App. l-5(), 168 S. W. 328. 16. Louisville & N. R. Co. v. 
 
 12. San Pedro, L. A. & S. L. Kemp, 140 Ga. 657, 79 S. B. 558, 
 R. Co. V. Davide, 127 C. C. A. 454, overruling, in effect, Charleston & 
 210 Fed. 870. W. C. R. Co. v. Anchors. 10 Ga. 
 
 13. Jones v. Chesapeake & 0. App. 322, 73 S. E. 551. 
 
 R. Co.. 149 Ky. 566, 149 S. W. 951. 17. Truesdell v. Chesapeake & 
 
 14. Colasurdo v. Central R. R. O. R. Co., 159 Ky. 718. Itl9 S. W. 
 of New .Jersey, 180 Fed. 832. aff'd 471. 
 
 in 113 C. C. A. 379, 192 Fed. 901. IS. Anest v. Columbia & P. S 
 
 15. Zikos V. Oregon R. & Nav. R. Co., 89 Wash. 609, 154 Pac. 1100.
 
 824 Injuries to Inteestate Employes. [^ 474 
 
 side tracks and switches are engaged in interstate com- 
 merce if such tracks are used as adjuncts of interstate 
 lines in storing or transporting cars containing inter- 
 state traffic. This rule was applied and an employe was 
 held to have been engaged in interstate commerce while 
 he was repairing a spur track leading from the main 
 track to scales on which cars loaded with freight destin- 
 ed to other states were weighed.'^ And so an employe 
 repairing tracks and switches in a yard used for "break- 
 ing np," storing temporarily and "making np" trains 
 which were devoted to interstate as well as to intrastate 
 commerce, was within the national statute.^" A train- 
 master assisting in unloading gravel along a side track 
 which had been used to store trains bound for points in 
 another state, was employed in interstate commerce.^' 
 A section foreman making repairs upon a spur track used 
 in both interstate and intrastate commerce was within 
 the protection, of the federal act.^^ 
 
 § 475. Maintenance and Repair of Turntables on 
 Interstate Railroads. Employes repairing turntables on 
 which engines are turned in entering and leaving round- 
 houses before and after trips "on the road" are sub- 
 ject to the federal act if the engines so turned are 
 utilized in hauling interstate trains or trains containing 
 both interstate and intrastate freight. The status of 
 such employes is within the principle adopted in the 
 Pedersen case,^^ in which the court held that a carpenter 
 repairing a bridge which was a part of an interstate high- 
 way, was engaged in interstate commerce. While em- 
 ployes repairing roundhouses where interstate engines 
 are housed, are not within the terms of the federal act for 
 the reason that the connection of such work it too re- 
 
 19. Dowell V. W^abash Ry. Co., N. W. 635. 
 
 Mo. App. , 190 S. W. 939. 22. Cherry v. Atlantic Coast 
 
 See Section 430, supra. Line R. Co., N. C. , 93 S. 
 
 20. Willever v. Delaware, L. & E. 783. 
 
 W. R. Co., 87 N. .J. L. 348, 94 Atl. 23. Pedersen v. Delaware, L. & 
 
 595. ' W. R. Co., 229 U. S. 146, 57 L. Ed. 
 
 21. Clark v. Chicago Great 1125, 33 Sup. Ct. 648, 3 N. C. C. A. 
 Western R. Co., 170 Iowa 452, 152 779, Ann. Cas. 1914C 153.
 
 •^ 47G] Employes In Repair AVork. 825 
 
 mote from interstate traiispoitatioii, it does not seem 
 tliat tliis rule should apply to turntables for such instm- 
 mentalities have as close and direct connection with 
 interstate transportation, when used in turning engines 
 pulling interstate cars, as a bridge on a main line. In 
 harmony with this view, it has been held that an em- 
 ploye who was injured by the negligent movement of a 
 locomotive engine while he was repairing a turntable, 
 was eniployed in interstate commerce."* 
 
 § 476. Clearing Debris From Interstate Lines after 
 Wrecks and Constructing Temporary Tracks. Eniphjyes 
 engaged in clearing a railway line of debris after a 
 wreck so that interstate trains may pass, or constructing 
 temporary tracks around the scene of a wreck for the 
 same purpose, are under the control of the federal act. 
 Thus, a car inspector who was carrying blocks to the 
 scene of a wreck to be used in raising a wrecked car 
 so as to extricate another employe pinned beneath the 
 car, and to clear the tracks of the wreckage, was em- 
 ployed in interstate commerce as it appeared that the 
 track was a part of an interstate line."^ And a work- 
 man, carrying oil for the purpose of oiling the rails at 
 the connection of a main line with a temporary track 
 being constructed around the scene of a wreck so that 
 interstate trains would not be delayed, was engaged in 
 interstate commerce.^° 
 
 24. Chesapeake & O. R. Co. v. itated interstate transportation on 
 Kornhoff, 167 Ky. 353, 180 S. W. the railroad, and that consequent- 
 523. ly he was engaged in interstate 
 
 25. Southern R. Co. v. Puckett, commerce when injured. We con- 
 244 U. S. 571, 61 L. Ed. 1321, 37 ^ur in this view. From the facts 
 Sup. Ct. 703, in which the court j^^^^ j^ j^ ^^^.^ ^^^^ ^j^^ ^^^.^^^ 
 said: "The (state) court held that 
 although plaintiff's primary ob- 
 ject may have been to rescue his 
 fellow employee, his act neverthe- ^'^^^^"^ "P ^^^ ^^^' ^^^ ^ave to 
 less was the first step in clearing ^^^ operation the character of iu- 
 the obstruction from the tracks. terstate commerce." 
 
 to the end that the remaining cars 26. Denver & R. G. R. Co. v. 
 
 for train No. 75 might be haul- Wilson, Colo. , 163 Pac. 
 
 ed over them; that his work facil- S57. 
 
 of clearing the tracks entered in- 
 separably into the purpose of
 
 826 Injuries to Interstate Employes. [^ 477 
 
 § 477. Employes Surveying Track to Improve Con- 
 dition of Roadbed. The priuciplo elucidated in the fore- 
 going paragraphs that the work of keeping in repair the 
 track, roadbed and other instrumentalities of a railroad 
 engaged in interstate commerce is so closely related to 
 interstate commerce as to be in practice and legal con- 
 templation a part of it, extends to the work of survey- 
 ing and setting stakes with a view of improving a rail- 
 road curve by a slight change in the track. -^ "Prior to 
 the day of the accident," said the court in the case, 
 cited, "McGuin had been engaged in the usual track 
 work done by section men. On that day, by direction of 
 the track foreman, he was working with Parati, a road 
 engineer, who was surveying and setting stakes with the 
 view of improving a curve by a slight change in the 
 track. * * * ^ fg^ minutes before the approach of 
 the train, Parati, the surveyor, had sent McGuin nortli 
 to a designated point to hold a rod by means of which 
 he intended to take a back sight. McGuin started on 
 the north-bound track looking for the designated sta- 
 tion. When in a cut on a curve, where he would have 
 been able to see the approaching train only 661 feet, he 
 was struck by the engine and killed. * * * Here 
 the work was surveying and marking the changes to be 
 made in the position of the crossties and rails, so as to 
 make a better curve. No distinction can be founded on 
 the failure of the railroad to complete the work by 
 actually making the changes contemplated. Making the 
 survey was as much a part of the work as laying the 
 rails according to the survey. The numerous cases in 
 which the work was on things which had not at the 
 time become instrumentalities of interstate commerce 
 obviously have no application." 
 
 § 478. Employes Handling Rails on Tracks of Inter- 
 state Carriers. The status of the employes of the inter- 
 state carriers in handling rails along tracks constituting 
 interstate highways, depends upon the closeness of the 
 relation of the work to interstate commerce; for, if the 
 
 27. Southern R. Co. v. McGuin, 1.53 C. C. A. 447, 240 Fed. 649.
 
 ^ 478] 
 
 Employes Tn Ekpair "Work. 
 
 827 
 
 particular eiiii)loyment at the tiiiio of an injury, is not 
 sucli as to constitute, in a practica)>le sense, a pai't of 
 interstate trans})ortation, the federal Act does not ap- 
 ply.^® The general rule is that an employe is engaged 
 in interstate commerce if the labor of handling the rails 
 is so closely connected with interstate commerce as to 
 be in legal contemplation, a part of it. Employes en- 
 gaged in taking out old rails from a track over which 
 interstate traffic is regularly conveyed, or in replacing 
 them with new rails, are, beyond any question, within 
 the federal statute;^'' because such labor is as directly 
 
 28. Minneapolis & St. L. R. Co. 
 V. Winters, 242 U. S. 353, 61 L. 
 Ed. 358, 37 Sup. Ct. 170, 13 N. C. 
 C. A. 1127; Chicago, B. & Q. R. 
 Co. V. Harrington, 241 U. S. 177, 
 60 L. Ed. 941, 36 Sup. Ct. 517, 11 
 N. C. C. A. 992, aff'g (Mo. App.), 
 180 S. W. 443; Shanks v. Dela- 
 ware, L. & W. R. Co., 239 U. S. 
 556. 60 L. Ed. 436, 36 Sup. Ct. 188, 
 aff'g 214 N. Y. 413, Ann. Cas. 
 1916E 467, 108 N. E. 644; Dela- 
 ware, L. & W. R. Co. V. Yurkonis, 
 238 U. S. 439, 59 L. Ed. 1397, 
 35 Sup. Ct. 902. 
 
 29. United States. Zikos v. Ore- 
 gon R. & Nav. Co., 179 Fed. 893. 
 
 Arkansas. Treadway v. St. 
 Louis, I. M. & S. R. Co., 127 Ark. 
 211, 191 S. W. 930. 
 
 Colorado. Denver & R. G. R. 
 
 Co. V. Da Vella, Colo. , 
 
 16.- Pac. 254. 
 
 Indiana. Southern Ry. Co. v. 
 Howerton, 182 Ind. 208, 105 N. 
 E. 1025, 106 N. E. 369. 
 
 Kentucky. Cincinnati, N. O. & 
 T. P. R. Co. V. Hansford, 173 Ky. 
 126, 190 S. W. 690; Cincinnati, N. 
 O. & T. P. R. Co. V. Tucker, 168 
 Ky. 144, 181 S. W. 940; Truesdell 
 V. Chesapeake & O. R. Co., 159 Ky. 
 718. 169 S. W. 471. 
 
 Minnesota. Cherpeskl v. Great 
 Northern R. Co., 128 Minn. 360, 
 150 N. W. 1091. 
 
 New Jersey. Willever v. Dela- 
 ware, L. & W. R. Co., 87 N. J. L. 
 348, 94 Atl. 595. 
 
 New York. Bitondo v. New 
 York Cent. & H. River R. Co., 163 
 N. Y. App. Div. 823, 149 N. Y. 
 Supp. 339. 
 
 Pennsylvania. Walna v. Penn- 
 sylvania Co., 251 Pa. 213, 96 Atl. 
 461; Glunt v. Pennsylvania R. Co., 
 249 Pa. 522. 95 Atl. 109. 
 
 Texas. Missouri, K. & T. R. Co. 
 
 of Texas v. Mooney, Tex. Civ. 
 
 App. , 181 S. W. 543. 
 
 "A section hand, employed in 
 looking after and repairing the 
 track of a railroad company en- 
 gaged in interstate commerce, 
 while employed in such work, is 
 an employe engaged in interstate 
 commerce; and, it being stipulat- 
 ed that defendant was engaged in 
 interstate commerce, the inquiry 
 is: Was the work which deceased 
 was doing at the time of his in- 
 jury a part of the interstate com- 
 merce in which defendant was en- 
 gaged? It was an interstate track 
 and roadbed, which defendant 
 was obliged to keep in repair to 
 move cars carrying interstate com- 
 merce. Deceased, at the time of 
 his injury, was engaged in inspect- 
 ing and repairing the track, as 
 well as removing old rails, which 
 were along the side of. and which
 
 828 Injuries to Interstate Employes. [§ 478 
 
 and as closely connected with interstate commerce as the 
 carrying of a bolt to repair a bridge regularly nsed in 
 interstate commerce, and, therefore, within the influence 
 of the rnle that employes repairing or maintaining the 
 track and roadbed, are under the national statute.^" To 
 this extent there is unanimity of opinion among the 
 courts since the decision of the national court in the 
 Pedersen case.^^ 
 
 § 479. Picking up Old Rails and Storing New Ones 
 Along Track for Future Use. But the character of the 
 emploj-ment of a laborer picking up old rails piled along 
 the right of way or storing or piling new rails for future 
 use, has not been specifically adjudicated by the national 
 Supreme Court, and there is apparently a conflict of 
 opinion in the decisions of other courts. Some courts, 
 under the influence of the doctrines announced in the 
 Shanks,'^ Yurkonis,'' Harrington,'* Winters,'', and other 
 cases applied to different facts, have held that employes 
 in so handling rails are not engaged in work which is 
 a part of interstate commerce. For example, a track- 
 man in the employ of a railroad company, at the time 
 he was injured, was placing new rails into a pit be- 
 tween two tracks where the rails were to be stored until 
 they were required for track repairing in the future. 
 His employment, while so engaged, it was held, was no 
 
 we think it fair to assume were N. E. 644. 
 
 taken from the train. But 33. Delaware, L. & W. R. Co. 
 
 whether this is a warranted as- v. Yurkonis, 238 U. S. 439, 59 L. 
 
 sumption or not makes no ma- Ed. 1397, 35 Sup. Ct. 902, Dis- 
 
 terial difference in this case, be- missed. Same case, 137 C. C. A. 
 
 cause a part of the duties of de- 23, 220 Fed. 429. 
 
 ceased at the time, and in which 34. Chicago, B. & Q. R. Co. v. 
 
 he was engaged, was to inspect Harrington, 241 U. S. 177, 60 L. 
 
 and repair the track." Denver & Ed. 941, 36 Sup. Ct. 517, 11 N. C. 
 
 R. G. R. Co. V. Da Vella, supra. C. A. 992, aff'g. (Mo. App.), 180 
 
 30. Section 473, supra. S. W. 443. 
 
 31. Section 470, supra. 35. Minneapolis & St. L. R. Co. 
 
 32. Shanks v. Delaware, L. & v. Winters, 242 U. S. 353, 61 L. 
 W. R. Co., 239 U. S. 556, 60 L. Ed. Ed. 358, 37 Sup. Ct. 170, 13 N. C 
 436, 36 Sup. Ct. 188, aff'd 214 N. C. A. 1127, aff'g 131 Minn. 496. 
 Y. 413, Ann. Cas. 1916E 467, 108 155 N. W. 1103.
 
 ^ 479] 
 
 Employes In Repair Work. 
 
 829 
 
 part of interstate commerce. ^"^ Similarly, a section hand 
 while loading-, upon a flat cjir, unused rails which had 
 theretofore been removed from the track, and had been 
 left on the right of way, it was held in another case, 
 was not employed in interstate commerce." But, on the 
 other hand, in apparent conflict with at least the fore- 
 going Kentucky cases cited, the Federal Circuit Court 
 of Appeals for the Third District held that an assist- 
 ant foreman of a track gang while engaged in removing 
 old rails from where they had been left between the 
 tracks after being taken out a few days before, was en- 
 
 36. Hudson & M. R. Co. v. 
 lorio, 152 C. C. A. 641, 239 Fed. 
 855, in which the court said: 
 "There is plainly a difference be- 
 tween the actual or imminent 
 employment of the bolts in re- 
 pairing the bridge, as in the Ped- 
 ersen Case, and the mining of coal 
 wherewith to run interstate loco- 
 motives, as in the Yurkonis Case. 
 Whether such difference entails 
 a distinction is a matter upon 
 which opinions might conflict, as 
 the dissent in Supreme Court de- 
 cisions under this statute clearly 
 shows. But by the latest pro- 
 nouncement of that court in I\lin- 
 neapolis, etc., Co. v. Winters, 242 
 U. S. :5.53, 37 Sup. Ct. 170, 61 L. 
 Ed. (January 8, 1917), it is in ef- 
 fect declared that when one claims 
 the benefit of the act here invoked, 
 because of the character or em- 
 ployment of the thing upon which 
 he was working at the time of in- 
 jury, then the character of that 
 thing 'as an instrument of com- 
 merce depended on its employ- 
 ment at the time (of injury), not 
 upon remote probabilities, or up- 
 on accidental later events.' It 
 cannot be said that the rails which 
 lorio was engaged in storing 
 against a use that was certainly 
 not imminent, and might never 
 
 occur, were at the moment en- 
 gaged in, or practically part of, 
 interstate commerce; for that 
 commerce was going on without 
 any present assistance, either 
 from lorio, or the rails on which 
 he was working, or the men who 
 were working with him. We there- 
 fore hold that the actual employ- 
 ment or use at the moment of in- 
 jury of the thing upon which the 
 person injured was working is the 
 test of applicability of the statute, 
 under circumstances such as 
 shown here. By that test plaintiff 
 below was not practically engag- 
 ed in or a part of interstate com- 
 merce when he was hurt, and the 
 judgment is reversed." 
 
 37. Cincinnati, N. O. & T. P. R. 
 Co. V. Hansford, 173 Ky. 126, 190 
 S. W. 690. Said the Court: "It 
 will be observed that it nowhere 
 appears that Hansford was engag- 
 ed, either in taking out old rails 
 or putting in new rails; the most 
 that can be said from the proof 
 is that Hansford was engaged in 
 loading oH rails that had, at some 
 time, been taken out of the track 
 and w'ere lying on the right of 
 way." To the same effect: Illinois 
 Cent. R. Co. v. Kelly, 167 Ky. 745. 
 181 S. W. 375.
 
 830 
 
 Injueies to Interstate Employes. 
 
 [§ 479 
 
 gaged in interstate commerce.^^ A similar conclusion 
 -was readied by the Circuit Court of Appeals for the 
 First Circuit, but in that case there was this additional 
 factor: the work train upon which the rails were being 
 loaded was in transit, subject to the delays of the work, 
 from a point in Maine to a point in Canada.^^ An em- 
 ploye assisting in loading rails on a flat car was held 
 not to be within the protection of the Federal Act, but 
 nothing was shown whether the rails were old or new, 
 where they came from, where they were taken, or where 
 the car was to go when loaded/" As the law presumes, 
 in the absence of evidence to the contrary, that an em- 
 ploye is engaged in intrastate commerce, the decision 
 of the court in this case was undoubtedly correct." An 
 appellate court in New Jersey held that an employe was 
 not engaged in interstate commerce while he was remov- 
 ing old rails from the track of an interstate carrier 
 and replacing them with new ones;*" but the act of the 
 
 38. Philadelphia. B. & W. R. Co. 
 V. McConnell, 142 C. C. A. 555, 228 
 Fed. 263, in which Judge Wool- 
 ley said: "Here the work was not 
 being done independently of the 
 interstate commerce in which the 
 defendant was engaged, nor was 
 the performance of the work a 
 matter of indifference so far as 
 that commerce was concerned. 
 The removal of old rails from be- 
 tween the tracks on the roadbed 
 of a railroad over which moves 
 heavy traffic, both interstate and 
 intrastate, constitutes keeping the 
 tracks and roadbed in suitable 
 condition for interstate commerce, 
 and is as necessary for the proper 
 maintenance of the tracks and 
 roadbed as renewing the tracks. 
 The work of which the plaintiff's 
 was a part, was the repair of the 
 roadbed by replacing old rails 
 with new ones. This included re- 
 moving old rails and installing 
 new ones. The work of removing 
 old rails was not complete when 
 
 they were lifted from their place 
 upon the ties and tossed upon the 
 roadbed, but was complete only 
 when they were carried away 
 from the place where they lay be- 
 tween the tracks. The removal of 
 old rails was as much a part of 
 the repair work as the bringing 
 of new rails to the place to be re- 
 paired. If this be true, this case 
 is within the Pedersen Case, and 
 believing it to be true, we feel that 
 this case is ruled by the principle 
 declared by the Supreme Court 
 in that -case." 
 
 39. Canadian Pac. R. Co. v. 
 Thompson, 146 C. C. A. 401, 232 
 Fed. 353. 
 
 40. Tsmura v. Great Northern 
 R. Co., 58 Wash. 316, 108 Pac. 
 774. 
 
 41. Osborne v. Gray, 241 U. S. 
 16, 60 L. Ed. 865, 36 Sup. Ct. 486. 
 aff'g 5 Tenn. C. C. A. 519. 
 
 42. Pierson v. New York, S. & 
 W. R. Co., 83 N. J. L. 661, 85 Atl. 
 233.
 
 ^ 480] Employes Tn Repair Work. 831 
 
 employe in this case was so jilaiiily connected witli inter- 
 state commerce as to be in a direct sense a part of it, 
 and the decision of the court was erroneous." In 
 another action under the Federal Act, it ai)peai-ed that 
 the i)Iaintiff, a section foreman, was injured while tak- 
 ing out rails from an interstate track and replacing 
 them with new ones. The trial court submitted the 
 ([uestion to the jury whether the plaintiif was employed 
 in interstate commerce." But under these facts, con- 
 ceded by both parties, the plaintiff's employment in 
 interstate commerce was shown as a legal conclusion. A 
 section gang composed of about 30 men was em])loyed 
 in taking up old rails and replacing them with new ones 
 on a railroad running from a point in Utah to Omaha, 
 Neb. The old rails were first placed along the side of 
 the track and then removed on push cars to scrap piles 
 about 30 yards from where they were picked u]). A 
 member of the gang who was employed, exclusively, 
 in moving the old rails from where they were thrown 
 along the side of the track to the scrap pile, was held 
 not to be engaged in interstate commerce. ''"''' The deci- 
 sion of the coui-t in this case does not seem to be sound, 
 for Perez's work was but a part of the larger task of 
 repairing an interstate line and the removal of the old 
 rails, as the work proceeded, to the scrap pile was but 
 an incident thereof. 
 
 § 480. When Laborers Handling Ties for Common 
 Carriers are Under the Federal Act. The nature of the 
 work being done at the time of the injury determines 
 whether or not an employe handling railroad ties is em- 
 ployed in interstate commerce. That employes while 
 taking out old ties and putting in new ties in a track 
 permanently devoted to the carrying of interstate traf- 
 fic, are engaged in interstate commerce, is indisputable; 
 
 43. Pedersen v. Delaware, L. & 44. Cherpeski v. Great N. R. 
 
 W. R. Co., 229 U. S. 146, 57 L. Ed. Co., 128 Minn. 360, 150 N. W. 1091. 
 
 1125, 33 Sup. Ct. 648, 3 N. C. C. 44a. Perez v. Union P. R. Co., 
 
 A. 779, Ann. Cas. 1914C 153, rev'g Utah , 173 Pac. 23G. 
 
 117 C. C. A. 33, 197 Fed. 537.
 
 832 
 
 Injuries to Interstate Employes. [<^ 480 
 
 for the work of repairing an interstate track is a part 
 of interstate commerce within the statnte."'^ On the 
 other hand, a workman while employed in making ties, 
 would have no remedy under the federal statute as the 
 connection of his work with interstate commerce would 
 be too remote. For example, a section laborer was in- 
 jured while peeling hemlock ties, being a part of the 
 process of the manufacture of the ties intended for 
 future use on an interstate track. Such work did not 
 constitute interstate employment.^'^ Likewise, a conduct- 
 or in charge of a work train loading and carrying new 
 
 45. United States. Columbia & 
 P. S. R. Co. V. Sauter, 139 C. C. A. 
 150, 223 Fed. 604. 
 
 Arkansas. Tredway v. St. 
 Louis, I. M. & S. R. Co., 127 Ark. 
 211, 191 S. W. 930. 
 
 California. Southern Pac. Co. 
 V. Industrial Ace. Commission of 
 California, 174 Cal. 8, 161 Pac. 
 1139. 
 
 Colorado. Denver & R. G. R. Co. 
 
 V. Wilson, ■ Colo. , 163 
 
 pac. 857. 
 
 Indiana. Grand Trunk Western 
 
 Ry. Co. V. Thrift Trust Co., 
 
 Ind. App. , 115 N. E. 685. 
 
 Kentucky. Louisville & N. R.. 
 Co. V. William's Adm'r, 175 Ky. 
 679, 194 S. W. 920; Louisville & 
 N. R. Co. v. Walker's Adm'r, 162 
 Ky. 209, 172 S. W. 517. 
 
 Michigan, Salabrin v. Ann 
 Arbor R. Co., 194 Mich. 458, 160 
 N. W. 552. 
 
 Missouri. Dowell v. Wabash Ry. 
 
 Co., Mo. App. , 190 S. W. 
 
 939; Hardwick v. Wabash R. Co., 
 181 Mo. App. 156, 168 S. W. 328. 
 
 46. Karras v. Chicago & N. W. 
 R. Co., 165 Wis., 578, 162 N. W. 
 923, in which the court said: 
 "It appears that the ties plaintiff 
 was peeling had been purchased 
 by defendant at Watersmeet, 
 Mich., and shipped to this track 
 
 1 Control Carriers .j3 
 
 section. They were dumped on 
 piles of from 30 to 50 and more 
 to be peeled and subsequently used 
 where needed in the repair of the 
 track. They were so used during 
 the summer and up to some time 
 in September. Ties with the bark 
 on were not put into the track. 
 Hence in order to be fully pre- 
 pared for track repair they must 
 be peeled. The peeling, there- 
 fore, was a part of the process 
 of manufacture of the ties for the 
 purpose intended. This process, 
 in the case at bar, was carried 
 on independent of, and separate 
 from, a then immediate use of the 
 ties in track repair. It was a 
 preparation of them for future 
 use. That it was done by the de- 
 fendant upon its right of way, 
 instead of by others elsewhere, or 
 that the ties were destined for 
 interstate commerce, cannot con- 
 stitute the process of their manu- 
 facture interstate commerce work. 
 To constitute that there must be 
 an actual entering upon or en- 
 gagement in such work. A mere 
 manufacture or preparation of 
 material which is destined at some 
 time in the future at some place 
 to be used in interstate commerce 
 wrok is not enough."
 
 ^ 481] Employks In Repair Work. 833 
 
 ties from one point to another in the same state for tlie 
 purpose of being treated in a tie-treating plant operated 
 by the carrier, and to be thereafter used in repairing 
 an interstate track, was not engaged in commerce be- 
 tween the states.*^ A section hand engaged in carrying 
 ties after they had been unloaded from cars and thrown 
 besides the track, and stacking them beyond a side track 
 and on the right of way, where they were to remain 
 until needed in repairing an interstate track at some 
 future time, was not employed in interstate commerce 
 although the ties wore in fact afterwards used in ro])air- 
 ing the track.*** 
 
 § 481. Employes Handling Ballast, Gravel, Sand, 
 Etc., for Use in Repairing Interstate Tracks. Kmployes 
 engaged in assisting in moving ballast to be used in the 
 repair of an interstate track are within the terms of the 
 Federal Act. Thus, an engineer on an extra train run- 
 ning between two points in the same state and containing 
 only gravel to be used in repairing and improving a 
 roadbed over which interstate commerce regularly pass- 
 ed, was employed in interstate commerce.*® For a great- 
 er reason, an employe who was a member of a crew in 
 charge of a train-load of gravel being transported from 
 North Dakota to Montana for the purpose of repairing 
 an interstate line, was held to be engaged in interstate 
 commerce.^'^ A day laborer in the emi)loyment of a rail- 
 
 47. Alexander v. Great North- 49. Holmberg v. Lake Shore & 
 em R. Co., 51 Mont. 565, 154 Pac. M. S. R. Co., 188 Mich. G05, 155 N. 
 914. This decision is in harmony W. 504. 
 
 with the ruling of the Supreme 50. Hein v. Great Northern R. 
 Court in Lehigh V. R. Co. v. Bar- R., 34 N. D. 440, 159 N. W. 14. 
 low, 244 U. S. 183, 61 L. Ed. 1070, Said the court: "In short plaintiff 
 37 Sup. Ct. 515; Chicago, B. & Q. asserts that in hauling its own 
 R. Co. V. Harrington, 241 U. S. gravel trains across the state line 
 177, 60 L. Ed. 941. 36 Sup. Ct. 517, loaded with gravel procured in 
 11 N. C. C. A. 992, in which the this state for use as ballast in 
 same rule was applied to a local Montana, defendant was not en- 
 movement of company coal from gaged in interstate commerce, and 
 storage tracks to coal chutes. hence the deceased was not en- 
 
 48. Missouri, K. & T. Ry. Co. gaged in interstate commerce, and 
 
 of Texas v. Watson, Tex. Civ. commerce so as to make the pro- 
 
 App. , 195 S. W. 1177. visions of the federal act appli- 
 
 1 Control Carriers 53
 
 834 
 
 Injuries to Interstate Employes. [^ 481 
 
 road company, who was at a liill where gravel was 
 loosened by tlie explosion of dynamite^ was not engaged 
 in interstate commerce in loading the gravel npon rail- 
 road ears although it was to be used in the re]xiir of 
 interstate lines.^' The court in this case relied upon 
 Delaware, L. & W. R. Co. v. Yurkonis, 238 U. S. 439, 
 59 L. Ed. 1397, 53 Sup. Ct. 902, and held that the work 
 was too remote from interstate transportation. 
 
 § 482. Excavating and Deepening Ditches Along 
 Railroad Tracks for Drainage Purposes. A track over 
 which interstate commerce is moving is an instrumen- 
 tality of interstate commerce.'^ When an employe is en- 
 gaged in a service immediately productive of the raainte- 
 
 cable, unless it be shown further 
 that the gravel was to he used for 
 the repair of its main line carry- 
 ing interstate traffic. Judicial 
 notice is taken of geographical 
 facts and location of defendant's 
 railroad, its business as a com- 
 mon carrier engaged in both inter- 
 state and intrastate traffic. It 
 is not necessary that the proof dis- 
 close that the gravel was to be 
 used upon the main line. It is 
 sufficient to invoke the federal act 
 if deceased was operating an en- 
 gine hauling gravel train for part 
 of a continuous haul from North 
 Dakota into Montana. That fact 
 alone establishes that interstate 
 traffic was being performed and 
 carried forward." 
 
 51. Yazoo & M. V. R. Co. v. 
 
 Houston, Miss. , 75 So. 
 
 G90. 
 
 52. United States. Pedersen v. 
 Delaware, L. & W. R. Co., 229 
 U. S. 146, .57 L. Ed. 1125, 33 Sup. 
 Ct. 648, 3 N. C. C. A. 779, Ann. 
 Cas. 1914C 153; Columbia & P. S. 
 R. Co. V. Sauter, 139 C. C. A. 150, 
 223 Fed. 604; Tralich v. Chicago, 
 M. & St. P. Ry. Co., 217 Fed. 675; 
 Central R. of New Jersey v. Cola- 
 
 surdo, 113 C. C. A. 379, 192 Fed. 
 901; Zikos v. Oregon R. & Nav. 
 Co., 179 Fed. 893. 
 
 Arkansas. Treadway v. St. 
 Louis, I. M. & S. R. Co., 127 Ark. 
 211, 191 S. W. 930. 
 
 Colorado. Denver & R. G. R. 
 
 Co. V. Wilson, Colo. , 163 
 
 Pac. 857. 
 
 Indiana. Grand Trunk Western 
 
 Ry. Co. V. Thrift Trust Co., 
 
 Ind. App. , 115 N. B. 685; 
 
 Southern R. Co. v. Howerton, 182 
 Ind. 208, 105 N. E. 1025 (Ind. 
 App.). 101 N. E. 121. 
 
 Kentucky. Louisville & N. R. 
 Co. V. Walker's Adm'r, 162 Ky. 
 209, 172 S. W. 517; Truesdell v. 
 Chesapeake & O. R. Co., 159 Ky. 
 718, 169 S. W. 471. 
 
 Minnesota. Cherpeski v. Great 
 Northern R. Co., 128 Minn. 360, 
 150 N. W. 1091. 
 
 Missouri. Harwick v. Wabash 
 R. Co., 181 Mo. App. 156, 168 S. W. 
 328. 
 
 New Jersey. Willever v. Dela- 
 ware, L. & W. R. Co., 87 N. J. L. 
 :^48, 94 Atl. 595. 
 
 Texas. Texas & P. Ry. Co. v. 
 
 White, Tex. Civ. App. , 
 
 177 S. W. 1185.
 
 §483] P]mpi/iyiuS In Repair Work. 835 
 
 nance or ro])air of intimately eonneeted and essential 
 features of interstate commerce, his rights are governed 
 by tlie federal statute." An essential part of the rej^air 
 of railroad tracks is to keep them well drained so that 
 trains may pass over them in safety. Emjjloyes en- 
 gaged in excavating or deepening ditches along the 
 tracks to drain olT suirncc water, are engaged in inlcr- 
 state commerce.''* 
 
 § 483. Repairing or Rebuilding Depots, Round- 
 houses, Sheds, etc., not Employment in Interstate Com- 
 merce. Employes of common carriers by railroad in- 
 jured while reconstructing or repairing such buildings 
 as stations, roundhouses and machine shops, have no 
 remedy under the federal act. Their work, while so em- 
 ployed, has not a direct and immediate connection with 
 interstate commerce, although freight sheds, shops, 
 roundhouses and other like facilities provided for hand- 
 ling and discharging interstate freight and cars, are in 
 a remote sense, instrumentalities used in interstate com- 
 merce. The status of such employes, so far as inter- 
 state employment is concerned, has not been specifically 
 passed upon by the United States Supreme Court, but 
 it necessarily follows from the y)rinciples of the de- 
 cisions cited in the notes, that thoy are not controlled 
 by the federal act.^^ For example, a railroad carpenter 
 
 53. Ex Parte Atlantic Coast S. 556, 60 L. Ed. 436, 36 Sup. Ct. 
 Line R. Co., 190 Ala. 132, 67 So. 188. 
 
 256. A plumber engaged in inspect- 
 
 54. Louisville & N. R. Co. v. ing and repairing pipes which con- 
 
 Blankenship, Ala. , 74 stituted a part of the plumbing 
 
 So. 960. apparatus beneath a station, was 
 
 55. Baltimore & 0. R. Co. v. ^eld to be engaged in interstate 
 Branson, 242 U. S. 623, 61 L. Ed. commerce. Vollmers v. New 
 
 534, 37 Sup. Ct. 244 (mem. dec.) ; york Cent. R. Co., N. Y. App. 
 
 Minneapolis & St. L. R. Co. v 
 
 Div. , 167 N. Y. Supp. 426. But 
 
 this decision is erroneous. 
 
 Nash, 242 U. S. 619, 61 L. Ed. 531, 
 37 Sup. Ct. 239 (mem. dec): Min- 
 neapolis & St. L. R. Co. V. Winters. ^ carpenter injured while re- 
 242 U. S. 353, 61 L. Ed. 358. 37 Pairing a coal chute from which 
 Sup. Ct. 170, 13 N. C. C. A. 1127; apparatus beneath a station, was 
 Illinois Cent. R. Co. v. Cousins, "ot engaged in interstate com- 
 241 U. S. 641, 60 L. Ed. 1216, 36 merce. Gallagher v. New York 
 
 Sup. Ct. 446 (mem. dec); Shanks Cent. R. Co., N. Y. App. Div. 
 
 V. Delaware, L. & W^ R. Co., 239 C. , 167 N. Y. Supp. 480.
 
 836 Injuries to Interstate Employes. [^ 483 
 
 making' repairs to a coal cliiite and a ronndliouse nsed 
 for both kinds of business, interstate and intrastate, 
 was not employed in interstate commerce.''' A carpenter 
 engag'ed in building an addition to repair shops where- 
 in engines nsed for both interstate and intrastate com- 
 merce were repaired, was not employed in interstate 
 commerce." In another case, it was held that an em- 
 ploye repairing a roundhouse where interstate engines. 
 were inspected, housed and repaired, had no remedy 
 under the federal act.'* A carpenter riveting a stove 
 pipe for a roundhouse where engines were sheltered for 
 service in interstate commerce, was properly held not 
 to have been engaged in interstate commerce.'^ A car- 
 penter engaged in building a coal chute for a common 
 carrier engaged in interstate commerce, was not sub- 
 ject to the federal act."" In Nash v. Minneapolis & St. 
 L. R. Co.,"^ the supreme court of Minnesota held that a 
 section hand, assisting in moving an outhouse which 
 was to be used as an appendage to a station provided 
 for the accommodation of interstate as well as intra- 
 state passengers, was engaged in interstate commerce, 
 but on writ of error to the national Supreme Court, the 
 case was reversed in a memorandum opinion.®^ 
 
 § 484. Employes Working in Machine and Repair 
 Shops, Roundhouses and Other Like Buildings. With 
 the exception of employes repairing cars and engines 
 
 56. Kelly V. Pennsylvania R. 62. Minneapolis & St. L. R. Co. 
 Co. 151 C. C. A. 171. 238 Fed. 95. v. Nash, 242 619, 61 L. Ed. 531, 
 
 57. Thompson v. Cincinnati, N. 37 Sup. Ct. 239 (mem. dec). The 
 O. & T. P. R. Co., 165 Ky. 256, judgment was reversed upon the 
 Ann. Cas. 1917A 1266, 176 S. W. authority of the following cases: 
 1006. Delaware, L. & W. R. Co. v. 
 
 58. Castonguay v. Grand Trunk Yurkonis, 238 U. S. 439, 59 L. Ed. 
 Ry. vt. , 100 Atl. 908. 1397, 35 Sup. Ct. 902, Shanks v. 
 
 59. Dunn v. Missouri Pac. Ry. Delaware, L. & W. R. Co., 239 U. 
 
 Co., Mo. App. , 190 S. W. St. 556, 60 L. Ed. 436, 36 Sup. Ct. 
 
 966. 188, Chicago, B. & Q. R. Co. v. 
 
 60. Voris v. Chicago, M. & St. P. Harrington, 241 U. S. 177, 60 L. 
 R. Co., 172 Mo. App. 125, 157 S. Ed. 941, 36 Sup. Ct. 517, 11 N. C. 
 W. 835. C. A. 992, and Illinois Cent. R. Co. 
 
 61. 131 Minn. 166, 154 N. W. v. Cousins, 241 U. S. 641, 60 L. Ed. 
 957. 1216, 36 Sup. Ct. 446 (mem. dec).
 
 § 484] Emplovks In Rkpaiu Work. 837 
 
 devoted and assigned crdusively to interstate traffic, 
 servants of eomnion carriers l)y railroad working in sueli 
 places as roundliouses, repair shops, maeliine shops and 
 buildings of like cliai-acter maintained l)y railroad com- 
 panies are not ordinarily gfoverned l)y tlie federal stat- 
 ute, and, if injured, must look to the laws of the states 
 for tlieir remedies. This rule was applied and an em- 
 ploye was held not to have a remedy under the federal 
 act while he was engaged as a machinist in the sho}) of 
 an interstate carrier in taking down and putting into a 
 new location an overhead counter shaft through which 
 l)ower was communicated to some of the machinery 
 utilized in repairing locomotives used in interstate trans- 
 portation, although he was usually employed in repair- 
 ing engines used in both interstate and intrastate com- 
 merce. The work of so altering the location of a fixture 
 in the shop did not have such a close and direct relation- 
 ship with interstate commerce as to be deemed a part of 
 it."' The supreme court of Minnesota decided that an 
 employe injured by the negligence of a fellow servant 
 while engaged in wheeling a barrow of coal to heat a 
 shop in which other employes were engaged in making 
 repairs to cars that had been and were to be used in 
 carrying interstate commerce, was employed in inter- 
 state commerce, but on writ of error to the Supreme 
 Court of the United States, this cause was reversed.®* 
 For similar reasons, an employe injured while repair- 
 ing the wall of a roundhouse where engines carrying 
 interstate and iiifiaslatc commerce were rei)aired and 
 
 63. Shanks v. Delaware, L. & v. New Orleans, T. & M. R. Co., 13.5 
 
 W. R. Co., 239 U. S. 556, 60 L. Ed. La. 129, G4 So. 1012. 
 436, ;^6 Sup. Ct. 188. 64. Illinois Cent. Co. v. Cousins, 
 
 A hostler working on an engine 241 U. S. 641, 60 L. Ed. 1216, 36 
 in a roundhouse, which had just Sup. Ct. 446 (mem. dec). In this 
 returned from an intrastate trip, case the court handed down a 
 was not engaged in interstate com- memorandum opinion, saying: 
 merce although the evidence dis- ".ludgment reversed with costs up- 
 closed that, on the previous day, on the authority of Delaware, 
 the engine had been used In trans- Lackawana & Western Railro;d 
 porting interstate commerce and v. Yurkonis. 2.38 U. S. 439; Shanks 
 it was generally used in hauling v. Delaware. Lackawana & West- 
 both kinds of freight. La Casse ern Railroad, 239 U. S. 556."
 
 838 Injuries to Interstate Employes. [§ 484 
 
 housed, was not engaged in interstate eonunerce.""' And 
 so, an employe building a scaffold for tlie purpose of 
 whitewashing or painting the ceiling of a freight shed 
 used for storing, placing and handling interstate ship- 
 ments of freight, did not have a remedy under the fed- 
 eral act; for, while the freight shed was in a sense an 
 instrumentality used for housing interstate trafftc, the 
 work of building the scaffold possessed too remote a 
 comiection with interstate commerce to be a part of 
 it.'"' A janitor breaking up coal for a furnace in the 
 general office of a railroad company engaged in inter- 
 state commerce, is not thereby employed in interstate 
 commerce within the federal act.-'^ A railway employe 
 working in shops where cars used in interstate com- 
 merce were repaired, had no remedy under the federal 
 act because of an injury sustained while assisting in 
 unloading a carload of barrels of paint and oil to be 
 used in repairing cars.*"'^ Nor was an employe w^orking 
 in a coal chute assisting in elevating coal, some of 
 which would be used in filling the tenders of interstate 
 engines, engaged in interstate commerce within the pur- 
 view of the federal act."" In the Shanks case, cited 
 supra, the Supreme Court, in reviewing many of its 
 former decisions as to when an employe was engaged 
 in interstate commerce, said: "The question for de- 
 cision is, was Shanks at the time of the injury employed 
 in interstate commerce within the meaning of the Em- 
 ployers' Liability Act? What his employment was on 
 other occasions is immaterial, for, as before indicated, 
 the act refers to the service being rendered when the 
 
 65. Castonguay v. Grand Trunk saying, obiter, that if the em- 
 
 Ry. Vt. , 100 Atl. 908. ploye had been repairing the shed 
 
 In this case the court followed the itself he would have been engaged 
 
 Shanks case, supra, and said: "If in interstate commerce. 
 
 Shanks was not engaged in inter- 67. Great Northern R. Co. v. 
 
 state commerce, Castonguay could King, 165 Wis. 159. 161 N. W. 
 
 not have been, for he was one 371. 
 
 step further removed from actual 68. Salmon v. Southern R. Co., 
 
 transportation." 133 Tenn. 223, 180 S. W. 165. 
 
 66. Killes v. Great Northern R. 69. Zavitovsky v. Chicago, M. 
 Co., 93 Wash. 416, 161 Pac. 69. & St. P. R. Co., 161 Wis. 461, 
 The conclusion of the court in this 154 N. W. 974. 
 
 case was correct, but it erred in
 
 § -4-841 Kmi'lovks In Repair Work. 839 
 
 injury was snfTcnMl. Tlaviiit;" in mind tin? nature and 
 usual course of llic business to wliieli tiie aet relat<'s 
 and liie evidciil imrpose of Congress in adopting- the a<'t, 
 W(; tiiink it speaks of interstate eonuneree, not in a teeli- 
 nieal le«^ai sense, but in a practical one better suited to 
 the occasion (see Swift & Co. v. United States, 196 U. 
 S. 'Mi'), 131)8), and tliat tlie true test of employment in 
 such commerce in the sense intended is, was the <'m- 
 ploye at the time of the injury engaged in interstate 
 transportation or in work so closely related to it as to 
 be practically a part of it. Applying this test, we have 
 lield that the recpiisite employment in interstate com- 
 merce exists where a car repairer is replacing a draw- 
 bar in a car then in use in such commerce, Walsh v. 
 New York, New Haven & Hartford R. R., 223 U. S. 1 ; 
 where a fireman is walking ahead of and piloting 
 through several switches a locomotive which is to be 
 attached to an interstate train and to assist in moving 
 the same up a grade, Norfolk cK: AVestern Ry. v. Earnest, 
 229 U. S. 114; where a workman about to rej^air a 
 bridge regulai'ly used in interstate transportation is 
 carrying from a tool car to the bridge a sack of bolts 
 needed in his work, Pederson v. Del., Lack & West. R. 
 R., 229 U. S. 146; where a clerk is on his way through 
 a railroad yard to meet an inbound interstate freight 
 train and to mark the cars so the switching crew will 
 know what to do with them when breaking up the ti-aiu, 
 St. Louis, San Francisco & Texas Ry. v. Scale, 229 U. 
 S. 156; where a fireman, having prepared his engine 
 for a trip in interstate commerce, and being about to 
 start on his run, is walking across adjacent tracks on an 
 errand consistent with his duties. North Carolina R. R. 
 V. Zachary, 232 U. S. 248; and where a brakeman on a 
 train carrying several cars of interstate and two of intra- 
 state freight is assisting in securely placing the latter 
 on a side track at an intermediate station to the end 
 that they may not run back on the main track and that 
 the train mav ])roceed on its journey with the inter- 
 state freight. New York Central R. R. V. Carr, 238 IT. S. 
 260. Without deinirting from this test, we also have 
 held that the riMpiisite I'lnployment in interstate com-
 
 ^0 Injuries to Interstate Employes. [§ 484- 
 
 meree does not exist where a member of a switching- 
 crew, whose general work extends to both interstate and 
 intrastate traffic, is engaged in hauling a train or drag 
 of cars, all loaded witli intrastate freight, from one part 
 of a city to another. 111. Cent. R. R. v. Behrens, 233 U. 
 S. 473, and where an employe in a colliery operated by 
 a railroad company is mining coal intended to be nsed 
 in the company's locomotives moving in interstate com- 
 merce, Del., Lack. & West. R. R. v. Yurkonis, 238 U. 
 S. 439. In neither instance could the service in- 
 dicated be said to be interstate transportation or so 
 closely related to it as to be practically a part of it. 
 Coming to apply the test to the case in hand, it is plain 
 that Shanks was not employed in interstate transporta- 
 tion, or in repairing or keeping in usable condition a road- 
 bed, bridge, engine, car or other instrument then in use 
 in such transportation. What he was doing was altering 
 the location of a fixture in a machine shop. The con- 
 nection between the fixture and interstate transportation 
 was remote at best, for the only function of the fixture 
 was to communicate power to machinery used in repair- 
 ing parts of engines some of which were used in such 
 transportation. This, we think, demonstrates that the 
 work in which Shanks was engaged, like that of the 
 coal miner in the Yurkonis Case, was too remote from 
 interstate transportation to be practically a part of it, 
 and therefore that he was not employed in interstate 
 commerce within the meaning of the Employers' Lia- 
 bility Act." 
 
 § 485. Earlier Decisions Overruled by Rulings of 
 National Supreme Court Cited in Two Foregoing Para- 
 graphs. Many decisions of state courts rendered prior 
 thereto have, in effect, been overruled by the rulings of 
 the United States Supreme Court in the Shanks, Cousins, 
 Nash and Branson cases, cited in the two foregoing 
 paragraphs. Among these decisions that must now be 
 taken to have applied incorrect rules in determining 
 interstate employment are, Newkirk v. Pryor,'° in which 
 
 70. (Mo. App.), 18:3 S. W. 682.
 
 § 485] PiMPLoYKs In Rki'aik Wohk. 841 
 
 tho court liold tliai a (*ar))('nt('r repairing" a pnui]) liouse 
 and ])iimping station, was en^a^ed in interstate com- 
 merce: Thomas v. Boston & M. R. R./^ in which the 
 coni't held that a carpentei', whih' employed in movinjc^ 
 dehris from a roundhouse wliicli had i)artially heen 
 destroyed hy fire, in order that a new roundhouse mi^lit 
 be erected, was enj^am^ed in interstate connnerce: Eng- 
 V. Soutliern Pac. Co.,'- wherein the court held that a 
 carpenter emi)loyed in sawing boards and nailinjj^ them 
 in place on the wall of a new office in a freight shed, 
 was em])loyed in interstate commerce; Chrosciel v. New 
 York Cent. & H. River R. Co.," in which the court de- 
 cided that a drill machine runner, assisting in the con- 
 struction of a railroad station used for both interstate 
 and intrastate traffic, was engaged in interstate com- 
 merce so as to bring his case within the exclusive opera- 
 tion of the federal act. 
 
 § 486. When Car and Engine Repairers are Em- 
 ployed in Interstate Commerce. The Federal Act is 
 limited to employes injured while engaged in interstate 
 "commerce." Tliis is a broader term than interstate 
 "transportation" which would probably limit the ap- 
 plication of the statute to employes engaged in actually 
 moving trains; but the field covered is not so circum- 
 scribed. Cars and engines are instrumentalities of com- 
 merce and within the power of Congress to regulate. As 
 a general proposition, it may be correctly stated that 
 employes repairing such engines and cars are within tlie 
 ])urview of the statute if the cars and engines are actual- 
 ly tJieu used in interstate commerce or in work so closely 
 related thereto as to l)e in fact a ])art of commerce from 
 one state to another or to ai foreign country. This prin- 
 ciple is well established, but there has been a consider- 
 able diversity of opinion in its application to concrete 
 facts. The conflict arises from a disagreement as to when 
 a car or an engine, being repaired, is in fact used in com- 
 merce wnthin the statute. The status of an employe, un- 
 
 71. 
 
 134 C. 
 
 C. A. 554, 
 
 219 Fed. 
 
 72. 210 Fed. 92. 
 
 
 180. 
 
 
 
 
 73. 174 N .Y. App. Div. 
 N. Y. Supp. 924. 
 
 175, 159
 
 842 
 
 Injuries to Interstate Employes. [^ 486 
 
 der the Act, depends upon the use being made of tlie 
 instrumentality he is repairing at the time of the injury. 
 Decisions involving the interstate employment of car and 
 engine repairers under variable circumstances are here- 
 inafter reviewed. 
 
 § 487. Employes Repairing Engines and Cars in 
 Transit or Temporarily Delayed. IJnciuestionably em- 
 ployes of common carriers by railroad repairing engines 
 while being actually used in pulling interstate trains'^ 
 or, after being assigned to interstate runs, in preparing 
 til em for that purpose even though not coupled to the 
 train, are engaged in interstate commerce." Similarly 
 employes repairing cars in transit and loaded with inter- 
 state freight,'*^ or cars containing intrastate freight con- 
 stituting a. part of an interstate train,'' or cars contain- 
 
 74. Chicago, R. I. & P. R. Co. 
 V. Wright, 239 U. S. 548, 60 L. Ed. 
 431, 36 Sup. Ct. 185. 
 
 75. Chicago & N. W. R. Co. v. 
 Bower, 241 U. S. 470, 60 L. Ed. 
 1107, 36 Sup. Ct. 624; North Caro- 
 lina R. Co. V. Zachary, 232 U. S. 
 248, 58 L. Ed. 591, 34 Sup. Ct. 305, 
 9 N. C. C. A. 109, Ann. Cas. 1914C 
 1.79. 
 
 76. United States. Walsh v. 
 New York, N. H. & H. R. Co., 223 
 U. S. 1, 56 L. Ed. 327, 32 Sup. Ct. 
 169, 1 N. C. C. A. 875. 38 L. R. A. 
 (N. S.) 44; Johnson v. Southern 
 Pac. Co., 196 U. S. 1, 49 L. Ed. 
 363, 25 Sup. Ct. 158; Baltimore & 
 O. R. Co. V. Darr, 124 C. C. A. 565, 
 204 Fed. 751, 47 L. R. A. (N. S.) 
 4; United States v. Wheeling & 
 L. E. R. Co., 167 Fed. 198; United 
 States V. Central of Georgia Ry. 
 Co., 157 Fed. 893; United States 
 V. Colorado & N. W. R. Co., 85 C. 
 C. A. 27, 157 Fed. 321, 15 L. R. A. 
 (N. S.) 167, 13 Ann. Cas. 893; 
 United States v. Northern Pac. 
 Terminal Co., 144 Fed. 861; Chi- 
 cago, M. & St. P. Ry. Co. V. Voel- 
 
 ker, 65 C. C. A. 22G, 129 Fed. 522, 
 
 70 L. R. A. 264. 
 
 Alabama. Alabama Great South- 
 ern R. Co. V. Skotzy, 196 Ala. 25, 
 
 71 So. 335; Atlantic Coast Line R. 
 Co. V. Jones, 9 Ala. App. 499, 63 
 So. 693. 
 
 Delaware. Winkler v. Phila- 
 delphia & R. R. Co., 4 Pennew. 
 (Del.) 80, 53 Atl. 90. 
 
 Illinois. Staley v. Illinois Cent. 
 R. Co., 268 111. 356, L. R. A. 1916A 
 450, 109 N. E. 342. 
 
 New York. Whalen v. New 
 York Cent. & H. River R. Co., 173 
 N. Y. App. Div. 268, 159 N. Y. 
 Supp. 244. 
 
 North Carolina. Lloyd v. South- 
 ern R. Co., 166 N. C. 24, 7 N. C. C. 
 A. 520, 81 S. E. 1003. 
 
 Washington. Snyder v. Great 
 Northern R. Co.. 88 Wash. 49, 152 
 Pac. 703. 
 
 77. United States. New York 
 Cent. & H. River R. Co. v. Carr, 
 238 U. S. 260, 59 L. Ed. 1298, 35 
 Sup. Ct. 780, 9 N. C. C. A. 1; 
 Southern R. Co. v. Snyder, 109 C. 
 C. A. 344, 187 Fed. 492; Brie R.
 
 § 488] 
 
 E.MpLoviis In KEi'Aiii Work. 
 
 843 
 
 mg interstate freiglit temporarily stoi)})ocl or set aside 
 for repaii's, are witliiii the terms of the Federal Aet." 
 
 § 488. Status of Shopmen Repairing Empty Cars 
 in Terminal Yards and Engines in Roundhouses. Jiut 
 the majority of railroad employes in the United States 
 repairing engines and cars, work at terminal points upon 
 cars and engines when not in actual use in moving traflic. 
 Their employment consists in repairing engines in round- 
 houses hetween trips and cars on repair tracks and in 
 shoi)s in terminal yards. Their labor, as a rule, is en- 
 tirely distinct and separate from train service proper. 
 For many years after the enactment of the Federal Em- 
 ployers' Liability Act, the interstate character of sucii 
 employes in repairing engines and cars used indiscrimi- 
 nately in moving both interstate and intrastate traffic 
 was not passed upon by the national Supreme Court. 
 Many state and federal courts had held that an employe 
 repairing a car or an engine, even while not being used 
 in transportation and set aside for repairs or prepara- 
 tion for another trip, was engaged in interstate com- 
 
 Co. V. Russell, 106 C. C. A. 160, 
 183 Fed. 722; Hohenleitner v. 
 Southern Pac. Co., 177 Fed. 796; 
 Norfolk & W. R. Co. v. United 
 States, 101 C. C. A. 249, 177 Fed. 
 623; United States v. Erie R. Co., 
 166 Fed. 352; Chicago, M. & St. 
 P. R. Co. V. United States, 91 C. C. 
 A. 373, 165 Fed. 423, 20 L. R. A. 
 (N. S.) 473; United States v. St. 
 Louis, I. M. & S. R. Co., 154 Fed. 
 510. 
 
 Iowa. Bruckshaw v. Chicago, R. 
 I. & P. R. Co., 173 Iowa 207, 155 
 N. W. 273. 
 
 Michigan. Fernette v. Pere 
 .Marquette R. Co., 175 Mich. 653, 
 141 N. W. 1084, 144 N. W. 834. 
 
 Minnesota. Bresko v. Minne- 
 apolis & St. L. R. Co., 115 Minn. 
 380. 132 N. W. 337. 
 
 Missouri. Noel v. Quincy, 0. & 
 K. C. R. Co. (Mo. App.), 182 S. W. 
 787. 
 
 West Virginia. Findley v. Coal 
 & Coke R. Co., 76 W. Va. 747, 87 
 S. E. 198. 
 
 78. United States. Great North- 
 ern R. Co. V. Otos, 239 U. S. 349, 
 60 L. Ed. 322, 36 Sup. Ct. 124; 
 Delk V. St. Louis & S. F. R. Co., 
 220 U. S. 580, 55 L. Ed. 590, 31 
 Sup. Ct. 617; St. Louis South- 
 western R. Co. V. United States, 
 106 C. C. A. 136, 183 Fed. 770. 
 
 Arkansas. St. Louis, I. M. & S. 
 R. Co. V. Sharp, 115 Ark. 308, 171 
 S. W. 95. 
 
 Michigan. Gaines v. Deti'oit, 
 G. H. & M. R. Co., 181 Mich. 376, 
 148 N. \V. 397. 
 
 Mississippi. Hooks v. New Or- 
 leans & N. E. R. Co., Ill Miss. 743, 
 72 So. 147. 
 
 South Carolina. Lorick v. Sea- 
 board Air Line Ry. 101 S. C. 276, 
 Ann. Cas. 1917D 920, 86 S. E. 675. 
 
 Vermont. Lynch's Adra'r v.
 
 su 
 
 Injuries to Interstate Employes. 
 
 [§ 488 
 
 merce if the engine or car, being repaired, as the case 
 might be, was in fact, when "on the road," used indis- 
 criminately in both interstate and intrastate commerce.'"' 
 Bnt, under a controlling decision of the national Supreme 
 Court rendered in 1917,'" the rule adopted by these courts 
 to determine interstate employment of car and engine 
 repairers, was too broad; for the court in the Winters 
 case held that an employe repairing an engine when not 
 used in pulling trains, is not within the purview of the 
 Federal statute unless the engine being repaired is exclu- 
 
 Central Vermont R. Co., 89 Vt. 
 363. 95 Atl. 683. 
 
 Washington. Bolch v. Chicago, 
 M. & St. P. R. Co., 90 Wash. 47, 
 155 Pac. 422. 
 
 Wisconsin. Smiegil v. Great 
 Northern R. Co., 165 Wis. 57, 160 
 N. W. 1057. 
 
 In Delk v. St. Louis & S. F. R. 
 Co., supra, the court said: "The 
 majority of the Circuit Court of 
 Appeals (Judges Severens and 
 Richards) held that the car, with 
 the defective coupler, was, at the 
 time of the injury in question and 
 within the meaning of the act, 
 engaged in interstate commerce. 
 Judge Severens said: 'The plain- 
 tiff in error claims that it was not, 
 and was laid by for repairs. But 
 we are inclined to think other- 
 wise. Its cargo had not yet reach- 
 ed its destination and was not 
 then ready for the delivery to 
 the consignee wherewith the com- 
 merce would have ended. Its 
 stoppage in the yard was an inci- 
 dent to the transportation.' " 
 
 79. United States. Law v. 
 Illinois Cent. R. Co., 126 C. C. A. 
 27, 208 Fed. 869, L. R. A. 1915C 
 17; Northern Pac. Co. v. Maerkl, 
 117 C. C. A. 237, 198 Fed. 1; Balti- 
 more & O. R. Co. V. Darr, 124 C. C. 
 A. 565, 204 Fed. 751, 47 L. R. A. 
 (N. S.) 4. 
 
 Arkansas. St. Louis & S. F. R. 
 Co. V. Conarty, 106 Ark. 421, 155 
 S. W. 93. 
 
 California. Southern Pac. Co. 
 V. Pillsbury, 170 Cal. 782, L. R. A. 
 1916E 916, 151 Pac. 277. 
 
 Illinois. Staley v. Illinois Cent. 
 R. Co., 268 111. 356, L. R. A. 1916A 
 450, 109 N. E. 342. 
 
 Maryland. Baltimore & O. R. 
 Co. V. Branson, 128 Md. 678, 98 
 Atl. 225. 
 
 Michigan. Evans v. Detroit, G. 
 H. & M. R. Co., 181 Mich. 413, 148 
 N. W. 490. 
 
 Missouri. Cross v. Chicago, B. 
 & Q. R. Co., 191 Mo. App. 202, 177 
 S. W. 1127. 
 
 Texas. Missouri, K. & T. Ry. 
 
 Co. of Texas v. Denahy, Tex. 
 
 Civ. App. , 165 S. W. 529. 
 
 80. Minneapolis & St. L. R. Co. 
 V. Winters, 242 U. S. 353, 61 L. Ed. 
 358, 37 Sup. Ct. 170, 13 N. C. C. 
 A. 1127, aff'g 131 Minn. 496, 155 N. 
 W. 1103. This case is reported on 
 first appeal to the state supreme 
 court in 126 Minn. 260, 148 N. W. 
 106 and second appeal in 131 Minn. 
 181, 154 N. W. 964. Accord: 
 Parsons v. Delaware & H. Co., 167 
 N. Y. App. Div. 536, 153 N. Y. 
 Supp. 179; Okrzesz v. Lehigh Val- 
 ley R. Co., 170 N. Y. App. Div. 
 15, 155 N. Y. Supp. 919.
 
 § 489] Employes In Repair Work. 845 
 
 sivt'ly devoted and assi.^ncd to the movement of interstate 
 traflic. Tlie same princMple would necessarily ai)])iy to car 
 repairers. Winters was injured while repairing an en- 
 gine in a rouiidliouse, which had been used in pulling 
 interstate traflic on its last trip and which, in fact, three 
 days thereafter, was used for the same purpose after the 
 i'ei)airs were made. The court, in holding that lie was 
 not employed in interstate commerce, said: "This en- 
 gine 'had been used in the hauling of freight trains over 
 the defendant's line . . . which freight trains haul- 
 ed both intrastate and interstate commerce, and it was 
 so used after the plaintiff's injury.' The last time be- 
 fore the injury on which the engine was used was on 
 October 18, when it pulled a freight train to Mar.shall- 
 town, and it was used again on October 21, after the 
 accident, to pull a freight train out from the same place. 
 That is all that we have, and is not sufficient to bring 
 the case under the act. This is not like the matter of 
 repairs upon a road permanently devoted to commerce 
 among the states. An engine, as such, is not permanent- 
 ly devoted to any kind of traffic, and does not appear 
 that this engine was destined especially to anything 
 more definite than such business as it might be needed 
 for. It was not interrupted in an interstate haul to be 
 repaired and go on. It simply had finished some inter- 
 state business and had not yet begun upon any other. 
 Its next w^ork, so far as appears, might be interstate or 
 confined to Iowa, as it should happen. At the moment 
 it was not engaged in either. Its character as an instru- 
 ment of commerce depended on its employment at the 
 time, not upon remote probabilities or upon accidental 
 later events. "^^ 
 
 § 489. Subsequent Cases Applying the Doctrine of 
 the Winters Case to Car and Engine Repairers. Follow- 
 ing the decision of the national Supreme Court in the 
 
 81. See also Baltimore & O. R. Kindlesparker, U. S. . 62 
 
 Co. V. Branson, 242 U. S. 623, 61 L. Ed. , 38 Sup. Ct. 425 (mem. 
 
 L. Ed. 534, 37 Sup. Ct. 244 (mem. dec), rev'g 148 C. C. A. 17, 234 
 
 dec), rev'g 128 Md. 678, 98 Atl. Fed. 1. decided April 29, 1918. 
 225; Chicago, K. & S. Ry. Co. v.
 
 846 Injuries to Interstate Employes. [§ 489 
 
 Winters case, supra, other courts have uniformly held 
 that employes repairing cars and engines at terminal 
 points wliile not being actually used in interstate com- 
 merce, are governed by state laws as to injuries occur- 
 ring when the cars and engines are used indiscriminately 
 in moving both kinds of commerce and without being 
 exclusively assigned to interstate commerce. Thus, in 
 Loveless v. Louisville & N. R. Co.,®- it appeared that a 
 car repairer, while repairing a car in railroad shops on 
 July 10th which had been used from June 10th to July 
 2d on interstate trips and was, immediately after the 
 I'epairs, used for an interstate trip, was not engaged in 
 interstate commerce. Similarh^, in Central R. Co. of 
 New Jersey v. Paslick,®^ the plaintiff was injured while 
 working as a helper in the blacksmith shop of a rail- 
 road company, repairing a foreign car. The court, in 
 disposing of the question of his interstate status, re- 
 marked that if the repair of an engine in the interval 
 between its interstate occupations is not sufficiently close 
 to commerce to be a part of it, the repair of a car, which 
 moves only when the engine hauls it, is certainly no 
 closer. A blacksmith in a repair and work shop of a 
 carrier, engaged in repairing cars and other instrumen- 
 talities of interstate commerce, was not within the con- 
 trol of the federal act.®* 
 
 82. Ala. , 75 So. 7. but which was not exclusively 
 
 An employe engaged at the used in interstate commerce, had 
 
 time he was injured in working no remedy under the federal act. 
 
 upon and repairing an engine Deffenbaugh v. Union P. R. Co., 
 
 which had been used indiscrimi- Kas. , 171 Pac. 647. 
 
 nately in both interstate and in- An employe repairing an elec- 
 trastate commerce prior thereto trie motor in a railroad yard was 
 and which was thereafter used in not engaged in interstate corn- 
 interstate and intrastate com- merce. O'Dell v. Southern Ry. 
 merce as occasion might require, Co., 248 Fed. 343. 
 had no remedy under the Federal 83. 152 C. C. A. 547, 239 Fed. 
 Act. Chicago & A. R. Co. v. Allen, 713. 
 
 C. C. A. ■ , 249 Fed. 280. 84. Washington, B. & A. Blec. 
 
 An employe repairing an empty R. Co. v. Owens. Md. , 
 
 car in a railroad yard which had 101 Atl. 532. 
 
 been used in interstate commerce 85. Section 469, supra.
 
 ^ 491]' KjMpi^vf.h In Repair Work. 847 
 
 § 490. Differentiating Factors Between Rulings in 
 Winters and Pedersen Cases. A conii^arison of tlio 
 ruling of tlio national Sui>r<Mii(' Couit in tlio Winters case, 
 supra, and the doctrine of that court as announced in 
 tlie Pedersen case,"*^ well illustrates the demarcation be- 
 tween interstate and intrastate employment. The dis- 
 tinction made in holdin.i;- that Winters was not on«:a.e:r'd 
 in interstate commerce when repairing an engine which 
 had been pulling interstate trains and which was after- 
 wards used for the same purpose, and that Pedersen, 
 while carrying a bolt to repair a railroad bridge, was 
 ('mi)loyed in interstate, seems, at first blush, elusive and 
 subtle. But there are, nevertheless, sound differentiating 
 factors between the two cases, though both are close to 
 the border line of state and federal jurisdiction. A 
 bridge, composing a part of a line of an interstate rail- 
 road, is an instrumentality which necessarily is perma- 
 nently devoted and assigned to interstate transporta- 
 tion and, hence, the work of repairing such a structure 
 constitutes employment under federal control. However, 
 the engine while being repaired by Winters, was not 
 then used in interstate commerce but was idle in the 
 shops, and, wliat is more to the point, had not been so 
 assigned to interstate transportation at the time of the 
 injury so that an employe in repairing it could also be 
 said to be engaged in that commerce. The engine was 
 used in both kinds of commerce and not definitely as- 
 signed or devoted to either, though it so happened that 
 it pulled an interstate train on its last trip and was, 
 thereafter used in like employment. Had this engine 
 been detinitely assigned to pulling interstate trains, 
 Winters would have been engaged in federal commerce 
 within the doctrine of the Pedersen case. The engine 
 would have then been used in interstate commerce as 
 much so as the dining car in Johnson v. Southern Pac. 
 Co.«« 
 
 § 491. Illustrative Cases in wliich Car and Engine 
 Repairers were not Employed in Interstate Commerce. 
 
 86. 196 U. S. 1, 49 L. Ed. M2, 25 Sup. Ct. 158.
 
 848 Injuries to Interstate Employes. [§ 491 
 
 Employes working as car and engine repairers for inter- 
 state railroads were not subject to the federal act when 
 engaged in such work, under the following circumstan- 
 ces: a car repairer in the employ of a railroad company 
 was killed while repairing a car that had been trans- 
 ported from New Jersey to Pennsylvania carrying inter- 
 state commerce. At the time of the accident, the car 
 had reached its destination and was empty. So far 
 as the evidence disclosed, the car was in Pennsylvania 
 awaiting orders, and, not long afterwards, it was moved 
 to another point in Pennsylvania, beyond which it was 
 not traced. The administrator could not recover under 
 the federal act." A carpenter, it appeared in evidence 
 in another case, was repairing a freight car. No facts 
 appeared as to what use had been made of the car 
 either prior or subsequent to the accident. The plaintiff 
 was denied a recovery under the federal act.^^ In an- 
 other action it was disclosed that the plaintiff, a boiler 
 maker working in the shops of a railroad company, was 
 injured while repairing the boiler of an engine used in 
 operating a derrick on a fiat car while it lay on the 
 ground near the roundhouse. This derrick was a part 
 of a wrecking train which was subject to orders and was 
 used regularly in the state of Illinois and in other states, 
 when needed, depending upon the place of disaster. The 
 wrecking train consisted of a locomotive, one or more 
 flat cars, this derrick car and a bunk car. The employ- 
 es on the wrecking train slept in the bunk car and re- 
 mained there frequently for three or four days at a time. 
 The boiler maker, while repairing such an engine near 
 the roundhouse, was not engaged in interstate com- 
 merce.^" A roundhouse employe working on an engine 
 in a roundhouse which had just returned from an intra- 
 state journey, was not engaged in interstate commerce 
 although the engine was used indiscriminately in haul- 
 ing both kinds of commerce. "^ A car repairer at the 
 
 87. Heimbach v. Lehigh VaUey 89. Ruck v. Chicago, M. & St. 
 R. Co., 197 Fed. 579. P. R. Co., 153 Wis. 158, 140 N. W. 
 
 88. Louisville & N. R. Co. v. 1074. 
 
 Moore, 156 Ky. 708, 161 S. W. 90. La Casse v. New Orleans, T. 
 
 1129. & M. R. Co., 135 La. 129, 64 So.
 
 '^ 493] Kmployes In Repair Work. 849 
 
 time of his death was rej)airin^' a box car which had 
 been used a long time in both interstate and intrastate 
 commerce, as occasion miglit arise, and was, at the time 
 of injury, being repaired in the railroad terminal yard. 
 The court held that the decedent was engaged in inter- 
 state commerce.'" This decision was rendered before the 
 decisions of the United States 8ui)reme Court in the 
 Winters case and has, no dou})t, in effect, been ovei-rnlcd 
 by it. 
 
 § 492. Repairing Cars and Engines Used Exclu- 
 sively in Interstate Commerce. Xotwithslanding the 
 limitation placed upon the interstate status of car and 
 engine repairers in the decision of the national Sui)reme 
 Court in the Winters case, employes engaged in the re- 
 pair of cars used solely in interstate commerce are gov- 
 erned l)y the federal act and not by state laws.-'^ An 
 employe while working in a round house and repairing 
 an engine used exclusively in hauling interstate passen- 
 ger trains between Caliente, Nev., and Mil ford, Utah, 
 was engaged in interstate commerce within the meaning 
 of the Federal Act.''^* 
 
 § 493. Interstate Status of Employes Painting 
 Instrumentalities of Commerce Among the States. Many 
 
 1012, in which the court said: lent to being actuaHy at the time 
 
 "We do not understand this evi- in use in that commerce, the ef- 
 
 dence to mean any more than this feet would be that whenever a 
 
 locomotive, like any other loco- railroad did not confine itself to 
 
 motive of the defendant company, intrastate commerce, but engaged 
 
 or any of its cars, might be and also in interstate commerce, every 
 
 was sometimes used in interstate one of its employes would at all 
 
 commerce. Not that it was being limes be engaged in interstate 
 
 so used at the time the decedent commerce when at their work." 
 
 was attending to it. On the con- 91. Northern Pac. R. Co. v. 
 
 trary the evidence shows that its Maerkl, 117 C. C. A. 237, 198 Fed. 
 
 last run, which was on the pre- 1. 
 
 ceding day, had been from an- 92. Smiegil v. Great Northern 
 
 other intrastate point to Eunice. R. Co., 165 Wis. 57, 160 N. W. 
 
 If the fact that a locomotive or a 1057. 
 
 car might be used the next day, 92a. Kuchenmeister v. Los An- 
 
 or whenever next needed, in in- geles & S. L. R. Co., Utah — , 
 
 terstate commerce, were equiva- 172 Pac. 725. 
 
 1 t'ontrol c'ariiers 54
 
 850 
 
 Injuries to Interstate Employes. [§ 493 
 
 instrnmontalities of interstate commerce must be painted 
 in order to keep tliem in a safe and proper condition 
 for the transportation of traffic. For, without paint, 
 engines will corrode and the woodwork of cars and 
 bridges will decay. Employes of common carriers by 
 railroad, therefore, engaged in painting instrumentalities 
 permanently devoted and assigned, or used in moving 
 ijiterstate traffic at the time of an injury, are under the 
 control of the federal statute. For example, an employe, 
 while painting a bridge whicli was a part of an inter- 
 state highway by railroad connecting the cities of Louis- 
 ville, Ky. and Cincinnati, Ohio, was engaged in inter- 
 state commerce."^ But an emplo^^e painting engines 
 or cars used iu interstate commerce is not under the 
 federal statute unless those cars are exclusively de- 
 voted and assigned to interstate commerce, or unless 
 they are actually in use in interstate commerce at the 
 time of the injury. This rule is but an exemplification 
 of the principle established by the Supreme Court in 
 determining the status of employes repairing engines 
 and cars in the Winters case.^* Thus, the Supreme Court 
 of Maryland held that an employe painting engines and 
 cars used on an interstate highway was engaged in 
 interstate commerce. °^ But on writ of error to the Su- 
 preme Court of the United States, the case was reversed 
 in a memorandum opinion."" It did not appear from the 
 
 93. Louisville & N. R. Co. v. 
 Netherton, 175 Ky. 159, 193 S. W. 
 1035. Said the Court: "It further 
 appears that plaintiff, at the time 
 of the accident, was engaged in 
 painting the bridge and that this 
 work was necessary to preserve 
 the bridge and keep it in proper 
 repair. In view of there facts, we 
 conclude that, at the time of the 
 accident, the defendant was en- 
 gaged, and the plaintiff was em- 
 ployed, in interstate commerce." 
 
 94. Minneapolis & St. L. R. Co. 
 V. Winters, 242 U. S. 353. 61 L. Ed. 
 358, 37 Sup. Ct. 170, 13 N. C. C. A. 
 
 1127, aff'g 131 Minn. 496, 155 N. 
 W. 1103. 
 
 95. Baltimore & O. R. Co. v. 
 Branson, 128 Md. 678, 98 Atl. 225. 
 
 96. Baltimore & O. R. Co. v. 
 Branson, 242 U. S. 623, 61 L. Ed. 
 534, 37 Sup. Ct. 244 (mem. dec), 
 128 Md. 67B, 98 Atl. 225. The case 
 Avas reversed upon the authority 
 of the following cases: Minneap- 
 olis & St. L. R. Co. V. Winters, 
 242 U. S. 353, 61 L. Ed. 358, 37 
 Sup. Ct. 170, 13 N. C. C. A. 1127, 
 aff'g 131 Minn. 496, 155 N. W. 
 1103; Chicago, B. & Q. R. Co. v. 
 Harrington, 241 U. S. 177, 60 L.
 
 <^ 494] Employes Tn Rhpair Work. 851 
 
 facts in the Branson case that the engines and cars were 
 exclusively devoted and assigned to interstate com- 
 merce while being painted in the terniinal yards between 
 trips. However, had the i)roof disclosed that the en- 
 gines and cars had been so exclusively devoted and 
 assigned to interstate commerce, no doubt the court 
 would have held llial the employe, while painting them, 
 was engaged in interstate commerce. The Netherton 
 case, cited supra, is not in conflict with the Branson 
 case as it there appeared that the bridge was perma- 
 nently devoted to interstate traffic and actually in use 
 in moving interstate traffic. An employe of a carrier 
 engaged in painting an interlocking tower was not with- 
 in the federal act while returning to the tower on a 
 speeder with some paint to continue his work." The 
 decision of the court in the Jackson case was no doubt 
 correct for the reason that the work of painting an inter- 
 locking tower constituted the same class of work as that 
 of employes repairing roundliouses, station buildings, 
 repairing shops, etc.^^ 
 
 § 494. Linemen Repairing Telegraph and Telephone 
 Lines of Interstate Carriers. Telegraph and telephone 
 lines are maintained by railroad companies near to and 
 parallel with their tracks partly for the purpose of en- 
 abling train dispatchers to transmit train orders and 
 thereby direct the movement of interstate trains. A 
 telephone or telegraph line is, therefore, just as essential 
 to the operation of a railroad as cars, tracks or other 
 equipment. Employes engaged in repairing such tele- 
 graph and telephone lines are employed in interstate 
 commerce within the meaning of the act, for their work 
 
 Ed. 941, 36 Sup. Ct. 517, 11 N. C. Co. v. Yurkonis, 238 U. S. 439, 59 
 
 C. A. 992, aff'g (Mo. App.), 180 S. L. Ed. 1397, 35 Sup. Ct. 902. 
 
 W. 443; Shanks v. Delaware, L. & 97. Jackson v. Industrial Board 
 
 W. R. Co., 239 U. S. 556, 60 L. Ed. of Illinois, 280 111. 526, 117 N. E. 
 
 436, 36 Sup. Ct. 188, aff'g 214 N. 705. 
 
 Y. 413, Ann. Cas. 191(JE 467, 108 98. Section 483, supra. 
 
 N. E. 644; Delaware, L. & W. R.
 
 852 Injuries to Interstate Employes. [^ 494 
 
 is directly and immediately connected with tlie work 
 of interstate commerce.''^ 
 
 99. Coal & Coke R. Co. v. nia, 174 Cal. 19, 161 Pac. 1143; 
 
 Deal, 145 C. C. A. 490, 231 Fed. Collins v. Michigan Cent. R. Co., 
 
 604: Southern Pac. Co. v. Indus- 193 Mich. 303, 159 N. W. 535. 
 trial Ace. Commission of Califor-
 
 CHAPTER XXV 
 
 Interstate Status of Train and Switching Crews. 
 
 Sec. 495. Trainmen on Interstate Trains are Employed in Interstate 
 Commerce. 
 
 Sec. 496. When Trainmen are not Engaged in Interstate Commerce. 
 
 Sec. 497. Employes Preparing Interstate Trains for Movement. 
 
 Sec. 498. Beginning and Termination of Federal Control over Crews 
 on Trains Carrying Interstate Commerce. 
 
 Sec. 499. Interstate Employment of Train Crews on Return Trip not 
 Shown by Proof that Train on Outgoing Trip Carried 
 Interstate Freight. 
 
 Sec. 500. Train and Switching Crews "Making Up" and "Breaking 
 Up" Interstate Trains in Railroad Yards. 
 
 Sec. 501. Switching Cars Containing Intrastate Shipments into or out 
 of Interstate Trains — Early Conflicting Rulings. 
 
 Sec. 502. Status of Such Employes Finally Held to be Under Fed- 
 eral Control. 
 
 Sec. 503. Test in Determining when Switching Crews are Employed 
 in Interstate Commerce. 
 
 Sec. 504. Doctrine of Behrens Case as to Interstate Status of Switch- 
 ing Crews Reaffirmed and Applied. 
 
 Sec. 505. Exceptions to Rule that Switching Crews Moving Intra- 
 state Cars Exclusively are Governed by State Law. 
 
 Sec. 506. Switching Movements of Empty Cars in Railroad Yards to 
 be Loaded with Interstate Freight. 
 
 Sec. 507. Weighing of Cars Containing Interstate Freight after Un- 
 loading to Determine Weight of Contents. 
 
 Sec. 508. Switching Movement of Cars After Termination of Inter- 
 state Journey or After Receipt by Consignee. 
 
 Sec. 509. Switching Cars Loaded with Interstate Freight for Repairs. 
 
 Sec. 510. Local Movement of Cars in Yard Between Completion of 
 one Interstate Trip and Commencement of Another. 
 
 Sec. 511. Exceptions to Rule that Delivery of Car at Destination Ends 
 Its Interstate Status. 
 
 Sec. 512. Switching Movement of Car of Lumber to be Used in Re- 
 pairing and Building Cars Used in Interstate Commerce. 
 
 Sec. 513. Employes Making up Train of Another Company for an 
 Interstate Run Over the Latter's Track. 
 
 Sec. 514. Illustrative Cases Showing Employment of Switching Crews 
 in Interstate Commerce. 
 
 § 495. Trainmen on Interstate Trains are Employ- 
 ed in Interstate Commerce. Engineers, firemen, con- 
 ductors, brakemen, flagmen, baggagemen, and other em- 
 
 (853)
 
 S&J: 
 
 Injuries to Interstate Employes. [^ 495 
 
 ployes working on interstate trains, are employed in 
 interstate commerce within the meaning of the act.' A 
 
 1. United States. Chesapeake & 
 O. R. Co. V. Proffitt, 241 U. S. 462, 
 GO L. Ed. 1102, 36 Sup. Ct. 620; 
 Southern R. Co. v. Gray, 241 U. 
 S. 333, 60 L. Ed. 1030, 36 Sup. Ct. 
 558; Baugham v. New York, P. & 
 N. R. Co., 241 U. S. 237, 60 L. Ed. 
 977, 36 Sup. Ct. 592, 13 N. C. C. A. 
 138; Kansas City Southern R. Co. 
 V. Jones, 241 U. S. 181, 60 L. Ed. 
 943, 36 Sup. Ct. 513; Illinois Cent. 
 R. Co. V. Skaggs, 240 U. S. 66, 
 60 L. Ed. 528, 36 Sup. Ct. 249; 
 Seaboard Air Line Ry. v. Horton, 
 239 U. S. 595, 60 L. Ed. 458, 3G 
 Sup. Ct. 180; Kanawha & M. R. 
 Co. V. Kerse, 239 U. S. 576, 60 L. 
 Ed. 448, 36 Sup. Ct. 174; Chicago, 
 R. I. & P. R. Co. V. Wright, 239 
 U. S. 548, 60 L. Ed. 431, 36 Sup. 
 Ct. 185; Southern R. Co. v. Lloyd, 
 239 U. S. 496, 60 L. Ed. 402, 36 
 Sup. Ct. 210; Great Northern R. 
 Co. V. Otos, 239 U. S. 349, 60 L. Ed. 
 322, 36 Sup. Ct. 124; Central Ver- 
 mont R. Co. V. White, 238 U. S. 
 507, 59 L. Ed. 1433, 35 Sup. Ct. 865, 
 9 N. C. C. A. 265, Ann. Cas. 1916B 
 252; Norfolk Southern R. Co. v. 
 Ferebee, 238 U. S. 269, 59 L. Ed. 
 1303, 35 Sup. Ct. 781; New York 
 Cent. & H. River R. Co. v. Carr, 
 238 U. S. 260, 59 L. Ed. 1298, 35 
 Sup. Ct. 780, 9 N. C. C. A. 1; 
 Southern R. Co. v. Gadd, 233 U. 
 S. 572, 58 L. Ed. 1099, 34 Sup. Ct. 
 696; North Carolina R. Co. v. 
 Zachary, 232 U. S. 248, 58 L. Ed. 
 591, 34 Sup. Ct. 305, 9 N. C. C. 
 A. 109, Ann. Cas. 1914C 159; 
 Southern R. Co. v. McGuin, 
 153 C. C. A. 447, 240 Fed. 649; 
 Waters v. Guile, 148 C. C. A. 298, 
 234 Fed. 532; Peek v. Boston & M. 
 R. R., 223 Fed. 448; Shanley v. 
 Philadelphia & R. R. Co., 221 Fed. 
 
 1012; Bay v. Merrill & Ring Lum- 
 ber Co., 211 Fed. 717. 
 
 Arkansas. St. Louis, L M. & S. 
 R. Co. V. Stewart, 124 Ark. 437, 
 187 S. W. 920; Kansas City South- 
 ern R. Co. V. Livesay, 118 Ark. 
 304, 177 S. W. 875. 
 
 Connecticut. Hubert v. New 
 York, N. H. & H. R. Co., 90 Conn. 
 261, 96 Atl. 967. 
 
 Florida. Seaboard Air Line Ry. 
 
 Co. V. Hess, Fla. , 74 So. 
 
 500; Louisville & N. R. Co. v. 
 
 Rhoda, Fla. — , 74 So. 19. 
 
 Georgia. Seaboard Air Line Ry. 
 'Co. V. McMichael, 143 Ga. 689, 85 
 S. E. 891. 
 
 Illinois. Walton v. Pryor, 276 
 111. 563, 115 N. E. 2. 
 
 Indiana. Cincinnati, H. & D. R. 
 
 Co. V. Gross, Ind. , 114 N. 
 
 E. 962; Chicago & E. R. Co. v. 
 
 Feightner, Ind. App. , 
 
 114 N. B. 659. 
 
 Iowa. Kenyon v. Illinois Cent. 
 R. Co., 173 Iowa 484, 155 N. W. 
 810; Bruckshaw v. Chicago, R. I. 
 & P. R. Co., 173 Iowa 207, 155 N. 
 W. 273. 
 
 Kansas. Bumstead v. Missouri 
 Pac. R. Co., 99 Kan. 589, L. R. A. 
 1917E 734, 162 Pac. 347; Saar v. 
 Atchison, T. & S. F. R. Co., 97 
 Kan. 441, 155 Pac. 954; Smith v. 
 St. Louis & S. P. R. Co., 95 Kan. 
 451, 148 Pac. 759; Thornbro v. 
 Kansas City, M. & 0. R. Co., 91 
 Kan. 684, Ann. Cas. 1915D 314, 
 139 Pac. 410. 
 
 Kentucky. Davis' Adm'r y. 
 Cincinnati, N. 0. & T. P. R. Co., 
 172 Ky. 55, 188 S. W. 1061; Nor- 
 folk & W. R. Co. V. Short's Adm'r, 
 171 Ky. 647, 188 S. W. 786; Chesa- 
 peake & 0. R. Co. V. Shaw, 168 
 Ky. 537, 182 S. W. 653; Cincinnati,
 
 § 495] 
 
 Train and Switching Crp:ws. 
 
 855 
 
 brakeinaii kill(Ml while helping to move an interstate 
 
 N. O. & T. p. R. Co. V. Tucker, 
 1(18 Ky. 144, 181 S. W. 940; Chesa- 
 peake & O. R. Co. V. Kornhoff, 167 
 Ky. 353, 180 S. W. 523; LouisvilI(! 
 & N. R. Co. V. Holloway's Adm'r, 
 1(53 Ky. 125, 173 S. W. 343; Nash- 
 ville, C. & St. L. R. Co. V. Banks, 
 156 Ky. 609, 161 S. W. 554. 
 
 Michigan. Holmberg v. Lake 
 Shore & M. S. R. Co.. 188 Mich. 
 605, 155 N. W. 504; Fcrnette v. 
 Pere Marquette R. Co., 175 Mich. 
 653, 144 N. W. 834; Fernette v. 
 Pere Marquette R. Co., 175 Mich. 
 65."^, 141 N. W. 1084. 
 
 Minnesota. Davis v. Chicago, R. 
 I. & P. R. Co., 134 Minn. 49, 158 
 N. W. 911: Burke v. Chicago & 
 N. W. R. Co., 131 Minn. 209, 154 
 N. W. 960; Peery v. Illinois Cent. 
 R. Co.. 123 Minn. 264, 143 N. W. 
 724. 
 
 Mississippi. Yazoo & M. V. R. 
 Co. V. Mullins, 114 Miss. 343, 76 So. 
 147. 
 
 Missouri. Noel v. Quincy. Q. & 
 K. C. R. Co., (Mo. App.). 182 S. 
 W. 787; Delano v. Roberts, (Mo. 
 App.). 182 S. W. 771: Hearst v. 
 St. Louis, I. M. & S. R. Co.. 188 
 Mo. App. 36, 173 S. W. 86: Thomp- 
 son V. Wabash R. Co., 262 Mo. 46^, 
 171 S. W. 364; Moliter v. Wabash 
 R. Co.. 180 Mo. App. 84, 168 S. W. 
 250: Rich v. St. Louis & S. F. R. 
 Co.. 166 Mo. App. 379, 148 S. W. 
 1011. 
 
 Nebraska. Henderson v. Union 
 Pac. R. Co., 100 Neb. 734, 161 N. 
 W. 267; Phillips v. Union Pac. R. 
 Co.. 100 Neb. 157, 158 N. W. 966. 
 
 New Hampshire. Castonia v. 
 
 Maine Cent. R. R., N. H. , 
 
 100 Atl. 601: Topore v. Boston & 
 
 M. R. R.. N. H. , 100 
 
 Atl. 153. 
 
 New Jersey. Wilczynski v. Penn- 
 sylvania R. Co., N. J. L. , 
 
 100 Atl. 226. 
 
 New York. Daley v. Boston & 
 -M. R. R.; 166 N. Y. Supp. 840; 
 McAuliffe v. New York Cent. & H. 
 River R. Co., 172 N. Y. App. Div. 
 597, 158 N. Y. Supp. 922; Swart- 
 wood V. Lehigh Valley R. Co., 169 
 N. Y. App. Div. 759, 155 N. Y. 
 Supp. 778: Hober v. New York & 
 P. R. Co., 220 N. Y. 613, 115 N. E. 
 1041; White v. Lehigh Valley R. 
 Co., 220 N. Y. 131, 115 N. E. 439. 
 
 North Carolina. Sears v. Atlan- 
 tic Coast Line R. Co.. 169 N. C. 
 446, 86 S. E. 176. 
 
 North Dakota. Hein v. Great 
 Northern R. R., 34 N. D. 440, 159 
 N. W. 14. 
 
 Oklahoma. Chicago, R. I. & P. 
 
 Ry. Co. V. Hughes, Okla. , 
 
 166 Pac. 411. 
 
 Pennsylvania. Moyer v. Penn- 
 sylvania R. Co., 247 Pa. 210, 93 
 Atl. 282. 
 
 Texas. Ceer v. St. Louis. S. F. 
 
 & T. Ry. Co., Tex. , 194 
 
 S. W. 939; Chicago, R. I. & G. Ry. 
 
 Co. v. Do Bord, Tex. —■ — , 
 
 192 S. W. 767: Gulf. C. & S. F. Ry. 
 
 Co. V. Cooper, Tex. Civ. App. 
 
 . 191 S. W. 579; Texas & P. 
 
 Ry. Co. V. Rasmussen, Tex. 
 
 Civ. App. . 181 S. W. 212; Ft. 
 
 Worth & D. C. Ry. Co. v. Stalcup, 
 
 Tex. Civ. App. . 167 S. 
 
 W. 279; Southern Pac. Co. v. 
 
 Vaughn, Tex. Civ. App. , 
 
 165 S. W. 885. 
 
 Utah. Kipros v. Uintah R. Co., 
 4.T Utah 389. 146 Pac. 292. 
 
 Vermont. Lynch's Adm'r v. 
 Central Vermont R. Co.. 89 Vt. 
 363. 95 Atl. 683. 
 
 Washington. Donaldson v. Great
 
 856 Injuries to Interstate Employes. [§ 495 
 
 train, was lield to be engaged in interstate commerce.' 
 Employes of a common carrier by railroad on a train 
 transporting freight from one station on a railway line 
 to another station in the same state, where the freight 
 was to be transported by other trains to another state, 
 were engaged in interstate commerce within the mean- 
 ing of the federal act.^ A brakeman employed on a 
 train rmming between two terminals in the same state 
 which contained cars destined for points in other states, 
 and injured while nncoiipling two cars, was engaged in 
 interstate commerce/ A fireman on an engine of a pas- 
 senger train running from Chicago to Milwaukee and 
 injured in Illinois, was employed in interstate commerce.'* 
 An engineer on a freight train running from a point in 
 Missouri to another place in Arkansas and killed while 
 enroute, was held to have been employed in interstate 
 commerce.** Although a freight train was only operated 
 between two terminals in the same state, yet since it 
 transported freight from one state to another and to a 
 foreign country, the emploj^es on the train were engaged 
 in interstate commerce.^ A brakeman on a passenger 
 train running from a point in Kentucky to another point 
 in Ohio, was held to be engaged in interstate commerce.** 
 An employe working in the capacity of a brakeman and 
 freight shifter on a freight train running from Harlem, 
 N. Y., to Stamford, Conn., and injured while engaged in 
 
 Northern R. Co., 89 Wash. 161, 154 v. Banks, 156 Ky. 609, 161 S. W. 
 
 Pac. 133. 554. 
 
 West Virginia. Findley v. Coal 5. Rowlands v. Chicago & N. W. 
 
 & Coke R. Co., 76 W. Va. 747, 87 R. Co., 149 Wis. 51, Ann. Cas 
 
 S. E. 198. 1916E 714, 135 N. W. 156. 
 
 Wisconsin. Reul v. Wisconsin 6. St. Louis, I. M. & S. R. Co. 
 
 Northwestern Ry. Co., Wis v. Conley, 110 C. C. A. 97, 187 Fed. 
 
 , 163 N. W. 189. ^^^• 
 
 2. Hearst v. St. Louis, I. M. & 
 S. R. Co., 188 Mo. App. 36, 173 S. 
 W. 86; Vaughan v. St. Louis & S. 
 
 7. Northern Pac. R. Co. v. State 
 ex rel. Atkinson 222 U. S. 370, 56 
 L. Ed. 237, 32 Sup. Ct. 160, rev'g 
 53 Wash. 673, 17 Ann. Cas. 1013, 
 F. R. Co., 177 Mo. App. 155, 164 ^^2 pac. 876. 
 
 S- W. 144. g Cincinnati, N. O. & T. P. R. 
 
 3. United States v. Chicago, M. qq y Qoode, 155 Ky. 153, 159 S. 
 & P. S. Ry. Co., 197 Fed. 624. w. 695; s. c, 153 Ky. 247, 154 S. 
 
 4. Nashville, C. & St. L. R. Co. W. 941.
 
 § 495] Tiuix AND Switching Crews. 857 
 
 tlie transfer of frei^lit from one car to another Ti])on the 
 train, was governed l)y the federal act as to his riglit to 
 recover judginent against the carrier." A crew in charge 
 of a i)assenger train upon tlie conclusion of an interstate 
 run and after all the passengers had been discliarged at 
 a station, following a daily custom, removed the train 
 from the station to the railroad yards where it would 
 remain over night. While assisting in placing the train 
 on a side track in the yards, the baggageman was in- 
 jured. He was still employed in interstate commerce as 
 it was a part of the interstate trip to place the train in 
 the yards preparatory to another interstate trip on the 
 next morning.^" 
 
 § 496. When Trainmen are not Engaged in Inter- 
 state Commerce. If, at the time of the accident, the 
 injured employe was engaged in intrastate commerce, 
 his remedy is govenied exclusively by the laws of the 
 state where the casualty occurred. Trainmen, such as 
 engineers, firemen, flagmen, baggagemen, brakemen, port- 
 ers and conductors, are not employed in interstate com- 
 merce when they are assisting exclusively in the move- 
 ment of intrastate traffic.'^ For instance, when tliey are 
 
 9. Hubert v. New York, N. H. Arkansas. St. Louis, I. M. & S. 
 & H. R. Co., 90 Conn. 261. 96 R. Co. v. Coke, 118 Ark. 49, 175 S. 
 Atl. 967. W. 1177. 
 
 10. Chesapeake & O. R. Co. v. Indiana. Chicago & E. R. Co. v. 
 Shaw, 168 Ky. 537, 182 S. W. 653. Feightner, Ind. App. , 
 
 11. United States. Illinois Cent. 114 N. E. 659. 
 
 R. Co. V. Peery, 242 U. S. 292, Kentucky. Louisville & N. R. 
 
 61 L. Ed. 309, 37 Sup. Ct. 122; Co. v. Strange's Adm'x. 156 Ky. 
 
 Osborne v. Gray, 241 U. S. 16. 60 439, 161 S. W. 239. 
 
 L. Ed. 865, 36 Sup. Ct. 486; Pryor Missouri. Kiser v. Metropolitan 
 
 V. Bishop, 148 C. C. A. 25, 234 Fed. St. Ry. Co., 188 Mo. App. 169. 175 
 
 9; Boyle v. Pennsylvania R. Co.. S. W. 98; Miller v. Kansas City 
 
 142 C. C. A. 558. 228 Fed. 266; Western R. Co., 180 Mo. App. 371. 
 
 Shanley v. Philadelphia & R. R. 168 S. W. 336. 
 
 Co.. 221 Fed. 1012: Pennsylvania Montana. McBain v. Northern 
 
 R. Co. V. Knox. 134 C. C. A. 426, Pac. R. Co.. 52 Mont. 578. 160 Pac. 
 
 218 Fed. 748. 654. 
 
 Alabama. Western Ry. of Ala- New Hampshire. Cantin v. Glen 
 
 bama v. Mays, 197 Ala. 367, 72 So. Junct. Transfer Co.. N. H. 
 
 641. , 96 Atl. 303.
 
 858 Injuries to Interstate Employes. [§ 496 
 
 employed on a train containing onlif traffic billed be- 
 tween' two points in one state, the line between the two 
 points being wholly within the state, they are engaged 
 in intrastate commerce. As a matter of fact, however, 
 in the practical operation of railroads, trains running 
 between two terminals, containing only intrastate com- 
 merce, that is, traffic originating in and being destined 
 to a point in the same state, are seldom operated, as the 
 examination of conductors' wheel reports will disclose, 
 and, as a rule, every train carries interstate freight. 
 If a train has a single shipment of interstate freight, 
 then all the employes working on that train are engaged 
 in interstate commerce. Notwithstanding, trains, as 
 a rule, carry interstate commerce, cases have been pass- 
 ed upon, in which the courts have held, and properly so, 
 that the employe's remedy was governed exclusively by 
 the state law, because of the fact that the train on which 
 he was working contained only intrastate shipments.'^ 
 For instance, a switching crew for a railroad company 
 worked sometimes during the day in transporting inter- 
 state shipments and at other times in hauling intrastate 
 freight. The plaintiff was a member of this switching 
 crew working on a short line terminating at a smelt- 
 New York. Hoag v. Ulster & D. Valley Elec. R. Co., 78 W. Va. 144, 
 R. Co., 177 N. Y. App. Div. 433, 88 S. E. 659. 
 
 164 N. Y. Supp. 529; Fairchild v. 12. Illinois Cent. R. Co. v. 
 
 Pennsylvania R. Co., 170 N. Y. Eehrens, 233 U. S. 473, 58 L. Ed. 
 App. Div. 135, 155 N. Y. Supp. 751; 1051, 34 Sup. Ct. 646. 10 N. C. C. 
 Norton v. Erie R. Co., 163 N. Y. A. 153, Ann. Cas. 1914C 163; 
 App. Div. 466, 148 N. Y. Supp. 769. Southern R. Co. v. Murphy, 9 
 North Dakota. Hein v. Great Ga. App. 190, 70 S. E. 972; Louis- 
 Northern R. R., 34 N. D. 440, 159 ville & N. R. Co. v. Strange's 
 N W. 14. Adm'x, 156 Ky. 439, 161 S. W. 239; 
 
 Oklahoma. Atchison, T. & S. F. Wright v. Chicago, R. I. & P. R. 
 R. Co. v. Pitts, 44 Okla. 604, 9 Co., 94 Neb. 317, 143 N. W. 220. 
 N. C. C. A. 545, 145 Pac. 1148. A freight conductor was in- 
 
 Texas. Missouri, K. & T. Ry. jured while operating a train be- 
 
 Co. of Texas v. Pace, Tex. tween two points in thje same 
 
 Civ. App. , 184 S. W. 1051; state, which consisted solely of 
 
 Chicago, R. l'& G. Ry. Co. v. an engine and the waycar. The 
 
 Cosio, Tex. Civ. App. , train crew of which this conduc- 
 
 182 S. W. 83. tor was a member, was not re- 
 
 West Virginia. Watts v. Ohio turning from a trip after hauling
 
 § 496] Train and Switching Crkws. 850 
 
 ine: works. Tliis cv9w made tliree or four Irips a day out 
 to the main lino liaiiliii^ cars eoTitaiiiin^ both intrastato 
 and interstate shipments. At othor times while on duty 
 they were en^a^ed in switching the coal and eoke cars 
 from what were known as the "coke tracks" to other 
 points nearby, all in tlie same state. The plaintiff was 
 injured while em]">loyed in assistinu; in the transportation 
 of the intrastate shipments, and the court held that he 
 was engaged solely in intrastate commerce at the time 
 and that liis remedy was governed exclusively by the 
 laws of the state where the casualty occurred. ^^ A 
 switchman, assisting in the movement of empty pas- 
 senger cars after reaching a terminal, which had been 
 used exclusively in transporting intrastate passengers, 
 was held to have been, while so engaged, not employed 
 in interstate commerce." A car inspector, preparing to 
 inspect a passenger train, running between two ]ioints 
 in the same state, and carrying no interstate passengers, 
 was not engaged in interstate commerce. ^^ A fireman on 
 a pusher engine belonging to a carrier whose lines were 
 confined within one state, assisted in moving a train 
 containing coal and through freight from a terminus 
 to an intermediate station on the line. Upon the con- 
 clusion of this service, the engine returned part way 
 and assisted in moving another train carrying milk up 
 a grade to the same station. The engine was then order- 
 ed to return and assist in moving an extra passenger 
 train, and, while so returning, the fireman was killed in 
 a collision between his engine and the passenger train. 
 
 empty or loaded cars between the constitutes interstate commerce, 
 
 states, but was returning without but it has been in principle decid- 
 
 transporting any commerce from ed that it does not." RlcAuliffe v. 
 
 one state to another. Under these New York Cent. & H. River R. Co., 
 
 facts, the court said: "They were 164 N. Y. App. Div. 84G, 150 N. Y. 
 
 carrying instrumentalities which Supp. 512. 
 
 had been and probably would be 13. Southern R. Co. v. Murphy, 
 
 used in the future for interstate 9 Ga. App. 190, 70 S. E. 972. 
 
 and intrastate transportation com- 14. Patry v. Chicago & W. I. 
 
 bined, or only for intrastate pur- R. Co., 265 111. 310, 106 N. E. 843, 
 
 poses, or perchance for interstate rev'g 185 111. App. 361. 
 
 commerce only. I cannot find that 15. Boyle v. Pennsylvania R. 
 
 it has been decided that such act Co., 142 C. C. A. 558, 228 Fed. 266.
 
 860 
 
 Injuries to Interstate Employes. [^ 496 
 
 The court held that his employment in connection with 
 the two freight trains — conceding that they contained 
 interstate shipments — had terminated at the time of his 
 death so that a recoA'ery under the federal act on that 
 gromid eonld not be sustained/'' 
 
 § 497. Employes Preparing Interstate Trains for 
 Movement. Eniphiyes of a railroad company while 
 doing any act within the scope of their employment nec- 
 essary or expedient to prepare interstate trains for move- 
 ment, and directly connected tlierewith, are employed 
 in interstate commerce within the terms of the federal 
 act.'' Thus, an engineer in charge of an engine used 
 
 16. Hoag V. Ulster & D. R. Co., 
 177 N. Y. App. Div. 433, 164 N. Y. 
 Supp. 529. 
 
 17. United States. Chicago & 
 N. W. R. Co. V. Bower, 241 U. S. 
 470, 60 L. Ed. 1107, 36 Sup. Ct. 
 624; Southern R. Co. v. Lloyd, 
 239 U. S. 496, 60 L. Ed. 402, 36 
 Sup. Ct. 210; New York Cent. & 
 H. River R. Co. v. Carr, 238 U. 
 S. 260, 59 L. Ed. 1298, 35 Sup. 
 Ct. 780, 9 N. C. C. A. 1; Seaboard 
 Air Line Ry. v. Padgett, 236 U. 
 
 S. 668, 59 L. Ed. 777, 35 Sup. Ct. 
 
 481; Grand Trunk Western R. 
 
 Co. V. Lindsay, 233 U. S. 42, 58 L. 
 
 Ed. 838, 34 Sup. Ct. 581, Ann. Cas. 
 
 1914C 168; Norfolk & W. R. Co. 
 
 V. Earnest, 229 U. S. 114, 57 L. 
 
 Ed. 1096, 33 Sup. Ct. 654, Ann. 
 
 Cas. 1914C 172; Clark v. Erie R. 
 
 Co., 230 Fed. 478; Hogan v. New 
 
 York Cent. & H. River R. Co, 
 
 139 C. C. A. 328, 223 Fed. 890. 12 
 
 N. C. C. A. 1050. 
 
 Alabama. Southern Ry. Co. v. 
 
 Fisher, Ala. , 74 So. 580; 
 
 Alabama Great Southern R. Co. v. 
 Skotzy, 196 Ala. 25, 71 So. 335; 
 Southern R. Co. v. Peters, 194 
 Ala. 94, 69 So. 611. 
 
 Arkansas. Kansas City South- 
 ern R. Co. v. Miller, 117 Ark. 396, 
 
 175 S. W. 1164; St. Louis South- 
 western R. Co. v. Anderson, 117 
 Ark. 41, 173 S. W. 834. 
 
 Illinois. Wagner v. Chicago & A. 
 R. Co., 265 111. 245, Ann. Cas. 
 1916A 778, 106 N. E. 809. 
 
 Indiana. Vandalia R. Co. v. 
 Holland, 183 Ind. 438, 108 N. E. 
 580. 
 
 Iowa. Bruckshaw v. Chicago, 
 R. I. & P. R. Co., 173 Iowa 207, 
 155 N. W. 273; Byram v. Illinois 
 Cent. R. Co., 172 Iowa 631, 154 N. 
 W. 1006; Armbruster v. Chicago, 
 R. I. & P. R. Co., 166 Iowa 155, 
 147 N. W. 337. 
 
 Kentucky. Cincinnati, N. O. & 
 T. P. R. Co. V. Goode, 153 Ky. 
 247, 154 S. W. 941. 
 
 Maryland. Baltimore & O. R. 
 Co. V. Whitacre, 124 Md. 411, 92 
 Atl. 1060. 
 
 Minnesota. Davis v. Chicago, 
 R. I. & P. R. Co., 134 Minn. 49, 158 
 N. W. 911; Crandall v. Chicago 
 Great Western R. Co., 127 Minn. 
 498, 150 N. W. 165. 
 
 Missouri. Trowbridge v. Kansas 
 City & W. B. Ry., 192 Mo. App. 
 52, 179 S. W. 777; Rich v. St. 
 Louis & S. F. R. Co., 166 Mo. 
 App. 379, 148 S. W. 1011.
 
 §497] 
 
 Train and Switching Crews. 
 
 861 
 
 exclusively on a division of a railroad runninc^ between 
 two })oints in diJTerent states, was employed in interstate 
 commerce while lie was o))erating the engine on a side 
 track in a railroad yard to determine whether it was 
 in serviceable condition to jjuH an interstate train. ^* A 
 fireman on a locomotive engine, inspecting, oiling, firing 
 and preparing his engine for an interstate trip, was, 
 while so engaged, within the protection of the national 
 statute although he had not at the time of his injury and 
 deathj ])articipated in assisting in the movement of any 
 interstate freight and the engine had not been coupled 
 to the cars of the train.^" A switchman who stepped 
 upon a defective footboard of a switch engine while 
 engaged in making u]) an interstate train, was held to 
 
 New Hampshire. Topore v. 
 
 Boston & M. R. R., N. H. 
 
 , 100 Atl. 153. 
 
 New Jersey. Tonsellito v. New 
 York Cent. & H. River R. Co., 87 
 N. J. L. 651, 94 Atl. 804. 
 
 North Carolina. Sears v. Atlan- 
 tic Coast Line R. Co., 169 N. C. 
 446, 86 S. E. 176; Lloyd v. South- 
 ern R. Co., 166 N. C. 24, 7 N. C. 
 C. A. 520, 81 S. E. 1003. 
 
 Pennsylvania. Falyk v. Penn- 
 sylvania R. Co., 256 Pa. 397, 100 
 Atl. 961. 
 
 Virginia. Southern R. Co. v. 
 Jacob.s. 116 Va. 189, 81 S. E. 99. 
 
 Washington. Aldread v. North- 
 ern Pac. R. Co., 93 Wash. 209, 160 
 Pac. 429. 
 
 A fireman on a train contain- 
 ing interstate commerce was 
 within the federal Act while en- 
 gaged in filling the engine with 
 water from a tank. Texas & P. 
 
 R. Co. v. Williams, Tex. Civ. 
 
 App. , 200 S. W. 1149. 
 
 18. Lloyd v. Southern R. Co., 
 166 N. C. 24. 7 N. C. C. A. 520. 81 
 S. E. 1003. aff'd in 239 U. S. 496. 
 60 L. Ed. 402, 36 Sup. Ct. 210, 
 wheroin the court said: "It is 
 
 insisted that the trial court 
 should have given the instruction 
 requested by the railroad company 
 to the effect that upon the facts 
 shown the plaintiff was not en- 
 gaged in interstate commerce at 
 the time of his injury. Upon 
 this subject there is testimony in 
 the record to support the allega- 
 tions of plaintiff's petition and 
 the charge to the jury are given. 
 The trial court charged that in 
 order to recover, the burden was 
 upon the plaintiff to show that at 
 the time he received his injury he 
 was engaged in interstate com- 
 merce. In refusing the request 
 asked, and leaving the issue to 
 the jury, the trial court committea 
 no error, and the Supreme Court 
 of the State rightly affirmed the 
 judgment in that respect." 
 
 19. North Carolina R. Co. v. 
 Zachary, 232 U. S. 248, 58 L. Ed. 
 591, 34 Sup. Ct. 305. 9 N. C. C. 
 A. 109, Ann. Cas. 1914C 159. Ac- 
 cord: Alabama Great Southern 
 R. Co. v. Skotzy, 196 Ala. 25. 71 
 So. 335, citing Roberts' Injuries to 
 Interstate Employes.
 
 862 Injuries to Interstate Employes. [§ 497 
 
 he witliin the terms of the act.'° Applying the same 
 principle, car inspectors looking over and inspecting 
 cars in interstate trains have been held to he engaged 
 in interstate commerce.^^ A freight conductor of a train 
 loaded with both interstate and intrastate freight which 
 had just been made up at a terminal, walked to the head 
 of the train to give the engineer his clearance card and, 
 while returning to the caboose, he walked along a scale 
 track on which some switching was being done, and 
 inspected the train as he walked. He was hurt on the 
 scale track. Answering the argument of counsel that 
 his employment did not require him to walk on this scale 
 track, the court said: ''While it may not have been his 
 duty and was carelessness on his part, under the facts 
 of this case, to walk upon said scale track, still w^e think 
 he was engaged in interstate commerce to the extent 
 of getting his train ready for that purpose. It seems to 
 us that preparation 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. "^^ An 
 engineer upon his engine preparing it to be attached 
 to an interstate train for the purpose of hauling it, is 
 engaged in interstate commerce. ^^ An employe engaged 
 in firing a locomotive preparatory for an interstate trip 
 and in loading a barrel of oil thereon from an adjacent 
 store house, was governed by the federal act.^* . A car 
 inspector, injured while disconnecting the steam pipe 
 between the engine and cars of an interstate passenger 
 
 20. Bramlett v. Southern R. Co., 22. Neil v. Idaho & W. N. R. 
 98 S. C. 319, 82 S. E. 501. Accord: R., 22 Idaho 74, 125 Pac. 331. 
 Pennsylvania Co. v. Donat, 239 23. Bower v. Chicago & N. W. 
 U. S. 50, 60 L. Ed. 139, 36 Sup. r. Co., 96 Neb. 419, 148 N. W. 145. 
 Ct. 4; Carpenter v. Central Ver- 24. Tonsellito v. New York 
 mont R. Co., 90 Vt. 35, 96 Atl. 373. ^^^^ ^ ^ ^.^^^ ^ ^^^ ^^ ^ j 
 
 21. Dutton V. Atlantic Coast ^^ ^^ ^^^ ^^.^ ^^ ^^.^ 
 
 ^"2^63" ^^Z^'i " e'r^; point in 244 H. S. 360, 61 U Ed. 
 
 Co. V. Ayers, Tex. Civ. App. 1191> 37 Sup. Ct. 620, 14 N. C. C. 
 
 , 192 S. W. 310. A. 1072.
 
 <^ 498] Train anu Swiiching Crews. 863 
 
 train in order to couple anotlier enj^'ine thereto for tlie 
 continuaiK^e of the movement of the train, was en<<age(] 
 in interstate commerce.'' 'i'lic movement of an engine 
 from tlie roundlionse i)r('i)aratory to attacliin^ it to 
 cars to be run in interstate commerce, is such tliat an 
 employe engaged therein is emijloyed in interstate 
 commerce.-" 
 
 § 498. Beginning- and Termination of Federal Con- 
 trol over Crews on Trains Carrying Interstate Commerce. 
 Tlie relation of master and servant, in so far as the obli- 
 gation to protect the employe is concerned, ordinarily 
 begins when the employe is necessarily on the premises 
 of the master pursuant to his contract of employment;" 
 but as the class of railroad employes known as train 
 crews frequently lodge, sleep and eat in their waycars 
 in railroad yards during hours olf duty after the termi- 
 nation of their outgoing "runs" and before the com- 
 mencement of their return trips, their status while thus 
 off duty with reference to interstate employment is not 
 altered by tlie fact that they procure their rest and sleep 
 on the master's premises and in his equipment. For 
 example, it has been held that train crews while asleep 
 in their waycars in railroad yards between trips are 
 not employed in interstate commerce.'* An employe is 
 not engaged in interstate commerce while he is dressing 
 and getting his breakfast in the waycar before the be- 
 ginning of the thirty minutes time which was to mark 
 the commencement of his actual duties for the company.''* 
 
 25. Kansas City Southern R. court said: "The plaintiff being 
 Co. V. Miller, 117 Ark. 396, 175 S. required to report for duty 30 
 W. 1164. minutes before the time his train 
 
 26. Byram v. Illinois Cent. R. was to start and his time to be- 
 Cc, 172 Iowa 031, 154 N. W. 1006. gin, it is difficult to say how it 
 
 27. Section 456, supra, where can be accurately said that, while 
 the status of employes going to dressing and getting breakfast and 
 and from their work is discussed. before the beginning of the 30 
 
 28. Pryor v. Bishop, 148 C. C. minutes time which, according to 
 A. 25, 234 Fed. 9. his testimony, was to mark the 
 
 29. Bumstead v. Missouri Pac. beginning of his actual duties, he 
 R. Co., 99 Kan. 589, L. R. A. 1917E was performing any duty for the 
 734, 162 Pac. 347, in which the company or engaged in interstate
 
 864 Injuries to Interstate Employes. [^ 498 
 
 But an employe is deemed to be in the master's service 
 whenever lie is present to perform his duty under his 
 contract and is subject to orders, although he may not 
 be engaged in the actual performance of labor.'° The 
 employment of train crews does not terminate the in- 
 stant the train reaches its destination in the yards, but 
 continues for a reasonable time thereafter to enable an 
 employe to wash and change his clothing in the way- 
 car provided with the conveniences therefor, before 
 going to his lodging place.'' A brakeman who, after 
 finishing his regular duties on the arrival of his train 
 at a terminal, went to a saloon and from there started 
 to cross over a track to go to the station to learn whether 
 or not the conductor had further orders for him. He 
 was injured while so crossing the track and it was held 
 that he was engaged in interstate commerce.'^ In an- 
 other case it appeared that an engineer came into a 
 roundhouse with his engine at 10:30 p. m. His regular 
 course of duty required him to leave the same place at 
 6:00 o'clock on the next morning. Close to the round- 
 house the railroad company had a small boarding house 
 for the convenience of its trainmen, but it was managed 
 by a private party. The engineer after leaving his en- 
 gine at the roundhouse, found the boarding house was 
 full and he then returned into the roundhouse and, climb- 
 ing into an engine^ went to sleep. About 4:30 a. m. the 
 engine in which he was asleep was taken out of the 
 roundhouse to a coal chute in the yards. There the 
 engineer waked up and got off of the engine. He in- 
 quired where his engine was and was told that it was 
 in the roundhouse on a certain track. He was last seen 
 
 commerce. The time preceding was not within the terms of the 
 
 the beginning of his actual duties act. 
 
 was his own and for his use in 30. Missouri, K. & T. Ry. Co. 
 
 ^ , „, in„-„r, of Texas v. Rentz, Tex. Civ. 
 
 any way he chose. The collision ^^^ ^^^ ^ ^ ^^^ 
 
 occurred, not while he was mo- ^^ ^^^^^^ ^ Virginian R. Co.. 
 
 mentarily or temporarily divert- ^g ^ y^ 333^ ^^ ^^ (. ^ ^ jq^^ 
 
 ed from the duties of his em- gg g ^ 37 
 
 ployment, but before the perform- 32. Graber v. Duluth, S. S. & A. 
 
 ance of such duties had begun. It R. Co., 159 Wis. 414, 150 N. W. 
 
 must be held therefore, that be 489.
 
 § 499'] Train an'd Swricnixo Crkws. 865 
 
 alive ^oin<^ towards tlie roundliouse. At tin; time lie 
 was due to leave that iiiorniii^ he could not be found 
 and his train departed without him. Later in the morn- 
 ing- he was found in an open uncovered ])it in the round- 
 house, dead. IJis engine had been standing with the 
 step over this pit, which was about eight feet deep. In 
 an action for damages brought under the federal act for 
 his death it was contended that he was not at the time 
 employed in interstate connnerce. There was evidence 
 introduced to show that the engine when it was breught 
 into the yai'd the night before needed repairs and that 
 the rules re(iuired lh(i engineer to inspect his engine 
 about half an hour before leaving time. There w^as no 
 evidence that the engineer was forbidden to inspect his 
 engine before that time; but there was evidence that 
 if the inspection at tlie required hour disclosed the re- 
 pairs had not been made, the engine would have to be 
 returned to the roundhouse for that purpose and that 
 the repairs would require time and cause delay. Under 
 these circumstances the court held that the jury was 
 justified in finding that the engineer, at the time of his 
 death, was employed in interstate commerce. ^^ 
 
 § 499. Interstate Employment of Train Crews on 
 Return Trip Not Shown by Proof that Train on Out- 
 going Trip Carried Interstate Freight. In the oper- 
 ation of freight trains on steam railroads, train crews 
 usually live and have their headquarters at division 
 points from which they run or operate a train to an- 
 other terminal or division ])oint and then return to their 
 headquarters with another train, the same caboose or 
 waycar and engine frequently being used on both trips, 
 one being known as the outgoing and the other the re- 
 turn trip. For the purpose of determining interstate 
 employment, the round trip is not considered as one. 
 The trips, both out and back, are distinct, and the fact 
 that a train on an outgoing trip contained interstate 
 trafhc is no proof whatever to show that tiie train crew 
 
 33. Padgett v. Seaboard Air aff'd in 236 U. S. 6C8. 59 L. Ed. 
 Line Ry., 99 S. C. 364, 83 S. E. 633, 777, 35 Sup. Ct. 481. 
 
 1 Control CaiTiers 50
 
 866 
 
 Injuries to Interstate Employes. 
 
 [§ 499 
 
 was employed in interstate commerce on the return trip 
 or rice versa. A novel attempt to show that a conductor 
 was employed in interstate commerce on a return trip 
 was made because his train on the outgoing trip car- 
 ried interstate freight.'* But this theory was rejected 
 by the United States Supreme Court on writ of error.'' 
 
 § 500. Train and Switching Crews ''Making Up" 
 and "Breaking Up" Interstate Trains in Railroad Yards. 
 The federal act governs the liability of railroad com- 
 panies to employes injured while "breaking up" or 
 "making up" trains containing interstate traffic in rail- 
 road yards; for the transportation in interstate commerce 
 includes switching movements as well as main line traf- 
 fic.'*^ For example, a fireman on a switch engine at the 
 
 34. Peery v. Illinois Cent. R. 
 Co., 123 Minn. 264, 143 N. W. 724, 
 128 Minn. 119, 150 N. W. 382, 1103. 
 
 35. Illinois Cent. R. Co. v. 
 Peery, 242 U. S. 292, 61 L. Ed. 
 309, 37 Sup. Ct. 122. The court, 
 in that case, said: "The plain- 
 tiff's journey was confined wholly 
 to Kentucky. Only the circum- 
 stance that the south-bound train 
 from Paducah carried freight des- 
 tined to beyond Fulton caused him 
 to be engaged in interstate com- 
 merce while on that trip. On the 
 return, when he was injured, all 
 the freight had domestic destina- 
 tions. It is true that the greater 
 certainty of getting traffic going 
 south probably was the chief 
 reason for the establishment of 
 the circuit; but they got what 
 they could coming back; gener- 
 ally a train or a part of a train. 
 It seems to us extravagant to sub- 
 ordinate the northerly to the 
 southerly journey so completely 
 that if, on the latter, there hap- 
 pened to be a parcel destined be- 
 yond the state, the conductor 
 should be regarded as still engag- 
 
 ed in commerce among the states 
 when going from Fulton to Pa- 
 ducah, even though he had a full 
 train devoted solely to domestic 
 commerce. For it must be re- 
 membered that if the northerly 
 movement is regarded as the in- 
 cident of the southerly, that sub- 
 ordination is independent of the 
 character of the commerce, and 
 depends solely . on the fact that 
 southerly moving business, no 
 matter what, induced establishing 
 the route. Therefore it does not 
 matter that the interstate traffic 
 moving south was greater than, 
 for purposes of illustration, we 
 have supposed." 
 
 36. Southern Ry. Co. v. Fish- 
 er. Ala. , 74 So. 580; Van- 
 
 dalia R. Co. v. Holland, 183 Ind. 
 438, 108 N. E. 580. 
 
 "The plaintiff was engaged as 
 a member of a crew at the time 
 of the injury, making up a train 
 to go to Meridian, Miss. A fair 
 inference from the testimony as 
 above indicated would be that 
 there was a temporary lull while 
 some of the crew went to the yard
 
 <§y 501] Train and Switching Crews. 867 
 
 time lie was injured was engaged in shifting cars in a 
 railroad yard. 'J'lie cars which were attached to the 
 engine at the moment of the accident were used solely 
 in intrastate commerce, but the shifting and the move- 
 ment of these cars were necessary for the purpose of 
 making ui:> a train to which cars were to be attached 
 which came from points beyond the state and were des- 
 tined to points in another state. The fireman's remedy 
 was under the federal act.'^^ A car inspector injured 
 while coupling the air hose on a string of cars which 
 were to become a part of a train then being made up 
 in a yard, was employed in interstate commerce.''^ An 
 engineer engaged in switching cars from a train at a 
 terminal point preparatory to placing the cars in the 
 yard, was within the federal act while so employed.^'' 
 A member of a switching crew engaged in switching cars 
 between two points in the city of Indianapolis for the 
 purpose of being made up into an interstate train was 
 employed in interstate commerce.**' A switchman as- 
 sisting in distributing cars from an interstate train and 
 clearing the track for another interstate train has no 
 remedy under a state law.*^ 
 
 § 501. Switching Cars Containing Intrastate Ship- 
 ments into or out of Interstate Trains — Early Conflict- 
 ing Rulings. Whether an employe engaged in "setting 
 out" a car containing intrastate shipments, or "pick- 
 ing up" a car containing such shijiments from or into, 
 
 office for some purpose, and the 38. Atchison, T. & S. F. Ry. Co. 
 
 work of making up the trains had v. Ayers, Tex. Civ. App. , 
 
 not been completed." Alabama 192 S. W. 310. 
 
 Great Southern R. Co. v. Skotzy, 39. Kansas City, M. & 0. Ry. 
 
 196 Ala. 25, 71 So. 335. Co. v. Texas v. Pope, Tex. 
 
 37. Southern R. Co. v. Jacobs, civ. App. , 152 S. W. 185. 
 
 40. Vandalia R. Co. v. Holland, 
 183 Ind. 438, 108 N. E. 580. 
 
 41. Koennecke v. Seaboard Air 
 
 116 Va. 189, 81 S. E. 99, aff'd in 
 
 241 U. S. 229, 60 L. Ed. 970, 36 
 
 Sup. Ct. 588. See also Louisville 
 
 & N. R. Co. V. Parker, 242 U. S. 
 
 13, 61 L. Ed. 119, 37 Sup. Ct. 4; ^^"^ ^>'- 1^1 S. C. 86, 85 S. E. 
 
 Pennsylvania Co. v. Donat. 239 U. 374, aff'd on this point in 239 U. 
 
 S. 50, 60 L. Ed. 139, 36 Sup. Ct. S. 352, 60 L. Ed. 324. 36 Sup. Ct. 
 
 4. 126, 11 N. C. C. A. 165.
 
 868 Injuries to Interstate Employes. [§ 501 
 
 as the case may be, a train coiitaiiiin.i'- interstate traffic 
 wliile such cars are detached from the train, is employ- 
 ed in interstate commerce, was a question which gave 
 the courts considerable difficulty in solving, and resulted 
 in conflicting- rulings prior to a decision of the national 
 Supreme Court in a leading case.*' In the Behrens case,*' 
 in whicli the employe was declared to be engaged in 
 intrastate commerce, the switching crew was engaged 
 in moving cars all of which originated in and were des- 
 tined to points in the same state so that the decision did 
 not reach the question here presented. With the deci- 
 sion in the Behrens case before it, the supreme court 
 of Kansas decided that a brakeman was employed in 
 interstate commerce while doing such work." In the 
 Thornbro case a brakeman on an interstate train was 
 required to assist in "picking up" a car standing on 
 the siding and consigned to another point in the same 
 state. This car, while so standing on the siding, was 
 coupled to another car. The engine of the train was 
 uncoupled from the train and moved to the siding and 
 there attached to the two cars which were then pulled 
 out from the siding upon the main line in order to place 
 the car which was to be transported, in tlie train. After 
 reaching the main line, and while the two cars were 
 coupled up to the engine and detached from the train, 
 the brakeman stepped between the two cars to uncouple 
 the one that was to be taken from the other which was 
 not to be taken. Owing to a defective coupler he was 
 killed. The defective coupler was on the car which 
 was to be taken into the train. Nothing appeared in the 
 record as to- the destination of the other car on the sid- 
 ing, except that the crew was to replace it on the siding 
 where they found it. It was moved to the main line 
 simply because it stood between the engine and car which 
 was to be taken into the train. Under these facts the 
 court held that the brakeman was engaged in interstate 
 
 42. See Section 502, infra. Ann. Cas. 1914C 1*)3. 
 
 43. niinois Cent. R. Co. v. Beh- 44. Thornbro v. Kansas City, 
 rens, 233 U. S. 473, 58 L. Ed. 1051, M. & O. R. Co., 91 Kan. 684, Ann. 
 34 Sup. Ct. 646, 10 N. C. C. A. 153, Cas. 1915D 314, 139 Pac. 410.
 
 § 501] Train and Swrniiix*; C'rrws. 869 
 
 commerce notwitli standing the fact tliat the car, the 
 movement of wliicli lie was assistinji^ at the time of liis 
 death, contained only intrastate traffic and had not he- 
 come a part of or attaclied to the train. In anotlier case 
 a hrakeman was em])loyed on a train consisting]: partly 
 of cars destined to points outside of the state.'' Tlie 
 train was running between two points in Texas. At 
 Etlioline, Texas, a station on tlie line between the two 
 terminals, a car loaded with merchandise originating 
 at Dallas, Texas, was ''set out" from the train for de- 
 livery on a siding at that station by making a "flying 
 switch." The brakeman, while this car containing intra- 
 state traffic was being switched, was standing on top 
 of it. In performing the "flying switch," the engine and 
 several other cars in the train, including the car men- 
 tioned, on which the plaintiti' was standing, were detach- 
 ed from the train on the main line. During the perform- 
 ance of the work of switching this car on the siding, the 
 engineer stopped the train before the car which was to 
 be "set out" was cut loose from the other cars and the 
 brakeman was jerked oif, fell and was injured. Under 
 those conditions, the Federal Circuit Court of Appeals 
 held that the brakeman was not engaged in interstate 
 commei'ce. The only difference between the Thornbro 
 and the Van Brimmer cases, in so far as the feature under 
 discussion is concerned, was that in the former the em- 
 ploye was assisting in switching an intrastate car into 
 an interstate train and in the latter the employe was 
 switching an intrastate car out of an interstate train. 
 Of course this difference could have no force in the ap- 
 plication of the principle and the cases are squarely 
 in conflict, in the Van Brimmer case, it appeared that 
 some of the cars contained interstate shipments as it did 
 in the Thornbro case, but whether the cars which were 
 attached to the intrastate car "set out" at the time of 
 the accident contained interstate shipments, does not ap- 
 pear from the reported (ii)iiiion any more than the inter- 
 state or intrastate character' of the other car attached 
 
 45. Van Brimmer v. Texas & P. Ry. Co., 190 Fed. 394.
 
 870 Injuries to Interstate Employes. [^ 501 
 
 to the intrastate ear in the Thornbro case. Of course, 
 if it appeared tliat tlie other car attached to the intra- 
 state car in tlie Tliornbro case, at the moment of the 
 accident or the other car attached to the intrastate car 
 in the Van Brimmer case, contained interstate commerce, 
 then unquestionably the employe was engaged in inter- 
 state commerce under other rulings of the national Su- 
 preme Court. In another case a brakeman was injured 
 through the negligence of a fellow servant while on a 
 sidetrack setting out cars containing only intrastate 
 traffic, although the train on which he was working con- 
 tained interstate shii)ments. It was held that his work 
 on the sidetrack was an incident to the operation of the 
 entire train in interstate commerce." It was held in an- 
 other case that a fireman engaged in switching intra- 
 state cars to be put in a train composed partly of cars 
 containing interstate shipments, was employed in inter- 
 state commerce so that his remedy under the federal act 
 was exclusive.*' It would seem on principle that em- 
 ployes engaged in picking up or setting out intrastate 
 cars at stations between terminals out of or into inter- 
 state trains, are engaged in interstate commerce, not- 
 withstanding the fact that the car is detached from the 
 train and on a siding at the time of the injury.*** A train 
 employe is either employed in interstate commerce or 
 intrastate commerce. He cannot, in the sense of deter- 
 mining liability under the federal act, be employed in 
 both kinds of commerce at the same time so as to have 
 a choice of remedy. Now under the conditions described, 
 if the employe is engaged in intrastate commerce, when 
 
 46. Carr v. New York Cent. 47. Southern R. Co. v. Jacobs, 
 
 & H. River Co., 77 N. Y. Misc. 346, ii6 Va. 189, 81 S. E. 99. 
 
 136 K. Y. Supp. 501. The case in 43. Chicago & E. R. Co. v. 
 
 the preceding note was called to Feightner, Ind. App. , 
 
 the attention of the court in the ^^4 j^ ^ g^g. g^^j.^ ^ Atlantic 
 
 Carr case, but the court held it r.<~, -,nn t^-, r^ aac 
 
 ^ ^ Coast Line R. Co., 169 N. C. 446. 
 to be in conflict with other fed- 
 
 , J . . J c ^ t^ f„i 86 S. E. 176; Carpenter v. Cen- 
 
 eral decisions and refused to fol- " '^- f '■^ 
 
 low it. See next paragraph for tral Vermont R. Co., 90 Vt. 35, 96 
 
 decision of United State Supreme Atl. 373. 
 
 Court in the Carr case.
 
 '^ 502] Train and Switciiino C'r^KNvs. 87J 
 
 (Io(?s the interstate cliaraeter of liis cinpldx nifiit end) 
 Is it when tlie car wliile still siandinn- wiiere it was wlieii 
 it was a part of tiie inlerstalc tiain, is uncoupled? Or 
 is it when it luis k'fl the main line:' The entire act of 
 s\vit(^liin^' inlrastate cars from the time of the uncou- 
 plin.i^' to the delivery on the siding, it seems, is so much 
 a ]iart of the work iii the movement of tliat interstate 
 train and so directly connected with that movement that 
 the employe so engaged, should he held to be employed 
 in interstate commerce. Indeed such employes' connec- 
 tion with interstate commerce while even on the siding, 
 is as direct and innnediate as the work of employes at 
 terminals in preparing interstate trains for movement 
 or in moving materials or instrumentalities to be used 
 on interstate trains, or yard clerks checking incoming 
 trains in the switching yards after arrival at terminals 
 and after the train employes have left the yards." 
 
 § 502. Status of Such Employes FinaJly Held to 
 be Under Federal Control. But the doubt and uncertain- 
 ty arising from the conflicting opinions of the courts dis- 
 cussed in the foregoing paragraph as to the interstate 
 status of train employes ''picking up" or "setting out" 
 cars containing intrastate commerce from interstate 
 trains, was removed by the controlling opinion of the 
 national Supreme Court in New York Cent. & H. River R. 
 Co. V. Carr,^" in holding that a brakeman, while cutting 
 out an intrastate car from an interstate train was under 
 federal control. The court said: "The railroad com- 
 pany insists, that when the two cars were cut out of 
 the train and backed into a siding, they lost their inter- 
 state character, so that Carr while working thereon was 
 
 49. North Carolina R. Co. v. 50. 238 U. S. 260, 59 L. Ed. 
 
 Zachary, 232 U. S. 248, 58 L. Ed. 1298, 35 Sup. Ct. 780, 9 N. C. C. A. 
 
 591, 34 Sup. Ct. 305, 9 N. C. C 1. 
 
 A. 109, Ann. Cas. 1914C 159; Si. A brakeman engaged in switch- 
 Louis, S. F. & T. R. Co. V. Seale, ing an intrastate car from a side- 
 229 U. S. 156, 57 L. Ed. 1129, 33 track into an interstate train is 
 Sup. Ct. 651. Ann. Cas. 19140 employed in interstate commerco. 
 156; Neil v. Idaho & W. N. R. R., Daley v. Boston & M. R. R.. ICi; X 
 92 Idaho 74, 125 Pac. 331. V. Supp. 840.
 
 872 Injuries to Interstate Employes. [§ 502 
 
 engaged in intrastate commerce and not entitled to re- 
 cover under the federal Employers' Liability Act. The 
 scope of that statute is so broad that it covers a vast 
 field about which there can be no discussion. But owing 
 to the fact that, during the same day, railroad employes 
 often and rapidly pass from one class of employment 
 to another, the courts are constantly called upon to de- 
 cide those close questions where it is difficult to define 
 the line which divides the State from interstate business. 
 The present case is an instance of that kind — and many 
 arguments have been advanced by the Railway Company 
 to support its contention that, as these two cars had 
 been cut out of the interstate train and put upon a sid- 
 ing, it could not be said that one working thereon was 
 employed in interstate commerce. But the matter is not 
 to be decided by considering the physical position of 
 the employe at the moment of injury. If he is hurt in 
 the course of his employment while going to a car to per- 
 form an interstate duty; or if he is injured while pre- 
 paring an engine for an interstate trip he is entitled 
 to the benefits of the federal Act, although the accident 
 occurred i^rior to the actual coupling of the engine to 
 the interstate cars. St. Louis, etc., Ry. v. Scale, 229 U. 
 S. 156; North Carolina R. R. v. Zachary, 232 U. S. 248. 
 This case is within the principle of those two decisions. 
 The plaintiff was a brakeman on an interstate train. 
 As such, it was a part of his duty to assist in the switch- 
 ing, backing and uncoupling of the two cars so that they 
 might be left on a siding in order that the interstate 
 train might proceed on its journey. In performing this 
 duty it was necessary to set the brake of the car still 
 attached to the interstate engine, so that, when un- 
 coupled, the latter might return to the interstate traiu 
 and proceed with it, with Carr and the other interstate 
 employes, on its interstate journey. The case is entirely 
 different from that of 111. Cent. R. R. v. Behrens, 233 
 U. S. 473, for there the train of empty cars was running 
 between two points in the same State. The fact that 
 they might soon thereafter be used in interstate busi- 
 ness did not affect their intrastate status at the time
 
 <§ 503] Train and S\viTcniN(i Crkws. 873 
 
 of the injiuy; for, if the faet that a car liad l)eori recent- 
 ly engaged in interstate coiTinierce, or was: expected soon 
 to })e used in sucli commerce, brouglit tliem witliin tlie 
 class of interstate vehicles the effect would ])e to ^'we 
 every car on the line that character. Each case must 
 be decided in tlie li.n-ht of the i)articular facts with a 
 view of determiniii<>' wiicthci-, at the ti'me of tlic injury, 
 the employe is eni;ai;ed in interstate Inisiness, or in an 
 act which is so directly and immediately connected with 
 such business as substantially to form a part or a neces- 
 sary incident thereof. Under these principles the plain- 
 tiff is to be treated as having been employed in inter- 
 state commerce at the time of his injury and the judg- 
 ment in his favor must be affirmed." 
 
 § 503. Test in Determining when Switching Crews 
 are Employed in Interstate Commerce. The ordinary 
 and usual tost in determining whether switching crews 
 employed in railroad yards are engaged in interstate 
 commerce is whether at the very moment of the acci- 
 dent they are assisting in moving interstate traffic, that 
 is, cars either loaded or empty, originating in one state 
 and destined to a point in another state, territory or 
 foreign country." In the Behrens case, cited in the notes, 
 
 51. United States. Seaboard v. Holland, isa Ind. 438, 108 N. 
 
 Air Line Ry. v. Koennecke, 239 E. 580. 
 
 U. S. 352, 60 L. Ed. 324, 36 Sup. Iowa. Bruckshaw v. Chicago. 
 
 Ct. 126, 11 N. C. C. A. 165; Penn- R. i. & p. r. Co.. 173 Iowa 207, 155 
 
 sylvania Co. v. Donat, 239 U. S. N. W. 273. 
 
 50, 60 L. Ed. 139, 36 Sup. Ct. 4; Kansas. Giersch v. Atchison. T. 
 
 Illinois Cent. R. Co. v. Behrens, & s. P. R. Co., 98 Kan. 452. 158 
 
 233 U. S. 473, 58 L. Ed. 1051, 34 Pac. 54. 
 
 Sup. Ct. 646, 10 N. C. C. A. 153, Kentucky. Chesapeake & O. R. 
 
 Ann. Cas. 1914C, 163, reVg 192 Co. v. Shaw, 168 Ky. 537. 182 S 
 
 Federal 581; Clark v. Erie R. Co , ^^ 553. Chesapeake & O. R. Co. 
 
 230 Fed. 478; Shanley v. Phila- ^ shamblen, 166 Kv. 789, 179 S. 
 
 delphia & R. R. Co.. 221 Fed. 1012. ^ 33.^ Nashville." C. & St. L. 
 
 Alabama. Alabama Great South- 
 ern R. Co. V. Skotzy, 19(i Ala. 25 
 71 So. 335. 
 
 Indiana. Chicago & E. R. Co. Michigan. Walsh v. Lake Shore 
 
 V. Feightner. Ind. App. , & ^'- S. R. Co., 185 Mich. 177, 151 
 
 114 N. E. 659; Vandalia R. Co. N. W. 754. 
 
 R. Co. V. Banks, 156 Ky. 609, 161 
 S. W. 554.
 
 874 
 
 Injuries to Interstate Employes. 
 
 [§ 503 
 
 a fireman on a switch engine was killed. The switch- 
 ini? crew, of which he was a member, had been engaged 
 
 Minnesota. Cramer v. Chicago. 
 M. & St. P. R. Co., 134 Minn. 61, 
 158 N. W. 796; Hurley v. Illinois 
 Cent. R. Co., 133 Minn. 101, 157 
 N. W. 1005; Crandall v. Chicago 
 Great Western R. Co., 127 Minn. 
 498. 150 N. W. 165; Breske v. 
 IVIinneapolis & St. L. R. Co., 115 
 Minn. 386, 132 N. W. 337. 
 
 Missouri. Christy v. Wabash R. 
 Co., 195 Mo. App. 232, 191 S. W. 
 241; Young v. Lusk, 268 Mo. 625, 
 187 S. W. 849; Trowbridge v. 
 Kansas City & W. B. Ry., 192 Mo. 
 App. 52, 179 S. W. 777; Moliter 
 V. Wabash R. Co., 180 Mo. App. 
 84, 168 S. W. 250; Rich v. St. 
 Louis & S. F. R. Co., 166 Mo. App. 
 379, 148 S. W. 1011. 
 
 New Jersey. Tonsellito v. New 
 York Cent. & H. River R. Co., 87 
 N. J. L. 651, 94 Atl. 804. 
 
 New York. Daley v. Boston & 
 M. R. R., 156 N. Y. Supp. 840; 
 Ruppell V. New York Cent. R. Co., 
 171 N. Y. App. Div. 832, 157 N. Y. 
 Supp. 1095; Norton v. Erie R. Co., 
 163 N. Y. App. Div. 466. 14S N. 
 Y. Supp. 769; Barlow v. Lehigh 
 Valley R. Co.. 158 N. Y. App Div. 
 768, 143 N. Y. Supp. 1053. 
 
 North Carolina. Sears v. At- 
 lantic Coast Line R. Co., 169 N. 
 C. 446, 86 S. E. 176. 
 
 Oklahoma. St. Louis & S. F R. 
 Co. V. Brown, 45 Okla. 143, 144 
 Pac. 1075. 
 
 Oregon. Montgomery v. South- 
 ern Pac. Co., 64 Or. 597, 47 L. R. 
 A. (N. S.) 13, 131 Pac. 507. 
 
 Pennsylvania. Moyer v. Penn- 
 sylvania R. Co., 247 Pa. 210, 93 
 Atl. 282. 
 
 Texas. Geer v. St. Louis, S. F. 
 
 & T. Ry. Co.. Tex. , 194 
 
 S. W. 939; Kansas City, M. & 0. 
 
 Ry. Co. of Texas v. Pope, Tex. 
 
 Civ. App. , 152 S. W. 185. 
 
 Virginia. Southern R. Co. v. 
 Jacobs, 116 Va. 189, 81 &. E. 99. 
 
 Washington. Aldread v. North- 
 ern Pac. R. Co., 93 Wash. 209, 160 
 Pac. 429; Snyder v. Great North- 
 ern R. Co., 88 Wash. 49, 152 Pac. 
 703. 
 
 A switchman, on his way to 
 work, was killed while crossing a 
 railroad track in a terminal yard. 
 He was regularly employed as a 
 member of a switching crew. The 
 evidence disclosed that the switch 
 engine used by this switching 
 crew was used indiscriminately 
 in moving both interstate and in- 
 trastate commerce. But as there 
 was no evidence, at the time he 
 was killed, the decedent was en- 
 gaged in interstate commerce or 
 would assist in the switching of 
 interstate cars when he commenc- 
 ed his work, it was held by the 
 court that there could be no re- 
 covery under the Federal Employ- 
 ers' Liability Act. Knowles v. 
 New York, N. H. & H. R. Co., 150 
 N. Y. Supp. 99. 
 
 On the other hand, a switchman 
 who had been engaged in assist- 
 ing the movement of interstate 
 cars in a terminal, was at the 
 time he was struck by a freight 
 train, engaged in setting switches 
 so that the switch engine could 
 pass from a side track to the 
 main line. In deciding that this 
 switchman was engaged in inter- 
 state commerce, the federal Cir- 
 cuit Court of Appeals for the Sixth 
 District, said: "Did the proof 
 sufficiently tend to show that Mor- 
 ford was engaged in interstate 
 commerce? At the moment, the
 
 § 503] 
 
 TuAiN AM> Switching Crews. 
 
 8 
 
 to 
 
 in moving interstate commerce a short while before he- 
 was kilh'd and tlic crew intended witliin a short time to 
 
 swiich engine was not hauling 
 any cars, and so the true charac- 
 ter of the employment can be de- 
 termined only by a broader view. 
 The evidence showed that the rail- 
 way company, in and about these 
 yards, was continuously and in- 
 discriminately hauling intrastate 
 and interstate freight, and that, 
 in this part of the work, no dis- 
 tinction whatever was made be- 
 ween the two classes. Describ- 
 ing the work of this train crew, 
 the yardmaster's clerk said that 
 it handled both intrastate and in- 
 terstate shipments, that it handled 
 all classes and character of freight 
 and all kinds of cars during its 
 working hours, and that it did the 
 work of transferring and putting 
 into other trains everything that 
 came in for transfer, making no 
 difference or distinction. When 
 it was sought to get the cars con- 
 stituting the record which would 
 show exactly what cars had been 
 handled that night, counsel for 
 the railroad said: 'We admit that 
 when these cars come in, they will 
 show freight of every character 
 and description, intrastate and in- 
 terstate — both kinds.' In answer 
 to the statement by plaintiff's 
 counsel that he wished 'to show 
 further that this character of in- 
 terstate freight came in there and 
 was handled by this train (crew) 
 that night,' counsel for the rail- 
 road company admitted that at 
 some time during that night this 
 particular decedent had handled 
 both Intrastate and interstate 
 freight, and that other freight of 
 both kinds was coming in and 
 going out of those yards, and that 
 all the tracks down there were 
 
 used for the handling of both. Up- 
 on this stipulation of fact, the 
 trial proceeded. The circum- 
 stances here are not, in all re- 
 spects, the same as those found 
 controlling in the Pedersen Case, 
 229 U. S. 146, 33 Sup. Ct. 648, 57 
 L. Ed. 1125, Ann. Cas. 1914C, 153, 
 or the Scale Case, 229 U. S. 15C, 
 33 Sup. Ct. 651, 57 L. Ed. 1129, 
 Ann. Cas. 1914C, 156. They may 
 also be distinguished, though we 
 think not elTectively, from the 
 facts in the Zachary Case, 232 U. 
 S. 248, 34 Sup. Ct. 305, 58 L. Ed. 
 591, Ann. Cas. 1914C, 159; be- 
 cause, in the latter case, it defi- 
 nitely appeared that the engine 
 was about to be used, or was be- 
 ing prepared for use, in distinct- 
 ly interstate commerce. The 
 same difference and possible dis- 
 tinction exists with reference to 
 Law V. Illinois Central (C. C. A. 
 6), 208 Fed. 869, 126 C. C. A. 27. 
 However, we can draw no infer- 
 ence from these and other familiar 
 decisions of the Supreme Court 
 (including the Behrens Case, 233 
 U. S. 473, 477, 34 Sup. Ct. 646. 58 
 L. Ed. 1051, Ann. Cas. 1914C 163). 
 and the way in which they have 
 interpreted the statute, save that 
 liability is created where the serv- 
 ice being rendered is of a general, 
 indiscriminate character, not seg- 
 regated and tied to shipments 
 within the state (as in the Beh- 
 rens Case, supra, 233 U. S. 478, 34 
 Sup. Ct. 646, 58 L. Ed. 1051, Ann. 
 Cas. 1914C 163), but applicable at 
 least as well to the Interstate 
 commerce which the carrier is 
 conducting. While it may not be 
 easy in some cases to draw the
 
 87G Injuries to Interstate Employes. ['^ 503 
 
 again resume the work of moving cars loaded with inter- 
 state freight. Bnt at the time of the accident the switch- 
 ing crew, including the fireman, was employed in moving 
 a train of empties from one point in New Orleans to an- 
 other, all the cars in the "drag" having originated 
 and being destined to points within the same state. Un- 
 der these facts the United States Supreme Court held 
 that the fireman, while so engaged and killed by the 
 negligence of a co-employe, was not engaged in inter- 
 state commerce within the meaning of the act. This Avas 
 the first case reaching that court under the Employers' 
 Liability Act of 1908 in which it was held that the em- 
 ploye was not engaged in interstate commerce at the 
 time of the accident. The reason, as given by the court, 
 for so holding was that since the act provides that the 
 servant, in order to recover, must be injured "while he 
 is employed by such carrier in such commerce" and 
 since the switching crew at the time was only moving 
 intrastate cars, the fireman while so working was not 
 within the terms of the act. This case removed a doubt 
 and uncertainty that had therefore existed among other 
 courts as to whether trainmen and switching cars en- 
 gaged sometimes in intrastate and sometimes in inter- 
 state commerce came within the provisions of the act. 
 The court said: "Here, at the time of the fatal injury, 
 the intestate was engaged in moving several cars, all 
 loaded with intrastate freight from one point of the city 
 to another. That was not service in interstate commerce 
 and so the injury and resulting death were not within 
 the statute. That he was expected, upon the completion 
 
 line between the results of this have been within the statute, the 
 
 view and a breadth of construction intial burden is satisfied, and it 
 
 which would make the statute in- is for the defendant to show the 
 
 valid under the Employers' Liabil- contrary. It follows that the jury 
 
 ity Cases, 207 U. S. 463, 28 Sup. jj^ ^j^j^ ^^^^ j^^^ ^ ^.jgj^j. ^^ ^^^^ 
 
 Ct. 141, 52 L. Ed. 297, yet cases ^^ .^ ^.^ ^^^^ ^^ ^^^ ^.^^^^ ^.^ 
 
 like the present are fairly with- ^^^^^^ ^^^^^^^.^ ^^^ employed in 
 
 in the line of validity. They hard- . ^ ^ ^ „ „.^. , , 
 
 ly go beyond fixing the burden interstate commerce. Pittsburgh, 
 
 of proof and declaring that, where C., C. & St. L. R. Co. v. Glmn, 
 
 the facts show the case may well 135 C. C. A. 46, 219 Fed. 148.
 
 <§, 504 J Train and Switching Crews. 877 
 
 of tliiit task, to on^^a^^e in another which woiihl liave 
 been a part of interstate connnei-ce, is immaterial under 
 the statute, for by its terms tlie true test is th(.' nature 
 of the work bein;L? done at tlie time of tlie injury. The 
 question is correctly answered in the negative."'' 
 
 § 504. Doctrine of Behrens Case as to Interstate 
 Status of Switching Crews Reaffirmed and Applied. 
 The ([uestion as to when members of switching crews 
 engaged in breaking up, and making up trains and shift- 
 ing ears in railroad yards, are employed in interstate 
 commerce, was submitted to the Supreme Court nearly 
 three years after its decision in the Behrens case, supm;^ 
 The principle was again reaffirmed that switching crews 
 are not employed in interstate commerce unless at the 
 very time of the injury, they are engaged in moving 
 interstate freight, or performing some act so directly and 
 immediately connected therewith as to be in fact a part 
 of the work of moving interstate traffic or a necessary 
 incident thereto. The state courts in that case held, 
 under facts showing employment much closer to the 
 boundary line between intrastate and interstate com- 
 merce than in the Behrens case, that Welsh, at the time 
 he was injured, was employed exclusively in intrastate 
 commerce, or at least that he was not employed in inter- 
 state commerce. Welsh was the foreman of a switching 
 crew working at night in a terminal yard, being de- 
 nominated by the court as a "yard conductor." His 
 duties consisted in assisting in shifting cars, breaking 
 up and making up trains under the orders of the yard- 
 master, to whom, upon the completion of each task, ho 
 went for further orders relative to his duties, that is, 
 when any orders given liim as to the movement of cars 
 had been performed, he rei)orted at the yardmaster's 
 office for further orders. During the night, Welsh, with 
 
 52. See also Giersch v. Atchi- 53. Erie R. Co. v. Welsh, 242 
 
 son. T. & S. F. R. Co., 98 Kan. 452, U. S. 303, 61 L. Ed. 319. 37 Sup. 
 
 158 Pac. 54; Geer v. St. Louis, S. Ct. 110, aff'g same case reported 
 
 F. & T. Ry. Co., Tex. , in 89 Ohio St. 81, 105 N. E. 189. 
 
 194 S. W. 939.
 
 878 Injuries to Interstate Employes. [^ 504 
 
 his crew, took a freight ear and a caboose from the yard 
 in which he was working, to another yard in the same 
 city where the car loaded with freight destined to a 
 point in anotlier state, was phiced npon a siding so that 
 it might be made up into a train by another crew. He 
 then took the caboose a short distance further and placed 
 it upon another siding. The caboose, so far as it ap- 
 peared, was not to go beyond the state line. The crew 
 then took the engine to a water plug and took on water 
 and then returned with it to the yard where Welsh was 
 employed. On the return journey the engine was slowed 
 down near the yard master's ofhce so that Welsh might 
 report for further orders, all previous orders having been 
 executed. While alighting from the engine at that place 
 for that purpose, he was injured. It also appeared that 
 the orders which Welsh would have received had he 
 not been injured while alighting from the engine, would 
 have required him to immediately assist in making up 
 an interstate train. The question was presented to the 
 courts whether Welsh, at the time he received the injury, 
 was employed in interstate commerce, and the court was 
 required to pass upon the question whether, under the 
 testimony and all the admissible inferences therefrom, 
 the question of Welsh's employment in interstate com- 
 merce should have been submitted to the jury. The 
 state court held tliere was no such question raised by the 
 foregoing facts. The Supreme Court, in holding that 
 it was unable to conclude that the state court committed 
 manifest error in so deciding, said: "Upon the strength 
 of this it is argued that his act at the moment of his 
 injury partook of the nature of the work that, but for 
 the accidental interruption, he would have been called 
 upon to perform. In our opinion this view is untenable. 
 By the terms of the Employers' Liability Act the true 
 test is the nature of the work being done at the time 
 of the injury, and the mere expectation that plaintiff 
 would presently be called upon to perform a task in 
 interstate commerce is not sufficient to bring the case 
 within the act. Illinois C. R. Co. v. Behrens, 233 U. S. 
 473, 478, 58 L. Ed. 1051, 1055, 34 Sup. Ct. Rep. 646, Ann. 
 Cas. 1914C, 163, 10 N. C. C. A. 153. There remains the
 
 "§> 505] 'I'h.mn AM) Switching Cr?)ws. 870 
 
 coiitciitiuii that plainlilTV act in stcppiiij^ Troni tli<' yar<l 
 engine was in c()nij)l('li()ii ot' liis trip to tlic "l'\ 1). yard" 
 with the interstate car, and iicnce was itself an act in 
 furtherance of interstate coinnierce. This cannot be 
 answered by saying, in the words used arguendo Ijv the 
 state supreme court (89 Ohio St. 88), that 'lie was not 
 then and there eniph)yed in moving or liandling cars 
 engaged in intei-statc coniinerce.' The question remains 
 whether he was pert'orjning an act so directly and im- 
 mediately connected with iiis ])revions act of placing 
 the interstate car in the "F. I), yard' as to be a part of 
 it or a necessary incident thereto. New York C. & H. 
 R. R. Co. V. Carr, 238 U. S. 260, 264, 59 L. Ed. 1298, 
 1300, 35 Sup. Ct. Rep. 780, 9 N. C. C. A. 1; Shanks v. 
 Deleware, L. & W. R. Co., 239 U. S. 556, 559, 60 L. Ed. 
 436, 438, L. R. A. 1916C, 797, 36 Sup. Ct. Rep. 188. And 
 this depends upon whether the series of acts that he 
 had last performed was properly to be regarded as a 
 succession of separate tasks or as a single and indivis- 
 ible task. It turns u})on no interpretation of the act of 
 Congress, but involves simply an appreciation of the 
 testimony and admissible inferences therefrom in order 
 to determine wliether there was a question to be sub- 
 mitted to the jury as to the fact of employment in inter- 
 state commerce. The state courts held there was no 
 such (juestion, and we cannot say that in so concluding 
 they committed manifest error. It results that, in the 
 proper exercise of the jurisdiction of this court in cases 
 of this character, the decision ought not to be disturbed." 
 
 § 505. Exceptions to Rule that Switching Crews 
 Moving Intrastate Cars Exclusively are Governed by 
 State Law. Notwithstanding the rulings in the cases 
 discussed in the foregoing paragraphs, there may be 
 situations and circumstances where em])loyes injured 
 while assisting exclusively in tlie inoveinent of intra- 
 state cars are within the federal act; for, if such em- 
 ployment is but a part of a larger task in interstate 
 commerce, or is a necessary preparatory movement in 
 aid of interstate transportation, then the national stat-
 
 880 Injuries to Interstate Employes. [*§> 505 
 
 lite applies to employes so engaged. •'^^■* There is a marked 
 different between the mere expectation that an, act done 
 in intrastate commerce would be followed by other work 
 of a different character in interstate commerce/^'^ and 
 doing an act in intrastate commerce for the purpose 
 of furthering the work of interstate commerce.'"'*' Thus, 
 a switchman, in order to place two cars containing inter- 
 state traffic on a private switch, found it necessary to 
 first remove two empty cars from the switch track. The 
 engine was uncoupled from the loaded cars for this pur- 
 pose and while being used in removing the empty cars 
 ' — purely in and of itself an intrastate movement — the 
 switchman was injured. A trial court refused a request 
 that he was not engaged in interstate commerce under 
 those conditions and properly submitted the cause to 
 the jury." Again, a fireman on a switch engine in a 
 railroad yard at the time of his injury was assisting 
 in the movement of an empty car from one track to 
 another. The car was not moving in interstate com- 
 merce, but the movement was necessary for the pur- 
 pose of reaching and moving another interstate car, that 
 is, it was necessary to remove the intrastate car before 
 the interstate car could be reached. Notwithstanding 
 that the fireman at the time was engaged purely in 
 moving an intrastate car, the purpose of the movement as 
 
 54. Southern R. Co. v. Puckett, J., said: '"There was evidence 
 244 U. S. 571, 61 L. Ed. 1321. 37 tending to show that in order to 
 Sup. Ct. 703. complete this movement it be- 
 
 55. Illinois Cent. R. Co. v. came necessary to uncouple the 
 V. Behrens, 233 U. S. 473, 58 L. Ed. engine from the loaded cars and 
 1051, 34 Sup. Ct. 046, 10 N. C. C. with it to remove two empty 
 A. 153, Ann. Cas. 1914C 163. ones from the private track. While 
 
 56. Louisville & N. R. Co. v. engaged about the removal de- 
 Parker, 242 U. S. 13, 61 L. Ed. fendant in error was injured. 
 119, 37 Sup. Ct. 4; New York Cent. The trial court submitted to the 
 & H. River R. Co. v. Carr, 238 U. jury for determination whether he 
 S. 260, 59 L. Ed. 1298, 35 Sup. Ct was engaged in interstate com- 
 780, 9 N. C. C. A. 1. merce at the time of the injury, 
 
 57. Pennsylvania Co. v. Donat, and in approving such action (224 
 239 U. S. 50, 60 L. Ed. 139, 36 Fed. Rep. 1021) the Circuit Court 
 Sup. Ct. 4, in which McReynolds, of Appeals was clearly right."
 
 § 506] 
 
 TiLVIX AND SwiTCUlXG (JrEWS. 
 
 881 
 
 a whole controlled and, licricc, he was engaged in inter 
 state eoniincrce.^^ 
 
 § 506. Switching Movements of Empty Cars in Rail- 
 road Yards to be Loaded with Interstate Freight. An 
 employe engaged in switcliing an empty car in a rail- 
 road yard for the purpose of loading it with inter.state 
 freight, is employed in federal commerce as distinguish- 
 ed from state commerce;''' but if tlie car, at tlie time of 
 the movement and injury, has not been assigned to be 
 loaded with interstate freight, or if it is not known 
 whether it is to be loaded with interstate freight, the 
 employe is not within the federal statute. This rule is 
 a corollary of tlio ])riii('i|»le that the character of tlie 
 movement of a car as an instrument of commerce de- 
 pends on its employment at the time and not upon re- 
 
 58. Louisville & N. R. Co. v. 
 Parker, 242 U. S. 13, 61 L. Ed. 119, 
 37 Sup. Ct. 4. 
 
 59. United States. Shanley v. 
 Philadelphia & R. R. Co., 221 Fed. 
 1012; Chicago & N. W. R. Co. v. 
 United States, 93 C. C. A. 450, 168 
 Fed. 236, 21 L. R. A. (N. S.) 690. 
 
 Arkansas. St. Louis Southwest- 
 ern R. Co. V. Anderson, 117 Ark. 
 41, 173 S. W. 834. 
 
 Iowa. Bruckshaw v. Chicago, R. 
 I. & P. R. Co., 173 Iowa 207, 155 
 N. W. 273. 
 
 Minnesota. Breske v. Minneapo- 
 lis & St. P. R. Co., 115 Minn. 386, 
 132 N. W. 337. 
 
 New Jersey. Moran v. Central 
 R. Co of New .Jersey, 88 N. .1. L. 
 730, 96 Atl. 1023. 
 
 Missouri. Trowbridge v. Kansas 
 City & W. B. Ry., 192 Mo. App. 52. 
 179 S. W. 777. 
 
 Washington. Aldread v. North- 
 ern P. Ry. Co., 93 Wash. 209, 160 
 Pac. 429. 
 
 "While in this case, deceased 
 was engaged in switching a car to 
 a place in defendant's yards, 
 where, it is true, it was to be 
 placed in a local train and taken 
 to a station a dozen miles away, 
 but for the purpose of being 
 loaded that day with an inter- 
 state shipment. No sound reason 
 can be suggested why that was 
 not interstate service. We think 
 it was such service in a special 
 and immediate sense. For the use> 
 to which the car was to be put 
 was the already ascertained ser- 
 vice of a specific shipment into 
 another state; and that shipment 
 was to be made on the day the car 
 was being shipped out of the yards 
 for that use. The fact that it was 
 taken out of the yards at Moberly, 
 a few miles away, would not be 
 different in effect, from taking it 
 from the yards at Sturgeon."— 
 Ellison, J. in Christy v. Wabash 
 
 1 Control Carriers r<6
 
 882 Injuries to Interstate Employes. [<^ 506 
 
 60 
 
 mote probabilities or iipou accidental later events 
 Illustrative applications of the rule were made in the 
 cases cited in the notes." In the Minnesota case, the 
 Sniireme Court of that state properly held that such a 
 switchini>- movement was interstate in character because 
 the ol\iect of moving the car was to load it with inter- 
 state commodities and at tlie time of the movement the 
 car was assigned for that purpose. In the Illinois case, 
 it was held that an injury sustained by an employe in 
 the movement of an empty car to be loaded with freight 
 was governed by the state law as it did not appear from 
 the evidence that the car, at the time of the injury, was 
 directed to be moved for that express purpose of load- 
 ing it with merchandise to be shipped to another state. 
 The Illinois Supreme Court correctly described the dis- 
 tinction as follows: "It is the contention of the plain- 
 tiff in error that inasmuch as 10 of these 15 cars, when 
 they reached the loading platform, were loaded with 
 meat to be shipped outside of the state, they were a 
 part of an interstate movement from the time they were 
 taken out of the car shops by the switching crew, and 
 that the deceased was therefore engaged in interstate 
 commerce at the time of his injury and was not entitled 
 to compensation under the Illinois act. It has been 
 held that, if the object of a switching movement is the 
 placing of an empty car in a position to receive a load 
 to be carried out of the state, the car is engaged in 
 moving interstate commerce from the moment the switch- 
 ing movement begins. Breske v. Minneapolis & St. Louis 
 Eailway Co., 115 Minn. 386, 132 N. W. 337. This is 
 only where the switching movement is directed for the 
 express purpose of loading the particular car with 
 material to be shipped out of the state. In this case no 
 particular one or more of the 15 cars were designed to 
 be used to carry an interstate shipment at the time the 
 
 R. Co.. 195 Mo. App. 232, 191 S. W. 61. Chicago Junct. R. Co. v. In. 
 
 241. dustrial Board of lUinois, 277 111. 
 
 60. Minneapolis & St. L. R. Co. 512, 115 N. E. 647; Breske v. Min- 
 
 V. Winters, 242 U. S. 353, 61 L. Ed neapolis & St. L. R. Co., 115 Minn. 
 
 358, 37 Sup. Ct. 170, 13 N. C. C. A 386, 132 N. W. 337. 
 1127.
 
 § 507] Train and Switching Crews. 883 
 
 conductor of the switching crew was ordered to move 
 them to the stoia,^-o track. It was not until tliese cars 
 were again moved to tlie loading platform, and it was 
 known what material was ready to l)e loaded, that it 
 was determined that 10 of them should he loaded for 
 destinations outside the state and one to carry a ship- 
 ment to a i)oint within the state. The movement of 
 the string of cars by the switching crew of whicli the 
 deceased was a member was a local movement, and, as 
 none of these cars had at that time been selected to 
 l)articipate in an interstate shipment, the deceased was 
 not engaged in interstate commerce, and the circuit 
 court properly approved and confirmed the award and 
 decision of the Industrial Board. The icing of the cars 
 does not change the situation. The same procedure in 
 icing was required in all the shipments made by Armour 
 & Co., wliether interstate or intrastate, and was, in ef- 
 fect, a part of the equipment of the cars themselves." 
 
 § 507. Weighing of Cars Containing Interstate 
 Freight after Unloading to Determine Weight of Con- 
 tents. Ill the handling of cars containing freight from 
 one state to another, employes of railroad companies are 
 frequently required to ascertain the weight of contents 
 at the time of the final delivery. This is done by 
 weighing the car while loaded, and again after being 
 emptied. Employes engaged in such work are within 
 the federal act if the cars so weighed contain trafiic 
 moving from one state to another.°=^ "The plaintiff," 
 said the court in the case cited, "is a citizen of Ohio. 
 He was employed by the defendant as a brakeman on 
 freight trains. In the regular course of its business it 
 had delivered to a consignee in West Virginia sundry 
 loaded cars which had come from points outside of the 
 latter state. These cars had been unloaded. The de- 
 fendant sent a train to take them back. The plaintiff 
 was one of the crew of such train. On the switch on 
 which these cars were there were scales. The loaded 
 
 62. Wheeling Terminal R. Co. v. Russell, 126 C. C. A. 519, 209 
 
 Fed. 795.
 
 884 Injuries to Interstate Employes. [^ 507 
 
 cars bad beeu weighed at the time of delivery. In order 
 to determine the net weight of their contents, the cars 
 had to be weighed after they had been emptied. Such 
 weighing was habitually done by defendant's train 
 crew. * * * ^\iQ cars were being weighed to deter- 
 mine the net weight of the interstate load carried by 
 them to the West Virginia consignee. Those who were 
 engaged in ascertaining such weights were themselves 
 employed in that commerce." 
 
 § 508. Switching Movement of Cars After Termina- 
 tion of Interstate Journey or After Receipt by Consignee. 
 A switching movement which constitutes the last lap 
 of an interstate journey is a part of interstate transpor- 
 tation, and employes engaged therein are under the 
 Federal Acif^ but a local movement of cars after an 
 interstate journey is ended, is not under federal con- 
 trol.*^* Thus, a carrier transported cars containing coal 
 to be used on its locomotives, from Sayre, Pa., to Cort- 
 land, N. Y. After being received in the Cortland yards, 
 they remained there upon sidings and switches. About 
 two weeks later the cars were removed to an unloading 
 trestle at a coal chute for the purpose of placing the 
 
 G3. Jacobs v. Southern R. Co., Co. of Texas v. Pace, Tex. 
 
 241 U. S. 229, 60 L. Ed. 970, 36 Civ. App. , 184 S. W. 1051; 
 
 Sup. Ct. 588, aff'g 116 Va. 189, 81 Kansas City, M. & O. R. Ry. Co. v. 
 
 S. E. 99; Chicago, M. & St. P. R. Texas v. Pope, Tex. Civ. App. 
 
 Co. V. United States, 91 C. C. A. , 152 S. W. 185. 
 
 373, 165 Fed. 423, 20 L. R. A. (N. A car loaded with interstate 
 
 S.) 473; Chesapeake & O. R. Co. freight had been delivered at the 
 
 V. Shaw, 168 Ky. 537, 182 S. W. mill of the consignee. After being 
 
 653; Easter v, Virginian R. Co., partly unloaded, it became neces- 
 
 76 W. Va. 383, 11 N. C. C. A. 101. sary to move the car in its part- 
 
 86 S. E. 37. ly unloaded condition; but it was 
 
 64. Chicago, B. & Q. R. Co. v. ^^^.^ returned to complete the un- 
 
 Harrington, 241 U. S. 177, 60 L. 
 Ed. 941, 36 Sup. Ct. 517, 11 N. C. 
 C. A. 992, aff'g (Mo. App.), 180 
 S. W. 443; Pennsylvania R. Co. v 
 
 loading and was then to be load- 
 ed with freight for another state. 
 The service of the car in inter- 
 
 Knox 134 CCA 426 218 Fed state commerce had not been com- 
 
 748; Louisville & N. R. Co. v. pleted. Wagner v. Chicago, R. I. 
 
 Strange's Adm'x, 156 Ky. 439, 161 & P. Ry. Co., 111. , 115 N. 
 
 S. W. 239; Missouri, K. & T. Ry. E. 201.
 
 § 509] TiuiN AND Switching Crews. 885 
 
 coal in the cliute. During this last movement an em- 
 ])loyo was injured. Upon these facts, Mr. Justice Mc- 
 Keynolds, of the national Supreme Court, said:"'' ''We 
 think their interstate movement terminated before the 
 cars left the sidings, and that while removing tliem th<^ 
 switching crew was not employed in interstate com- 
 merce. The essential facts in Chicago, B. & Q. R. Co. 
 V. llarrington, 241 U. S. 177, did not materially differ 
 from those now presented. There we sustained a re- 
 covery })y an employe, holding he was not engaged in 
 inteislate coiiiinerce; and that decision is in conflict 
 with the conclusion of the Court of Appeals. The judg- 
 ment under review must be reversed, etc." Where cars 
 were billed from Pensacola, Fla., to Corbin, Ky., and 
 after the final delivery at Corbin, a switchman assisting 
 in a new and independent movement of the cars from 
 Corbin to Barbourville, Ky., w^as not engaged in inter- 
 state commerce.'"^ 
 
 § 509. Switching Cars Loaded with Interstate 
 Freight for Repairs. The Employers' Inability Act ap- 
 plies to switching crews engaged in transferring cars 
 loaded with interstate freight to repair tracks for tem- 
 porary repairs.**^ A mere delay in the movement of a 
 car loaded with interstate freight does not result in its 
 withdrawal fi'om interstate commerce.®^ "In passing 
 
 65. Lehigh Valley R. Co. v. track' for repair at the time he 
 Barlow, 244 U. S. 183, 61 L. Ed. was injured the box car which was 
 1070, 37 Sup. Ct. 515. loaded with timber, and which 
 
 66. Louisville & N. R. Co. v. was clearly being used by 
 Meador's Adm'r, 176 Ky. 765, 197 its carrier in interstate commerce. 
 S. W. 440. The evidence requires this con- 
 
 67. Geer v. St. Louis, S. F. & elusion. We think that when the 
 
 T. Ry. Co., Tex. , 194 S. deceased, Geer, was carrying this 
 
 W. 939. wherein the court said: car to the 'repair track' for re- 
 
 "If there is any question of fact pairs he was engaged in a work 
 
 involved in whether the empty box so intimately connected with in- 
 
 car and the oil tank car which terstate commerce as to be prac- 
 
 was not proven to be loaded were tically a part of it." 
 
 being used by the carrier in in- 68. Great Northern R. Co. v. 
 
 terstate commerce, it would seem Otos, 239 U. S. 349. 60 L. Ed. 322, 
 
 immaterial here, in view of the 36 Sup. Ct. 124. See Section 487, 
 
 undisputed evidence that the de- supra, as to interstate status of 
 
 ceased was carrying to the 'repair employes repairing cars in transit-
 
 886 Injuries to Interstate Employes. [^ 509 
 
 upon the sufficiency of the instructions tlierefore, we 
 must assume that one of the three unrepaired cars which 
 were being replaced upon the repair track was loaded 
 with lumber in South Dakota. There was competent 
 evidence tending to show that fact. The question of 
 fact was for the jury. If so loaded, that fact fixed its 
 status for the time as an interstate car. The interstate 
 transportation to which it was then devoted was not 
 ended merely because the car had become temporarily 
 disabled and was placed upon the repair track where it 
 was awaiting its turn for repairs. While so placed and 
 waiting it was still in interstate commerce.'"^'-' 
 
 § 510. Local Movement of Cars in Yard Between 
 Completion of one Interstate Trip and Commencement 
 of Another. A car loaded with freight, being moved from 
 one state to another continues to be used in interstate 
 commerce until it is delivered by a common carrier to 
 the consignee and unloaded.'^'' Its interstate character 
 then ordinarily ceases. It does not acquire a new status 
 as an interstate commerce car until it is again assigned 
 or used by the carrier for the purpose of moving traffic 
 in interstate commerce. A movement of the car, there- 
 
 69. Bolch V. Chicago, M. & St. 310, 31 Sup. Ct. 279; Louisville & 
 P. R. Co., 90 Wash. 47, 155 Pac. N. R. Co. v. Central Stock Yards 
 422. Co., 212 U. S. 132, 53 L. Ed. 441, 
 
 70. Interstate Commerce Com- 29 Sup. Ct. 246; Covington Stock- 
 mission V. Atchison, T. & S. F. Yards Co. v. Keith, 139 U. S. 128, 
 R. Co., 234 U. S. 294, 58 L. Ed. 35 L. Ed. 73, 11 Sup. Ct. 4G1; 
 1319, 34 Sup. Ct. 814; St. Louis, North Pennsylvania R. Co. v. Com- 
 I. M. & S. R. Co. V. Edwards, 227 mercial Nat. Bank of Chicago, 123 
 U. S. 265, 57 L. Ed. 506, 33 Sup. U. S. 727, 31 L. Ed. 287, 8 Sup. Ct. 
 Ct. 262; Chicago, R. I. & P. R. Co. 266; Coe v. Errol, 116 U. S. 517, 29 
 V. Hardwick Farmers Elevator Co., L. Ed. 715, 6 Sup. Ct. 475; Union 
 226 l^ S. 426, 57 L. Ed. 284, 33 Sup. Stock-Yards Co. of Omaha v. Unit- 
 Ct. 174, 46 L. R. A. (N. S.) 203; ed States, 94 C. C. A. 626, 169 
 United States v. Union Stock Yard Fed. 404. 
 
 & Transit Co. of Chicago, 226 U. "Had the injury occurred dur- 
 S. 286, 57 L. Ed. 226, 33 Sup. Ct. ing the movement of the loaded 
 83; Southern Ry. Co. v. Reid, 222 car prior to its delivery to the 
 U. S. 424, 56 L. Ed. 257, 32 Sup. consignee, there could be no ques- 
 Ct. 140; Southern Pac. Terminal tion but that plaintiff v/ould have 
 Co. V. Interstate Commerce Com- been engaged in interstate com- 
 mission, 219 U. S. 498, 55 L. Ed. merce. The shipment of the brick
 
 § 511 
 
 Train and Switching Crews. 
 
 887 
 
 fore, in a teniiiiial yard from oiio track to aiiotlicr after 
 llic conclusion of its interstate status during tiie lii'st 
 flip and before it is assigned or used in interstate com- 
 merce on the second trip, is local in (;liaracter, tliat is, 
 intrastate. An employe injured while handling the car 
 in the interim between the two trips has no remedy 
 under the Fedei'al Km])loyers' Lia])ility Act. For ex- 
 amj)le, a car, after an interstate cargo had been dis- 
 charged from it, was taken to another point in the same 
 state where it was left to await another order for its 
 future movement. Such an order was given two or three 
 hours after an accident to an employe*. The courl held 
 that the plaintitl" was not engaged in interstate com- 
 merce. ^^ 
 
 § 511. Exceptions to Rule that Delivery of Car at 
 Destination ends Its Interstate Status. But, while it is 
 Iruc, as .^tati'd in Hie foi'cgoing i»aragi'ai)h, that the inter- 
 state character of a car ordinarily ceases when it is 
 delivered at the destination point to the consignee and 
 
 from Buffville. Kan., to the Coen 
 Building Material Company at a 
 point on defendant's line in Mis- 
 souri constituted interstate com- 
 merce; and the carrying of such 
 loaded car by defendant from 
 Dodson, and its delivery to the 
 consignee, was a participation by 
 defendant in such commerce." 
 Trowbridge v. Kansas City & W. 
 B. Ry., 192 Mo. App. 52, 179 S. W. 
 777, an action under the Federal 
 Act. 
 
 71. Moran v. Central R. of 
 New .lersey, 88 N. .1. L. 730, 96 
 Atl. 1023, in which the trial court 
 said: "I think the interstate char- 
 acter of that car ceased, and I so 
 decide, when the function that 
 the car was performing in the in- 
 terstate commerce was ended: 
 that is, it was engaged in the pur- 
 pose of carting coal from Mauch 
 Chunk to Newark from a con- 
 
 signor to a consignee. When it 
 had taken the last vestige of coal 
 off of the car, and had delivered 
 it to the consignee. I think at 
 that point its character as an inter- 
 state commerce car ceased, and 
 that it did not acquire a new char- 
 acter as an interstate commerce 
 car until the intention on the 
 part of the railroad company to 
 use that car had been in some way 
 manifested, either by act or by 
 word." The decision in this case 
 was affirmed by the ITnited States 
 Supreme Court upon the author- 
 ity of Chicago, B. & Q. R. Co. v. 
 Harrington, 241 U. S. 177. 60 L. 
 Ed. 941, 3G Sup. Ct. 517. 11 N. C. 
 C. A. 992 and Lehigh Valley R. Co. 
 V. Barlow. 244 U. S. 183. 61 L. Ed. 
 1070, .37 Sup. Ct. 515. Moran v. 
 Central R. Co. of New .lersey, 245 
 
 U. S. 629, 62 L. Ed. . 38 Sup. 
 
 Ct. 62 (mem. dec).
 
 888 
 
 Injuries to Interstate Employes. [§ 511 
 
 unloaded, nevertheless where it is intended that the 
 car, after being unloaded, shall be returned by the car- 
 rier to the initial point in another state, its interstate 
 status continues during the entire trip.'^ For example, 
 an employe of a carrier owning a line about nine miles 
 long and wholly within one state, was assisting in the 
 movement of an empty car after being unloaded of its 
 interstate freight. It was contended that the em]:>loye 
 was not tliereby engaged in interstate commerce for the 
 reason that the interstate tri]! of the car had been com- 
 pleted. But in rejecting this contention, the court 
 said:'' "However, in the case now before us, plaintitf's 
 injury occurred after the car had been unloaded and 
 while he was switching it preparatory to taking it 
 back to Dodson where it could be taken possession of 
 by the Missouri Pacific. Was the movement of this 
 empty car a part of interstate commerce! We are of 
 
 72. Johnson v. Great Northern 
 R. Co., 102 C. C. A. 89, 178 Fed. 
 643, in which the court said: 
 "The car in question, having the 
 defective coupler, was a car he- 
 longing to the Wabash Railroad 
 Company, and known and desig- 
 nated as a 'foreign' car. It had 
 been brought into Minneapolis, 
 Minn., from the state of Wiscon- 
 sin, by the Soo Railroad, delivered 
 to the defendant loaded with coal, 
 and by the defendant delivered to 
 the consignee. It had been un- 
 loaded and placed upon track 23 
 for the purpose of being redeliv- 
 ered to the Soo Railroad. It was 
 delivered to that railroad, and 
 afterwards loaded with shingles 
 in T^Iinnesota, and taken by the 
 Soo road thus loaded into Wiscon- 
 sin on its return home. That it 
 was at the time a car in use in 
 interstate commerce is clearly sus- 
 tained by the decision of the Su- 
 preme Court, in Johnson v. South- 
 ern Pacific Co., 196 U. S. 1, 25 Sup. 
 Co. 158, 49 L. Ed. 363, in which 
 
 case it said: 'Whether cars are 
 empty or loaded, the danger to 
 employes is practically the same, 
 and we agree with the observa- 
 tion of District Judge Shiras, in 
 Voelker v. Railway Co. (C. C.) 116 
 Fed. 867, that 'it cannot be true 
 that on the eastern trip the pro- 
 visions of the act of Congress 
 would be binding upon the com- 
 pany, because the cars were load- 
 ed, but would not be binding upon 
 the return trip, because the cars 
 are empty.' The use of the car 
 in question, at the time of the in- 
 jury, was a use in interstate com- 
 merce within the rule thus an- 
 nounced. It had been brought 
 loaded from the state of Wiscon- 
 sin into the state of Minnesota, 
 and though empty at the time of 
 the injury was being moved by 
 the defendant on its return from 
 whence it came.'' 
 
 73. Trowbridge v. Kansas City 
 & W. B. Ry., 192 Mo. App. 52, 
 179 S. W. 777.
 
 <^ 511] Train and Switching Crews. 889 
 
 the oi)iiii()ii that it was, under the rireiinistances dis- 
 closed hy tliis case. In the lirst place, the s(?rvic(i under- 
 taken by the defendant when it ie(;eiv('d the headed car 
 from the Missouri Paciiic at Dodson was not fniislied 
 until it had transported the car to its consignee and had 
 returned it empty to Dodsoii and placed it again at llic 
 disi)osal of the Missouri Pacific. Under these (circum- 
 stances the particular trip of this car from BulTville, 
 Kan., might be said not to have ended until it was re- 
 turned emi)ty to Dodson, since it was not the purpose of 
 any one that the car, when unloaded, should remain at 
 the point of delivery to the consignee. The return of the 
 car to- Dodson was a necessary part of the movement of 
 any cars carrying commerce from the state of Kansas 
 to points in Missouri on defendant's line. To enable 
 the railroad, bringing freight from Kansas to such 
 points, to continue that commerce, certainly the cars, 
 after they have been received and emptied of their goods, 
 must be returned to that road. However, there is more 
 in the facts of this case than simply the return of the 
 car to Dodson, and we need not go so far as to hold 
 that its mere return to Dodson was a part of its in- 
 coming tri]:), and therefore a part of the interstate com- 
 merce of that trip. In this case the Missouri Pacific 
 Road had directed that all box cars returned to Dodson 
 should be sent to its distribution point at Osawatomie, 
 Kan., for use in the transportation of wheat. The car 
 in question was not one belonging to the Missouri Pacific, 
 but belonged to the Delaware, Lackawanna & Western 
 Railway (an eastern railroad). AVlien the car was un- 
 loaded at the Coen Building Material Company's plant 
 and started by defendant to Dodson, the defendant was 
 in fact participating in its return to Kansas, where it 
 was to again enter the stream of incoming cars used in 
 further transportation. This westward movement was 
 merely a completion of the circuit it was making in 
 the transportation of the country commerce. On its 
 return empty from the switch of its consignee, its pas- 
 sage through Dodson to the west was accomplished in 
 the same way it went through Dodson east to its con- 
 sie:nee. Dodson was no more its final destination in tlie
 
 890 Injuries to Interstate Employes. [^ 511 
 
 one case than in the other. The fact that the defendant 
 took no interest in where the car was going- the moment 
 it reached Dodson, nor made any inquiry in regard 
 thereto, ought not to make any difference in the real 
 nature of the service then being rendered. It was then 
 performing a service in the interstate commerce of the 
 country. And in view of the fact that Dodson was so 
 near tiie Kansas line with only one small station be- 
 tween it and that state, it is difficult to believe that de- 
 fendant was wholly ignorant of the, fact that it was help- 
 ing in the interstate movement of such cars, even though 
 its officers were careful to avoid ascertaining to what 
 particular point in Kansas the cars were being sent. It 
 is not the intent with which the carrier performs its 
 work that affects the nature of the carriage; it is the 
 service that is actually rendered. This is what deter- 
 mines whether it is inter- or intra-state. The emi)ty car, 
 having brought its load from Kansas into Missouri had 
 entered upon its return to that state, there to be again 
 loaded. It was an instrumentality of interstate com- 
 merce. ' ' 
 
 § 512. Switching Movement of Car of Lumber to 
 be Used in Repairing and Building Cars Used in Inter- 
 state Commerce. Employes of a railroad company en- 
 gaged in switching a car loaded with lumber from a 
 railroad yard into machine shops where the lumber was 
 to be utilized in building and repairing cars which 
 would thereafter be used in moving interstate com- 
 merce, are not thereby engaged in interstate commerce 
 within the federal act.'* In so deciding, the court said: 
 "In Minneapolis & St. Louis R. R. Co. v. Winters, 242 
 U. S. 353, 37 Sup. Ct. 170, 61 L. Ed. 358, where an em- 
 ploye was injured while repairing an engine which had 
 been used in interstate commerce, before the injury, and 
 likewise was used afterwards, but where there was noth- 
 ing to show that it was permanently or specially de- 
 voted to such commerce, or assigned to it at the time of 
 
 74. Barnett v. Coal & Coke Ry. Co., W. Va. , 94 S. E. 
 
 150.
 
 § 514 1 Train and SwiiciiiNG Crews. 891 
 
 the iiijuiy, tlic court held the injured employo was not 
 tluMi (Mi.i;a^('d in an act of interstate commerce, and the 
 case did not conic witliin tlic federal Employers' Lia- 
 ))ilitv Act. JJkewise, in Ciiica^o, etc., R. R. Co. v. Har- 
 lington, 241 U. S. 177, .% Sup. Ct. 517, 60 L. Ed. 941, 
 it was held" that an enii)h)ye of an interstate carrier, en- 
 ^a,i>,('d in removing coal from storag'e ti-acks to coal 
 chutes, was not engag-ed in interstate commerce, al- 
 thoug-h the coal had been previously hiou.nht from 
 another state and was to be used by locomotives in 
 interstate hauls. Apropos to this question, see, also 
 Delaware, etc., R. R. Co. v. Yurkonis, 238 U. S. 439, 35 
 Sup. Ct. 902, 59 L. Ed. 1397. The facts presented here 
 are much strong-er to show deceased w^as not engaged 
 in interstate commerce at the time of his injury than 
 they were in the case just cited. Numerous decisions 
 by ihe courts of the different states of the union, to the 
 same effect, could, be cited to support our conclusion on 
 this point, but we deem the foregoing from the highest 
 authority on matters relating to interstate commerce 
 sufficient." 
 
 § 513. Employes Making up Train of Another Com- 
 pany for an Interstate Run Over the Latter 's Track. A 
 switchman employed by one company is still engaged 
 in interstate commerce while assisting in moving cars 
 to be made up into a train altliougli the cars are not 
 owned by his immediate employer and were to be moved 
 over the tracks of another company; for when two rail- 
 roads use a common switch yard, in which tho employes 
 of one carrier forai a switching crew to make up inter- 
 state R-ains, they are under the protection of the federal 
 act even though they are not moving the cars of their 
 immediate eni]iloyer.'^ 
 
 § 514. Illustrative Cases Showing Employment of 
 Switching Crews in Interstate Commerce. .AicTubers of 
 switching crews were held to be engaged in interstate 
 
 75. Ruppell V. New York Cent. R. Co.. 171 N. Y. App. DIv. 832, 
 
 157 N. Y. Supp. 1095.
 
 892 Injuries to Interstate Employes. [§ 514 
 
 commerce under tlie following circumstances: A switcli- 
 man employed in moving a car containing interstate 
 traffic from a railroad yard to repair tracks for the pur- 
 pose of repairing some of the appliances thereon, was 
 within the federal act.'*^ A switchman, at the time of 
 his death, employed in switching cars loaded with 
 merchandise originating in one state and destined to a 
 point in another state, was held to be engaged in inter- 
 state commerce." A brakeman on an extra freight train 
 while "breaking np" his train at a terminal and assist- 
 ing in switching a car loaded with lumber consigned to 
 a point in another state, was engaged in interstate com- 
 merce.^® A switchman injured while riding on a car in 
 transit from Indianapolis, Ind., to East St. Louis, 111., 
 and which was being switched at the time to the ware- 
 house at the point of deliverj^ to be unloaded, was en- 
 gaged in interstate commerce. ^^ A petition in an action 
 nnder the federal act declared that the defendant was a 
 common carrier by railroad engaged in interstate com- 
 merce and had a freight yard in a town in Florida; that 
 the decedent was an employe of the defendant in said yard 
 as a switchman; that he was required, in the discharge 
 of his duties, in the movement of certain cars, to un- 
 couple the car attached to an engine; that the engine 
 was kept at the said point to switch and move intra- 
 state and interstate cars as the business required. It 
 was held hj a majority of the court that this declara- 
 tion sufficiently alleged that, at the time of the injury, 
 the decedent was engaged in interstate commerce, but, 
 under the later ruling of the federal Supreme Court in 
 the Behrens case,®° no doubt the decision of the court 
 in this case was too broad. For, if, at the time of the 
 injury, the decedent was assisting in the movement of 
 intrastate cars, only, his administrator would not have 
 a remedy under the federal act. An engineer on a 
 
 76. Geer v. St. Louis, S. F. & 78. Nashville, C. & St. L. R. Co. 
 
 T. Ry. Co., Tex. , 194 S. v. Banks, 156 Ky. 609, 161 S. W. 
 
 W. 939. 554. 
 
 77. Rich V. St. Louis & S. F. 79. Hall v. Vandalia R. Co., 169 
 R. Co., 166 Mo. App. 379, 148 S. 111. App. 12. 
 
 W. 1011. 80. Section 503, supra.
 
 <^ 514] Train and kSwitching Crews. 893 
 
 switch engine engaged in delivering ears containing 
 coal, which was to be used partly by locomotive engines 
 of the railroad company employed in liauling interstate 
 trains, was held to be engaged in intci'state commerce 
 by a state court ;''^ but, on writ of error to the federal 
 Supreme Couil, this decision was reversed on the 
 ground that the movement was intrastate and not inter- 
 state in character.*^ 
 
 81. Barlow v. Lehigh Valley R. 82. Lehigh Valley R. Co. v. Bar- 
 
 Co., 158 N. Y. App. Div. 768, 143 low, 244 U. S. 183, 61 L. Ed. 1070, 
 N. Y. Supp. 1053. 37 Sup. Ct. 515.
 
 Sec. 
 
 520. 
 
 Sec. 
 
 521. 
 
 Sec. 
 
 522. 
 
 Sec. 
 
 523. 
 
 Sec. 
 
 524. 
 
 Sec. 
 
 525. 
 
 CHAPTER XXVI 
 
 Interstate Stattts of Miscellaneous Employes. 
 
 Sec. 515 Employes Procuring Supplies and Materials to be Used on 
 
 Interstate Trains. 
 Sec. 516. Supplying and Moving Coal for Use of Engines Pulling In- 
 terstate Trains. 
 Sec. 517. Status of Employes Dumping Coal from Chutes into Tenders 
 
 of Interstate Engines. 
 Sec. 518. Loading and I^nloading Freight from Interstate Trains Con- 
 stitutes Work in Interstate Commerce. 
 Sec. 519. Status of Watchmen, Detectives and other Employes doing 
 Police Duties. 
 Yard Clerks Engaged in Interstate Commerce, When. 
 Servants of Railroad Companies Handling United States 
 
 Mail in Connection with Interstate Trains. 
 Agents of Express Companies. 
 Interstate Status of Express Messengers Employed Jointly 
 
 by Railroad and Express Companies. 
 Pullman Employes. 
 Miscellaneous Employes. 
 
 § 515. Employes Procuring Supplies and Materials 
 to be Used on Interstate Trains. Employes of a railroad 
 company engaged in placing upon, or procuring for, 
 interstate trains necessary supplies and materials are, 
 ordinarily, engaged in interstate commerce within tlie 
 federal act. For example, a porter on a passenger train, 
 wlien injured, was lifting cakes of ice for a water cooler 
 in a coach of a train. The passengers on the train, with 
 the exception of two travelling from one state to an- 
 other, were making intrastate trips. It was held, and 
 properly so, that the porter was employed in interstate 
 commerce.^ A brakeman injured by falling into a cinder 
 
 1. Freeman v. Powell, Tex. necessity, not only of the local, 
 
 Civ. App. , 144 S. W. 10.33, but of the interstate passengers; 
 
 wherein the court said: "Appel- and we, therefore, think that his 
 
 lee's employment had direct re- employment comes well within the 
 
 lation to the commerce, towit, the authorities on the subject that 
 
 two interstate passengers which we have been able to find." Cit- 
 
 the train in question transported. ing Zikos v. Oregon R. & Nav. Co., 
 
 The service performed directly 179 Fed. 893; Colasurdo v. Central 
 
 contributed to the comfort and R. R. of New Jersey 180 Fed. 832; 
 
 (894)
 
 <^ 515] Miscellaneous Employes. 895 
 
 pit while he was walking over a railroad yard looking 
 for a tool boy to get a tin cup for the caboose of an 
 interstate train on wITk-Ii he was a))()ut to leave a ter- 
 minal, was engaged in interstate eunnnerce." An em- 
 ploye engaged in dumping coal from a coal chute into 
 the tender of an engine which was then being prepared 
 for the purpose of taking a passenger train from Mis- 
 souri into Kansas, was engaged in interstate commerce/' 
 A railroad employe injured while loading tobacco into a 
 car which was to be transported into another state, was 
 held to have a remedy under the federal act/ A brake- 
 man carrying ice in a railroad yard to cool a hot box 
 of a car in an interstate train, was held to be engaged 
 in federal commerce.' An employe of a railroad com- 
 pany engaged in i)utting a barrel of oil on an interstate 
 train, was within the federal act.'' But a brakeman go- 
 ing from his caboose to the yard office to present a re- 
 quisition for sup])lies needed on the caboose whenever 
 it should be called into service for the next trip, was 
 not engaged in interstate conunerce when it did not ap- 
 pear that the train on its next trip would carry inter- 
 state traffic.'^ "He had completed his previous run," 
 said the court in the last case cited, "some hours before, 
 and anticipating that he would be again called into 
 service soon after noon on the 15th, but whether to 
 handle interstate or purely local freight he had no means 
 of knowing, as he had not been called for duty; his 
 train had not been made up, and his caboose was on a 
 siding in the yard awaiting assignment. The action 
 was brought under the Federal Employers' Liability 
 Act (35 Stat, at L. 65), and plaintiff assumed the bur- 
 
 Troxell v. Delaware, L. & W. R. 5. Illinois Cent. R. Co. v. Nel- 
 
 Co., 180 Fed. 871. son, 122 C. C. A. 258. 203 Fed. 956. 
 
 2. Baltimore & O. R. Co. v. e. Tonsellito v. New York Cent. 
 
 Whitacre, 124 Md. 411, 92 Atl. ^ ^ j^j^gj. j^ ^o.. 87 N. J. L. 651. 
 
 lOGO, aff'd^in 242 U. S. 169. 61 L. g^ ^^j g^^ ^^,^ .^ 244 U. S. 360. 
 
 Ed. 228, 37 Sup. Ct. 33. ^^ ^ ^^ ^^^^^ ^^ g^p ^^ ^^0, 
 
 3. Arnibruster v. Chicago, R. I 
 & P. R. Co., 166 Iowa 155, 147 N. 
 W. 337. 
 
 4. Illinois Cent. R. Co. v. Por- Co., 52 Mont. 578, 160 Pac. 654 
 ter, 125 C. C. A. 55, 207 Fed. 311. 
 
 14 N. C. C. A. 1072. 
 
 7. McBain v. Northern Pac. R.
 
 896 Injuries to Interstate Employes. [§ 515 
 
 den of pleading and proving- that at the time he. was in- 
 jured he was engaged in interstate commerce. The al- 
 legation of his complaint is sufficient, but does his. proof 
 sustain it? The record presents a federal question, and 
 the decisions of the United States Supreme Court upon 
 it are conclusive upon this court. Under a state of facts 
 substantially identical with the facts before us, that 
 court held that it is immaterial that the injured party 
 may have been engaged in interstate commerce immedi- 
 ately before he was injured, or that immediately after 
 completing his then present task he would again en- 
 gage in interstate commerce, and said: 'The true test 
 is the nature of the work being done at the time of the 
 injurv.' Illinois Cent. R. R. Co. v. Behrens, 233 U. S. 
 473, 34 Sup. Ct. 646, 58 L. Ed. 1051, Ann. Cas. 1914C, 
 163. Applying that test to the facts presented here, 
 and it is apparent at once that plaintiff has failed to 
 make out his case under the federal statute. The char- 
 acter of the supplies he sought furnishes no index to 
 his employment. The fuses, torpedoes, and waste were 
 necessary supplies for his caboose, whether it would be 
 employed in interstate or intrastate commerce, and at 
 the time of his injury it was impossible to determine 
 the character of his next assignment, for he had not then 
 been called to duty; the train to which his caboose would 
 be attached had not then been made up and the caboose 
 had not been assigned. Under the interpretation placed 
 upon this statute by the Supreme Court of the United 
 States, it is of no consequence that the work performed 
 by plaintiff had to do with interstate commerce to a 
 much greater extent than with purely local shipments. 
 The Congress doubtless had authority, under the com- 
 merce clause of the constitution, to impose upon a car- 
 rier engaged in both interstate and intrastate traffic 
 liability for an injury sustained by its employe in the 
 course of its general work, whether the 'particular serv- 
 ice being performed at the time of the injury, isolatedly 
 considered, was in interstate or intrastate commerce 
 (Behrens Case, above) ; but Congress did not see fit to 
 exercise its authority to that extent. The act in ques- 
 tion provides: 'that every common carrier by railroad
 
 § 51 G] Miscellaneous Employes. 897 
 
 while engaging in conmierce between any of the several 
 states * * * sliall be liable in damages to any per- 
 son suffering injury while he is employed by such car- 
 rier in such commerce,' etc. In further consideration 
 of this feature of tiie statute the court in the case above 
 said: Giving to the words 'suffering injury while ho is 
 em])loyed by such carrier in such commerce' their natur- 
 al meaning, as we think must be done, it is clear tiiat 
 Congress intended to confine its action to injuries oc- 
 curring when the particular service in whicli the em- 
 ploye is engaged is a part of interstate commerce.' At 
 the time he was injured, plaintiff was not engaged in 
 interstate commerce within the meaning of the federal 
 Employers' Liability Act as construed by the highest 
 court of the land." A brakeman engaged in filling the 
 lami)s and lanterns and sweeping the floor of the caboose 
 in preparation for an interstate run, is engaged in inter- 
 state commerce.* The work of an employe in supplying 
 the engines running from points in Michigan to points 
 in Ohio and vice versa, with sand and oil, constitutes 
 employment in interstate commerce.^ A member of a 
 switching crew, at the time he received an injury, was 
 on his way with the engine to a water tank to get water. 
 Just before the injury he had been engaged in switching 
 cars and making up trains containing interstate ship- 
 ments. It was necessary to obtain water for the engine 
 so as to be able to return to the work of switching both 
 interstate and intrastate cars. The movement of the 
 switch engine to i)rocure water for the handling of inter- 
 state traffic thereafter governed the status of plaintiff's 
 employment, and he was held to have a remedy under the 
 Federal Act.^'' 
 
 § 516. Supplying and Moving Coal for Use of En- 
 gines Pulling Interstate Trains. The status of employes 
 with reference to interstate or intrastate employment 
 in assisting in supplying or in moving coal between 
 
 8. Davis V. Chicago, R. I. & P. Jlicli. , 166 N. W. G67. 
 
 R. Co., 134 Minn. 49, 158 N. W. 9a. Macon, D. & S. R. Co. v. 
 
 911- Robinson, Ga. App. . 91 
 
 9. Guy V. Cincinnati, N. R. Co., S. E. 492. 
 
 1 Control Carrleis 57
 
 898 
 
 In.tubies to Interstate Employes. [§ 51G 
 
 points in one state for the use of engines pulling inter- 
 state traffic depends upon whether, at the time of an 
 injury, the work has such a direct or close connection 
 with interstate commerce as to constitute a part of it. 
 The law is well settled that if the work being done at 
 the time of an injury is not a part of interstate com- 
 merce, the remedy is controlled by the state statute; 
 but the uncertainty under our dual form of government 
 lies in determining at what stage or point of time, coal, 
 while being conveyed from the mine to the tender of an 
 interstate engine, passes from the control of the state 
 law to the federal so that the rights of an employe, 
 when injured, or his administrator in case of death, 
 may be ascertained. '° The national Supreme Court has 
 answered the question in a negative way. It held, for 
 
 10. Harrington v. Chicago B. & 
 Q. R. Co., (Mo. App.), 180 S. W. 
 443, in which Judge Trimble, in 
 a decision subsequently approved 
 by the Supreme Court of the Unit- 
 ed States, said: "As said in the 
 major opinion, it is not the in- 
 direct effect upon interstate com- 
 merce Uiat determines the ques- 
 tion, else there would be little 
 use of limiting the federal act to 
 those cases wherein the work was 
 directly connected with interstate 
 commerce. For, if the putting of 
 coal into the storehouse be deem- 
 ed interstate commerce, where is 
 the line of demarcation to be 
 placed? And when does the work 
 change from its ordinary character 
 into that of interstate commerce? 
 When does the coal become an 'in- 
 strumentality' of interstate com- 
 merce? At the mines? On the 
 way therefrom? In the store- 
 house? Or does that portion only 
 of such coal become an instrumen- 
 tality of interstate commerce 
 when it is separated, or is being 
 separated, from the general store 
 for the purpose of devoting it to 
 
 that commerce? It would seem 
 that the coal would not become an 
 instrumentality of such commerce 
 until that time, and therefore the 
 general work of putting coal into 
 defendant's general storehouse 
 should not be considered as an 
 engagement in interstate com- 
 merce. This does not require 
 that before anything can be con- 
 sidered an instrument of inter- 
 state commerce it must be used ex- 
 clusively in the prosecution there- 
 of. The coal in this case is some- 
 thing that caii be separated there- 
 from. It is not like a bridge or 
 the track in the roadbed, or a 
 roundhouse used in the repair of 
 both interstate and intrastate en- 
 gines. For these do not lose their 
 status as interstate instrumental- 
 ities when used in intrastate busi- 
 ness. Hence they cannot be sep- 
 arated therefrom and must there- 
 fore be regarded as indivisible 
 parts thereof. But, even as to 
 these, they are not considered as 
 instruments of interstate com- 
 merce until they have been de- 
 voted thereto."
 
 <§, 5U>] MiSCKLKVNEOUS EMPLOYES. 899 
 
 example, ilial an employe engaged in mining coal in a 
 colliery owned by a railroad company, which was to 
 be used on its locomotive engines in pulling interstate 
 trains, was not woiking in interstate commerce within 
 the meaning of the Act, for the reason that the fact the 
 coal w^as to be used in the future in the movement of 
 interstate traffic after it was mined, did not make the 
 actual work of mining the coal a part of interstate 
 commerce. ^^ And it also held that a switchman was not 
 employed in interstate commerce while he was engaged 
 in transferring a load of coal from storage tracks into 
 a coal chute in the same yard where the coal, when thus 
 placed, would thereafter be used by locomotive en- 
 gines pulling interstate trains, because the work of tak- 
 ing the coal to the chute did not have such a close or 
 direct relation to interstate commerce as to be, in a 
 practical sense, a part of it." Similarly, the Kansas 
 supreme court properly held that a fireman on an en- 
 gine, injured while assisting in the movement of cars 
 of coal belonging to his employer, from one point to 
 another in the same state, where the coal was to be 
 used later in firing engines pulling interstate trains, 
 was not under the protection of the federal act." An 
 employe w^orking in a coal chute assisting in elevating 
 coal, some of which would be used in filling the tenders 
 
 11. Delaware, L. & W. R. Co. v. overrules such cases as Barker v. 
 YuTkonis, 238 U. S. 439, 59 L. Ed. Kansas City, M. & 0. R. Co., 88 
 1397, 35 Sup. Ct. 902. Kan. 767, 129 Pac. 1151; Barlow v. 
 
 12. Chicago, B. & Q. R. Co. v. Lehigh Valley R. Co., 214 N. Y. 
 Harrington, 241 U. S. 177, 60 L. 116, 107 N. E. 814; Kamboris v. 
 Ed. 941, 36 Sup. Ct. 517, 11 N. C. Oregon-Washington R. & Nav. Co., 
 C. A. 992, in which the court said: 75 Ore. 358, 146 Pac. 1097; Mont- 
 "Manifestly, there was no such gomery v. Southern Pac. Co., 64 
 close or direct relation to inter- qj.^ ggy ^y l r. a. (N. S.) 1."^, 
 state transportation in the taking jg^ p^^' 5^,^. Horton v. Oregon- 
 of the coal to the coal chutes. This 
 was nothing more than the put- 
 ting of the coal supply in a con- 
 venient place from which it could 
 be taken as required for use." 13- Barker v. Kansas City. M. & 
 The decision of the Supreme Court O. R. Co., 94 Kan. 176, 146 Pac. 
 in the Harrington case, in effect, 358. 
 
 Washington R. & Nav. Co., 72 
 Wash. 503, 47 L. R. A. (N. S.) S, 
 130 Pac. 897.
 
 900 Injuries to Interstate Employes. [^ 516 
 
 of interstate engines, was not engaged in interstate com- 
 merce.^* 
 
 § 517. Status of Employes Dumping Coal from 
 Chutes into Tenders of Interstate Engines. But after 
 the coal is placed in the chute for the use of interstate 
 engines, it seems that the work thereafter of filling the 
 tenders of interstate engines with coal therefrom posses- 
 ses such a close and immediate connection with inter- 
 state commerce that the rights of an employe injured in 
 the course of such a duty would be governed by the fed- 
 eral and not the state law. Thus, a hostler engaged in 
 dumping coal from the chutes into the tender of an en- 
 gine which was then being prepared for the purpose of 
 taking a passenger train from a point in Missouri to a 
 point in Kansas, was found to be, under those circum- 
 stances, engaged in interstate commerce.'' "We reach 
 the conclusion," said the court in the last case cited, 
 "that the deceased was employed in interstate com- 
 merce at the time of receiving the injury. True, the 
 engine had not been attached to the train at the time, 
 but it was being prepared for that purpose, and it was 
 attached shortly thereafter and actually hauled freight 
 into another state. It is suggested that the engine 
 whose tender was being coaled was not shown to have 
 been assigned to haul the particular train, and that the 
 work may have been done generally, but we think any 
 such inference was obviated by proof of the actual use 
 made of it and the absence of evidence that engines 
 were being so prepared generally without reference to 
 when they were to be employed.""' The supreme court 
 
 14. Zavitovsky v. Chicago, M. & on writ of error to the national 
 St. P. R. Co., 161 WMs. 461, 154 N. Supreme Court on the ground that 
 W. 974. the decedent was, under the con- 
 
 15. Armbruster v. Chicago, R. I. tract with the railroad company, 
 & P. R. Co., 166 Iowa 155, 147 N. an independent contractor and not 
 W. 337. See Chicago, R. I. & P. an employe.— Chicago, R. I. & P. 
 R. Co. V. Bond, 47 Okla. 161, 148 R. Co. v. Bond, 240 U. S. 449, 60 
 Pac. 103, in which the court held L. Ed. 735, 36 Sup. Ct. 403, II 
 that a person dumping coal into N. C. C. A. 342. 
 
 interstate engines from chutes, 16. See North Carolina R. Co. 
 
 was engaged in interstate com- v. Zachary, 232 U. S. 248, 58 L. Ed. 
 merce, but this case was reversed 591, 34 Sup. Ct. 305, 9 N. C. C. A.
 
 '^ 519] Miscellaneous Employes. 901 
 
 of Alabama likewise held that an employe working in 
 and about a coal chute and while preparing the tipple 
 for the purpose of filling the tender of an engine pull- 
 ing an interstate train, was engaged in interstate com- 
 merce." A servant of a railroad company who, immedi- 
 ately before he was injured, had been assisting in coaling 
 a switch engine which handled interstate and intrastate 
 cars indiscriminately in a railroad yard, was not em- 
 ployed in interstate commerce.^** 
 
 § 518. Loading and Unloading Freight from Inter- 
 state Trains Constitutes Work in Interstate Commerce. 
 The federal act governs the liability of common carriers 
 for injuries to employes while engaged in loading or un- 
 loading freight from interstate trains. Thus, a brake- 
 man who was shown to have been unloading from a car 
 in a train, a barrel of oil shipped from another state 
 when he was injured, sufficiently sustained the burden 
 of proving that he was engaged in interstate com- 
 merce. ^^ A truckman in the employ of a railroad com- 
 pany was killed while loading into a box car freight 
 consigned to a point in another state. His administrator 
 was properly held to have brought a suit for his death 
 under the federal act.^° An employe struck by a pas- 
 senger train carrying interstate, passengers, baggage 
 and mail, was within the federal act when injured while 
 on his way to unload mail from the train. ^^ 
 
 § 519. Status of Watchmen. Detectives and other 
 Employes doing Police Duties. Employes of common 
 
 109, Ann. Cas. 1914C 159, in which preparation for an interstate run. 
 
 it was held that a fireman in- 17. Southern R. Co. v. Peters, 
 
 specting, oiling, firing and pre- 194 Ala. 94, 69 So. 611. 
 
 paring his engine for an inter- ^g. Giovio v. New York Cent 
 
 state trip, was, while so engaged, j^ ^.^^ j^g j^ ^ j^^^ ^j^ 230, 
 
 within the protection of the na- jgg ^^ ^ Sudd 10''6 
 
 tional statute; Chicago & N. W. R. ^^ '^^ ^ ^ ^^^^^^ ^ 
 
 Co. V. Bower, 241 U. S. 470, 60 L. 
 
 Ed. 1107, 36 Sup. Ct. 624, an ac- ^^^y«- 1^7 Ala. 367, 72 So. 641 
 
 tion under the Federal Employ- 20. Illinois Cent. R. Co. v. Por- 
 
 ers' Liability Act, in which it ap- ter, 125 C. C. A. 55. 207 Fed. 311. 
 
 peared that an engineer was in- 21. Lynch v. Boston & M. R. R., 
 
 Jnred while oiling his engine In 227 Mass. 123, IIG N. E. 401.
 
 902 Injuries to Interstate Employes. [^ 519 
 
 carriers by railroad porformiiig sncli duties as usually 
 fall upon " watchmen, detectives and police officers in 
 protecting and guarding the property of the carrier, are 
 not under the purview of the federal act unless they 
 are engaged in interstate transportation or in work 
 directly connected with or related to interstate com- 
 merce.' For example, an employe of the company as- 
 sisting a posse in searching for highwaymen who had 
 robbed a train containing interstate commerce, was not 
 engaged in interstate commerce." A detective employed 
 by a railroad company in its yards and killed by a train 
 was not employed in interstate commerce m the absence 
 of any evidence that he was then engaged in inspect- 
 ing cars containing interstate traffic or aiding some 
 other work directly connected with interstate com- 
 merce." On the otiier hand, a watchman who was in 
 charge of a dead engine in a train running from a point 
 in Afabama to a point in Georgia and who was injured 
 in transit, was held to have a remedy under the federal 
 act." A special officer employed by a common carrier 
 by railroad who was injured just after he had removed 
 trespassers from an interstate passenger train, was held 
 to be employed in interstate commerce.'' A watchman 
 
 22. Alabama Great Southern R. his further act in attempting to 
 
 Co V. Bonner, Ala. , 75 drive the men away was one not 
 
 gp' ggg ' connected with the first duty, and 
 
 23 Chicago, R. I- & P- R- Co. was of a local nature only, it ap- 
 
 V. Industrial ' Board of Illinois, pears that the act was a continu- 
 
 273 111 528, L. R. A. 1916F 540, ous one without a break or stop. 
 
 113 N E 80 '^^^ watchman caused the men 
 
 24. Atlantic Coast Line R. Co. who sought to trespass on the 
 
 V Jones, 9 Ala. App. 499, 63 So. interstate train to leave it and 
 
 ggg ' then, in the words of the finding 
 
 25 Smith v. Industrial Ace. made by the Commissioner, he 
 
 Commission of California, 26 Cal. was following them to drive them 
 
 App 560 147 Pac. 600, in which oif the company's property when 
 
 the court said: "Touching the he stumbled and his revolver fell 
 
 claim of petitioner that, whatever from the holster and was dis- 
 
 character his act may have had charged.' It would be to mark a 
 
 as being connected with the oper- very fine line of distinction to say 
 
 ation of an interstate train up to that from the moment the watch- 
 
 the moment that he had driven man and the intruders stepped 
 
 the intruders therefrom and had from the interstate train the acts 
 
 himself alighted on the ground, of the former changed from being
 
 '^ 520] Miscellaneous Employes. 903 
 
 employed at a point wlieie a public street crossed the 
 tracks of an interstate railroad and whose duties con- 
 sisted in closing the gates upon the approach of trains 
 so as to prevent access to the track by vehicles, was 
 held to he engaged in interstate commerce as it ap- 
 peared that the tracks were used indiscriminately in 
 both interstate and intrastate commerce.-" An engine 
 liostler who was employed at night in watching, coaling, 
 watering and keeping up steam in a switch engine in 
 a railroad yard, which was used during the day in switch- 
 ing interstate and intrastate cars, was not, while so en- 
 gaged, employed in interstate commerce for the reason 
 that the engine was not used in any kind of commerce 
 during the whole time that the employe was on duty.^^ 
 A crossing flagman is engaged in interstate commerce 
 while signalling interstate trains.-^ 
 
 § 520. Yard Clerks Engaged in Interstate Com- 
 merce, When. Yard clerks in the employ of common 
 carriers by railroad while examining and recording the 
 numbers and initials of cars, inspecting and making a 
 record of the seals on car doors, checking the cars with 
 the conductors ' lists or putting labels on the cars to guide 
 switching crews are employed in interstate commerce if 
 trains upon which they are so working have any cars 
 containing interstate commerce.-'-' In the case of St. 
 Louis, S. F. & T. R. Co. v. Scale, cited in the notes, the 
 
 in aid of interstate commerce and 28. "West v. Atlantic Coast Line 
 
 his further motions in pursuit of R. R., N. C. ., 93 S. E. 
 
 these same intruders became col- 479. 
 
 ored with conditions of a purely 29. Pecos & N. T. R. Co. v. 
 
 local employment. The federal Rosenbloom, 240 U. S. 439, 60 L. 
 
 courts have not indulged such Ed. 730, 36 Sup. Ct. 390; St. Louis, 
 
 close distinctions in applying the S. F. & T. R. Co. v. Seale, 229 U. 
 
 statutes."' S. 156, 57 L. Ed. 1129, 33 Sup. Ct. 
 
 26. Southern Pac. Co. v. In- 651, Ann. Cas. 1914C, 156, rev'g 
 
 dustrial Ace. Commission of Cal- Tex. Civ. App. , 3 N. C. 
 
 ifornia, 174 Cal. 8, 161 Pac. 1139. C. A. 800, 148 S. W. 1099, Pitts- 
 
 27. Hardy v. Atlanta & W. P. burgh, C, C. & St. L. R. Co. v. 
 
 R. Co., Ga. App. , 93 S. Farmers' Trust & Savings Co.. 183 
 
 E. 18. Ind. 287, 108 N. E. 108.
 
 9()4 Injuries to Interstate Employes. [^ 520 
 
 decedent was a yard clerk, and, at the time of his in- 
 jury and death, was on his way through a railroad yard 
 to one of the tracks to meet an incoming freight train 
 which had arrived from another state. He was going to 
 the train to take the numbers of the cars and other- 
 wise perform his duties in respect to them. While so 
 engaged he was struck by a switch engine, which, it was 
 claimed, was negligently operated by other employes. 
 The Supreme Court of the United States held that the 
 decedent was engaged in interstate commerce at the 
 time of his death, Mr. Justice Lamar, dissenting. Dis- 
 cussing the legal effects of the facts mentioned, the 
 court said: "In our opinion the evidence does not admit 
 of any other view than that the case made by it was 
 within the federal statute. The train from Oklahoma 
 was not only an interstate but was engaged in the move- 
 ment of interstate freight; and the duty which the de- 
 ceased was performing was connected with that move- 
 ment, not indirectly or remotely, but directly and im- 
 mediately. The interstate transportation was not ended 
 merely because that yard was a terminal for that train, 
 nor even if the cars were not going to points beyond. 
 Whether they were going further or were to stop at that 
 station, it still was necessary that the train be broken 
 up and the cars taken to the appropriate tracks for 
 making up outgoing trains, or for unloading or deliver- 
 ing freight, and this was as much a part of the inter- 
 state transportation as was the movement across the 
 state line." 
 
 § 521. Servants of Railroad Companies Handling 
 United States Mail in Connection with Interstate Trains. 
 
 The transportation of United States mail by common 
 carriers by railroad stands upon the same footing ag the 
 
 "Trains that came into the that day, Sunday, no local freights 
 
 yards consisted of cars passing were handled. This testimony 
 
 from one state to another, and, warranted the jury in 'finding that 
 
 according to plaintiff's testimony, plaintiff was engaged in interstate 
 
 he was walking through the yard commerce.'' Southern Ry. Co. v. 
 
 noting cars to be made up into Fisher, Ala. , 74 So. 580. 
 
 trains Oor through traffic. On
 
 § 521] MISCELL.ANEOUS EMPLOYES. 905 
 
 transportation of freiglit, baggage or otlier commodities. 
 The fact that the carriage is for the federal Govern- 
 ment does not differentiate the service from that ren- 
 dered for individuals. It is a part of the regular busi- 
 ness of railroads from which they derive a substantial 
 revenue. An assistant station agent, tiiercfore, on his 
 way from a depot to the mail car of an interstate train 
 for the purpose of taking United States mail from the 
 train to the station was engaged in interstate commerce 
 within the federal act.^° In another case, it appeared 
 that a call boy in the service of a railroad company was 
 killed while delivering United States mail from the de- 
 fendant's depot to one of its interstate trains. It was 
 contended on behalf of his beneficiaries that, inasmuch 
 as the carriage in regard to which the employer was en- 
 gaged, in so far as any service of deceased was con- 
 cerned, at the time he received his injury, was the car- 
 riage of United States mail, it was not and could not 
 be, in respect to such service, a common carrier engaged 
 in interstate commerce within the meaning of the fed- 
 eral act and that, therefore, the state compensation act 
 applied. But in rejecting this contention, the supreme 
 court of California said:^' '' Basing their claim upon 
 certain decisions to the effect that a railroad company 
 in carrying United States mail is not, with respect to 
 such service, acting as a 'common carrier,' with the 
 corresponding rights and liabilities of that relation, but 
 is, in that particular service, serving as an agency of 
 government (see Atchison, etc., Ry. Co. v. U. S., 225 
 U. S. 640, 32 Sup. Ct. 702, 5G L. Ed. 1236; Bankers' 
 Mutual Casualty Co. v. Minneapolis, etc., Ry. Co., 117 
 Fed. 434, 54 C.C. A. 608, 65 L. R. A. 397; Banking Co. 
 V. Lampley, 76 Ala. 357, 52 Am. Rep. 334; Boston Ins. 
 Co. V. Chicago, etc., Co., 118 Iowa, 423, 92 N. W. 88, 59 
 L. R. A. 796), it is urged by petitioner that the federal 
 Employers' Liability Act can have no application here. 
 It is urged by counsel that the act applies only to such 
 
 30. Lynch v. Boston & M. R. R., 31. Zenz v. Industrial Ace. Com- 
 
 227 Mass. 123, 116 N. E. 401. mission, Cal. , 168 Pac. 
 
 364.
 
 906 Injuries to Interstate Employes. [§ 521 
 
 service as is being performed by the railroad company 
 under such circumstances as make it a 'common car- 
 rier,' with all the resultant legal rights and obligations, 
 with relation to the person for whom the service is per- 
 formed. The language of the act is: 'That every com- 
 mon carrier by railroad while engaging in commerce be- 
 tween any of the several states or territories * * * 
 shall be liable in damages to any jjerson suffering in- 
 jury while he is employed by such carrier in such com- 
 merce, or, in case of the death of such employe, to his 
 or her personal representative,' etc. No one of the 
 cases cited by learned counsel for petitioner arose under 
 the federal Employers' Liability Act, and cannot be 
 taken aa authority upon its proper construction. The 
 first case cited (Atchison, etc., Ry. Co. v. U. S., supra) 
 had to do solely with the question, of the relation of the 
 carrier of mail to the government, its rights and liabili- 
 ties in regard thereto, and it was held that with rela- 
 tion to the government it was not 'acting as a com- 
 mon carrier, with corresponding rights and liabilities, 
 but as an agency of the government under contract with 
 the government. In the other cases the litigation in- 
 volved the question of the liability of the carrier to 
 senders and addressees of mail matter. It was held that 
 the carrier of mail was not, in respect to senders and 
 addressees of mail, 'a common carrier,' with correspond- 
 ing rights and liabilities, but, with regard to them, was 
 acting solely as a government agency. We think this 
 distinction, so important when we are considering the 
 question of the rights and obligations of the railroad 
 carrier with relation to the government, and the senders 
 and addressees of mail, is unimportant here. In enact- 
 ing the federal Employers' Liabilit}^ Act, Congress was 
 endeavoring to cover the whole field of the relations be- 
 tween carriers by railroad engaged in interstate com- 
 merce and their employes, w4th respect to their obliga- 
 tions to the employes, and the remedies of the latter for 
 any violation of those obligations. Whether in a par- 
 ticular case one primarily engaged in the business of a 
 common carrier is carrying particular goods in that capac- 
 ity rather than as a mere agent or under some other
 
 § 522] MiscETXANEOus Employes. 907 
 
 kind of contract is of iin])ortance only as relates to his 
 ol)ligations and lia))i lilies to those for whom he carries, 
 a matter having- no i-eal ])eitinency to the subject matter 
 of this legislation. To our minds, the expression 'com- 
 mon carrier by railroad' was used simply to designate 
 llic class of emi)l().\('r belonging to the act, and, as put 
 by counsel foi' r(>s])ondents, 'in the genei-ic definitive 
 sense' as including only common carriers 'l)y railroad' 
 as distinguished from common carriers by other means 
 of transportation. If the employer is primarily en- 
 gaged in tlio business of transi)orting passengers and 
 freight for hire by railroad as a common carrier, it 
 comes within the act, as to its railroad of course, pro- 
 vided always that it is. subject to the act only while en- 
 gaged in interstate commerce, and only on account of 
 injuries or death sutTered by an employe while he is em- 
 ployed by such carrier in such commerce. That the 
 Atchison, Topeka «& Santa Fe Railroad Company was 
 primarily a 'common carrier by railroad,' actually en- 
 gaged in its business as such at the time of the accident, 
 is not questioned. The remaining question is, then, 
 whether iji the matter of the transportation of its mail 
 it was engaged in interstate commerce, entirely re- 
 gardless of whether it transported such mail, so far 
 as its reUitions with the government are concerned, 
 as a common carrier or as an agency of the g'overn- 
 ment. We tliink there can be no serious question, in 
 view of the decisions, that the transportation of mail 
 between different states and territories is interstate 
 commerce." 
 
 § 522. Agents of Express Companies. Agents of 
 express comi)anies riding on passenger trains are not 
 employes of the railroad company within the meaning 
 of the federal act where they are paid and employed by 
 the express companies although they handle baggage of 
 passengers on the train. ^^ In another case it was de- 
 cided that an express messenger employed and paid by 
 
 32. Higgins v. Erie R. Co., 89 K. & T. R. Co. v. West, 38 Okla. 
 N. .T. L. C29, 99 Atl. 98; Mis.souri, 581. 134 Pac. G55.
 
 908 Injuries to Interstate Employes. [§ 522 
 
 an express company, while riding on a passenger train 
 of a railroad company and looking after the express 
 business of his employer was presumed to be a passen- 
 ger and not a servant of the railroad company although 
 he was killed while so employed through the negligence 
 of the railroad company's employes.'' It was held by the 
 court that, in the absence of any evidence that he was 
 employed by the railroad company, the evidence was 
 sufficient to show that the negligence of the defendant 
 caused his death. 
 
 § 523. Interstate Status of Express Messengers 
 Employed Jointly by Railroad and Express Companies. 
 
 But the federal act does include an express messenger 
 employed jointly by an express company and a common, 
 carrier by rail if he is injured while working for the 
 railroad company in interstate commerce. Thus, an ex- 
 press messenger in the employ of an express company 
 on a train running between "Washington and Montana 
 who was also employed by the railroad company to oper- 
 ate the electric plant of the train in the express car, 
 was within the domain of the federal act.'' On the other 
 hand, a station agent who was a joint employe of an ex- 
 press and a railroad company was not an employe of 
 the railroad company within, the meaning of the federal 
 act while he was removing an interstate express ship- 
 ment from a depot platform into the station.'' 
 
 § 524. Pullman Employes. Persons employed 
 jointly by a sleeping car company and a railroad com- 
 pany are within the protection of the federal act. A 
 Pullman .porter was employed on a sleeping car which 
 was owned jointly by the Pullman Company and a rail- 
 road company and the car was operated by them as an 
 association under a contract. It was held that the ad- 
 ministrator of his estate could recover under the nation- 
 
 33. Missouri, K. & T. R. Co. of R. Co., 90 Wash. 234, 155 Pac. 1063, 
 Texas v. Blalack, 105 Tex. 296, 157 Pac. 461. 
 147 S. W. 559. 35. Bogart v. New York Cent. 
 
 34 Wesseler v. Great Northern & H. River R. Co., 171 N. Y. App. 
 
 Div. 652, 157 N. Y. Supp. 420.
 
 <^ 525] Miscellaneous Employes. 909 
 
 al statute.'" On the other hand in another case the rail- 
 road company simply hauled cars of the Pullman Com- 
 pany under a contract and it was decided that a porter 
 on tlie sleeping car belonging to the Pullman Company 
 was not an employe of the raih'oad company within 
 the meaning of the federal statute." 
 
 § 525. Miscellaneous Employes. A gardner who 
 was employed by a common carrier by railroad of inter- 
 state commerce, in taking care of the depot premises 
 and buiTiing trash gathered in the yard, was not employ- 
 ed in interstate commerce."' In an action under the 
 federal act, a petition alleged that the defendant rail- 
 road company was a common carrier engaged in inter- 
 state commerce; that as a part of its interstate trans- 
 portation it owned and operated a telegraph line using 
 it for the purpose of directing the operation of trains; 
 that the plaintiff was employed by the company in re- 
 pairing this line and was injured while doing so. The 
 court held that the petition pleaded sufficient facts to 
 show that the plaintiff was engaged in interstate com- 
 merce.'' A watchman on a "dead" locomotive engine 
 being transported in an interstate train was held to 
 have been engaged in interstate commerce." A laborer 
 employed in carrying coal to heat the stoves in a car 
 repair shop of a common carrier by railroad where other 
 employes were engaged in repairing rolling stock used 
 interchangeably in transporting intrastate and interstate 
 commerce, was held to be within the protection of the 
 federal act;*^ but on writ of error to the federal Supreme 
 Court, this case was reversed in a memorandum opinion." 
 
 36. Oliver v. Northern Pac. Ry. 39. Deal v. Coal & Coke Ry. 
 Co. 196 Fed. 432. Co., 215 Fed. 285. 
 
 37. Martin v. New York, N. H. 40. Atlantic Coast Line R. Co. 
 & H R Co 241 Fed. 696; Robin- v. Jones, 9 Ala. 499, 63 So. 693. 
 son V Baltimore & O. R. Co., 40 41. Cousins v. Illinois Cent. R. 
 App Cas. (D. C.) 169, L. R. A. Co., 126 Minn. 172, 6 N. C. C. A. 
 1915D 510. 1S2, 148 N. W. 58. 
 
 38. Galveston, H. & S. A. Ry. 42. Illinois Cent. R. Co. v. 
 
 Co. V. Chojnacky, Tex. Civ. Cousins, 241 U. S. 641. 60 L. Ed. 
 
 App 163 S W. 1011. 1216, 36 Sup. Ct. 446 (mem. dec).
 
 910 Injuries to Interstate Employes. [^ 525 
 
 A carpenter building forms on the right of way of an 
 interstate railroad, into which concrete was to be poured 
 for the puii^ose of forming the retaining walls for the 
 roadbed was not engaged in interstate commerce be- 
 cause such work did not have a direct and substan- 
 tial connection with interstate transportation.*' A line- 
 man engaged in wiping the insulators on a power line 
 transmitting alternating current of high voltage from 
 a main power house to the sub-station of an electric 
 interstate railroad, was held not to be within the federal 
 act for the reason that his connection with interstate 
 commerce was too remote/* 
 
 43. Dickinson v. Industrial J., and Melbin, J., dissenting. 
 Board of Illinois, 280 111. 342, 117 This case was pending in the fed- 
 N E. 438. eral Supreme Court on writ of 
 
 44. Southern P. Co. v. Indus- certiorari at the time of the pub- 
 trial Accident Commission, lication of this work. 
 
 Cal. , 171 Pac. 1071, Wilbur,
 
 CHAPTER .\XVII 
 
 Negligence Under Federal Act. 
 
 Sec. 526. 'J'he Statutory Provision. 
 
 Sec. 527. Two Brandies of Negligence Under First Section. 
 
 Sec. 528. Negligence Criterion of Liability of Carrier under National 
 Statute. 
 
 Sec. 529. Negligence need not be Proven when Violation of SaieLy 
 Appliance Act is Cause of Injury. 
 
 Sec. 5.30. Negligence of Human Agencies Not Limited to Fellow- 
 Servants as Construed under Common Law. 
 
 Sec. 531. Negligence of Common Carrier Need Not l.e Shown by Direct 
 or Positive Proof. 
 
 Sec. 532. Judicial Definition of Negligence. 
 
 Sec. 533. Carrier not Required to Furnish Latest, Best and Safest 
 Appliances for Interstate Employes. 
 
 Sec. 534. Custom or Practice of Other Railroads not Conclu.sive in 
 Determining Exercise of Ordinary Care. 
 
 Sec. 535. Decisions of National Courts Control in Determining Negli- 
 gence — Contrary Rulings. 
 
 Sec. 536. Conflicting Rulings Finally Eliminated by Controlling Deci- 
 sions of National Supreme Court. 
 
 Sec. 537. Negligent Act Must have been Committed while Employe 
 was Acting within Scope of Employment. 
 
 Sec. 538. Negligence Must be Proximate Cause of Injury. 
 
 Sec. 539. Meaning of the Phrase "In Whole or ia Part". 
 
 Sec. 540. State Statutes Creating Presumption of Negligence from 
 Injury Inapplicable to Interstate Employes. 
 
 Sec. 541. Mississippi "Prima Facie" Statute Held Applicable to Ac- 
 tions under Federal Act. 
 
 Sec. 542. Sufficiency of Evidence of Negligence to Submit Cause to 
 Jury not Governed by Decisions of State Courts. 
 
 Sec. 543. Effect of State Law Prohibiting Employment of Minors in 
 Determining Negligence. 
 
 Sec. 544. Applicability of Rule of Res Ipsa Loquitur to Actions under 
 Federal Act — Conflicting Rulings. 
 
 Sec. 545. Recovery Cannot be Defeated When Defendant's Negligence 
 is Part of Causation. 
 
 Sec. 546. Casualties Due to Sole Negligence of Employe, no Recovery 
 under Federal Act. 
 
 Sec. 547. Foregoing Principle Further Illustrated and Applied. 
 
 Sec. 548. Cases Under Federal Act in Which the Facts were Held to 
 Show Actionable Negligence. 
 
 Sec. 549. Cases Under Federal Act in Which the Facts were Held not 
 to Show Actionable Negligence. 
 
 (911)
 
 9^'2 Injuries to Inteestate Employes. [^ 526 
 
 Sec. 550. Statute Covers Acts of Intrastate Employes and Defects in 
 Instrumentalities Used Solely in Intrastate Commerce. 
 
 Sec. 551. Intrastate Employes Injured by Negligence of Interstate 
 Employes or Instrumentalities of Interstate Commeitce 
 have no Remedy under Federal Act. 
 
 Sec. 552. Willful Wrongs not Within Terms of the Act. 
 
 § 526. The Statutory Provision. .The first section 
 of the Federal Emphiyers' Liability Act provides that 
 every common carrier by rail wliile engaging in inter- 
 state commerce and while the servant injured or killed 
 is employed in such commerce is liable "for such injury 
 or death resulting in whole or in part from the negli- 
 gence 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, appliances, ma- 
 cinery, track, road-bed, works, boats, wharves, or other 
 equipments. ' ' 
 
 § 527. Two Branches of Negligence Under First 
 Section. The clause relating to negligence in the first 
 section of the federal act has two branches; one govern- 
 ing the negligence of any of the officers, agents or em- 
 ployes of the carrier, which abolishes the common law 
 fellow- servant doctrine; and the other relating to de- 
 fects and insufficiencies due to negligence in the rail- 
 road's rolling stock, machinery, track, road-bed, works, 
 boats, wharves or other equipment. These two clauses, 
 it has been held, cover any and all negligent acts of 
 which the carrier could have been guilty under the 
 common law.' "The language", said the court in the 
 case cited, "used is, 'any officers, agents, or employes,' 
 and this is broad enough to cover any negligence for 
 which a common carrier engaged in interstate commerce 
 can be responsible to its employes therein. It is true 
 that in the second class the language used is 'its negli- 
 gence.' But its negligence must be negligence also of 
 those officers, agents, and employes to whom it has in- 
 trusted the duty of looking after the condition of its 
 
 1. De Altey v. Chesapeake & O. Ry. Co., 201 Fed. 591.
 
 ^ 527] Negligence Under Fedekai. Act. 913 
 
 cars, etc. It can only act through ofTicors, agents, and 
 employes, and the failure to look after such condition 
 proi)erly is necessarily negligence on the part of officers, 
 agents, and employes to whom it has intrusted the duty 
 of looking thereafter. The two classes seem, therefore, 
 to overlap, but I do not think that one is justified in 
 limiting the language of the first class to prevent over- 
 lapping, which would be done by limiting the first class 
 to the negligence of servants for which the common 
 carrier is not liable at common law, leaving the second 
 class to cover the negligence of servants for whom it is 
 in such cases as it covers. By so doing there would be 
 eliminated from the act liability thereunder for certain 
 negligence on the part of servants for whom the carrier 
 is liable at common law, to wit, negligence on the part 
 of servants who are not fellow servants, but which does 
 not relate to its 'cars, appliances, machinery, track, 
 roadbed, works, boats, wharves, or other equipment,' 
 as in the case here, where, according to the allegation 
 of the petition, there was negligence on the part of sucli 
 servants of defendant to whom it had intrusted its non- 
 delegable duty of adoi)ting and promulgating the proper 
 rules as to operation of its trains. It seems to me that 
 it was the intent and purpose of the act to cover every 
 .negligence for which a common carrier engaged in in- 
 terstate commerce might be liable to its employes m 
 such commerce. It is settled that it supersedes all other 
 common-law and statutory liability on the part of such 
 common carriers to such employes. If, then, the act 
 does not cover every negligence for which such common 
 carrier may be liable to such employes, there are cases 
 of negligence, and this, as to the negligence in not 
 adopting and promulgating the rule in question, is one 
 of them, in which there is no liability at all. But this 
 cannot have been the intention of Congress. It is diffi- 
 cult, however, to explain why it separated the cases of 
 liability into two classes, where the first class is broad 
 enough in terms to include the second class, and, indeed, 
 to cover every case of negligence for which the common 
 
 1 Control Carriers 58
 
 914 Injuetes to Intee^state Employes. [^ 527 
 
 carrier mig-ht be made liable, and no explanation thereof 
 occnrs to me. But the inability to find such explanation 
 does not justify one in limiting the first class to fellow 
 servants so as to get. two distinct classes, which do not 
 overlap each other, thereby eliminating from the act 
 certain cases of negligence for which there is liability at 
 common law. It is sufficient to say that the act in ex- 
 press terms covers the negligence of any of the officers, 
 agents, or employes of the common carrier, and the fail- 
 ure to adopt and promulgate a proper rule for the op- 
 eration of its train is negligence on the part of its 
 officers, agents, and employes to whom it has intrusted 
 the performance of such dut}^" 
 
 § 528. Negligence Criterion of Liability of Carrier 
 under National Statute. Except that it abolishes the 
 common law rule of non-liability for injuries to em- 
 ployes due to the negligence of fellow servants, the first 
 section of the Federal Employers' Liability Act which 
 defines when a carrier is liable, adopts the common law 
 rule of negligence as to the two branches of liability 
 mentioned therein." Negligence is the basis of all liabil- 
 
 2. United States. Nelson v. Indiana. Chicago & E. R. Co. 
 
 Southern Ry. Co., 246 U. S. 253, v. Webb, — Ind. App.— , 113 N. E. 
 
 62 L. Ed.—, 38 Sup^. Ct. 233; 748. 
 
 Chicago & N. W. R. Co. v. Bower, Kansas. Spinden v. Atchison, T. 
 
 241 U. S. 470. 60 L. Ed. 1107, 36 & S. P. R. Co., 95 Kan. 474, 148 
 
 Sup. Ct. 624; Southern R. Co. v. Pac. 747. 
 
 Gray, 241 U. S. 333, 60 L. Ed. Kentucky, Norfolk & W. R. Co. 
 
 1030. 36 Sup. Ct. 558; Pennsyl- v. Short's Adm'r, 171 Ky. 647, 188 
 
 vania R. Co. v. Glas, 152 C. C. A. S. W. 786. 
 
 244, 239 Fed. 255; Virginian R. Michigan. Gaines v. Grand 
 
 Co. V. Linkous, 148 C. C. A. 543, Trunk R. Co. of Canada, 193 Mich. 
 
 235 Fed. 49. 398, 159 N. W. 542. 
 
 Arkansas. St. Louis, I. M. & S. New Hampshire. Wilson v. 
 
 R. Co., V. Ingram, 124 Ark. 298, Grand Trunk Ry. Co.,— N. H.— , 
 
 187 S. W. 452. 97 Atl. 981. 
 
 Florida. Louisville & N. R. Co. New York. Oorico v. Smith, 97 
 
 V. Rhoda,— Fla.— , 74 So. 19. N. Y. Misc. 447, 161 N. Y. Supp. 
 
 Georgia. Ivey v. Louisville & 293. 
 
 N. R. Co., 18 Ga. App. 434, 89 S. North Carolina. Hinson v. At- 
 
 E. 629. lanta & C. Air Line R. Co., 172 N.
 
 ^ 528] . Negligence Under Federal Act. 
 
 915 
 
 ity under the act, and there ean be no recovery under 
 the statute in the absence of negligence on the part of 
 the raihoiu] company or some of its employes.^ Under 
 
 C. C46, 9U S. R. 772; Ren v. Sea 
 board Air Line R. Co., 170 N. C 
 128, 86 S. E. 964. 
 
 North Dakota. Manson 
 Northern R. Co., CI N. D. 
 N. W. 32. 
 
 Oklahoma. Palmer v. 
 Falls & N. W. Ry. Co., 
 — , 159 Pac. 1115. 
 
 South Carolina. Steele v. Atlan 
 tic Coast Line R. Co., 1U3 S. C 
 102. 87 S. E. 639. 
 
 Texas. Gulf, C. & S. F. Ry. Co 
 
 V. Great 
 643, 155 
 
 Wichita, 
 - Okla. 
 
 — Tex. Civ. App. — , 
 579. 
 
 Going's Adm'x v. Nor- 
 R. Co., 119 Va. 543, 89 
 
 V. Cooper, 
 191 S. W. 
 
 Virginia, 
 folk & W. 
 S. E. 914. 
 
 Washington. Martin v. Northern 
 P. Ry. Co., 87 Wash. 91, 151 Pac. 
 113. 
 
 West Virginia. Gulp v. Virgin- 
 ian R. Co., 77 W. Va. 125, 87 S. E. 
 187; Easter v. Virginian R. Ck)., 
 76 W. Va. 383, 11 N. C. C. A. 101, 
 86 S. E. 37. 
 
 "Nowhere in the act is any defi- 
 nition of negligence to be found. 
 Therefore the term must be taken 
 to mean such act of commission or 
 omission as would at common law 
 have been sufflcient to entitle the 
 case to be submitted to a jury." 
 Western Maryland R. Co. v. Ban- 
 ner, 130 Md. 581, 101 Atl. 587. 
 
 Negligence is an affirmative fact 
 which the plaintiff must establish 
 under the Federal Liability Act, 
 according to the principles of the 
 common law as applied in the fed- 
 eral courts. New Orleans & N. E. 
 
 R. Co. V. Harris. 240 U. S. , 
 
 62 L. Ed., , 38 Sup. Ct. 535, 
 
 decided June 3, 1918. 
 
 3. United States. Chicago & N. 
 'W. R. Co. V. Bower, 241 U. S. 470, 
 60 L. Ed. 1107, 36 Sup. Ct. G24; 
 Southern R. Co. v. Gray, 241 U. 
 S. 333, 60 L. Ed. 1030, 36 Sup. Ct. 
 558; Great Northern R. Co. v. 
 Wiles, 240 U. S. 444, 60 L. Ed. 732, 
 '36 Sup. Ct. 406; Illinois Cent. R. 
 Co. V. Skaggs, 240 U. S. 66, 60 L. 
 Ed. 528, 36 Sup. Ct. 249; Chicago 
 R. I. & P. R. Co. V. Wright, 239 
 U. S. 548, 60 L. Ed. 431, 36 Sup. 
 Ct. 185; Reese v./ Philadelphia & 
 R. R. Co., 239 U. S. 463, 60 L. Ed. 
 384, 36 Sup. Ct. 134, 10 N. C. C. A. 
 926; Texas & P. R. Co. v. Murphy, 
 238 U. S. 320, 59 L. Ed. 1329, 35 
 Sup. Ct. 779; Toledo, St. L. & 
 W. R. Co. V. Slavin, 236 U. S. 454, 
 59 L. Ed. 671, 35 Sup. Ct. 306; 
 Kansas City, C. & S. R. Co. v. Shoe- 
 maker, 157 C. C. A. 413, 245 Fed. 
 117; Cincinnati, N. O. & T. P. R. 
 Co. V. Hall, 155 C. C. A. 606, 243 
 Fed. 76; Pennsylvania R. Co. v. 
 Glas, 152 C. C. A. 244, 239 Fed. 
 256; Smith V. Pennsylvania R. Co., 
 151 C. C. A. 277, 239 Fed. 103, 15 
 N. C C. A. 371; Philadelphia & 
 R. R. Co. v. Marland. 152 C. C. A. 
 51, 239 Fed. 1, 15 N. C. C. A. 402; 
 Hughes v. Delaware, L. & W. R. 
 Co., 233 Fed. 118; Virginian R. 
 Co. v. Linkous, 144 C. C. A. 386, 
 230 Fed. 88. 
 
 Arkansas. St. Louis, I. M. & S. 
 R. Co. v. Steel, 129 Ark. 520, 15 
 N. C. C. A. 49, 197 S. W. 288; Lusk 
 v. Osborn, 127 Ark. 170, 191 S. W. 
 944; St. Louis I. M. & S. R. Co. v. 
 Howard, 124 Ark. 588, 188 S. W. 
 14; St. Louis, I. M. & S. R. Co. v. 
 Stewart, 124 Ark. 437, 187 S. W. 
 920; St. Louis, I. M. & S. R. Co.
 
 916 Injuries to Interstate Employes. . [§ 528 
 
 the act, the company is not a guarantor of the safety of 
 
 V. Ingram, 124 Ark. 298, 187 S. W. 
 452. 
 
 Florida. Louisville & N. R. Co. 
 V. Rhoda, — Fla. — , 74 So. 19. 
 
 Georgia. Southern Ry. Co. v. 
 Blackwell, — Ga. App. — , 93 S. E. 
 321; Louisville & N. R. Co. v. 
 Coatney, — Ga. App. — , 93 S. E. 
 228; Rush v. Southern Ry. Co., — 
 Ga. App. — , 91 S. E. 898; Lan- 
 drum V. Western & A. R. Co., 146 
 Ga. 88, 90 S. E. 710; Central of 
 Georgia R. Co. v. De Loach, 18 Ga. 
 App. 362, 89 S. E. 433; Alabama 
 Great Southern R. Co. v. Tidwell, 
 145 Ga. 190, 88 S. E. 939; Louis- 
 ville & N. u Co. V. Kemp, 140 Ga. 
 657, 79 S. E. 558. 
 
 Illinois. Devine v. Chicago, R. 
 I. & P. R. Co., 266 in. 248, Ann. 
 Cas. 1916B 481, 107 N. E. 595. 
 
 Indiana. Chicago & B. R. Co. v. 
 Mitchell, — Ind. App. — , 110 N. E. 
 78; Southern R. Co. v. Howerton, 
 182 Ind. 208, 105 N. E. 1025, 106 
 N. E. 369. 
 
 Kansas. Westling v. Atchison, 
 T. & S. F. Ry. Co., — Kan. — , 165 
 Pac. 669; Roebuck v. Atchison, T. 
 & S. F. R. Co., 99 Kan. 544, L. R. 
 A. 1917E 741, 162 Pac. 1153; Smith 
 v. St. Louis & S. F. R. Co., 95 
 Kan. 451, 148 Pac. 759; Land v. St. 
 Louis & S. F. R. Co., 95 Kan. 441, 
 148 Pac. 612; Martin v. Atchison, 
 T. & S. F. R. Co., 93 Kan. 681, 145 
 Pac. 849. 
 
 Kentucky. Louisville & N. R. 
 Co. v. Netherton, 175 Ky. 159, 193 
 S. W. 1035; Norfolk & W. R. Co. 
 V. Short's Adm'r, 171 Ky. 647, 188 
 S. W. 786; Sutton's Adm'r' v. 
 Louisville & N. R. Co., 168 Ky. 81, 
 181 S. W. 938; Kentucky & T. R. 
 Co. V. Minton, 167 Ky. 516, 180 S. 
 W. 831; Louisville & N. R. Co. v. 
 Henry, 167 Ky. 151, 180 S. W. 74; 
 
 Davis v. Chesapeake & O. R. Co., 
 166 Ky. 490, 179 S. W. 422; Cin- 
 cinnati N. O. & T. P .R. Co. V. Gold- 
 ston, 163 Ky. 42, 173 S. W. 161; 
 Cinclnati, N. 0. & T. P. R. Co. v. 
 Goldston, 156 Ky. 410, 161 S. W. 
 246; Long v. Southern R. in Ken- 
 tucky, 155 Ky. 286, 159 S. W. 779. 
 Louisiana. Anderson v. Texas & 
 P. R. Co., 139 La. 1104, 72 So. 751. 
 Maine. Norton v. Maine Cent. 
 R. Co., — Me. — , 100 Atl. 598. 
 
 Maryland. Western Maryland 
 R. Co. V. Sanner, 130 Md. 581, 101 
 Atl. 587; Baltimore & O. R. Co. v. 
 Branson, 128 Md. 678, 98 Atl. 225. 
 Massachusetts. Herlihy v. New 
 York, N. H. & H. R. Co., 227 Mass. 
 168 116 N. B. 546. 
 
 Michigan. Gaines v. Grand 
 Trunk R. Co. of Canada, 193 Mich. 
 398, 159 N. W. 542; Miller v. Mich- 
 igan Cent. R. Co., 185 Mich. 432, 
 152 N. W. 235; Walsh v. Lake 
 Shore & M. S. R. Co., 185 Mich. 
 '177, 151 N. W. 754; Richardson v. 
 Detroit & M. R. Co., 182 Mich, 
 206, 148 N. W. 397; Gaines v. 
 'Detroit, G. H. & M. R. Co., 181 
 'Mich. 376, 148 N. W. 397; Hol- 
 lingshead v. Detroit, G. H. & M. 
 R. Co., 181 Mich. 547, 148 N. W. 
 171. 
 
 Minnesota. Beecroft v. Great 
 Northern R. Co., 134 Minn. 86, 158 
 N. W. 800; Maijala v. Great 
 Northern R. Co., 133 Minn. 301, 
 158 N. W. 430; Hurley v. Illinois 
 Cent. R. Co., 133 Minn. 101, 157 
 N. W. 1005; La Mere v. Railway 
 Transfer Co., 125 Minn. 159, Ann. 
 Cas. 1915C 607, 145 N. W. 1068. 
 Mississippi. Hooks v. New Or- 
 leans & N. E. R. Co., Ill Miss. 
 743, 72 So. 147. ' 
 
 Missouri. Yoakum v. Lusk, — 
 Mo. App. — , 193 S. W. 635; Win-
 
 "^ 528] Negligence Under Fedekal, Act. 917 
 
 the place of work or of the machinery and appliances 
 
 slow V. Missouri, K. & T. Ry. Co. 
 (Mo. App.), 192 S. W. 121; Holtz- 
 claw V. Chicago, B. & Q. R. Co., — 
 Mo. App. — , 190 S. W. 91; Young 
 V. Lusk, 268 Mo. 025, 187 S. W. 
 849; Blankenbaker v. St. Louis & 
 S. F. R. Co. (Mo.), 187 S. W. 840; 
 Haines v. Chicago, R. I. & P. Ry. 
 193 Mo. App. 453, 185 S. W. 1187; 
 Fish V. Chicago, R. L & P. R. Co., 
 263 Mo. 106, 172 S. W. 340; Pan- 
 key V. Atchison, T. & S. F. R. Co., 
 180 Mo. App. 185, 6 N. C. C. A. 74, 
 168 S. W. 274. 
 
 New Hampshire. Castonia v. 
 Maine Cent. R. Co., — N. H. — , 
 100 Atl. 601; Topore v. Boston & 
 M. R. R. — N. H. — , 100 Atl. 153; 
 Wilson V. Grand Trunk Ry. Co., 
 — N. H. — , 97 Atl. 981; Caverhill 
 V. Boston & M. R. R., 77 N. H. 
 330, 91 Atl. 917. 
 
 New Jersey. Armbrecht v. Dela 
 ware, L. & W. R. Co., — N. J. L. 
 — , 101 Atl. 203; Grybowski v. 
 Erie R. Co., 88 N. J. L. 1, 95 Atl. 
 764. 
 
 New York. White v. Lehigh Val- 
 ley R. Co., 220 N. Y. 131, 115 N. E. 
 439; Swartwood v. Lehigh Valley 
 R. Co., 169 N. Y. App. Div. 759, 
 155 N. Y. Supp. 778; Gee v. Lehigh 
 Valley R. Co., 163 N. Y. App. Div. 
 274, 148 N. Y. Supp. 882; Collins 
 V. Pennsylvania R. Co., 163 N. Y. 
 App. Div. 452, 148 N. Y. Supp. 777. 
 
 Oklahoma. Palmer v. Wichita 
 Falls & N. W. Ry. Co., — Okla. — , 
 159 Pac. 1115; Chicago, R. L & P. 
 R. Co. V. Felder, — Okla. — , 155 
 Pac. 529. 
 
 Oregon. Emerson v. Portland, 
 E. & E. R. Co., 85 Ore. 229, 166 
 Pac. 946; Gekas v. Oregon-Wash- 
 ington R. & Nav. Co., 75 Ore. 243, 
 8 N. C. C. A. 386, 146 Pac. 970. 
 
 Pennsylvania. Haas v. Erie R. 
 Co., 254 Pa. 235, 98 Atl. 867; 
 Waina v. Pennsylvania Co., 251 
 Pa. 213, 96 Atl. 461; Hartman v. 
 Western Maryland R. Co., 246 Pa. 
 460, 92 Atl. 698. 
 
 South Carolina. .Mulligan v. At- 
 lantic Coast Line R. Co., 104 S. C. 
 173, 88 S. E. 445; Steele v. At- 
 lantic Coast Line R. Co., 103 S. C. 
 102, 87 S. E. 039. 
 
 Texas. Panhandle & S. F. Ry. 
 Co. V. Fitts, — Tex. Civ. App. — , 
 188 S. W. 528; Houston, E. & W. 
 T. Ry. Co. V. Samford, — Tex. 
 Civ. App. — , 181 S. W. 857. 
 
 Vermont. Sanderson v. Boston 
 & M. R. R., — Vt. — , 101 Atl. 40; 
 Robie V. Boston & M. R. R., — Vt. 
 — , 100 Atl. 925. 
 
 Virginia. Norfolk & W. R. Co. 
 V. Tucker's Adm'x, 120 Va.. 540, 
 91 S. E. 614; Going's Adm'x v. 
 Norfolk & W. R. Co., 119 Va. 543, 
 89 S. E. 914; Chespeake Western 
 Ry. V. Shiflett's Adm'x, 118 Va. 
 03, 86 S. E. 860. 
 
 Washington. Toler v. Northern 
 Pac. R. Co., 94 Wash. 360, 162 Pac. 
 538; Papoutsikis v. Spokane, P. & 
 S. R. Co., 89 Wash. 1, 153 Pac. 
 1053; Snyder v Great Northern R) 
 Co., 88 Wash. 49, 152 Pac. 703; 
 Hobbs V. Great Northern R. Co., 
 80 Wash. 678, L. R. A. 1915D 503, 
 142 Pac. 20. 
 
 West Virginia. Hull v. Virginia 
 R. Co., 78 W. Va. 25, 88 S. E. 
 1060; Gulp V. Virginia R. Co., 
 77W. Va. 125, 87 S. E. 187. 
 
 Wisconsin. MolzofE v. Chicago, 
 M. & St. P. R. Co., 162 Wis. 451, 
 11 N. C. C. A. 273, 156 N. W. 467. 
 
 There is no presumption of neg- 
 ligence against the defendant in 
 an action under the federal act.
 
 918 
 
 Injtjeies to Tnteestate Employes. [^ 528 
 
 furnished its employes.^ The extent of its duty to its 
 employes, 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 furnished 
 may be safe for the workmen/' To convict a defendant 
 
 Louisville & N. R. Co. v. Coatney, 
 supra. 
 
 An injury, coming within the 
 purview of the federal statute, 
 must result in whole or in part 
 from negligence. Chicago & E. 
 R. Co. V. Mitchell, supra. 
 
 In order to determine whether 
 there can be a recovery under the 
 federal act, it is first necessary 
 to ascertain whether there has 
 been actionable negligence on 
 the part of the carrier; for not 
 all cases of accident and injury 
 are included within the provi- 
 sions of the act, but only those 
 in which negligence is the cause 
 from which the injury results. 
 Western Maryland R. Co. v. Ban- 
 ner, supra. 
 
 "When this statute is invoked 
 as a basis of liability it must be 
 shown that the employei-* is a 
 common carrier by railroad en- 
 gaged in interstate commerce and 
 that the injury to the employe 
 came while he was employed by 
 the carrier in such commerce; 
 and of course negligence must be 
 proved. See Roberts' Injuries to 
 Interstate Employes, sec. 26, et 
 seq and cases cited." Hurley v. 
 Illinoise Cent. R. Co., supra. 
 
 It is not enough to show that 
 the defendant may have been guil- 
 ty of negligence. The evidence 
 must show that it was actually 
 guilty. Hull V. Virginian Ry. Co., 
 supra. 
 
 An employe ' 'vvhile walking 
 along a railroad track received 
 an Injury when a piece of a cross 
 
 tie slivered off under his weight 
 and his foot slipped between the 
 ties where the ballast was five or 
 six inches below the top of the 
 tie. It was held that the com- 
 pany was not negligent for the 
 reason that neither the condition 
 of the tie, nor the failure to bal- 
 last to the top of the tie, was a 
 defect of such a character as to 
 impair safety in operation. Nelson 
 V. Southern Ry. Co., 246 U. S. 253, 
 62 L. Ed. — , 38 Sup. Ct. 233. 
 
 Proof that the decedent, an en- 
 gineer, was killed in a collision 
 between the locomotive on which 
 he was riding and the caboose of 
 a standing train was not sufficient 
 to show negligence on the part of 
 the defendant. Lynch v. Dela- 
 ware & H. Co., App. Div. 
 
 , 170 N. Y. Supp. 412. 
 
 4. Kansas City Southern R. 
 Co. V. Livesay, 118 Ark. 304, 177 
 S. E. 875; Miller v. Michigan 
 Cent. R. Co., 185 Mich. 432, 152 
 N. W. 235; Hawkins v. St. Louis 
 & S. F. R. Co., 189 Mo. App. 201, 
 174 S. W. 129; Toler v. North- 
 ern Pac. R. Co., 94 Wash. 360, 162 
 Pac. 538. 
 
 5. United States. Chicago & N. 
 W. R. Co. V. Bower, 241 U. S. 470, 
 60 L. Ed. 1107, 36 Sup. Ct. 624; 
 Seaboard Air Line R. Co. v. Hor- 
 ton, 233 U. S. 492, 58 L. Ed. 1062, 
 34 Sup. Ct. 635, 8 N. C. C. A. 834; 
 Ann. Cas. 1915B 475, rev'g U2 N. 
 C. 424, 78 S. E. 494; Charnock v. 
 Texas & P. R. Co., 194 U. S. 432. 
 48 L. Ed. 1057, 24 Sup. Ct. 671; 
 Philadelphia & R. R. Co. v. Mar-
 
 § 528] 
 
 NHGI.KiKNCK I'MltKH FeDEKAL AcT. 
 
 910 
 
 railroad company of negligence under llie section, as to 
 defects, i)laintif"f must i)rove the existence of the defect 
 comi)lained of; that it was a defect of such a character 
 as to cause its existence to be a negligent failure on the 
 part of the defendant; and tliat it was the proximate 
 cause of tlie injury.'' In the PTorton case, cited supra, 
 which is the leading case construing the first section of 
 the federal Act, defining when a can-ier by railroad is 
 liable, the i)laintiff brought suit under tlie federal act 
 in a state court in North Carolina. The statute of 
 North Carolina ]>i()\ided that "any servant or employe 
 of any railroad company operating in this state who 
 shall suffer injury to his person, or the personal repre- 
 sentative of any such servant or employe who shall 
 liave siiffered death in the course of his services or em- 
 ])loyment with such company by tlie negligence, care- 
 lessness or incompetence of any other servant, employe 
 or agent of the company, or by any defect in the ma- 
 chinery, wa^^s or appliances of the company, shall be en- 
 titled to maintain an action against such company." 
 Notwithstanding the fact that the plaintiff was suing 
 
 land, 152 C. C. A. 51, 239 Fed. 1, 15 
 N. C. C. A. 402; Coal & Coke Co. 
 V. Deal, 145 C. C. A. 490, 231 Fed. 
 604, citing Roberts, Injuries to In- 
 terstate Employes: 
 
 Arkansas. Kansas City South- 
 ern R. Co. V. Livesay, 118 Ark. 
 304, 177 S. W. 875. 
 
 Oklahoma. St. Smith & W. R. 
 
 Co. V. Holc'ombe, Okla. , 
 
 158 Pac. 633. 
 
 South Carolina. Mulligan v. At- 
 lantic Coast Line R. Co., 104 S. C. 
 173. 88 S. E. 445; Thornton v. Sea- 
 board Air Line Ry.. 98 S. C. 348. 
 82 S. E. 433. 
 
 Washing'ton. Toler v. Northern 
 Pac. R. Co., 94 Wash. 360, 162 Pac. 
 538. 
 
 West Virginia. Hull v. Virginian 
 R. Co., 78 W. Va. 25. 88 S. E. 
 1060. 
 
 6. United States. Seaboard Air 
 Line Ry. v. Moore, 228 U. S. 433. 
 57 L. Ed. 907, 33 Sup. Ct. 580, 3 
 N. C. C. A. 812. 
 
 Georgia. Charleston & W. C. R. 
 Co. V. Brown, 13 Ga. App. 744, 79 
 S. E. 932. 
 
 Idaho. Neil v. Idaho & W. N. R. 
 R.. 22 Idaho 74, 125 Pac. 331. 
 
 Iowa. McCoullough v. Chicago R. 
 I. & P. R. Co., 160 Iowa 524, 47 L. 
 R. A. (N. S.) 23. 142 N. W. 67. 
 
 Kentucky. Helm v. Cincinnati. 
 N. O. & T. P. R. Co., 156 Ky. 240, 
 160 S. W. 945; Long v. Southern 
 R. Co., in Kentucky, 155 Ky. 286, 
 159 S. W. 779: South Covington 
 & C. St. R. Co. V. Finan's Adm'x, 
 153 Ky. 340, 155 S. W. 742. 
 
 Minnesota. Owens v. Chicago, G. 
 W. R. Co., 113 Minn. 49. 128 N. 
 W. 1011.
 
 920 Injueies to Interstate Employes. [^ 528 
 
 solely under the national statute, tlie trial court in- 
 structed the jury on the theory that this statute govern- 
 ed in determining negligence under the federal act. 
 Upon the issue of defendant's negligence, the charge to 
 the juiy was in part as follows: ''It is the duty of the 
 defendant to provide a reasonably safe place for the 
 plaintiff to work, and to furnish him with reasonably 
 safe appliances with which to do his work." Another 
 instruction given was: "If you find from the evidence 
 that it (the locomotive engine) was turned over to him 
 without the guard, and if you further find from the evi- 
 dence that the guard was a proper safety provision for 
 the use of that guage, and that it was unsafe without it, 
 then the defendant did not furnish him a safe place and 
 a safe appliance to do his work, and if it remained in 
 that condition it was continuing negligence on the 
 part of the defendant, and if he was injured in con- 
 sequence thereof, if you so find by the greater weight 
 of the evidince, you should answer the first issue 
 'Yes.' " Condemning these instructions as being improper 
 under the federal act, Mr. Justice Pitney, for the court, 
 said: "And in various other forms the notion was 
 expressed that the duty of defendant was absolute with 
 respect to the safety of the place of work and of the ap- 
 pliances for the work. ... In these instructions 
 the trial judge evidently adopted the same measure of 
 responsibility respecting the character and safe con- 
 dition of the place of work, and the appliances for the do- 
 ing of the work, that is prescribed by the local statue. 
 But it is settled that since Congress, by the act of 1908, 
 took possession of the field of the employes' liability to 
 employes in interstate transportation by rail, all state 
 laws upon the subject are superseded. Second Em- 
 ployers' Liability Cases, 233 U. S. 1, 55. . . . It was 
 the intention of Congress to base the action upon negli- 
 o-ence only, and to exclude responsibility of the carrier 
 to its employes for defects and insuflficiences not( attribu- 
 table to negligence. The common law rule is that an 
 employer is not a guarantor of the safety of the place of 
 work or of the machinery and appliances of the work;
 
 ^ 529] Negligence Under Federal Act. 921 
 
 the extent of its duty to its employes is to see that 
 ordinary care and prudence are exercised, to tlie end 
 tliat the place in which the work is to be preforaied 
 and the tools and appliances of the work may be safe 
 for the workman. Hough v. Railroad Co., 100 U. S. 213, 
 217; AVashington & Georgetown Railroad Co. v. McDade, 
 135 U. 8. 554, 570; Choctaw, Oklahoma & Gulf R. R. Co. 
 V. McDade, 191 U. S. 64, G7. To hold that under tlie 
 statute the railroad company is liable for the injury or 
 death of an employe resulting from any defect or in- 
 sufhciency in its cars, engines, appliances, etc., however 
 caused, is to take from the act the words 'due to its 
 negligence.' The plain effect of these words is to con- 
 dition the liability upon negligence; and had there 
 been doubt before as to the common law rule, certainly 
 the Act now limits the responsibility of the company 
 as indicated. The instructions above quoted imposed up- 
 on the employer an absolute responsibility for the safe 
 condition of the appliances of the work, instead of 
 limiting the responsibility to the exercise of reasonable 
 care. In effect, the jury was instructed that the ab- 
 sence of the guard glass was conclusive evidence of 
 defendant's negligence. In this there was error." 
 
 § 529. Negligence need not be Proven when Viola- 
 tion of Safety Appliance Act is Cause of Injury. In all 
 actions under the Federal Employ its' Liability Act, 
 where the cause of injury or death is shown to have been 
 due to any violation of the several sections of the 
 Federal Safety Appliance Act, the plaintiff is not re- 
 quired to show negligence, for, as now construed by the 
 courts, the Safety Appliance Act imposes an absolute 
 duty ui)on the carrier to comply with the terms thereof 
 in the equipment of its cars, and if any failure to com- 
 ply with the law is the proximate cause of a death or in- 
 jury, the carrier is absolutely and unconditionally liable 
 without regard to the question whether the defect was 
 or was not due to negligence, or could have been dis-
 
 922 
 
 Injuries to Inteestate Employes. [§ 529 
 
 covered by reasonable diligence." In otlier words, the 
 carrier is liable if any violation of the Safety Appliance 
 
 7. United States. Spokane & T. 
 E. R. Co. V. Campbell, 241 U. S. 
 497, 60 L. Ed. 1125, 36 Sup. Ct. 683, 
 12 N. C. C. A. 1083; San An- 
 tonio & A. P. R. Co. V. Wagner, 
 241 U. S. 476, 60 L. Ed. 1110, 36 
 Sup. Ct. 626; Texas & P. R. Co. 
 V. Rigsby, 241 U. S. 33, 60 L. Ed. 
 874, 36 Sup. Ct. 482; Great North- 
 ern R. Co. V. Otos, 239 U. S. 349, 
 60 L. Ed. 322, 36 Sup. Ct. 124; 
 Atchison, T. & S. F. B. Co. v. 
 Swearingen, 239 U. S. 339, 60 L. 
 Ed. 317, 36 Sup. Ct. 121, 10 N. C. 
 C. A. 778; Grand Trunk West- 
 ern R. Co. V. Lindsay, 233 U. S. 
 42, 58 L. Ed. 838, 34 Sup. Ct. 581, 
 
 Ann. Cas. 1914C 168; Chicago R. 
 I. & P. R. Co. V. Brown, 229 U. 
 S. 317, 57 L. Ed. 1204, 33 Sup. 
 
 Ct. 840, 3 N. C. C. A. 826; Delk 
 V. St. Louis & S. F. R. Co., 220 
 U. S. 580, 55 L. Ed. 590, 31 Sup. 
 
 Ct. 617; Pennsylvania Co. v. 
 United States, 241 Fed. 824; Over- 
 street V. Norfolk & W. R. Co., 151 
 C. C. A. 501, 238 Fed. 565; St. 
 
 Louis Merchants' Bridge Terminal 
 
 R. Co. V. Schuerman, 150 C. C. 
 A. 203, 237 Fed. 1; Clark v. Erie 
 R. Co., 230 Fed. 478. 
 
 Florida. Atlantic Coast Line R. 
 
 Co., V. Whitney, 65 Fla. 72, 3 N. 
 
 C. C. A. 812, 61 So. 179. 
 Illinois. Wagner v. Chicago, R. 
 
 I. & P. R. Co.. 277 111. 114, 115 N. 
 
 E. 201. 
 Iowa. Stearns v. Chicago, R. L 
 
 & P. R. Co., 166 Iowa, 566, 148 N. 
 
 W. 128. 
 
 Kentucky. Nashville, C. & St. 
 
 L. Ry. v. Henry, 158 Ky. 88, 164 
 
 S. W. 310. 
 Louisiana. Lemee v. Texas & P. 
 
 R. Co., 141 La. 769, 75 So. 67G. 
 
 Minnesota. Davis v. Minneapolis 
 & St. L. R. Co., 134 Minn. 369, 
 159 N. W. 802: Cramer v. Chicago. 
 M. & St. P. R. Co., 134 Minn. 61, 
 158 N. W. 796; Hurley v. Illinois 
 Cent. R. Co., 133 Minn. 101, 157 
 N. W. 1005; McNaney v. Chicago, 
 R. I. & P. R. Co., 132 Minn. 391, 
 157 N. W. 650; Coleman v. Illi- 
 nois Cent. R. Co., 132 Minn. 22. 
 155 N. W. 763; Willett v. Illinois 
 Cent. R. Co. 122 Minn. 513, 4 N. 
 C. C. A. 479, 142 N. W. 883. 
 
 Missouri. Christy v. Wabash R. 
 Co., 195 Mo. App. 232, 191 S. W. 
 241; Moore v. St. Joseph & G. I. 
 R. Co., 268 Mo. 31, 186 S. W. 1035; 
 Noel V. Quincy, 0. & K. C. R. Co., 
 
 Mo. App. , 182 S. W. 
 
 787. 
 Montana. Armitage v. Chicago, 
 
 M. & St. P. Ry. Co., • Mont. 
 
 , 1G6 Pac. 301. 
 
 New Jersey. Parker v. Atlantic 
 City R. Co., 87 N. J. L. 148, 93 Atl. 
 574. 
 
 Pennsylvania. Whalley v. Phil 
 adelphia & R. R. Co., 248 Pa. 298, 
 93 Atl. 1016. 
 
 South Carolina. Steeley v. At- 
 lantic Coast Line R. Co., 103 S. C. 
 102, 87 S. E. 639. 
 
 South Dakota. Fletcher v. South 
 Dakota C. R. Co., 36 S. D. 401, 
 155 N. W. 3. 
 
 Virginia. Virginia R. Co. v. An- 
 drews' Adm'x, 118 Va. 482, 87 S. 
 E. 577. 
 
 Washington. Aldread v. North- 
 ern Pac. R. Co., 93 Wash. 209, 160 
 Pac. 429; Bjornsen v. Northern 
 Pac. R. Co., 84 Wash. 220 146 Pac. 
 575. 
 
 Wisconsin. Calhoun v. Great 
 Northern R. Co., 162 Wis. 264, 156 
 N. W. 198.
 
 <§> 529] Negligence Under fEUEHAL Act. 923 
 
 Act causes an iiijui-y even tliou^li tlie dofoct could liavo 
 boon ])reventod by any do,£ri*co of no<i:li^onco. IMio stat- 
 ute does away witb tlio coniiiioii law rule niakint,'' lial)il- 
 ity depend upon negligence, and makes tbe caii'K'r ab- 
 solutely liable for any injury resulting in tlic usf of a 
 car not e(pii)>ped as ])rovided by that act, or by the 
 oj-ders of tlic Interstate Commerce Commission made 
 ]>ui-suant to the autlionty therein delegated to that 
 body.** "It is ai'gued", said ^\y. Justice Pitney,^ "that in 
 actions based upon the Em])loyers' Liability Act the de- 
 fendant can not be held liable without evidence of 
 negligence, Reaboard Aii- Line v. Horton, 233 U. S. 492, 
 501, being cited. But in that case, as the opinion shows 
 (P. 507), there was no question of a violation of any 
 provision of the Safety Appliance Act; and in what was 
 said (P. 501) respecting the necessity of showing neg- 
 ligence, reference was had to causes of action indeiDend- 
 ent of that Act. The Employers' Liabilit^^ Act, as its 
 section 4 very clearly shows, recognizes that rights of 
 action may arise out of the violation of the Safety Ap- 
 pliance Act. As was stated in Tex. & Pac. Ey. v. Rigsby, 
 ante, pp. 33, 39, 'A disregard of the command of the 
 statute (Safety Ai)i)licance Act) is a wrongful act, and 
 where it results in damage to one of the class for whose 
 especial benefit the statute was enacted, the nglit to re- 
 cover the damages from the party in default is implied.' 
 
 "The act contains an absolute S. 559, 55 L. Ed. 582, 31 Sup. Ct. 
 
 command. It is not satisfied by 612; St. Louis, I. M. & S. R. Co. 
 
 the use of reasonable care to ecjuip v. Taylor, 210 U. S. 281, 52 L. Ed. 
 
 cars as it directs. The equipment 1061. 28 Sup. Ct. G16; Atlantic 
 
 must be in place and in an oper- Coast Line R. Co. v. United States, 
 
 ative condition if the car is used 94 C. C. A. 35, 168 Fed. 175; United 
 
 in interstate commerce." Moore v. States v. Atchison T. & S. F. 
 
 St. Joseph & G. I. R. Co., 268 Mo. R. Co., 90 C. C. A. 327 163 
 
 31, 186 S. W. 1035. Fed. 517; Brinkmeier v. Mis- 
 
 8. Chicago, R. L & P. R. Co. v. souri Pac. R. Co., 81 Kan. 101, 105 
 
 Brown, 229 U. S. 317, 57 L. Ed. Pac. 221; s. c, 224 U. S. 268, 56 
 
 1204, 33 Sup. Ct. 840, 3 N. C. C. L. Ed. 758, 32 Sup. Ct. 412. 
 A. 826, aff'g 107 C. C. A. 300, 185 9. San Antonio & A. P. R. Co. 
 
 Fed. 80: Chicago, B. Q. R. v. Wagner. 241 U. S. 476, 60 L. Ed. 
 
 Co. V. United States, 220 U. 1110. 36 Sup. Ct. 626.
 
 924 Injuries to Inteestate Employes. [^ 529 
 
 If this Act is violated, the question of negligence in the 
 general sense of want of care is immaterial. 241 U. S. 
 43, and cases there cited. But the two statutes are in 
 pari maieria, and where tlTe Employers' Liability Act 
 refers to 'any defect or insufficiency, due to its negli- 
 gence, in its cars, engines, appliances, etc., it clearly is 
 tlie legislative intent to treat a violation of the Safety 
 Appliance Act as 'negligence' what is sometimes called 
 negligence per se." 
 
 § 530. Negligence of Human Agencies Not Limited 
 to Fellow Servants as Construed under Common Law. 
 Under the first section of the federal act a carrier by 
 railroad is liable for the negligence of any of its officers 
 or employes and the statute does not confine the negli- 
 gent acts of employes for which it is liable, to such ser- 
 vants as under the common law were construed to be 
 fellow servants of the injured employe." In the case of 
 DeAtley v. Chesapeake & 0. Ry. Co., cited in the notes, 
 a brakeman on a train carrying interstate shipments, 
 was ordered to leave the train at a certain signal tower 
 to get the train orders for the movement of the train 
 and while returning with the orders he attemped in the 
 usual and customary way to get on the train while it was 
 moving, but missed his footing, fell and was injured. 
 In his ]3etition under the federal act he alleged, among 
 other things, that the defendant was negligent in failing 
 to adopt rules requiring all trains to be stopped so that 
 brakemen would not be compelled to get on them while 
 in motion. It was contended by the railroad company 
 that this failure to adopt such a rule was not such a 
 negligent act as was covered by the Employers' Liability 
 Act for the reason that it was not the negligent act of a 
 fellow servant; but the court held that the words in the 
 statute "officers, agents and employes" were not limited 
 to fellow servants as construed under the common law 
 doctrines, but included any and all agents or officers of 
 
 10. De Alley v. Chesapeake & O. Ry. Co., 201 Fed. 591.
 
 ^ 531] NiiciUciENCE Under Federal Act. 925 
 
 the company whose duly it was to adopt and promulgate 
 rules governing the operation of trains. The court said: 
 ''It (defendant) can only act through officers, agents, 
 and employes, and tlie failui-e to look after such condi- 
 tion properly is necessarily negligence on the part of 
 officers, agents, and em])loyes to whom it lias intrusted 
 the duty of looking thereafter. The two classes seem, 
 therefore, to overlap, but I do not think that one is 
 justified in limiting the language of the first class to pre- 
 vent overla])ping, which would he done by limiting the 
 first class to the negligence of servants for which the 
 common canier is not liable at common law, leaving the 
 second class to cover the negligence of servants for 
 whom it is in such cases as it covers. ... It seems 
 to me that it was the intent and purpose of the act to 
 cover every negligence for which a common carrier en- 
 gaged interstate commerce might be liable to its em- 
 ployes in such commerce." 
 
 § 531. Negligence of Common Carrier Need Not 
 be Shown by Direct or Positive Proof. Direct or pos- 
 itive proof is not required to show that a negligent act 
 or defect was the cause of an injury to, or death of, an 
 employe engaged in interstate commerce. ^^ The manner 
 and circumstances of the occurrence, and all the ac- 
 companying surroundings, as proven, may be examined 
 in order to ascertain and determine whether or not an 
 inference that a negligent defect caused the death, was 
 a reasonable one.^^ If the facts and circumstances are 
 as consistent with the defendant's theory as with the 
 plaintiff's theory no case is made for the jury; for, when 
 the cause of an accident is left to conjecture, or may as 
 
 11. Louisville & N. R. Co. v. y. Atlantic Coast Line R. Co., 104 
 
 Allen-s AdmT, 174 Ky. 736, 192 S. g ^ ^^g^ 33 g ^ ^^, 
 
 W. 863; Swartwood v. Lehigh /-. p <-> r> r. 
 
 Valley R. Co., 169 N. Y. App. Div. '^ C^^°^^"^' ^- * ^^ «• ^^^ ^'• 
 
 759. 155 N. Y. Supp. 778; Steele ^troup, 152 C. C. A. 125, 239 Fed. 
 
 V. Atlantic Coast Line R. Co., 103 75; Strother v. Chicago, B. & Q. 
 
 S. C. 102, 87 S. E. 639; Mulligan R. Co. (Mo.), 188 S. W. 11^2.
 
 926 Injuries to Interstate Employes. [§ 531 
 
 reasonably be attributed to a condition for wliicli no 
 liability attaches, tbe i^laintiff is not entitled to re- 
 cover.^^^ But if the plaintiff shows facts and circum- 
 stances from which negligence of the defendant, and the 
 causation of the accident by negligence, may be reason- 
 ably and legitimately inferred, the cause should be sub- 
 mitted to the jpvy.'* 
 
 § 532. Judicial Definition of Negligence. The term 
 ''negligence" has been defined by tlie national Supreme 
 Court to be the failure to do what a reasonable and 
 l)rudent person would ordinarily have done under the 
 circumstances of the situation, or doing what such a per- 
 son under the existing circumstances would not have 
 done.'' The essence of the fault may lie in omission or 
 commission. The duty is di'?.tated and measured by tlie 
 exigencies of the situation. Negligence has always re- 
 
 13. United States. Smith v. Penn- 
 sylvania R. Co., 151 C. C. A. 277, 
 239 Fed. 103, 15 N. C C. A. 371, 
 
 Georgia. Landrum v. Western i' 
 A. R. Co., 146 Ga. 88, 90 S. E. 
 710; Louisville & N. R. Co. v. 
 Kemp, 140 Ga. 657, 79 S. E. 558. 
 
 Kentucky. Louisville & N. R. Co. 
 V. Holloway's Adm'r, 163 Ky. 125, 
 173 S. W. 343; Cincinnati, N. O 
 & T. P. R. Co. V. Goldston, 156 Ky. 
 410, 161 S. W. 246. 
 
 Maryland. Baltimore & O. R. 
 Co. V. Whitacre, 124 Md. 411, 92 
 Atl. 1060. 
 
 Micliigan. Miller v. Michigan 
 Cent. R. Co., 185 Mich. 432, 152 N 
 W. 235. 
 
 Minnesota. Thompson v. Min- 
 neapolis & St. L. R. Co., 13'^ Minn. 
 203, 158 N. W. 42. 
 
 North Dakota. M«nson v. Great 
 Northern K. Co., o. M. D. 641. 
 155 N. W. 32. 
 
 West Virginia. Hull v. Virginian 
 R. Co., 78 W. Va. 25, 88 S. E. 1060. 
 1060. 
 
 14. United States. Patton v. 
 Texas & P. Ry. Co., 179 U. S. 658, 
 
 45 L. Ed. 361, 21 Sup. Ct. 275. 
 
 Alabama. Western Ry. of Ala- 
 bama v. Mays 197 Ala. 367, 72 So. 
 641. 
 
 New York. V/hite v. Lehigh 
 Valley R. Co., 220 N. Y. 131, 115 
 N. E. 439. 
 
 South Carolina. Steele v. At- 
 lantic Coast Line R. Co., 103 S. 
 C. 102, 87 S. E. 639. 
 
 Washington. Donaldson v. Great 
 Northern R. Co., 89 Wash. 161, 154 
 Pac. 133. 
 
 West Virginia. Hull v. Virginian 
 R. Co.. 78 W. Va. 25, 88 S. E. 
 
 "Plaintiff must prove that the 
 death of his intestate came from 
 some act for the result of which 
 defendant is liable. It is not for 
 the defendant to show that it 
 came from some act for which it 
 is not responsible. The proof need 
 not be direct or positive. It must 
 leave the result more than con- 
 jectural." Hurley v. Illinois Cent. 
 R. Co.; 133 Minn. 101, 157 N. W. 
 1005. 
 
 15. Baltimore & P. R. Co. v. 
 Jones, 95 U. S. 439, 24 L. Ed. 506.
 
 •^ 534] Nkcijgence Uni>er Fedkral Act. 927 
 
 latioii to tilt' circuinstaiicos in \vl'"";li one is ])la(;('d, and 
 wliat an ordinarily i)nident man would do or omit in 
 such ('ij'CHiiislancos.^*' 
 
 § 533. Carrier not Required to Furnish Latest, 
 Best and Safest Appliances for Interstate Employes. 
 Under the rule adoplcd hy tlic I'niied Slates Suiueme 
 Coui't, the cari'ier's duty towards its interstate emi)loyes 
 is to exercise ordinary care to sui>ply machinery and ap- 
 ])liances reasonably safe and suitable for their use. The 
 emi)loyer is not required to furnish the latest, best and 
 safest appliances or to abandon standard appliances up- 
 on the discovery of later improvements if lliose in use 
 are i-easonably safe and suitable. ^^ 
 
 § 534. Custom or Practice of Other Railroad not 
 Conclusive in Determining Exercise of Ordinary Care. 
 The standard of duty under the Federal Act upon all 
 common carriers is ordinary care, that is, the care that a 
 person of ordinary prudence would use under the same 
 circumstances.^^ The custom or practice of other car- 
 riers jnsij be admissible as evidence to determine 
 whether ordinary care was exercised in a particular case; 
 l)ut evidence of that character is not conclusive, for the 
 ultimate and controllini^- test always is, not what has been 
 the practice of others in like situations, but did the de- 
 fendant in the case under investigation exercise such 
 care as a reasonably prudent person would ordinarily 
 have exercised in such a situation 'I The law does not 
 ])ei"mit whal ouii,lit to have been done to be determined 
 
 16. Charnock v. Texas & P. R. Co. v. Deal 145 C. C. A. 490, 231 
 Co., 194 U. S. 432, 48 L. Ed. 1U57, Fed. 604; Woodruff v. Yazoo & 
 24 Sup. Ct. 671. M. V. R. Co., 137 C. C. A. 567, 222 
 
 17. Chicago & N. W. R. Co. v. Fed. 29; Woodruff v. Yazoo & 
 Bower, 241 U. S. 470, 60 L. Ed. M. V. R. Co., 127 C. C. A. 411, 210 
 1107, 36 Sup. Ct. 624; Patton v. Fed. 849; LouisviUe & N. R. Co. v. 
 
 Texas & P. Ry. Co., 179 U. S. 658, Patrick, 167 Ky. 118. ISO S. W. 
 
 45 L. Ed. 361, 21 Sup. Ct. 275; 55. 
 
 Washington & G. R. Co. v. Mc- 18. Texas & P. R. Co. v. Behy- 
 
 Dade, 135 U. S. 554, 34 L. Ed. 235, mer, 189 U. S. 468, 47 L. Ed. 905, 
 
 10 Sup. Ct. 1044; Coal & Coke R. 23 Sup. Ct. 622.
 
 928 Injuries to Inteestate Employes. [§ 534 
 
 in the particular case by the practice of others; for the 
 degree of care exercised by them may not be due, reason- 
 able or proper, and, therefore, not ordinary care within 
 the meaning of the law/^ The law does not permit 
 reason and common sense to lose their sway because, 
 through ignorance, inattention or selfishness, an un- 
 reasonable practice prevails.-" In an action under the 
 Federal Employers' Liability Act for the death of an 
 engineer who was killed by the collapse of a bridge, the 
 trial court was requested to instruct the jury that if the 
 carrier had caused the bridge to be inspected a short 
 while before the collapse by experienced employes, and 
 that the inspection was such as was ordinarily and 
 customarily made of bridges of like character by other 
 well regulated railroads in the same state, and that such 
 inspection did not disclose the defects alleged in the com- 
 plaint, the carrier discharged its full dut3^ The action 
 of the trial court in refusing this instruction was sus- 
 tained by the Circuit Court of iVppeals.^^ The appellate 
 court held that while testimony as to inspections by 
 other railroads was admissible as evidence to be con- 
 sidered by the jury the refused instruction confused the 
 controlling standard of ordinary care with what is only 
 evidence of it. 
 
 § 535. Decisions of National Courts Control in De- 
 termining Negligence — Contrary Rulings. Before the 
 passage of the Federal Employers' Liability Act, state 
 courts as well as the federal courts had uniformly held, 
 that in construing and interpreting all federal statutes 
 the state courts were controlled by the decisions of the 
 national courts.^^ Adopting the same principle, in actions 
 
 19. Wabash Ry. Co. v. Mc- 20. Chicago Great Western R. 
 
 Daniels, 107 U. S. 454, 27 L. Ed. Co. v. McDonough, 88 C. C. A. 517, 
 
 605, 2 Sup. Ct. 932; Chicago, M. 
 & St. P. R. Co. V. Moore, 92 C. C. 
 A. 357, 166 Fed. 663, 23 L. R. A. 
 
 161 Fed. 657. 
 
 21. Midland Valley R. Co. v. 
 Bell, 155 C. C. A. 391, 242 Fed. 
 803. 
 
 (N. S.) 962; Rickerd v. Chicago, £2. lUinois. Gilmore v. Sapp, 
 
 St. P. M. & O. R. Co., 73 C. C. A. 100 111. 297; Elwell v. Hicks, 180 
 139, 141 Fed. 905. i HI. App. 554.
 
 •^ 535] Nj-:gLlIgence Under Feuehal Act. 
 
 929 
 
 prosecuted in tlie courts of one state for injuries occur- 
 ring in anotlier state the construction wliich tlie courts of 
 the latter state has placed upon common law jninciples 
 of negligence has uniformly been followed hy tlie courts 
 where the actions were prosecuted although dilTerent 
 from their own interpretation and construction of tlie 
 common law.-' Hut in dctcnniiiiiig when a canici- by 
 railroad is guilty of negligence under the federal act, 
 at least two courts carved out an exception to the 
 general law that the decisions of the national courts 
 control in construing the state statute.-^ In Louisville 
 & N. R. Co. V. Johnson, cited in the notes, the courts held 
 tiiat in determining negligence under the national stat- 
 ute, if the evidence is sufficient to support a verdict 
 under the state law, it is sufficient under the federal 
 statute. The language of the court in the opinion on 
 
 Indiana. First Nat. Bank of 
 Richmond v. Turner, 154 Irid. 456, 
 57 N. E. 110. 
 
 Missouri. Beekman Lumber Co 
 V. Acme Harvester Co., 215 Mo. 221 
 114 S. W. 1087; Haseltine v. Cent- 
 ral Nat. Bank, 155 Mo. 66, 56 S 
 W. 895. 
 
 Ohio. Board of Trustees v. Cup 
 pett, 52 Ohio St. 507, 40 N. E 
 792. 
 
 Texas. Pecos & N. T. R. Co. v 
 Cox, 105 Tex. 40, 143 S. W. 606; 
 Bank of Garrison v. Malley, 103 
 Tex. 562, 131 S. W. 1064. 
 
 Washington. Hall v. Hall. 41 
 Wash. 186, 111 Am. St. Rep. lOlG, 
 83 Pac. 108. 
 
 23. Georgia. White v. Seaboard 
 Air Line Ry., 14 Ga. App. 139, 80 
 S. E. 667. 
 
 Iowa. Brewster v. Chicago & N. 
 W. Ry. Co.. 114 Iowa 144. 89 Am. 
 St. Rep. 348, 86 N. W. 221. 
 
 Maryland. State ex rel. Allen 
 V. Pittsburgh & V. R. Co., 45 Md. 
 41. 
 
 Minnesota. Koecher v. Minne- 
 apolis, St. P. & S. S. M. R. Co., 
 122 .Minn. 458, 142 N. W. 874. 
 
 Mississippi. Pullman Palace car 
 Co. V. Lawrence, 74 Miss. 782, 22 
 So. 53. 
 
 Missouri. Chandler v. St. Louis 
 & S. F. R. Co., 127 Mo. App. 34, 
 106 S. W. 553; Root v. Kansas 
 City Southern R. Co.. 195 Mo. 348. 
 6 L. R. A. (N. S.) 212n, 92 S. W. 
 621. 
 
 Ohio. Alexander v. Pennsylvania 
 Co., 48 Ohio St. 623, 30 N. E. 69. 
 
 Texas. Western U. Tel. Co. v. 
 
 White, Tex. Civ. App. , 
 
 162 S. W. 905. 
 
 24. Louisville & N. R. Co. v. 
 Winkler, 162 Ky. 834, 9 N C. C. 
 A. 146, 173 S. W. 151; Louisville 
 & N. R. Co. V. Johnson's Adm'x, 
 161 Ky. 824, 171 S. W. 847; Helm 
 V. Cincinnati, N. O. & T. P. R. Co., 
 156 Ky. 240, 160 S. W. 945; Gray 
 V. Southern R. Co., 167 N. C. 433. 
 83 S. E. 849. 
 
 1 Coutrol Curriers 50
 
 930 Injuries to Interstate Employes. [^ 535 
 
 this point is as follows: ''In administering the Federal 
 Employers' Liability Act in our courts, we think the 
 practice and procedure followed in the trial of common- 
 law actions generally should be observed in the trial of 
 cases arising imder this act. C. & 0. R. Co. v. Kelly, 160 
 Ky. 296, 169 S. W. 736. In other words, except in so 
 far as the act itself modifies or changes rules of practice 
 and procedure or substantive law, cases arising under 
 the act should be heard and determined in the state 
 courts in the same manner as would like cases arising 
 under the law prevailing in this state. If the evidence 
 in a case heard and determined under this act would be 
 sufficient to take the case to the jury and support the 
 verdict if the suit had been brought under the state law, 
 it would be sufficient to take the case to the jury and 
 support the verdict if it was brought under the federal 
 act." It is true that the law of procedure of the state 
 where the action is pending governs in all actions under 
 the Federal Act ;^^ but as to "substantive law," re- 
 ferred to in this opinion, the decision is apparently in 
 conflict with prior rulings of the national Supreme 
 Court.-® In the McWhirter case, cited, it was specifically 
 held that the question whether a demurrer to the 
 evidence should have been sustained or overruled, was a 
 federal question to be determined in conformity with the 
 rulings of the United States Supreme Court. In the 
 Horton case, also cited in the notes, the trial court, on the 
 question of negligence, in instructing the juiy, for- 
 mulated the charge in conformity with the law of the 
 state. This was declared erroneous, the court saying: 
 ''In these instructions the trial judge* evidently adopted 
 the same measure of responsibility respecting the charac- 
 ter and safe condition of the place of work, and the ap- 
 pliances for the doing of the work, that is prescribed by 
 
 25. Section 427, supra. A. 834 L. R. A. 1915C. 1, Ann. 
 
 26. Seaboard Air Line R. Co. & S. R. Co. v. McWhirter, 229 
 V. Horton, 233 U. S. 492, 58 L. Ed. U. S. 265, 57 L. Ed. 1179, 33 Sup. 
 1062, 34 Sup. Ct. 635, 8 N. C. C. Ct. 858. 
 
 Gas. 1915B 475; St. Louis, I. M.
 
 § 535] NwjLKiENcE Under Fei>p:ral Act. 931 
 
 the local statute. ]^>iil it is settled that since Congress, 
 by the Act of IDOS, took jtossession of the field of the em- 
 ployers' liability to employes in interstate transportation 
 by rail, all state laws upon the subject are superseded." 
 In TIelm v. Cincinnati, N. O. & T. V. H. (\>., cited in the 
 notes, the court held that since tlic federal act did not 
 undertake to define neo^lio-ence, and in no way limited 
 the application of tlie common law rule on the subject, 
 and, since there was no federal common law, it was the 
 common law of the state where the accident occurred 
 to which the court must look in determining whether 
 the acts complained of amount to negligence. Tn 
 Hawkins v. St Louis & S. F. R. Co.," it was held that 
 since Congress, in passing the Federal Employers' Lia- 
 bility Act, used such terms as "negligence," "con- 
 tributoiy negligence" and "assumption of risk," and 
 did not undertake to define them, it therefore followed 
 that Congress intended for the statute, when called into 
 operation, to be applied according to the construction of 
 those common law terms by the various state courts. 
 If the doctrine announced in these last two cases had 
 been followed in the application of the federal act, then, 
 it would often result that an act would be negligent in 
 one state and not negligent in another state under the 
 same law, tliat is, the federal act. Such discrimination 
 would defeat one of the main objects of the national 
 statute — one unifomi rule of liability in all the states 
 where a carrier by railroad is engaged in interstate com- 
 merce to its servants while employed in such commerce. 
 It is true that prior to the enactment of the Federal 
 Employers' Liability Act, there was no federal common 
 law; but it has been held by the United States Supreme 
 Court in the Korton case, cited svpra. that Congress in 
 passing the Federal Em]>loyers' T^iabiHty Act, adopted 
 the rules and princi]^les of the common law in detennin- 
 ing when a carrier was negligent, under the first section 
 of the act, with the exception that the common law 
 fellow-servant doctrine was abolished. It would seem, 
 
 27. 180 Mo. App. 201, 174 S. W. 129.
 
 932 Injuries to Interstate Employes. [§ 535 
 
 therefore, that the decisions of the national courts in 
 constniing- the national statute should control in deter- 
 mining negligence under the act and in construing and in- 
 terpreting the common law principles concerning negli- 
 gence so that there may be one rule of liability under 
 this law, when applicable, in all state courts.^^ Cer- 
 tainly there must be some controlling authority in de- 
 temiining negligence under the act and if these questions 
 are left to be determined according to the admittedly 
 conflicting decisions of the courts of the several states, 
 whose rulings are paramount and exclusive in their own 
 jurisdiction, the question as to when a carrier is negli- 
 2-ent under the federal statute would become a matter of 
 the geography of the states and not of a one supreme 
 law applying uniformly within its exclusive domain. 
 Eecognizing the inapplicability of state laws in de- 
 termining negligence under the federal statute, the ken- 
 tucky Court of Appeals in another case, and also the 
 Georgia Court of Appeals held that a law, providing 
 that upon proof of an accident the presumption of 
 negligence arises, did not control in an action for 
 damages under the federal statute.^" 
 
 28. Florida. Louisville & N. R. application of the state rule, 
 
 Co. V. Rhoda, Fla. , 74 Judge Brown, in' the minority 
 
 So. 19. opinion, said: "In administering 
 
 Kansas. Roebuck v. Atchison, the Federal Liability Act, the 
 
 T. & S. P. R. Co., 99 Kan. 544, L. state courts are bound by the con- 
 
 R. A. 1917E 741, 162 Pac. 1153. struction and decisions of the 
 
 Minnesota. Maijala v. Great federal courts. Since Congress 
 
 Northern R. Co., 133 Minn. 301, has taken possession of the field 
 
 158 N. W. 430. of employers' liability to employes 
 
 Vermont. Robie v. Boston & M. in interstate transportation by 
 
 R. R., . Vt. , 100 Atl. rail, all state laws upon the sub- 
 
 925. ject are superseded. 8eaboard 
 
 29. Charleston & W. C. R. Co. Air Line Ry. Co. v. Horton, 233 
 V. Brown, 13 Ga. App. 744, 79 S. U. S. 492, 34 Sup. Ct. 635, 58 L. 
 E. 932; South Covington & C. Ed. 1062; Mondou v. Ry. Co., 223 
 St. R. Co. V. Finan's Adm'x, 153 U. S. 1, 32 Sup. Ct. 169, 56 L. 
 Ky. 340, 155 S. W. 742. Ed. 327 (1 N. C. C. A. 875), 38 
 
 In Gray v. Southern R. Co., L. R. A. (N. S.) 44. Not only 
 
 167 N. C. 433, 83 S. E. 849, which have state statutes been made in- 
 
 was reversed by the United applicable, but the common law 
 
 States Supreme Court because of as well, where a construction
 
 § 53G] Negogence Under Federal Act. 933 
 
 536. Conflicting- Rulings Finally Eliminated by 
 Controlling Decisions of National Supreme Court. Most 
 of llic (Icclsioiis discussed in llie rore^oiu^ jjaragrapli 
 were delivered before tlie national Supreme Court, in a 
 series of cases durin^^ the year 1915,'° held that when 
 Congress legislates and takes possession of a field within 
 its power over interstate commerce, not only state stat- 
 utes applying to the same subject are tliereby abrogated 
 and inoperative, but also the common law doctrines pro- 
 mulgated by state courts as well, where a construction 
 has been placed upon tlie common law liy ilie state 
 courts, differing from that of the national courts. In 
 other words, all federal laws relating to the subject 
 matter of interstate commerce must be construed in the 
 light of the decisions of the federal courts." In all 
 actions under the Employers' Liability Act, the applica- 
 ble principles of the common law, as interpreted and ap- 
 plied in the federal courts, control to the exclusion of 
 common law principles as applied and interpreted by 
 state courts, if in conflict with the decisions of the 
 national courts;'^ for, when Congress enacts a statute 
 
 has been placea upon it by the In proceedings brought under 
 
 state courts differing from that the Federal Employers' Liability 
 
 of the federal courts. South Gov- Act, rights and obligations depend 
 
 ington R. Co. v. Finan, 153 Ky. upon it and applicable principles 
 
 340, 155 S. W. 742; W. U. Tel. Co. of common law as interpreted and 
 
 V. Milling Co., 218 U. S. 406, 31 applied in federal courts. New 
 
 Sup. Ct. 59, 54 L. Ed. 1088, 36 Orleans and N. E. R. Co. v. Har- 
 
 L. R. A. (N. S.) 220, 21 Ann. Cas. "s, 246 U. S. , 62 L. Ed. , 
 
 815." 38 Sup. Ct. 535, decided June 3. 
 
 30 Southern R. Co. v. Gray. 1918. 
 
 241 U. S. 333, 60 L. Ed. 1030, 36 31 Central Vermont R. Co. v. 
 
 Sup. Ct. 558; Southern R. Co. v. White, 238 U. S. 507, 59 L. Ed. 
 
 Prescott, 240 U. S. 632, 60 L. Ed. 1433, 35 Sup. Ct. 865, 9 N. C. C. A. 
 
 836, 36 Sup. Ct. 469; Southern 265, Ann. Cas. 1916B 252. 
 
 Exp. Co. V. Byers, 240 U. S. 612, 32 Southern R. Co. v. Gray, 
 
 60 L. Ed. 825. 36 Sup. Ct. 410, L. 241 U. S. 333, 60 L. Ed. 1030, 36 
 
 R. A. 1917a 197. Central Vermont Sup. Ct. 558; Great Northern R. 
 
 R. Co. V. White, 238 U. S. 507. 59 Co. v. Wiles, 240 U. S. 444, 60 L. 
 
 L. Ed. 1433, 35 Sup. Ct. 865, 9 Ed. 732. 36 Sup. Ct. 406. 
 
 N. C. C. A. 265, Ann. Cas. 1916B "While the Federal Employers' 
 
 252. Liability Act does not define the
 
 934 
 
 Injuries to Inteestate Employes. [^ 536 
 
 applicable to any phase of transportation, it thereby in- 
 tends that the obligation of a carrier in respect to its 
 duties within the statute, shall be governed by uniform 
 rules in the place of the diverse requirements of state 
 decisions.^^ The question of the responsibility of the 
 carrier under such circumstances, is nevertheless federal 
 although it must be resolved by the application of gen- 
 eral principles of the common law. The principle is 
 further exemplified in actions under the Employers' Lia- 
 bility Act when the claim is made and denied that there 
 is no evidence tending to show liability. The ruling of 
 a state court on such a question, if excepted to, is re- 
 viewable in the United States Supreme Court because it 
 inherently involves the operation and effect of the federal 
 law.^* For example, in Southern R. Co. v. Gray, cited 
 supra, the Supreme court of North Carolina, following a 
 state rule, decided that there was sufficient evidence for 
 
 term 'negligence' of the carrier, 
 it has been determined that the 
 expression as used in the act is 
 the common law negligence of 
 master and servant as defined by 
 the federal courts, and that the 
 common law as interpreted and 
 applied in the federal courts de- 
 termines what constitutes negli- 
 gence; and, if a state court differs 
 with the federal courts as to what 
 will or will not constitute negli- 
 gence, the interpretation of the 
 federal courts necessarily con- 
 trols" Roebuck v. Atchison, T. 
 & S. F. R. Co 99 Kan. 544, L. R. 
 A. 1917E 741, 162 Pac. 1153. 
 
 "Rights and obligations under 
 the Federal Employers' Libility 
 Act depend upon that act and 
 applicable principles of common 
 law as interpreted and applied in 
 federal courts". Louisville & N. 
 
 R. Co. V. Rhoda, Fla. , 
 
 74 So. 19. 
 
 The rights and liabilities of 
 parties under federal statutes must 
 
 be determined in the light of ap- 
 plicable common law principles as 
 accepted and applied in federal 
 tribunals. Continental Paper Bag 
 Co. V. Maine Cent. R. Co., 115 Me. 
 449, 99 Atl. 259. 
 
 "We recognize the fact that it 
 is the common law as interpreted 
 and applied in the federal courts 
 that is to control". Robie v. 
 
 Boston & M. R. R., Vt. , 
 
 100 Atl. 925. 
 
 33. Southern R. Co. v. Prescott, 
 240 U. S. 632, 60 L. Ed. 836, 36 
 Sup. Ct. 469. 
 
 34 Great Northern R. Co. v. 
 Wiles, 240 U. S. 444, 60 L. Ed. 732, 
 36 Sup. Ct. 406; Seaboard Air 
 Line Ry. v. Padgett, 236 U. S. 668, 
 59 L. Ed. 777, 35 Sup. Ct. 481; 
 St. Louis, I. M. & S. Ry. Co. v 
 McWhirter, 229 U. S. 265. 57 L. Ed. 
 1179, 33 Sup. Ct. 858; St. Louis, 
 1. M. & S. R. Co. v. Taylor, 210 
 U. S. 281, 52 L. Ed. 1061, 28 Sup. 
 Ct. 616.
 
 935 
 
 the cause to Ix' suhiiiiitcd to the jury;" but on writ of 
 error, the jiatioual Suitreme Court lield tliat sucli action 
 was uiidei- the fcfh'ral ad, and tlic rights and obligations 
 de))end u])on fliat statute and the applicabh^ ))rinciples 
 of the common Uiw as interpreted and applied in the 
 federal court. Applying these principles, it found, upon 
 an examiiuition of the evidence, that there was not suffi- 
 cient testimony to show negligence under the most favor- 
 able view of the testimony to the plaintiff. "It would 
 seem," said Judge Trimble in an opinion which is in har- 
 mony with the foregoing cases,^" " that since the Employ- 
 er's Liability Act is a general law enacted by Congress 
 to regulate the responsibility of interstate common car- 
 riers by railroad to their employes engaged in carrying 
 on commerce between the States, the purpose of Congress 
 was to establish one general uniform law in that regard, 
 and that, therefore, not only the construction of that Act 
 by the Federal courts but the rules of decision adopted 
 therein in applying and enforcing the Act, should be 
 binding upon the State courts. It is so held in regard 
 to the liability of an interstate common carrier to an in- 
 terstate shipper for loss of goods created by the Inter- 
 state Commerce Act. . . . It is hard to see how a 
 State court, when called upon to apply and enforce a 
 Federal statute, can disregard the rules of decision in 
 regard thereto laid down by the Federal courts and 
 follow its, the State court's, own rules not in harmony 
 therewith. If it can, then the responsibility of an inter- 
 state carrier to its employees in interstate commerce will 
 vary according to the view the various States may take 
 of the common-law rule concerning assumption of risk. 
 But Congress sought to regulate this responsibility, and 
 having acted in the matter, it established a policy for 
 all, and the liability as determined by the several States 
 is superseded by this one general supreme law. . . . 
 It does not seem that, in a suit imder a general Federal 
 
 35.' Gray v. Southern R. Co., 167 36. Cross v. Chicago. B. & Q. R. 
 N. C. 433, 83 S. E. 849. Co.. 191 Mo. App. 202. 177 S. W. 
 
 1127.
 
 936 IxjuEiEs TO Interstate Employes. [§ 536 
 
 law intended as a uniform regulation affecting carriers 
 and its employees engaged in interstate commerce, a 
 State court will be allowed to apply its own particular 
 rule which is not in harmony with the Federal rule. 
 Especially does this appear to be so when a writ of 
 error can be taken to tlie Federal court of last resort 
 whose duty it will be to apply and enforce a general 
 Federal law having to do with such an exclusively 
 Federal subject as interstate commerce. It is not ap- 
 prehended that, in such case, the United States Supremo 
 Court will abandon its rule as to assumption of risk and 
 apply the state rules"." 
 
 § 537. Negligent Act Must have been Committed 
 while Employe was Acting within Scope of Employment. 
 A carrier is not liable for every act of negligence caus- 
 ing injury to one employe by another. The negligent 
 act causing the injury must have been committed while 
 the employe at fault w^as in the prosecution of the 
 carrier's business; for, when an employe voluntarily and 
 without necessity growing out of his work abandons the 
 employment and steps entirely aside from the line of his 
 duty, he suspends the relation of employer and em- 
 ploye.^® When the negligent act which causes an in- 
 
 37. See also St. Louis, I. M. & ment and steps entirely aside from 
 S. R. Co. V. Steel, 129 Ark. 520, the line of his duty, he suspends 
 15 N. C. C. A. 49, 197 S. W. 288. the relation of employer and em- 
 
 38. Spokane & I. E. R. Co. v. employee and puts, himself in the 
 Campbell, 241 U. S. 497, 60 L. Ed. attitude of a stranger or a licensee 
 1125, 36 Sup. Ct. 683, 12 N. C. C. The cases cited are those where 
 A. 1083, in which the court said: an employee intentionally has 
 "It is most earnestly insisted that gone outside of the scope of his 
 the findings establish that Camp- employment or departed from the 
 bell was not in the course of his place of duty. The present case is 
 employment when he was injured, not of that character; for Camp- 
 and consequently that judgment bell, as the jury might and pre- 
 could not properly be entered in sumably did find, had no thought 
 his favor upon the cause of action of stepping aside from the line of 
 established by the general verdict. his duty. From the fact that he 
 This invokes the d'octrine that disregarded and in effect violated 
 where an employee voluntarily the order as actually communicat- 
 and without necessity growing out ed to him it of course does not 
 of his work abandons the employ- necessarily follow that he did
 
 ^ 5o7] Nf/jlt'knce Undkr Federal Act. 
 
 937 
 
 jury to or tlio dcatli of an employe had no relation what- 
 ever to tlie eiiii)l()yni('nt, the carrier is not liable, for the 
 employe at fault must have been, when committing the 
 act, within the scope of his employment."'-' And if an em- 
 
 tliis willfully. The jury was not 
 bound to presume — it would hard- 
 ly be reasonble to presume — that 
 he deliberately and intentionally 
 ran his train out upon a single 
 track on which he knew an in- 
 coming train with superior rights 
 was then due. However plain his 
 mistake, the jury reasonbly might 
 find it to be no more than a 
 mistake attributable to mental ab- 
 erration, or in attention, or failure 
 for some other reason to ap- 
 prehend or comprehend the order 
 communicated to him. In its legal 
 effect this was nothing more than 
 negligence on his part, and not a 
 departure from the course of his 
 employment. To hold otherwise 
 would have startling consequen- 
 ces. The running of trains on tele- 
 graphic orders is an everyday oc- 
 currence on every railroad in the 
 country. Thousands of cases oc- 
 cur every day and every night 
 where a failure by conductor or 
 engineer to comprehend or to re 
 member the message of the train 
 dispatcher may endanger the lives 
 of employees and passengers. We 
 are not aware that in any case it 
 has been seriously contended that 
 because an engineer violated the 
 orders he went outside of the scope 
 of the employment. If he did so, 
 in the sense of absolving the em- 
 ployer from the duty of exercising 
 care for his safety, it is not easy 
 to see upon what principle the em- 
 ployer's liability to passengers or 
 to fellow employees for the con- 
 sequences of his negligence could 
 be maintained. The unsoundness 
 
 of the contention is so apparent 
 that further discus.sion is unneces- 
 sary." 
 
 39. Florida. Seaboard Air 
 
 Line Ry. Co. v. Hess, Fla. 
 
 74 So. 500. 
 
 Kansas. Martin v. Atchinson, 
 T. & S. F. R. Co., 93 Kan. 681, 14.5 
 Pac. 849. 
 
 Kentucky. Cincinnati, N. 0. & 
 T. P. R. Co. V. Wilson's Adm'r, 
 IGl Ky. 640, 171 S. W. 430. 
 
 Minnesota. Rief v. Great North, 
 ern R. Co.. 126 Minn. 430, 148 N. 
 W. 309. 
 
 Montana. Moyse v. Northern 
 Pac. R. Co., 41 Mont. 272, 108 Pac. 
 1062. 
 
 Oklahoma. Missouri, K. &. T. Ry. 
 Co. V. West, 38 Okla.'581, 134 Pac. 
 655. 
 
 Washington. Vanordstrand v. 
 Northern Pac. R. Co., 86 Wash. 
 655. 151 Pac. 89; Reeve v. North- 
 ern Pac. R. Co., 82 Wash. 268, N. C. 
 C. A. 167, 144 Pac. 63, Hobbs v. 
 Great Northern R. Co.. 80 Wash. 
 678. L. R. A. 1915D 503, 142 Pac. 
 20. 
 
 "The employe, to come within 
 the provisions of either the state 
 law or the federal act must receive 
 his injuries while in the course of 
 his employment. If he voluntari- 
 ly undertakes the performance of 
 a duty for which ne w-as not em- 
 ployed, he acts at his own peril 
 and does not come within the 
 terms of the act. * * * Counsel 
 for appellee insists, however, that 
 these well settled rules have been 
 changed by the Federal Employ- 
 er's Liability Act. and that all
 
 938 
 
 Injuries to Interstate Employes. [^ 537 
 
 ploye is injured or killed at a time and place and from 
 a cause disconnected with his employment for the 
 
 that is necesary to be shown to 
 recover under that act is that 
 an employe was injured while 
 engaged in interstate commerce, 
 no matter whether in the course 
 of his employment or not. The 
 cases cited by him do not, as 
 we read them, so hold". Byram 
 V. Illinois Cent. R. Co., 172 Iowa 
 631, 154 N. W. 1006. 
 
 "It is a common thing in these 
 days for statutes to be enacted 
 abrogating some of the common* 
 law defenses of the master to 
 actions by an employe for injuries 
 sustained in his employment; 
 and very frequently statutes, such 
 as mining acts and factory acts, 
 compensation acts, and employers' 
 liability acts, impose upon the 
 employer duties and liabilities 
 whch were unknown to the com- 
 mon law. Except where some 
 such statutory provision governs, 
 we are aware of no rule of law 
 adopted by the courts, which goes 
 to the extent of holding the 
 master liable for the willful and 
 criminal assault by one employe 
 upon another, where the assault 
 was not expressly or impliedly 
 authorized or within the scope of 
 the employment. As was said in 
 Crelly v. Telephone Co., supra: 
 'The act, as in this instance, may 
 have been done while the servant 
 was in the master's service; but, 
 unless it was expressly or impli- 
 edly authorized, or within the 
 scope of the employment, the ser- 
 vant alone is responsible. In the 
 same volume of .the Texas reports 
 in which the decision we have 
 quoted from, supra, is published, 
 there appears the case of Medlin 
 Milling Co. v. Boutwell, 104 Tex. 
 
 87, 133 S. W. 1042, 34 L. R. A. 
 (N. S.) 109. In that case the 
 syllabus reads: 'The master is not 
 liable to a servant for an assult 
 upon him by other servants in no 
 way connected with their duties 
 to the employer. As where em- 
 ployes of a milling company, in 
 pursuance of a customte' before 
 practiced, undertook to 'initiate' 
 a new employe into the service by 
 stretching him across a barrel and 
 'paddling' him and he was injured 
 in resisting such violence. The 
 knowledge and acquiescence of 
 officers or managers of a company 
 in a custom of rude frolic by 
 employes in receiving a new one 
 into the service, amounting to an 
 assault and inflicting injury, was 
 not within the scope of their au- 
 thority or in the company's ser- 
 vice, and it was not rendered li- 
 able to the injured party by such 
 acquiescence. In the opinion it 
 was said: 'It is not the legal duty 
 of the master to protect the ser- 
 vant from unlawful assaults by 
 strangers, and another servant 
 committing such an assault, not 
 in the scope of his employment, 
 must be regarded as a stranger. 
 It is plain that it could not have 
 been the intention of Congress 
 to make the carrier liable for in- 
 jury or death to an employe oc- 
 casioned by the act of a stranger. 
 We are fully in harmony with the 
 liberal interpretation of the fed- 
 eral Employers' Liability Act by 
 the federal courts generally; but 
 we cannot conceive it to have been 
 the intention of Congress to im- 
 pose upon the carrier duties and 
 obligations save those of an em- 
 ployer; nor that it was the pur-
 
 '§. 537] Negljgence Under Federal Act, 939 
 
 carrier, the carrier is not liable tor the statute requires 
 the servant injured to liave been at the time employed 
 in interstate coinnierce.'" In Keeve v. Northern P. Ky. 
 Co., cited in the notes, ])laintii"f was a laborer in the em- 
 ploy of the railroad conii)any, and, as a part of his 
 duties, supplied baft'^a^e cars of the defendant with 
 water and fuel. When injured he was sitting on the 
 floor of a baft-;i;-age car in tlie door with his feet hanging 
 outside of the door resting on the iron steps or stirrups 
 which hung below. AVliile so sitting two other employes 
 of the company began wrestling or scuffling in the body 
 of the car and while so engaged, whether intentional or 
 not, did not appear in the evidence, one of them brushed 
 against or pushed the plaintiff, causing him to fall to the 
 ground and he sustained injuries. Under these facts, in 
 an action under the Federal Employers' Liability Act, 
 the court, in denying a recovery, held that a railroad 
 company was not liable unless the negligent act occurred 
 while the employes were doing some act required of 
 them in the prosecution of the carrier's business and that 
 the federal statute was not intended to cover negligent 
 acts of an employe in no way connected with the busi- 
 ness, the prosecution of which he was employed to aid. 
 In Cincinnati, N. 0. & T. P. Ry. Co. v. Wilson, cited in 
 
 pose to impose new obligations 70 Wis. 420, 5 Am. St. Rep. 178. 
 not unsually imposed upon em- 36 N. W. 12, 591. 
 ployers, except as tlie law of A brakeman on an interstate 
 
 master and servant is by the ex- train after reaching the terminal 
 press terms of the act itself with his train and before he was 
 limited or restricted." Roebuck discharged for the day, went into 
 Atchison, T. & S. F. R. Co , ^ ^^^^^^ "^^^ ^^^ railroad yards 
 
 to get a drink. While returning 
 to the yards he was struck and 
 injured bv a car. due to the neg- 
 40. Hurst V. Chicago, R. I. & ^.^^^^^ ^^ ^^j^^^. emploves. The 
 P. R. Co., 49 Iowa 76: Dickinson ^^^^^.^ j^^j^ ^^^^^ notwithstanding 
 V. West End St. Ry. Co., 177 Mass. ^^^ f^ct that he was returning 
 365, 52 L. R. A. 326, 83 Am. St. from a personal errand, he was 
 Rep. 284, Padgett v. Seaboard Air nevertheless employed in inter- 
 Line Ry., 99 S. C. 364, 83 S. E. 633; state commerce. Graber v. Duluth, 
 Ry., 97 S. C. 50, 81 S. E. 283; S. S. & A. R. Co., 159 Wis. 414. 
 Ewald V. Chicago & W., Ry. Co., 150 N. W. 489. 
 
 V. 
 
 99 Kan. 544, L. R. A. 1917E 741, 
 162 Pac. 1153.
 
 940 Injukies to Interstate Employes. [§ 537 
 
 the notes, a section foreman on a train standing on the 
 passing track at a station, erroneously thinkng that 
 another train approaching at a rapid rate of speed was 
 about to collide with it, warned his men to jnmp, which 
 the}' did, the foreman witli them. The decedent, one of 
 the section men under him, ran across the main line of 
 the railroad at that place and was struck and killed by 
 the other train. Answering a contention that the fore- 
 man was not acting within the course of his employment, 
 the court held that the act of the foreman in shouting 
 and warning the men, was one within the scope of his 
 employment and was an act fairly imputable to the mas- 
 ter imposing legal liability therefor. In Rief v. Great 
 Northern Ry. Co., cited, the plaintiff was a "student 
 brakeman" receiving no compensation from the railroad 
 company. For 12 days previous to the injury he had 
 been upon defendant's trains in that capacity. At the 
 time he entered upon his course of learning he signed a 
 written statement in which he agreed that he should re- 
 ceive no compensation and that he would not be held to 
 be a ser\^ant but a licensee upon the property of the de- 
 fendant. He was injured while attempting to descend 
 from a box car to throw a switch by striking a coal chute 
 close to the track. In an action under the federal act 
 the court held that the plaintiff was an employe of the 
 defendant as a matter of law, as the testimony showed 
 that he was expected to perform and did perform such 
 tasks as were assigned him by members of the crew in 
 charge of the trains. He helped load and unload freight 
 at way stations, threw switches and did whatever he 
 was ordered to do in the operation of a train. In Hobbs 
 V. Great Northern Ry. Co., cited, the decedent was killed 
 while riding upon the pilot of an engine. He was a 
 hostler's helper and his last work was placing sand in 
 the engine. In doing this work the deceased was not re- 
 quired to ride on a pilot. No one knew why he stepped 
 upon the pilot. The engine in moving collided with the 
 footboard of another switch engine, which was not visi- 
 ble because of escaping steam, and this caused decedent's 
 death. There was a rule of the railroad company for-
 
 "§► 537] Negligence Under Federal Act. 941 
 
 bidding employes to 'ride on engine pilots and the 
 decedent, in addition, had been specifically told not to 
 ride on pilots. The court, in denying that the railroad 
 company was liable, said: "The rule of liability against 
 a railway company engaged in interstate commerce is 
 l)redicated upon the duty of the company to furnish its 
 servant with a reasonably safe place in wliich to perform 
 the work it requires of him or while he is about in those 
 places which are incident to his work , and this duty is 
 incident to all i)laces where the employe must necessari- 
 ly be in connection with his employment. But that duty 
 is not incident to his place where a servant is not re- 
 quired to be nor expected to be in the performance of 
 his work. Nor does it cover the sen-ant when lie is not 
 within the scope of his employment or doing some act 
 which is not incidental to his employment. This rule is 
 sustained by all authorities and the federal act in no 
 wise attempts to change it. Unless the evidence in this 
 case shows that the deceased was upon the pilot of his 
 engine in discharge of some duty required by the rail- 
 road company, then the railroad company owed him no 
 duty except to avoid injuring him after it discovered 
 his perilous position. Such is so clearly the law that it 
 will not be -doubted and no authorities need be cited to 
 sustain it. There is no evidence in this record that the 
 deceased was required to do any act which would place 
 him upon the pilot of the engine. ^Ul the evidence on 
 this subject is to the contrary". So far as we can find, 
 whatever it was that caused him to step upon the pilot, 
 it was his own purpose, not in any way connected with 
 his work as a hostler's helper. If it was his purpose to 
 engage in any task, so far as this record goes, in so do- 
 ing he was a volunteer without appellant's direction or 
 knowledge and so far as the law is concerned the result 
 is the same. If we could find anything in the evidence 
 which would justify a different conclusion, however 
 meager it might be, we would submit to the verdict as 
 determinative of the fact. But we cannot find it and 
 such being the case, however unfortunate or distressing 
 the circumstances may be, it is our duty to so hold."
 
 942 
 
 Injuries to Interstate Employes. 
 
 [§ 538 
 
 § 538. Negligence Must be Proximate Cause of In- 
 jury. For the plaintiff to recover under the Federal Em- 
 ployers' Liability Act it is not sufficient that he prove 
 negligence and injury under conditions within the terms 
 of the act. To create a jury issue, the plaintitT must 
 introduce proof tending to show that the alleged negli- 
 gence was the proximate cause of the damage.^^ The 
 
 41. United States. Union Pac. 
 R. Co. V. Hadley, 246 U. S. 330, 
 62 L. Ed.— 38 Sup. Ct. 318, aff'g 
 99 Neb. 349, 156 N. W. 765; Atch- 
 ison, T. & S. F. R. Co. V. Swearin- 
 gen, 239 U. S. 339, 60 L. Ed. 317, 
 36 Sup. Ct. 121, 10 N. C. C. A. 
 778, St. Louis & S. F. R. Co. v. 
 Conarty, 238 U. S., 243, 59 L. Ed. 
 1290 35 Sup. Ct. 785; Milwaukee & 
 St. P. Ry. Co. V. Kellogg, 94 U. S. 
 469, 24 L. Ed. 256; Pennsyl- 
 vania R. Co. V. Glas, 152 C. C. A. 
 244, 239 Fed. 256; Delaware 
 & H. Co. V. Ketz, 147 C. C. 
 A. 101, 233 Fed. 31; Clark v. 
 Erie R. Co., 230 Fed. 478; Smith 
 V. Illinois Cent. R. Co., 119 C. C. 
 A. 33, 200 Fed. 553; Atchison, T. 
 & S. F. R. Co. V. De Sedillo, 135 
 C. C. A. 358, 219 Fed. 686. 
 
 Florida. Louisville & N. R. Co. 
 
 V. Rhoda, Fla. , 74 So. 
 
 19. 
 
 Georgia. Louisville & N. R. Co. 
 V. Paschal, 145 Ga. 521, 89 S. E. 
 620; Charleston & W. C. R. Co. 
 V. Sylvester, 17 Ga. App. 85, 86 
 S. E. 275; Charleston & W. C. R. 
 Co. v. Brown, 13 Ga. App. 744 79 
 S. E. 932. 
 
 Indiana. Chicago & E. R. Co. 
 
 V. Freighter, Ind. App. , 
 
 114 N. E. 659. 
 
 Iowa. Rhodes v. Chicago, R. I. 
 
 & P. Ry. Co., Iowa , 161 
 
 N. W. 652. 
 
 Kentucky. Judd's Adm'x v. 
 Southern R. Co., 171 Ky. 832, 188 
 
 S. W. 880; Young v. Norfolk & 
 W. R. Co., 171 Ky. 510, 188 S. W. 
 621; 
 
 Michigan. Salabrin v. Ann 
 Arbor R. Co., 194 Mich. 458, 160 
 N. W. 552; Chapman v. United 
 States Ex. Co., 192 Mich. 654, 159 
 N. W. 308. 
 
 Minnesota. Beecroft v. Great 
 Northern R. Co., 134 Minn. 86, 158 
 N. W. 800; 
 
 Mississippi. Hooks v. New Or- 
 leans & N. E. R. Co., Ill Miss. 743, 
 72 So. 147. 
 
 Missouri. State ex rel. Lusk v. 
 Ellison, 271 Mo. 463, 196 S. W. 
 1088; Strother v. Chicago, B. & 
 Q. R. Co. (Mo.), 188 S. W. 1102; 
 Haines v. Chicago, R. 1. & P. Ry. 
 Co., 193 Mo. App. 463, 185 S. W. 
 1187; Fish v. Chicago, R. I. & P. 
 R. Co., 263 Mo. lOG, 8 N. C. C. A. 
 538, Ann Cas. 1916B 147, 172 S. 
 W. 340. 
 
 New York. White v. Lehigh 
 Valley R. Co., 220 N. Y. 131, 115 
 N. E. 439. 
 
 Oklahoma. St. Louis & S. P. R. 
 Co. V. Snowden, 48 Okla. 115, 149 
 Pac. 1083. 
 
 South Carolina. Steele v. Atlan- 
 tic Coast Line R. Co., 103 S. C 
 102, 87 S. E. 639. 
 
 Vermont. White's Adm'x, v. 
 Central Vermont R. Co., 87 Vt. 
 330, 89 Atl. 618. 
 
 Virginia. Virginia & S. W. R. 
 Co. V. Hill. 119 Va. 837, 89 S. E. 
 895.
 
 <^' 538] Ni'XJLiGENCE Undek Fkdekal Act. 
 
 943 
 
 cliaractcr of evidence necesai y to prove siieli causation 
 must depend largely upon tlie ciix-umstances of each case. 
 
 Washington. Bjornsen v. North- 
 ern rac. R. Co., 84 Wash. 220, 146 
 Pac. 57'). 
 
 West Virginia. Easter v .Vir- 
 ginian R. Co., 76 W. Va. 383, 11 
 N. C. C. A. 101, 86 S. E. 37. 
 
 Wisconsin. Calhoun v. Great 
 Northern R. Co., 162 Wis. 264, 156 
 N. W. 198. 
 
 Where the facts relied upon 
 bring the case within the rule that 
 -where an injury may as reason- 
 ably be attributed to a cause that 
 will excuse the defendant as to a 
 cause that will subject it to lia- 
 bility, no recovery can be had. 
 Patton V. Texas & P. R. Co., 171) 
 U. S. 658. 45 L. Ed. 361. 21 Sup. 
 Ct. 275. 
 
 The federal decisions discussing' 
 the nature and character of the 
 term "proximate cause" are re- 
 viewed by the court in Delaware 
 & H. Co. V. Ketz. 147 C. C. A. 
 101, 233 Fed. 31, a case under 
 the Federal Employers' Liability 
 Act. 
 
 "To justify a recovery for an 
 injury caused by a train striking 
 a section hand while engaged in 
 repairing a track, it must be 
 shown that the proximate cause 
 of his injury was the railway 
 company's neglect of some duty 
 due to him in respect to his pro- 
 tection from injury by passing 
 trains." Southern Ry. Co. v. Black- 
 well, Ga. App. . 93 S. 
 
 E. 321, an action under the Fed- 
 eral Act. 
 
 It is not sufficient merely to 
 show that the decedent was killed 
 by the defendant and that the de- 
 fendant was guilty of negligence. 
 It must further appear that his 
 death was caused by the proven 
 
 negligence. Sutton's Adm'r v. 
 Louisville & N. R. Co., KiS Ky. SI, 
 181 S. W. 938. 
 
 If it is a matter of fair infer- 
 ence by the jury that an un- 
 expected jerk came from the negli- 
 gent giving of a stop signal by 
 the conductor, causing the deced- 
 ent's death, the question of prox- 
 imate cause is not a mere matter 
 of speculation. Thompson v. Min- 
 neapolis & St. L. R. Co., 133 Minn. 
 203, 158 N. W. 42. 
 
 "The plaintiff must prove that 
 the death of his intestate came 
 from some act for the result of 
 which the defendant is liable. It 
 is not for the defendant to show 
 that it came from some act for 
 which it is not responsible. The 
 proof need not be direct or pos- 
 itive. It must leave the result 
 more than conjectural." Hurley 
 V. Illinois Cent. R. Co.. 133 Minn. 
 101. 157 N. W. 1005. 
 
 The evidence must point out, 
 with a reasonable degree of cer- 
 tainty, that the doath of plain- 
 tiff's intestate was directly due, 
 either in whole or in part, to the 
 negligence of some one or more 
 of defendant's servants other than 
 himself. Hull v. Virginian R. Co., 
 78 W. Va. 25, 88 S. E. 1060. 
 
 "There is also a plain elpment- 
 ary principle of negligence law 
 that to constitute actionable neg- 
 ligence there must be a concur- 
 rence of two things; First, neg- 
 ligence; and, second, injury re- 
 sulting as a proximate cause of 
 it. It matters not how negligent 
 a person may be; his negligence, 
 unless the injuries complained of 
 were the proximate result of it. 
 will not authorize a recovery in
 
 944 Injuries to Interstate Employes. [^ 538 
 
 The inquiry whether proof having such tendency has 
 been introduced, is not to be solved by indulging" in mere 
 surmises or conjecture or by resorting to imaginary 
 possibilities, for to do so would but resolve the question 
 to the generic rule of liability as an insurer. Applying 
 these principles to a case under the act where the 
 negligence charged was a violation of the national Hours 
 of Service Act, the national Supreme Court has held 
 that proof of working overtime does not create an un- 
 conditional liability for accidents in the absence of proof 
 showing a causal connection between the accident and 
 the working overtime.^^ An injury which is the natural 
 and ]^robable result of an act of negligence is actionable, 
 and such an act is the proximate cause of the injury. 
 But an injuiy that could not have been foreseen or 
 reasonably anticipated as the probable result of an act of 
 negligence is not actionable, and such an act is either the 
 remote cause, or no cause whatever of the injury.*^ The 
 natural consequence of an act is the consequence which 
 ordinarily follows it, the result which may reasonably be 
 anticipated from it. A probable consequence is one that 
 is more likely to follow its supposed cause than it is not 
 to follow it.^* 
 
 damages." Cincinnati, N. 0. & T. S. R. Co. v. McWliirter, 229 U. 
 
 P. R. Co. V. Perkins' Adm'r, 177 Ky S. 26.5, 57 L. Ed. 1179, 33 Sup. Ct. 
 
 88. 197 S. W. 526. 858; Helm v. Cincinnati, N. O. 
 
 The negligent failure of a rail- & T. P. R. Co., 156 Ky. 240, 160 
 
 road company to have lights burn- S. W. 945; Bjornsen v. Northern 
 
 ing about its station was not the Pac. R. Co., 84 Wash. 220, 146 
 
 proximate cause of an injury to Pac 575. 
 
 a station master who was assault- 43. Atchison, T. & S. F. R. Co. 
 
 ed bv a robber at night while at- v. Calhoun, 213 U. S. 1, 53 L. Ed. 
 
 tending to his duties, the assault f l'/9 Sup. Ct 321; Milwaukee 
 
 , ^^ , ^ . . , & St. P. Ry. Co. V. Kellogg, 94 
 
 Of the robber not being a natural ^ ^ ^^^ ^^ ^ ^^ ^56; Del- 
 
 and probable consequence of the ^^^^^ ^ ^ ^^ ^ ^^^^ ^^^ ^ ^ 
 
 failure to keep the lights burn- ^ ^^^ 233 ped 31 
 
 ing. Carter v. Atlantic C. L. R. 44 Armour & Co. v. Harcrow, 
 
 Co., S. C. , 95 S. E. 357. ;^33 q q a. 218, 217 Fed. 224, 7 
 
 42. Atchison, T. & S. F. R. Co. ^ q c. A. 325; Chicago, B. & 
 
 V. Swearingen, 239 U. S. 339, 60 q. r. Co. v. Richardson. 121 C. 
 
 L. Ed. 317, 36 Sup. Ct. 121, 10 N. c. A. 144, 202 Fed. 836; St. Louis, 
 
 C. C. A. 778; St. Louis, I. M. & K. C. & C. R. Co. v. Conway, 86
 
 ^ 5391 
 
 Netjltgknce Under Fedf.hat, Act. 
 
 945 
 
 § 539. Meaning of the Phrase "In Whole or in Part." 
 
 Liability is sliown undor tlie federal act wlion tlic plain- 
 tiff proves that the injury or death was due either "in 
 whole or in part" to negligence of the defendant.^"' This 
 phrase is an adoption of the common law doctrine of 
 concurrent causes. Although causes for which the 
 carrier is not liable contribute directly to produce the in- 
 jury, 5^et if a cause for which the carrier is liable, that 
 is, a negligent act of any other employe or a defect or 
 insufficiency due to negligence in equipment or works, 
 contributes also as a cause, without which the injury 
 would not have occurred, the carrier is still liable. *'' The 
 quoted phrase means nothing more or less than that the 
 negligent act must be the proximate cause under the fed- 
 eral of the injury and, in cases of doubt, to ascertain when 
 a negligent act is the proximate cause under the federal 
 law, decisions of courts passing upon such questions un- 
 der the common law, are applicable.*^ 
 
 C. C. A. 1. 156 Fed. 234; Chicago, 
 St. P.. M. & O. Ry. Co. V. Elliott, 
 5 C. C. A. 347, 55 Fed. 949, 20 L. 
 R. A. 582. 
 
 45. Union Pac. R. Co. v. Hadley, 
 
 246 U. S. 330, 62 L. Ed. , 
 
 38 Sup. Ct. 318, aff'g 99 Neb. 349, 
 156 N. W. 765; 
 
 46. Louisville & N. R. Co., v. 
 Paschal, 145 Ga. 521, 89 S. E. 620; 
 Young V. Norfolk & W. R. Co., 171 
 Ky. 510, 188 S. W. 621; O'Connor 
 V. Chicago. M. & St. P. R. Co., 163 
 Wis. 653, 158 N. W. 343; Molzoff 
 V. Chicago, M. & St. P. R. Co., 162 
 Wis. 451, 11 N. C. C. A. 273, 156 
 N. W. 467; Calhoun v. Great 
 Northern R. Co., 162 Wis. 264, 156 
 N. W. 198. 
 
 Under the federal act it is suffi- 
 cient if the injury to an employe 
 results in whole or in part from 
 the negligence of any of the offi- 
 cers, agents, or employes of the 
 common carrier. Molzoff v. Chicago 
 M. & St. P. R. Co., supra. 
 
 47. Texas & P. Ry. Co. v. Stew- 
 art, 228 U S. 357, 57 L. Ed. 875, 
 33 Sup. Ct. 548; Atchison, T. & 
 S. F. Co. V. Calhoun, 213 U. S. 1. 
 53 L. Ed. 671, 29 Sup. Ct. 321; 
 Choctaw, O. & G. R. Co. v. Hol- 
 laway, 191 U. S. 334, 48 L. Ed. 
 207, 24 Sup. Ct. 102; Hayes v. 
 Michigan Cent. R. Co., Ill U. S. 
 228. 28 L. Ed. 410, 4 Sup. Ct. 369: 
 Scheffer v. Washington City, V. M. 
 & G. S. R. Co.. 105 U. S. 249, 26 
 L. Ed. 1070; Milwaukee & St. P. 
 Ry. Co. V. Kellogg, 94 U. S. 469, 
 24 L. Ed. 256; Armour & Co. v. 
 Harcrow, 133 C C. A. 218, 217 Fed. 
 224, 7 N. C. C. A. 325; Union Pac. 
 R. Co. V. Fuller, 122 C. C. A. 359, 
 204 Fed. 45; Louisville & N. R. 
 Co. V. Wene, 121 C. C. A. 245. 202 
 Fed. 887; Shugart v. Atlanta, K. 
 & N. Ry. Co., 66 C. C. A. 379, 133 
 Fed. 505: Missouri, K. & T. R. Co. 
 v. Byrne, 40 C. C. A. 402, 100 Fed. 
 359: St. Louis, I. M. & S. Ry. Co. 
 v. Needham, 16 C. C. A. 457, 69 
 
 1 Control Carriers CO
 
 946 
 
 Injuries to Interstate Employes. 
 
 [§ 540 
 
 § 540. State Statutes Creating Presumption of 
 Negligence from Injury Inapplicable to Interstate Em- 
 ployes. When Congress regulates a particular subject 
 under the poAver granted to it by commerce clause, 
 state laws applying to the same subject are 
 suspended.*^ State legislature cannot supplement a 
 national statute by prescribing additional regulations 
 governing the same field. *° When, therefore, Congress en- 
 acted tlie Federal Employers' Liability Act prescribing 
 liability for injuries in interstate commerce, state laws 
 creating a presumption of negligence upon proof of an in- 
 jury were inoperative as to all employes of common car- 
 riers by railroad injured or killed while engaged in inter- 
 state commerce."'" Thus, a flagman on an interstate train 
 
 Fed. 823; Travelers' Ins. Co. of 
 Hartford v. Melick, 12 C. C. A. 
 544, 65 Fed. 178, 27 L. R. A. 629; 
 Bowers v. Southern R. Co., 10 Ga. 
 App. 367, 73 S. E. 677. 
 
 48. New York Cent. R. Co. v. 
 Winfield, 244 U. S. 147, 61 L. Ed. 
 1045, 37 Sup. Ct. 546, 14 N. C C. 
 A. 680, Ann. Cas. 1917D 1139; 
 Southern Pac. Co. v. Jensen, 244 U. 
 S. 205, 61 L. Ed. 1086, 37 Sup. Ct. 
 524, L. R. A. 1917E 900; Texas 
 & P. R. Co., V. Rigsby, 241 U. S. 
 33, 60 L. Ed. 874, 36 Sup. Ct. 482; 
 Chicago, R. I. & P. R. Co. v. De- 
 vine, 239 U. S. 52, 60 L. Ed. 140, 
 36 Sup. Ct. 27; Erie R. Co. v. New 
 York, 233 U. S. 671, 58 L. Ed. 1149, 
 34 Sup. Ct. 756, 52 L. R. A. (N. 
 S.) 266, Ann. Cas. 1915D 138; 
 Taylor v. Taylor, 232 U. S. 363, 58 
 L. Ed. 638, 34 Sup. Ct. 350, 6 N. C. 
 C. A. 436. 
 
 49. Michigan Cent. R. Co. v. 
 Vreeland, 227 U. S. 59, 57 L. Ed. 
 417, 33 Sup. Ct. 192, Ann Cas. 
 1914C 176; Prigg v. Pennsylvania, 
 16 Pet. (U. S.) 539, 10 L. Ed. 
 1060. 
 
 50. United States. Louisville & 
 N. R. Co. V. Rhoda, 238 U. S. 608, 
 
 59 L. Ed. 1487, 35 Sup. Ct. 662 
 (men. dec). 
 
 Arkansas. Kansas City South- 
 ern R. Co. V. Cook, 100 Ark. 467, 
 140 S. W. 579. 
 
 Florida. Louisville & N. R. Co. 
 
 V. Rhoda, ■ Fla. , 74 So. 
 
 19. 
 
 Georgia. Templesi v. Central of 
 Georgia R. Co., 19 Ga. App. 307, 
 91 S. E. 502; Ivey v. Louisville 
 & N. R. Co., 18 Ga. App. 434, 89 
 S. E. 629; Central of Georgia R. 
 Co. V. De Loach, 18 Ga. App. 362, 
 89 S. E. 433; Alabama Great 
 Southern R. Co. v. Tidwell, 145 
 Ga. 190, 88 S. E. 939; Charleston 
 & W. C. R. Co. V. Brown, 13 Ga. 
 App. 744, 79 S. E. 932; Louis- 
 ville & N. R. Co. V. Kemp, 140 
 Ga. 657, 79 S. E. 558. 
 
 Kentucky. South Covington & 
 C. St. R. Co. V. Finan's Adm'x, 
 153 Ky. 340, 155 S. W. 742. 
 
 "Under the state statute the 
 servant need only to prove that 
 he was injured by reason of a de- 
 fective appliance to make a prima 
 facie case; while, under the fed- 
 eral statute, thCi presumption pre- 
 vails, even after proof of the de-
 
 <§> 540] Neoltgf.nce Under Fedf,t?at, Act. 947 
 
 on arriving at bis dostination ])oint, was ordorod to go to 
 the yardmastor's oflico. In complying with this order, 
 ho was required to cross several yard tracks. Shortly 
 thereafter his body was found between the rails of the 
 track over which the switch engine had just jjassed. 
 There was no evidence of a negligent failure on the part 
 of the engineer or tlie fireman on the switch engine to 
 warn him. In fact, both testified that they did not see 
 anybody on the track. Upon these facts the trial court 
 charged the jury in conformity with the Florida statute 
 creating a presumption of negligence upon proof of an 
 injuiy in the operation of a locomotive. This decision 
 was affirmed by the supreme court of Florida." But on 
 writ of error the national Supreme Court reversed the 
 judgment without opinion.'" Upon the next trial the 
 trial court again instructed the jury that it devolved up- 
 on the defendant to prove that it was not negligent, and 
 refused to instruct that the burden of showing the de- 
 cedent's death was due to negligence, was upon the 
 plaintiff. Another verdict for the plaintiff was returned 
 but on second appeal, the judgment entered thereon was 
 reversed by the Florida supreme court, on the ground 
 that the state law shifting the burden of proof was 
 superseded as to all interstate employes by the enact- 
 ment of the federal statute.^^ A statute of the state of 
 Arkansas provides, in effect, tliat where an injury is 
 
 feet, that the railway company ing it, the burden would be upon 
 
 was not aware of its existence; the defendant to show that it used 
 
 and, until it has shown that the all ordinary and reasonable care 
 
 railway company knew, or, in the and diligence to prevent the in- 
 
 exercise of ordinary care, should jury Alabama Great Southern R. 
 
 have known, of the defect, it is (^q y xidwell, sup<ra. 
 
 not charged with that knowledge." Contra: Yazoo & M. V. R. Co. v. 
 
 St. Louis, I. M. & S. R. Co. V. In- ^ujuns, 115 Miss. 343. 76 So. 147. 
 
 gram, 124 Ark. 298, 187 S. W. ^^ Louisville & N. R. Co. v. 
 452. 
 
 Rhoda, 71 Fla. .o26, 71 So. 3G9. 
 52. Louisville & N. R. Co. v. 
 
 In an action under the federal 
 
 act it was error to instruct the _ , 
 
 iury that the burden of proof ^l^^^a. 238 U. S. 608. 59 L. Ed. 
 
 was upon the plaintiff in the first 1487, 35 Sup. Ct. 662 (men. dec), 
 
 instance to show that he was in- 53. Louisville & N. R. Co. v. 
 
 jui-^d. and that, upon his show- Rhoda. Fla. , 74 So. 19.
 
 948 
 
 Injuetes to Intekstate Employes. 
 
 [^ 540 
 
 caused by the operation of a train, a prima facie case 
 against the carrier is shown, and the duty is then cast 
 upon it to establish due care. The supreme court of 
 that state held that the statute did not apply in an 
 action under the Federal Employers' Liability Act and 
 that instructions of a trial court applying the state sta- 
 tute were erroneous.^* 
 
 § 541. Mississippi "Prima Facie" Statute Held 
 Applicable to Actions under Federal Act. But the su- 
 preme court of Mississippi in a decision not in harmony 
 with the cases cited in the foregoing paragraph, has 
 held that a statute of that state providing that in all 
 actions against railroad companies for damages due to 
 persons, proof of injury inflicted, by the running of 
 locomotive cars shall be prima facie evidence of negli- 
 gence on the part of the company, governs in actions 
 under the Federal Employers' Liability Act.'' "Counsel 
 for appellant," said the court in this case, "urges that 
 our prima facie statute (section 1985, Code of 1906) is 
 not applicable in the case before us because this suit is 
 governed by the Federal Employers' Liability Act, and 
 that the prima facie statute is not a rule of evidence, but 
 
 54. St. Louis, I. M. & S. Ry. 
 Co. V. Steel, 129 Ark. 520, 15 N. 
 C. C. A. 49, 197 S. W. 288, in 
 which the court said: "For the 
 sake of uniformity, the decisions 
 of the Supreme Court of the Unit- 
 ed States should and must control 
 in determining the issue of neg- 
 ligence where the Employers' Lia- 
 bility Act governs; for, as is said 
 by Mr. Roberts: 'Certainly there 
 must be some controlling author- 
 ity in determining negligence un- 
 der this act, and if these ques- 
 tions are left to be determined 
 according to the admittedly con- 
 flicting decisions of the courts of 
 the several states, whose rulings 
 are paramount and exclusive in 
 their own jurisdiction, the ques- 
 
 tion as to when a carrier is neg- 
 ligent under the federal statute 
 would become a matter of the 
 geography of the states and not 
 of a one supreme law applying 
 uniformly within its exclusive do- 
 main.' 'Such discrimination,' he 
 continues, 'would defeat one of 
 the main objects of the national 
 statute — one uniform rule of lia- 
 bility in all the states where a 
 carrier by railroad is engaged in 
 interstate commerce to its servants 
 while employed in such commerce.* 
 Roberts' Injuries Interstate Em- 
 ployes, pp. 37, 38." i 
 
 55. Yazoo & M. V. R. Co. v. 
 Mullins, 115 Miss. 343, 76 So. 
 147.
 
 <^ 5-1:^1 NKfii.TOF.xr'E Under Fkdf.hat, Act. 949 
 
 that it is a sul)staiitive law and gives a substantial riglit 
 in conflict \Yith the federal act. It is argued that the 
 ])rima facie statute is a state law which in effect creates 
 a liability by virtue of the presumption of negligence 
 from the infliction of injury by the running of cars, and 
 that this statute conflicts with the federal act in matters 
 of substance affecting liability, and is not a mere rule of 
 evidence. The recent case of Louisville, etc., R. Co. v. 
 Rhoda (Fla.) 74 8o. 19, is cited as authority for the 
 position taken l)y the appellant. We have reviewed this 
 case and several others cited by counsel, and, without 
 entering into a discussion of the holding in the Florida 
 case, we are clearly of the opinion that our prima facie 
 statute is not in conflict with the federal act, but that it 
 is a rule of evidence, the lex fori, and as our state courts 
 have concurrent jurisdition with the federal courts of 
 causes arising under the federal act the law of the forum 
 must govern in the trial of such cases. The authorities 
 cited by counsel fail to convince us that our beneficent 
 prima facie statute is inapplicable to cases under the 
 federal act. We therefore announce here again that the 
 statute (section 1985, Code of 1906) is applicable as a 
 rule of evidence in the courts of our state, regardless of 
 whether the cause of action arises under the federal act 
 or the state law\"^^* 
 
 § 542. Sufficiency of Evidence of Negligence to 
 Submit Cause to Jury not Governed by Decisions of 
 State Courts. The question whether there is sufficient 
 evidence of negligence for the cause to be submitted to 
 the jury must be determined by applicable common law 
 principles as interpreted and applied in the national 
 courts, and not by the decisions of the courts of the 
 several states when in conflict therewith ;^^ for one of 
 
 55a. Contra, New Orleans & N. applicable to actions under the 
 
 E. R. Co. V. Harris, 246 U. S. , federal Act. 
 
 62 L. Ed. , 38 Sup. Ct. 535, in 50. Union Pac. R. Co. v. lluxall. 
 
 which the court held that the Mis- 245 U. S. 535, 62 L. Ed. , 38 
 
 issippi "Prima Facie Act" was not Sup. Ct. 187; Southern R. Co. v.
 
 950 
 
 Injuries to Intekstate Employes. [§ 542 
 
 the purposes of Congress in the enactment of the Fed- 
 eral Employers' Liability Act was to have a uniform 
 rule throughout the United States. The federal deci- 
 sions must, therefore, be looked to to determine whether 
 enough facts have been introduced for the jury to infer 
 negligence as that question involves matters of sub- 
 stantive law and not procedure. In a series of cases be- 
 fore the supreme court of South Carolina, it has been 
 held that as the Federal Employers' Liability Act makes 
 no specific regulation as to the quantity, and quality of 
 negligence necessary for the cause to be submitted to the 
 jury, the state law and the decisions of the state courts 
 govern." But these cases announce a doctrine that is 
 clearly not in harmony with the controlling decisions of 
 the national Supreme Court."* 
 
 § 543. Effect of State Law Prohibiting Employ- 
 ment of Minors in Determining Negligence. A statute 
 of a state prohibiting the employment of minors under 
 certain ages, and prescribing that a violation thereof 
 shall be prima facie evidence of negligence, is not ap- 
 
 Gray, 241 U. S. 333, 60 L. Ed. 
 1030, 36 Sup. Ct. 558; Great North- 
 ern R. Co. V. Wiles, 240 U. S. 444, 
 60 L. Ed. 732, 36 Sup. Ct. 406; 
 Central Vermont R. Co. v. White, 
 238 U. S. 507, 59 L. Ed. 1433, 35 
 Sup. Ct. 865, 9 N. C. C. A. 265; 
 Ann. Cas. 1916B 252; Seaboard 
 Air Line Ry. Co. v. Horton, 233 
 U. S. 492, 58 L. Ed. 1062, 34 
 Sup. Ct. 635, 8 N. C. C. A. 834, 
 L. R. A. 1915C 1, Ann. Cas. 1915B 
 
 57. Mulligan v. Atlantic Coast 
 Line R. Co., 104 S. C. 173, 88 S. 
 E. 445; Dutton v. Atlantic Coast 
 Line R. Co., 104 S. C. 16, 88 S. 
 E. 263; Koennecke v. Seaboard 
 Air Line Ry., 101 S. C. 86, 85 S. 
 E. 374; Howell v. Atlantic Coast 
 Line R. Co., 99 S. C. 417, 83 S. E. 
 639; Bennett v. Southern Ry. — 
 
 Carolina Division, 98 S. C. 42, 79 
 S. E. 710. 
 
 58. Southern R. Co. v. Pres- 
 cott, 240 U. S. 632, 60 L. Ed. 836, 
 36 Sup. Ct. 469; Southern Exp. 
 Co. V. Byers, 240 U. S. 612, 60 L. 
 Ed. 825, 36 Sup. Ct. 410, L. R. A. 
 1917A 197; Cleveland, C, C. & St. 
 L. R. Co. V. Dettlebach, 239 U. 
 S. 588, 60 L. Ed. 453, 36 Sup. Ct. 
 177. See also cases cited under 
 Note 1, supra. In Southern R. 
 Co. V. Prescott, supra, the nation- 
 al Supreme Court held that the 
 rule adopted by the supreme court 
 of South Carolina shifting the bur- 
 den of proof, upon certain con- 
 tingencies, in actions for loss or 
 damage to interstate shipments 
 had been superseded upon the 
 enactment of the Carmack amend- 
 ment.
 
 § 544] NK(;iJ(iEN("E Under Fedki^al Act. 951 
 
 plicablo io injiiiics arisiii.u' in ijilcrstate commerce of em- 
 ployes work inu' for common carriei-sl)y railroad.''" In an 
 action under the federal act, a trial court j^ave effect to 
 a state statute foi-biddiiii;- the cinploymcnt of minors 
 under 18 between 10 |>. in. and 5 a. m. l^'or this error the 
 caiTse was reversed, the sui)i-('me court of the slate hold- 
 ing that the legislation of Congress over the subject 
 matter of interstate commerce could not be su])j>h'inent- 
 ed by state laws even when not in confhct therewith."' 
 
 § 544. Applicability of Rule of Res Ipsa Loquitur 
 to Actions under Federal Acts — Conflicting- Rulings. 
 As construed by the Supreme Court of the United States, 
 the doctrine of res ipsa loquitur means that the facts of 
 the occurrence warrant the inference of negligence, not 
 that they compel such an inference; that they furnish 
 circumstantial evidence of negligence where direct 
 evidence of it may l)e lacking; that they constitute 
 evidence to be weighed, not necessarily to be accepted 
 as sufficient; tliat they call for explanation or rebuttal, 
 not necessarily that they require it; that they make a 
 case to be decided by the jury, not that tliey forestall 
 the verdict. The rule does not convert the defendant's 
 general issue into an affirmative defense and when all 
 the evidence is in, the question is still for the jury to de- 
 termine whether the ])reponderance is with the i)]ain- 
 tiff.*^^ Ordinarily in actions by an employe against an 
 employer for damages due to personal injuries for fail- 
 ing in the performance of duty, the mere fact of the in- 
 jury raises no such presum])tion of negligence on the 
 part of the emi)loyer as in the case of a passenger a- 
 gainst a common carrier, and the l)urden of proving neg- 
 ligence rests upon the plaint i IT;'-' but the res ipsa lo- 
 quitur doctrine has been applied in a qualified form and 
 
 59. Maijala v. Great Northern 61. Sweeney v. Erving. 22S U. 
 R. Co., 133 Minn. 301, 1.58 N. W. S. 233. 57 L. Ed. 815, 33 Snp. Ct. 
 430. 416, Ann. Cas. 1914D 90,5. 
 
 60. Smithson v. Atchison. T. & 62. Southern Ry.-Carolina Di- 
 R. F. R. Co.. 174 Cal. 14S, 162 vision v. Bennett. 233 U. S. 80. 
 I'ac- 111- 58 L. Ed. 860, 34 Sup. Ct. 566, 10
 
 952 
 
 Injuries to Interstate Employes. [^ 544 
 
 in exceptional cases even between master and servant.®' 
 Where the circumstances of an accident are of snch a 
 natnre as to constitute circumstantial evidence tending 
 to show negligence, the rule has been enforced. The 
 courts are not in harmony as to the applicability of the 
 doctrine in actions under the federal act; some have 
 gone to the extent of holding that it is never applicable 
 to actions by employes against carriers under the federal 
 act while others hold that an employe is entitled to the 
 benefit of the maxim in exceptional cases when the facts 
 of the particular case warrant an inference of negli- 
 gence."* "In its extreme application," said Judge Evans 
 
 N. C. C. A. 853; Patton v. Texas 
 & P. Ry. Co., 179 U. S. 658, 45 
 L. Ed. 361, 21 Sup. Ct. 275; Texas 
 & P. R. Co. V. Archibald, 170 U. 
 S. 665, 42 L. Ed. 1188, 18 Sup. Ct. 
 777; Texas & P. R. Co. v. Barrett, 
 166 U. S. 617, 41 L. Ed. 1136, 17 
 Sup. Ct. 707; Baltimore & P. R 
 Co. V. Mackey, 157 U. S. 72, 39 
 L. Ed. 624, 15 Sup. Ct. 491; Union 
 Pac. R. Co. V. Daniels, 152 U. S. 
 684, 38 L. Ed. 597. 14 Sup. Ct. 
 756; Baltimore & O. R. Co. v. 
 Baugh, 149 U. S. 368, 37 L. Ed. 
 772, 13 Sup. Ct. 914. 
 
 "The doctrine of res ipsa liqui- 
 tur is inapplicable to actions be- 
 tween employers and employes 
 for negligence or other wrongs. 
 The happening of an accident 
 which injures an employe raises 
 no presumption of wrong or neg- 
 ligence by the employer." Mid- 
 land Valley R. Co. v. Fulgham 
 104 C. C. A. 151, 181 Fed. 91, L 
 R. A. 1917E 1; citing the follow 
 ing cases: Chicago & N. W. R 
 Co. V. O'Brien, 67 C. C. A. 421 
 132 Fed. 593; Northern Pac. R 
 Co. V. Dixon, 71 C. C. A. 555, 139 
 Fed. 737; Cryder v. Chicago, R 
 I. & P. R. Co., 81 C. C. A. 559. 152 
 Fed. 417. 
 
 63. United States. Southern R. 
 Co. V. Derr, 153 C. C. A. 109, 240 
 Fed. 73; Smith v. Pennsylvania 
 R. Co., 151 C. C. A. 277, 239 Fed. 
 103, 15 N. C C. A. 371; Lucid v. 
 E. I. Du Point de Nemours Pow- 
 der Co., 118 C. C A. 61 199, Fed. 
 377 L. R. A. 1917E 182; Cincinnati, 
 N. O. & T. P. R. Co. V. South 
 Fork Coal Co., 71 C. C. A. 316, 
 139 Fed. 528, 1 L. R. A. (N. S.) 
 533; Westland v. Gold Coin Mines 
 Co., 41 C. C. A. 193, 101 Fed. 59. 
 
 Iowa. Basham v. Chicago & G. 
 
 W. Ry. Co., Iowa , 154 
 
 N. W. 1019. 
 
 Kentucky. Louisville & N. R. 
 Co. V. Allen's Adm'r, 174 Ky. 736, 
 192 S. W. 863. 
 
 Minnesota. Manning v. Chicago 
 Great Western R. Co., 135 Minn. 
 229, 15 N. C. C. A. 591, 160 N. W. 
 787. 
 
 Washington. Toler v. Northern 
 Pac. R. Co., 94 Wash. 360, 162 
 Pac. 538. 
 
 64. United States. Minneapolis 
 & St. L. R. Co. V. Gotschall, 244 
 U. S. 66 61 L. Ed. 995, 37 Sup. Ct. 
 598, 14 N. C. C. A. 865; South- 
 ern R. Co. V. Derr, 153 C. C. A. 
 109, 240 Fed. 73; Smith v. Penn- 
 sylvania R. Co., 151 C. C. A. 277,
 
 <§> 544] NjXiiJGENCE Under Federal Act. 953 
 
 of the Iowa Supreme Court,"' "this doctrine (res ipsa 
 hj(iuitur) would permit the mere fact of an accident to 
 be deemed as prima facie evidence of negligence as the 
 cause tlioroof. Tn this form tlie doctrine lias not been 
 
 239 Fed. 103, 15 N. C. C. A. 371; 
 Midland Valley R. Co. v. Fulgham, 
 104 C. C. A. 151, 181 Fed. 91, L. 
 R. A. 1917E 1. 
 
 Florida. Louisville & N. R. Co. 
 
 V. Rhoda, Fla. , 74 So. 
 
 19. 
 
 Iowa. Hunt v. Chicago, B. & Q. 
 
 R. Co., Iowa , 165 N. W. 
 
 105. 
 
 Minnesota. Manning v. Chicago 
 Great Western R. Co., 135 Minn. 
 229, 15 N. C. C. A. 591, IGO N. 
 W. 787. 
 
 New York. Tyndall v. New York 
 Cent. & H. River R. Co., 157 N. 
 Y. App. Div. 186, 141 N. Y. Supp. 
 879. 
 
 North Carolina. Ridge v. Nor- 
 folk Southern R. Co., 167 N. C. 
 510, L. R. A. 1917E 215, 83 S. E. 
 762. 
 
 "It may be conceded at the out- 
 set that the res ipsa loquitur doc- 
 trine, strictly speaking, and con- 
 fined strictly within the reasons 
 calling for its application, does 
 not prevail in controversies be- 
 tween master and servant. This 
 is perhaps more particularly so 
 as to its application by the fed- 
 eral courts. That doctrine is 
 that negligence may be presumed 
 or inferred from the mere hap- 
 pening of the accident, and that, 
 although the burden is upon the 
 plaintiff to establish negligence, 
 still, in certain cases where it is 
 applicable, proof of the accident 
 is sufficient for that purpose and 
 shifts the burden upon the de- 
 fendant to explain away the 
 prima facie case made by the pre- 
 
 sumption. The reason why the 
 rule embodied in the maxim is 
 most generally held not to apply 
 as between master and servant is 
 that the mere happening of the 
 accident does not indicate 
 whether it resulted from any of 
 causes for which the master would 
 be liable or from some cause 
 that the servant assumed or for 
 which he was responsible. The 
 modern tendency, however, is 
 that even as between master and 
 servant, were the thing which 
 caused the injury is shown to 
 be under the management or 
 control of defendant or its ser- 
 vants other than the one injured, 
 and the accident is such as, in 
 the ordinary course of things, 
 does not happen if those who 
 have the management or control 
 use proper care, slight circum- 
 stances pointing toward negli- 
 gence on behalf of the defendant 
 will authorize a submission of 
 the question of its negligence to 
 the jury. In other words, where 
 the evidence shows that the acci- 
 dent is necessarily the result of 
 defective conditions and can be 
 explained upon no other reason- 
 able hypothesis, circumstances in- 
 dicating carelessness on the part 
 of defendant will produce such a 
 condition as to authorize the sub- 
 mission of the case to the jury." 
 Louisville & N. R. Co. v. Allen's 
 Adm'r, 174 Ky. 736, 192 S. W. 
 863. 
 
 65. Hunt v. Chicago, B. & Q. 
 
 R. Co., Iowa , 165 N. 
 
 W. 105.
 
 954- Ix.TUEiES TO Interstate Employes. [^ 544 
 
 favored by the courts, and its application has been con- 
 fined to a very limited field; its most common and 
 prominent application being in favor of a passenger 
 against a common carrier. See Case v. Railway Co., 64 
 Iowa, 762, 21 N. W. 30; Baldwin v. Railway Co., '68 Iowa, 
 37, 25 N. W. 918; Knhns v. Railway Co., 70 Iowa, 565, 
 31 N. W. 868; O'Connor v. Railway Co., 83 Iowa, 105. 
 48 N. W. 1002; Haden v. Railway Co., 99 Iowa, 735, 48 
 N. W. 733; Brownfield v. Railway Co., 107 Iowa, 254, 77 
 N. W. 1038. In this form it has not been deemed ap- 
 plicable to master and servant cases. But there has been 
 quite uniform tendency in the courts to give recognition 
 to the doctrine in a qualified form and to extend its ap- 
 plicability accordingly. Marceau v. Railway Co., 211 
 N. Y. 203, 105 N. E. 207, 51 L. R. A. (N. S.) 1221, Ann. 
 Cas. 1915C, 511. The doctrine in such qualified form is, 
 not that the mere fact of an accident is of itself evidence 
 of negligence as a cause thereof, but that the nature of 
 an accident in manner and circumstance may be such as 
 to indicate negligence as a cause thereof; that is to say, 
 that the circumstances of an accident may be of such a 
 nature as to constitute circumstantial evidence tending 
 to show negligence. Some accidents, therefore, may be 
 of such a nature as to render the doctrine applicable, 
 while other accidents may be of such a nature as to 
 render it inapplicable. In considering this question, it 
 must be borne in mind that it is not the fact of injury 
 of a plaintiif which gives rise to the application of the 
 doctrine but it is the accidental event from which the 
 injury resulted. Fitch v. Traction Co., 124 Iowa, 668, 
 100 N. W. 618; Cahill v. I. C. Ry. Co., 148 Iowa, 241, 125 
 N. W. 331, 28 L. R. A. (N. S.) 1121; Thomas v. Railway 
 Co., 193 Mass. 438, 79 N. E. 749; Wyatt v. Railway Co., 
 156 Cal. 170, 103 Pac. 892; Levin v. Railway Co., 228 
 Pa. 266, 77 Atl. 456; Eisentrager v. Great Northern, 160 
 N. W. 311, L. R. A. 1917B, 1245. Where an accident is 
 in its nature and circumstances separable in identity 
 from the injury of a complaining plaintiff, it is these 
 circumstances that are looked to, to determine the ap- 
 plicability of the doctrine in question. The derailment
 
 '^ 545J Nkclkjenc'E Undkh Fkuehal Act. 95j 
 
 of a train; a collision of trains; an ovorturnod coach; a 
 broken bridge — tliosc arc illustrative of accidents wbicli 
 are often attended with circumstances indicalino: their 
 cause, and which would ])e deemed as accidents, even 
 ihou.uh they had not resulted in injury to the particular 
 ])hiintilT. If tlie circumstances disclosed are not such as 
 tend to indicate ne^li^ence, then they cannot be deemed 
 to speak. If they do tend to indicate ne,a:li^^ence, they 
 do si^eak as circumstances only, and to that extent the 
 doctrine becomes applicable. When thus applicable, we 
 see no reason why it may not be api^licable in master 
 and servant cases within appropriate limits. This is 
 especially so in cases where the defenses of contributory 
 negligence and the fellow servant rule are abrogated. 
 But it is also true that the scope of its operation must 
 ordinarily be narrower in master and servant cases than 
 in cases between common carrier and passenger, because 
 the mutual obligations between master and servant are 
 by no means identical with those that obtain betw^een 
 carrier and passenger." 
 
 § 545. Recovery Cannot be Defeated When De- 
 fendant's Negligence is Part of Causation. A\'hile a 
 carrier is not liable under the federal act when its negli- 
 gent act is no part of the causation, it is liable in 
 damages for an injury resulting in whole or in part from 
 its negligence."" If the injury was caused in whole or in 
 
 66. United States. Union Pac. Cole, 131 C. C A. 244, 214 Fed. 
 
 R. Co. V. Hadley, 246 U. S. 330, 948; Smith v. Atlantic Coast Line 
 
 62 L. Ed. , 38 Sup. Ct. 318, R. Co., 127 C. C. A. 311, 210 Fed. 
 
 Aff'g 99 Neb. 349, 156 N. W. 765; 761. 
 
 Great Northern R. Co. v. Knapp, Alabama. Southern R. Co. v. 
 
 240 U. S. 464, 60 L. Ed. 74.5, 36 Peters, 194 Ala. 94, 69 So. 611. 
 
 Sup. Ct. 399; Southern R. Co. v. Arkansas. Lusk v. Osborn. 127 
 
 Maryland, 152 C. C. A. 91, 239 Fed. Ark. 170, 191 S. W. 944. 
 
 41; Philadelphia & R. R. Co. v. Iowa. Carrigan v. Union Pac. 
 
 Maryland, 152 C. C. A. 51, 239 Fed. R. Co., Iowa , 162 N..W. 
 
 1, 15 N. C. C. A. 402; St. Louis 571. 
 
 Merchants' Bridge Terminal R. Georgia. Louisville & N. R. Co. 
 
 (^o. V. Schuerman, 150 C. C. A. 203, v. Pa.schal. 145 Ga. 521. 89 S. E. 
 
 237 Fed. 1; Pennsylvania Co. v. 620; Charleston & W. C. R. Co.
 
 956 
 
 Injuries to Interstate Employes. ['^ 545 
 
 part from the compauy's negligence, the statute cannot 
 be nullified and the right of recovery defeated by calling 
 a plaintitf's act the proximate cause of the injur^^'" 
 
 V. Sylvester, 17 Ga. App. 85, 86 
 S. E. 275. 
 
 Kansas. Pyles v. Atchison. T. 
 & S. F. R. Co.. 97 Kan. 455, 155 
 Pac. 788; Hackney v. Missouri, 
 K. & T. R. Co., 96 Kan. 30, 149 
 Pac. 421. 
 
 Kentucky. Lexington & E. R. Co. 
 V. Smith's Adm'e. 172 Key. 117, 188 
 S. W. 1091. 
 
 Maryland. Baltimore & 0. R. 
 Co. V. Branson, 128 Md. 678, 98 
 Atl. 225. 
 
 Micliigan. Chapman v. United 
 States Exp. Co., 192 Mich. 654, 
 159 N. W. 308; Holmberg v. Lake 
 Shore & M. S. R. Co., 188 Mich. 
 605, 155 N. W. 504. 
 
 l^ssouri. Brightwell v. Lusk. 
 194 Mo. App. 643, 189 S. W. 413; 
 Koukouris v. Union Pac. R. Co., 
 193 Mo. App. 495, 186 S. W. 545; 
 
 Delano v. Roberts. Mo. App. 
 
 , 182 S. W. 771. 
 
 Montana. Sorenson v. Northern 
 Pac. R. Co., 53 Mont. 268, 163 
 Pac. 560. 
 
 Nebraska. Hadley v. Union 
 Pac. R. Co., 99 Neb. 349, 156 N. 
 W. 765. 
 
 New York. McAuliffe v. New 
 York Cent. & H. River R. Co., 172 
 N. Y. App. Div. 597, 158 N. Y. 
 Sup. 922. 
 
 North Dakota. Manson v. Great 
 Northern R. Co., 31 N. D. 643, 155 
 N. W. 32. 
 
 South Dakota. Fletoher v. South 
 Dakota Cent R. Co., 36 S. D. 401, 
 155 N. W. 3. 
 
 Vermont. Robie v. Boston & M. 
 
 R. R., ■ Vt. , 100 Atl. 925 
 
 Virginia. Going's Adm'x v. Nor- 
 folk & W. R. Co., 119 Va. 543, 89 
 S. E. 914. 
 
 Washington. Papoutsikis v. Spo- 
 kane, P. & S. R. Co., 89 Wash. 1, 
 153 Pac. 1053. 
 
 West Virginia. Hull v. Virginian 
 
 R. Co. 78 W. Va. 25, 88 S. E. 1060. 
 
 Wisconsin. Molzoff v. Chicago, 
 
 M. & St. P. R. Co., 162 Wis. 451. 
 
 11 N. C. C A. 273, 156 N. W. 467. 
 
 Under the federal act the de- 
 fendant is liable in damages to the 
 plaintiff for an injury if caused 
 in whole or in part by the de- 
 fendant's negligence. The defend- 
 ant can escape liability only in 
 case where there is no negligence 
 whatever on its part causing or 
 contributing to the employe's in- 
 jury. Going's Adm'x v. Norfolk 
 & N. Ry. Co., supra. 
 
 67. Spokane & E. I. R. Co. v. 
 Campbell, 133 C. C. A. 370, 217 
 Fed. 518; Louisville & N. R. Co. 
 V. Wene, 121 C. C. A. 245, 202 Fed. 
 887; Grand Trunk Western R. Co. 
 V. Lindsay, 120 C. C. A. 166, 201 
 Fed. 836; s c. 233 U. S. 42, 58 L. 
 Ed. 833, 34 Sup. Ct. 581, Ann. Cas. 
 1914C 168; Pankey v. Atchison, 
 T. & S. F. R. Co., 180 Mo. App. 
 185, 6 N. C. C. A. 74, 168 S. W. 
 274. 
 
 "If under the Employers' Lia- 
 bility Act, plaintiff's negligence, 
 contributing with defendant's neg- 
 ligence to the production of the 
 injury, does not defeat the cause 
 of action, but only lessens the 
 damages, and if the cause of action 
 is established by showing that the 
 injury resulted 'in whole or in 
 part' from defendant's negligence, 
 the statute would be nullified by 
 calling plaintiff's act the proximate 
 cause, and then defeating him, 
 when he could not be defeated by
 
 ^ 545] Negligence Under Federal Act. 957 
 
 This princi])le was well explained by the federal Su- 
 preme Court in Illinois Cent. R. Co. v. Skaggs,"^ wherein 
 a recovery by a brakeman injured when an engine, being 
 moved in response to his signal, "side-swiped" a car on 
 an adjoining track, was aflirmed. *'It is contended," 
 said the court, ''that the state court erred in permitting 
 a recovery under the Federal slat tile for the reason that 
 the injury resulted from Skaggs' own act, or from an act 
 in which he participated. The company, it is said, 'can- 
 not be negligent to an employee whose failure of duty 
 and neglect produced the dangerous condition.' It may 
 be taken for granted that the statute does not contem- 
 plate a recovery by an employee for the consequences of 
 action exclusively his own; that is, where his injury does 
 not result in whole or in part from the negligence of any 
 of the officers, agents or employees of the employing 
 carrier or by reason of any defect or insufficiency, due to 
 its negligence, in its property or equipment. April 22, 
 1908, 35 Stat. 65. But, on the other hand, it cannot be 
 said that there can be no recovery simply because the 
 injured employee participated in the act which caused 
 the injuiy. The inquiry must be whether there is neg- 
 lect on the part of the employing carrier, and, if the in- 
 jury to one employee resulted 'in whole or in part' from 
 the negligence of any of its other employees, it is liable 
 under the express terms of the act. That is, the statute 
 abolished the fellow-servant rule. If the injury was due 
 to the neglect of a co-employee in the performance of 
 his duty, that neglect must be attributed to the em- 
 ployer; and if the injured employee was himself guilty 
 of negligence contributing to the injury the statute ex- 
 pressly provides that it 'shall not bar a recovery, but the 
 damages shall be diminished by the jury in proportion 
 to the amount of negligence attributable to such em- 
 
 calling his act contributory ncg- tion — that defendant is free from 
 
 ligence. For his act was the same liability under the act." Grand 
 
 act, by whatever name it be called. Trunk Western R. Co. v. Lindsay, 
 
 It was only when plaintiff's act supra. 
 
 is the sole cause -when defend- 68. 240 U. S. 66, 60 L. Ed. 528, 
 
 ant's act is no part of the causa- '^t'^ Sup. Ct 249.
 
 958 Injuries to Inteestatb Employes. [§ 545 
 
 plove.' See Second Employers' Liability Cases, 223 
 U. S. 1, 49, 50; Seaboard Air Line v. Tilgliinan, 237 U. S. 
 499, 501. We think that the argument for the plaintiff 
 in error overlooks the inferences of fact wliich the jury 
 was entitled to draw. Thus, the jury could properly re- 
 gard the two brakemen as assisting each other in the 
 movement in question. Such assistance was certainly 
 appropriate, if not absolutely necessary. The very pur- 
 pose of having two brakeman was not to put upon either 
 the entire responsibility. Working together under .the 
 exigencies of such operations, particularly when con- 
 ducted in the night time, it was manifestly contemplated 
 that the one brakeman would supplement the other and 
 not be compelled at the peril of his rights personally to 
 examine what the other did or the basis of the reports 
 the other gave. Each had a reasonable latitude in re- 
 lying upon the statements of the other made in the 
 course of the operation and as a part of it. The Su- 
 preme Court of the State said: 'It was a very dark 
 night, and evidently there was necessity for haste. If 
 plaintiff's story is true, Buchta was in a position to 
 know about clearance, while plaintiff was not; and we 
 are unable to say plaintiff had not the right to rely upon 
 his statement in regard thereto.' In this we find no er- 
 ror. When the engine was uncoupled, Skaggs was on 
 the right-hand side, while Buchta was on the other side, 
 ^the side of the passing track — a better place to judge 
 the clearance. The fact that Skaggs asked his question 
 is itself not without significance. These questions in- 
 dicated doubt on Skaggs' part, while Buchta 's reply 
 showed certainty on his. It was plainly permissible to 
 infer from the testimony that the two men were not in 
 positions of equal advantage, and Skaggs was entitlecj to 
 the exercise of reasonable care on the part of Buchta in 
 observing and reporting the position of the cars. As 
 there was evidence upon which it could be found that 
 Buchta was negligent, and that thereby injury resulted 
 to Skaggs, it cannot be said that the recovery in this 
 aspect of the case was contrary to the statute."
 
 § 54G] 
 
 Nl'XJLIGENCE UnDKR FeDEKAL AcT. 
 
 959 
 
 § 546. Casualties Due to Sole Negligence of Employe, 
 No Recovery under Federal Act. If llie sole cause of an 
 employe's injury or death is his own act whether n('«^li- 
 gQ.nt or not, there can be no recovery under the federal 
 act."" l^'or instance, a recovery was denied upon this 
 jirinciplo uiidcr tlic following- facts: deceased, a flagman, 
 
 tJ9. United States. Great Nor- 
 thern R. Co. V. Wiles, 240 U. S. 
 444, 60 L. Ed. 732, 36 Sup. Ct. 
 406; Illinois Cent. R. Co. v. Skaggs, 
 240 U. S. 66, 60 L. Ed. 528, 36 
 Sup. Ct. 249; Grand Trunk West- 
 ern R. Co. V. Lindsay, 233 U. S. 
 42, 58 L. Ed. 838, 34 Sup. Ct. 581, 
 Ann. Cas. 1914C. 168; Southern 
 Ry. Co. V. Mays, 152 C. C. A. 91, 
 239 Fed. 41; Philadelphia & R. R. 
 Co. V. Marland, 152 C. C. A. 51, 
 239 Fed. 1, 15 N. C. C. A. 402; 
 Virginian R. Co. v. Linkous, 148 
 C. C. A. 543, 235 Fed. 49; Virgin- 
 ian R. Co. V. Linkous, 144 C. C. A. 
 386, 230 Fed. 88. 
 
 Alabama Southern R. Co. v. 
 Peters, 193 Ala. 94, 69 So. 611. 
 
 Arkansas. St. Louis, I. M. & S. 
 R. Co. V. Stewart, 124 Ark. 437, 
 
 187 S. W. 920 
 
 Georgia. Louisville & N. R. Co. 
 V. Paschal, 145 Ga. 521, 89 S. E. 
 620; Charleston & W. C. R. Co. v. 
 Sylvester, 17 Ga. App. 85, 86 S. 
 E. 275. 
 
 Iowa. Dodge v. Chicago Great 
 Western R. Co., 164 Iowa 627, 146 
 N. W. 14. 
 
 Kentucky. Norfolk & W. R. 
 Co. v. Short's Adm'r, 171 Ky. 647, 
 
 188 S. W. 786; Kentucky & T. R. 
 Co. V. Minton, 167 Ky. 516, 180 
 S. W. 831; Cincinnati, N. O. 
 & T. P. R. Co. V. Swann's Adm'x, 
 160 Ky. 458, L. R. A. 1915C 27, 
 169 S. W. 886; Ellis's Adm'r v. 
 Louisville, H. & St. L. R. Co., 155 
 Ky. 745, 160 S. W. 512. 
 
 Louisiana. Absheir v. Louisiana 
 l?y. & Nav. Co. 141 La. 194, 74 So. 
 901. 
 
 Maryland. Haltimore & 0. R. 
 Co. V. Branson, 128 Md. 678, 98 Atl. 
 225. 
 
 Massachusetts. Gillis v. New 
 York, N. H. & H. R. Co., 224 Mass. 
 541, 113 N. E. 212. 
 
 Missouri. Winslow v. luissouri, 
 K. & T. Ry. Co. (Mo. App ), 192 
 
 S. W. 121; Delano v. Roberts, 
 
 Mo. App. , 182 S. W. 771; 
 
 Trowbridge v. Kansas City & W. 
 B. Ry. 192 Mo. App. 52, 179 S. 
 W. 777. 
 
 Montana. Sorenson v. Northern 
 Pac. R. Co., 53 Mont. 268, 163 
 Pac. 560. 
 
 New Hampshire. Wilson v. 
 
 Grand Trunk Ry. Co., N. H. 
 
 , 97 Atl. 98L 
 
 North Carolina. Hinson v. 
 Atlanta & C. Air Line R. Co., 172 
 N. C. 646, 90 S. E. 772. 
 
 South Dakota. Fletcher v. South 
 Dakota Cent. R. Co., 36 S. D. 401 
 155 N. W. 3. 
 
 Virginia. Virginia & S. W. R. 
 Co. V. Hill. 119 Va. 837, 89 S. E. 
 895; Virginian Ry. Co. v. An- 
 drews' Adm'x 118 Va. 482, 87 
 S. E. 577. 
 
 Washington. Bjornsen v. Nor- 
 thern Pac. R. Co., 84 Wash. 220, 
 146 Pac. 575. 
 
 West Virginia. Hull v. Virginian 
 R. Co.. 78 W. Va. 25, 88 S. E. 1060; 
 Easter v. Virginian R. Co.. 76 W.
 
 960 Injuries to Interstate Employes. [<§ 546 
 
 was sent by a bridge foreman a certain distance on the 
 track from a bridge on wliicli repairs were being made, 
 to protect the bridge crew by "flagging" all passing 
 trains. While on duty he was struck and killed by a 
 train approaching from the direction of the bridge. In 
 an action for damages under the federal act, it was claim- 
 ed that his death was due in part to the negligence of 
 the employes in charge of the train in failing to keep 
 a lookout and to give a reasonable warning of the ap- 
 proach of the train; l^ut the court held that the de- 
 fendant did not owe the decedent the duty of keeping a 
 lookout for him and as there was no evidence that the 
 train operatives actually saw him in a position of peril 
 in time to have, by exercising ordinary care, prevented 
 his death, a verdict of the jury for defendant was ap- 
 proved. In the course of the opinion, the court said: 
 "When a flag-man is sent out to watch for train and 
 warn them of danger, the company and its trainmen have 
 a right to presume that he will not only watch for trains 
 but also for his own safety and his failure to do this is 
 his own negligence" and "if one's death is caused solely 
 by his own negligence, he cannot recover under either 
 the state law or the Federal Employers' Liability Act."^° 
 In another case under the federal act the Kansas City 
 Court of Appeals held that there was no liability for the 
 death of a brakeman who, having signaled the engineer 
 to slow down the speed of a backing train on a curve at 
 night voluntarily placed himself in a place of danger 
 between the moving cars and a freight loading platform 
 where he could not signal the engineer and could not 
 have been seen by him because of the curve, and was 
 crushed to death between the platform and a side of a 
 moving car as he was attempting to vault onto the plat- 
 
 Va. 383, 11 N. C. C. A. 101, 86 S. accident, or was due solely to his 
 
 E. 37. . own negligence, there can be no 
 
 The right of recovery under the recovery. Gulp v. Virginian R. 
 
 federal act depends upon negli- Co., 77 W. Va. 125, 87 S. E. 187. 
 
 gence for which the carrier is 70. Ellis's Adm'r v. Louisville, 
 
 made liable, and if deceased's h. & St. L. R. Co., 155 Ky. 745. 160 
 
 death was the result of a mere S. W. 512.
 
 § 547] Xkcligence Under Fkdkkai. Act. Ofil 
 
 fonii. There was a safe place for llie decedent to stand 
 on the opposite side of tlie track where there was no ob- 
 struction. Discussing tlie legal eiTect of these facts, 
 Jndg'c^ Trimble, for the court, said: "Under the 
 (h'rdci-al) Employers' Liability Act, if there was negli- 
 gence on tlie pait of tile defendant, conliibiitoiy negli- 
 gence of the deceased does not bar a recovery but only 
 diminishes the damages in i)roi)ortion to the amount of 
 negligence attributable to such employe. Where, however, 
 there is no negligence on the part of the master, but tlie 
 injury is solely the result of the employe's negligence, 
 there can be no recovery. That such is the case here we 
 think there can be no doubt. Pankey gave the slow sig- 
 nal and then went from a place of safety, and, without 
 notice or intimation to anyone, placed himself in an ex- 
 ceedingly dangerous situation. He was not required to 
 do this in the performance of his work. And, when the 
 danger of his situation evoked a warning from his con- 
 ductor, he voluntarily chose a dangerous instead of an 
 easier and a surely safe way out. This last was in it- 
 self negligence ".^^ 
 
 § 547. Foregoing Principle Futher Illustrated and 
 Applied. It is not the purpose of the statute to af- 
 ford relief where one's injury is due solely to his own 
 reckless and indifferent conduct.'- In the cited case it 
 appeared that an engineer ran his train beyond a 
 station at which he had been ordered to meet another 
 train and a collision followed. The engineer disregarded 
 the dispatcher's orders for the meeting point apparently 
 with the full knowledge of the other members of the 
 crew as the conductor and the head brakeman were rid- 
 ing on the engine, and copies of the train orders as to 
 the meeting point were found on the persons of the en- 
 gineer and the conductor when their bodies were re- 
 moved from the wreck. Said the Court: "It is in- 
 sisted by counsel for plaintiff in the case at bar that 
 
 71. Pankey v. Atchison, T. & S. 72. Virginian R. Co. v. Linkous 
 
 F. R. Co., 180 Mo. App. 185, 6 N. 144 C. C. A. 386. 230 Fed. 88. 
 C. C. A. 74, 168 S. W. 274. 
 
 1 Control Carrlfis CI
 
 962 IxjuiuES TO Inteestate Employes. [§ 547 
 
 plaintiff's decedent lost his life 'as a result of a combin- 
 ed mntnal, concurring, and joint failure of these four men 
 to fulfill their primary duty hj executing the order 
 to meet Xo. '.VS according to its tenns and as prescribed 
 by the defendant's rules, which was the controlling and 
 proximate cause of the collision.' * * * While the 
 Emitloyers' Liability Act was manifestly intended to 
 modify the law as it formerly existed so as to materially 
 benefit those who might be injured in the future, by 
 abolishing the harsh rule known as the 'Fellow-Servant 
 Doctrine,' yet it cannot be reasonably insisted that it 
 was the purpose of the act to afford relief where one's 
 injury is due solely to his own reckless and indifferent 
 conduct. After an exhaustive examination of the au- 
 thorities cited we find nothing to suppose the contentions 
 of the plaintiff. Under the circumstances the jury could 
 not reasonably have drawn any other inference than that 
 the other employes were not in any degree primarily 
 responsible for the accident. Such being the case, we 
 are of opinion that the jury was not warranted in 
 reaching the conclusion that plaintiff' 's decedent's death 
 resulting in whole or in part from the negligence of the 
 employes of the defendant." 
 
 § 548. Cases Under Federal Act in Which the 
 Facts were Held to Show Actionable Negligence. In the 
 
 following actions for damages under the federal act it 
 was held that the facts summarized warranted an in- 
 ference of negligence sufficient to submit the question to 
 a jury. A railroad bridge which had been weakened 
 because some of the wooden supports under it had been 
 consumed by fire collapsed when an engine attached to a 
 rotary snow plow passed over it, causing the death of 
 the engineer. The defendant's negligence was held to be 
 a jury question." Decedent, a switchman in the employ 
 of a railroad company while engaged in making up an 
 interstate train, was run over and killed by a "road" 
 
 73. Copper River & N. W. R. Co. v. Reed, 128 C. C. A. 39, 211 
 
 Fed. 111.
 
 § 548] NhXJLKiKNCE UnDKK P'EDKIiAL AcT. 9G3 
 
 en^nno iispd at the time in switching. This engine was 
 ecjuipped wtli a pilot and did not liave a front footboard 
 with which regular switch engines in railroad yards are 
 usually e(inij)ped. Decedent fell from the pilot of the 
 ''road" engine and the evidence disclosed that there 
 would have been less danger for employes if the engine 
 had })e('n (Mniippcd with a footboard. The court hekl 
 tliat it was a (piestion for the jury to determine wliethor 
 tlie railroad company was negligent in using the "road" 
 engine instead of a regular switch engine/' A conductor 
 of a freight tran was killed in a rear-end collision. One 
 of the brakemen working under him neglected to i)rotect 
 the rear of the train by going back a certain distance to 
 flag a])i)roaching trains as he was required to do. It was 
 lield that the brakenuui's negligence, as a matter of law, 
 was the defendant's negligence." A gang of track 
 laborers were returning from their work on several hand- 
 cars which were a short distance ai)art. One of thes^ 
 cars on which i)laintiff was riding collided with the car 
 just ahead of it, causing plaintiff's injuries. It was 
 shown that the men on the car in front of plaintiff's car 
 without any warning suddenly materially reduced the 
 speed of their car and the collision followed. The court 
 held that the question whether the defendant's employes 
 on the first car were negligent was properly a question 
 for the jury."^ Whether a railroad company was negli- 
 gent in failing to inspect a box car after the roof was 
 blown off and before the said condition of the box car 
 caused an injury to an employe, was properly submitted 
 to a jury for determination."' Plaintiff was assisting in 
 repaii'ing a railroad bridge by preparing the points and 
 heads of idlings so that they might be driven with a pile- 
 driver. He attached a rope to a pile so that it might be 
 hoisted by the ])ile-driver and moved into the place 
 
 74. Louisville & N. R. Co. v. 76. San Pedro, L. A. & S. L R. 
 Lankford 126 C. C. A. 247, 209 Co. v. Davide 127 C. C. A. 454. 210 
 Fed. 321. Fed. 870. 
 
 75. Pennsylvania R. Co. v. 77. Ridge v. Norfolk Southern 
 Goughnour. 126 C. C. A. 39, 208 R. Co., 167 N. C. 510, L. R. A. 
 f'e^- 9*''l- 1915E 215, 83 S. E. 762
 
 964 Injuries to Tnteestate Employes. [§ 548 
 
 where it was to be driven. Plaintiff then crossed to the 
 other side of the track when the pile, it being raised, 
 swung over and struck him. There was evidence tend- 
 ing to show that if the engineer o]ierating the pile-driver 
 engine liad held the line as it was his duty to do, the 
 piling would have swung across from one side of the 
 track to the other high enough to avoid hitting the 
 plaintiff. The question of the engineer's negligence was 
 properly submitted to the jury.'' A section hand, while 
 sweeping snow from the switches of a main line on a 
 cold, windy, dark night, was struck and killed by a 
 train running at a speed of 35 miles an hour without 
 the bell ringing or whistling, except that the whistle was 
 blown at the whistling post before reaching the station. 
 The track at the point was straight and the engine had 
 a headlight which would show objects for a distance of 
 1, 000 feet. The men in charge of the train knew that on 
 such nights section men worked at switches to keep 
 them clear of snow. The court held that on the question 
 of the defendant's negligence the cause was properly 
 submitted to the jury.''' A large number of boxes had 
 been standing for several weeks on a platform within a 
 foot of a passing car. A passenger train passed by this 
 platfonn and the steps attached to the side of the bag- 
 gage car were torn away by striking some of these boxes 
 which had toppled over a few hours before. Shortly 
 thereafter the baggageman on the train as it approached 
 another station, fell to the ground because of the absence 
 of the steps. In leaving the boxes unsecured so that 
 they might cause damage to a passing train, the court 
 held that the defendant was guilty of actionable negli- 
 gence under the federal act.'° A passenger train stopped 
 at niglit on a trestle bridge which was floored on one 
 side of the track but not on the other. The train porter 
 on the command of the conductor who knew the con- 
 dition of the trestle, stepped from the train on the side 
 
 78. Smith v. Northern Pac. R. 181 Mo. App. 156, 168 S. W. 328. 
 Co., 79 Wash. 448, 5 N. C. C. A. 80. Ferebee v. Norfolk South- 
 947! 140 Pac. 685. ern R. Co.. 163 N. C. 351, 52 L. 
 
 79. Hardwlck v. Wabash R. Co., R. A. (N. S.) 1114, 79 S. E. 685.
 
 <^ 548] Negligence Under Federal Act, 965 
 
 that was not floored, fell several feet to the ground and 
 was injured. He had been ordered by the conductor to 
 get ot^" the train in order to carry an oil can to the en- 
 gineer. The ])orter was ignorant of the condition of the 
 bridge, ^riie court held that the conductor as the agent 
 of the defendant was negligent in failing to inform the 
 porter as to the j)roi)<'i- side of the bridge for him to 
 alight and that said negligence, under the federal act, 
 was the proximate cause of the injury.^^ A petition in 
 an action under the federal act stated that the plaintiff 
 was a fireman on an interstate train; that as the train 
 approached close to a place where the track had been 
 torn up for repairs, a flagman, one of the laborers on 
 the track, ran excitedly towards the train and signaled 
 the engineer to stop. The emergency brakes were quick- 
 ly applied and the plaintiff", seeing the flagman and the 
 track torn up, jumped from the engine and was injured. 
 It was alleged that the plaintiff" 's injuries were caused 
 by the negligence of the defendant in failing to have a 
 flagman a sufficient distance away from wh(^i-e the em- 
 ployes were working on the track so that the train could 
 be stopped before reaching the point. The petition was 
 held to state a good cause of action under the federal 
 act.^- A bridge carpenter was at work on a double track 
 bridge within fifty feet of a curved tunnel on the west 
 and on the east approach there was another curve in a 
 cut. The foreman took no precaution to protect the 
 workmen by sending out flagmen. He only stood on the 
 east bound track and called "railroad" or "clean up" 
 on observing the apiu-oach of a train. It was held that 
 the company was guilty of negligence under the federal 
 act in failing to protect the bridge carpenters with 
 flags.-' Whether a railroad company was negligent in 
 
 81. Missouri, K. & T. Ry. Co. 83. Norfolk & W. R. Co. v. Hol- 
 
 of Texas v. Bunkley, Tex. brook. 131 C. C. A. 621^ 215 Fed. 
 
 Civ. App. , 153 S. W. 937. 687; s. c, 131 C. C. A. 666, 215 
 
 82. Charleston & W. C. R. Co. Fed. 1007 rev'd on other grounds 
 V. Brown, 13 Ga. App. 744, 79 S. by United States Supreme Court 
 E. 932. 235 U. S. 625, 59 L. Ed. 392, 35 
 
 Sup. Ct. 143, 7 N. C. C. A. 814.
 
 966 Injuries to Interstate Employes. [§ 548 
 
 failing to illuminate' and guard an opening in a platform 
 tunnel, was held, in an action under the federal act, 
 under the evidence to be a (piestion for th{> jury.'' A 
 switclunan, while walking along a track in a terminal 
 railroad yard at night, was struck and killed by an 
 engine moving slowly and almost noiselessly in the same 
 direction. The engine's headlight was very dim and a 
 train on another track nearby was passing at the same 
 time making considerable noise. The engine which 
 struck the switchman could have been stopped within a 
 few feet but the engineer did not see the decedent. It 
 was held that these facts constituted sufficient evidence 
 of negligence and a verdict for the plaintiff was affirm- 
 ed.'' Whether a cinder pile placed near a track in a 
 railroad yard constituted a " defect due to negligence" 
 within the meaning of the federal act, was a question 
 for the jury to pass upon.*" A railroad employe, while 
 riding on the side of a box car at night, struck a switch 
 stand and was injured. In a subsequent action for 
 damages under the federal act, the court held that the 
 question of the defendant's negligence in maintaining 
 the switch stand too close to the track was, under the 
 evidence, a matter for the jury to determine."' An en- 
 gineer in stopping a train and causing such an unusual 
 and sudden jolt as to throw an employe from a ladder 
 on a side of a car was guilty of negligence under the 
 federal act."" When a railroad company caused some 
 cars to be "kicked" at night without warning and 
 without light along a track in a terminal yard, its negli- 
 gence in so doing was a jury question.*" • A brakeman, 
 
 84 Copper River & N. W. R. 88. Owens v. Chicago, G. W. 
 
 Co. V. Heney, 128 C. C. A. 131, 211 R- Co., 113 Minn. 49, 128 N. W. 
 
 1011; La Mere v. Railway Trans- 
 
 ,. „ ^ o •,!, fer Co. 125 Minn. 526, 147 N. W. 
 
 85. southern R. Co. v. Smith, ^^ ^ ^^ ^^^^.^ ^ ^ 
 
 123 C. C. A. 488 205 Fed. 360. ^ ^ ^^ ^^^ ^^ ^^^ ^^^^ ^g, 
 
 86. Southern R. Co. v. Jacobs. g ^ ^^^ ^^^.^j^ ^^^.^j^ ^ ^ ^ 
 116 Va. 189, 81 S. E. 99. Ry Co. v. Stalcup, Tex. Civ. 
 
 87. McDonald v. Railway Trans- App. , 167 S. W. 279. 
 
 fer Co. of Minneapolis, 121 Minn. 89. Colasurdo v. Central R. R. 
 
 273- 141 N. W. 177. of New Jersey, 180 Fed. 832; s.
 
 § 548] NixiLTGENCE ITnder Federal Act. 967 
 
 wliilc switcliiiii:: oars from a train to a side track at 
 iii^lil niul ri(]in,n- on tlic side of a box car, was struck 
 and i)i.jiir<'<l hy otlxT cars staiMlin;^' (»ii tlic ndjoinin*^ 
 track wliicli had not been sbovcd far enough fi'oin the 
 switch to be "in the clear." The brakeman knew of 
 the presence of the standing- cars l»ut did not know how 
 far they had been placed from tlie switch joinin.i^ the 
 two tracks. He proceeded to investij^ate before makiui^ 
 the switcliino: movement but before ascertaining the 
 condition of the cars he was assured by a fellow brake- 
 man that the standing cars could be passed with safety 
 and relying upon this assurance, he proceeded with the 
 switching- movement and was injured by coming in con- 
 tact with the cars. In an action under the federal act 
 it was held that his fellow brakeman 's statement con- 
 stituted actionable negligence."'' A switchman while 
 assisting in ''poling" a car, was crushed to deatli be- 
 tween the engine and the car. There was evidence pro 
 and con as to the proper method in such movement of 
 cars. Whether the method actually used by direction of 
 the foreman was negligent and caused the death of the 
 decedent, was held, under the evidence, to be a jury 
 question."' A track laborer taking out old ties from the 
 main line when a train approached on that track, step- 
 ped on an adjoining track where he was struck and 
 killed by a switch engine whicli a])proached without any 
 warning. Witnesses testified that it was customary for 
 switching crews to give warning to track laborers. 
 It was held that the question of the negligence of the 
 employes in charge of the switch engine was properly 
 submitted to the juiy."*^ A glass attached to a lubricator 
 on an engine exploded and blew the shield around it 
 against an engineer's face causing the loss of an eye. 
 The lubricator in question was a kind called "Nathan" 
 which sometimes exjilodes. Seventy-five per cent of the 
 
 C. 113 C. C. A. 379. 192 Fed. 901. R. Co., 157 Wis. 4U0. 147 X. W. 
 
 90. Skaggs V. Illinois Cent R. 1054. 
 
 Co., 124 Minn. 503, 145 N. W. 381. 92. Bombolis v. Minneapolis & 
 
 91. Sweet v. Chicago & N. W. St. L. R. Co., 128 Minn. 112, 150 
 
 N. W^ 385.
 
 968 Injuries t(^ Tnteestate Employes. [§ 548 
 
 defendant's engines were equipped with a kind of 
 lubricator known as ''Bull's Eye" which did not ex- 
 l)lode. The "Nathan" lubricators had been in use for 
 twenty years but for three years before the date of 
 plaintiff's injury this kind had been replaced on most of 
 the engines by the "Bull's Eye" lubricators. Whether 
 the defendant committed a negligent act in continuing to 
 furnish the engine on which plaintiff was working with 
 a "Nathan" lubricator instead of a "Bull's Eye," was 
 a question for the jury.^^ A car foreman while on duty 
 had the exclusive possession of certain keys which un- 
 locked the switches of a certain repair track in a term- 
 inal yard. Decedent, a car repairer, while working on 
 this track was ordered by the foreman to go to another 
 track in the yard to make slight repairs to a car. While 
 he was absent the foreman ordered the switching crew 
 to take out some cars from the repair track and place 
 others in there for repair. Having no knowledge of the 
 foreman's order or that cars were being switched onto 
 the repair track, the car repairer returned and while at 
 work on a car standing on the repair track, the car was 
 struck by other cars shoved in on the repair track by the 
 switching crew causing the death of the car repairer. 
 It was held that whether the foreman was negligent in 
 failing to anticipate that the car repairer would return 
 before the switching was completed and in failing to 
 warn the decedent, was not a question of law but a 
 question of fact to be solved by the jury.''* A railroad 
 employe was ordered by the conductor to couple an 
 engine to a way car. Upon the first effort, the coupling 
 failed. The way car was knocked back some distance. 
 The deceased stepped in to fix the pins and then signaled 
 the fireman to couple up, but the caboose again failed to 
 ]nake the coupling. The deceased again stepped in to 
 adjust the coupling and while standing near the draw 
 })ar the caboose suddenly moved down upon him, causing 
 his death. It was held that the evidence was sufficient 
 
 9.3. Bower v. Chicago & N. W. 94. Evans v. Detroit, G. H. & 
 
 R. Co., 96 Neb. 419, 148 N. W. M. R. Co., 181 Mich. 413. 148 N. 
 14.5. W. 490.
 
 "§> 54*)] Negligence 'Undkh Fedehal Act. 9(39 
 
 to sliow a violation of tlio Federal Safety A))i)lianee Act 
 and that such violation caused liis death.'' Decedent, 
 a cai" iiisi>e('1or, was run oxer and killed at Jii.i^ht on a 
 track in a railroad terminal yai'd hy some cars backed 
 Hj) ])\ a switch engine without warning-, without lights 
 and with no one on the end of the hrst car to warn him 
 of danger. In an action under the federal act it was 
 held that the (|ue.stion of the defendant's negligence was 
 proi)erly submitted to the jury."" A section laborer in a 
 railroad yard stejiped on a certain track for purjDoses of 
 his own, the evidence being conflicting as to whether he 
 was between two cars or at the end of a car standing on 
 the track. While so standing he was truck hy some 
 cars switched upon the track. There was evidence that 
 there was no one on these cars in a suitable position to 
 warn employes of their api)roacli and there was also 
 evidence that the section foreman knew that the laborer 
 was in a position of danger on the track and that he by 
 exercising ordinary care could have seen the approach- 
 ing cars in time to have warned the decedent. It was 
 held under these facts that the cause was ])ro))erly sub- 
 mitted to the jury under the federal act.''' 
 
 § 549. Cases Under Federal Act in Which the 
 Facts were Held not to Show Actionable Negligence. 
 An electric passenger car while running from one state 
 to another was derailed in the state of Ohio causing 
 the death of the motoiTnan. Under a statute of Ohio 
 proof of a defect in the wheels of the car was sufficient 
 to create a ])rima facie case of negligence but as the 
 action was prosecuted under the federal act the state 
 statute was inoi)erative for the reason that under the 
 federal act a conmion carrier by railroad is not liable un- 
 less the death is the result of defects "due to negli- 
 gence" and a recovery was denied."* An engine repairer 
 
 95. Montgomery v. Carolina & 97. Louisville & X. R. Co. v. 
 
 N. AV. R. Co , 163 N. C. 507, 80 S. .Johnson's Adni'x 161 Ky. 824, 171 
 
 E. 83. S. W. 847. 
 
 9G. Thornton v. Seaboard Air 98. South Covington & C. St. 
 
 IJne Ry., 98 S. C. 348, 82 S. E. R. Co. v. Finan's Adm'x. 153 Ky. 
 
 433. 340, 155 S. W. 742.
 
 970 iNjriuBs TO Interstate Employes. [§ 549 
 
 ill a roiiiidliouse liad his hand crushed between a pilot 
 beam and a jack while attempting to lower the front 
 end of a locomotive engine. He claimed that the engine 
 dro]>ped because another jack on the other side of the 
 engine slipped and that this in tiu'n was due to the fact 
 that a wrench was used as a substitute for a lever. The 
 court held that, under the evidence, the i)laintiff failed 
 to show that an act of negligence caused the injury.**^ 
 A fireman on an engine saw a track walker w^alking in a 
 place of safety between two tracks with his back to the 
 train. The engine bell was ringing; but as the train 
 came close to the track walker, he suddenly stepped 
 from between the tracks on the track on which the train 
 was approaching and was run over and killed. He 
 could not have been seen by the engineer because of a 
 curve. A jury returned a verdict against the railroad 
 company and found that the death of the track walker 
 was due in part to the negligence of the fireman in 
 failing to request the engineer to sound the whistle when 
 the decedent was tirst seen by the fireman while walking 
 between the tracks. It was held that the fireman was 
 not negligent in failing to anticipate that the decedent 
 would step from a place of safety on a track directly in 
 front of an approaching train and the cause was re- 
 versed.^ Plaintiff, a student fireman, was given a letter 
 by the defendant railroad company permitting him to 
 ride on the engines of all freight trains to prepare him- 
 self for the duties of a fireman. He boarded an engine 
 of one train and was informed by the fireman that it 
 was not a suitable train to leani firing on and he was 
 advised to get off and then get on another train running 
 in the opposite direction at a certain place over which 
 all trains ran under "slow orders." He was told that 
 the train would pass that place running only six miles 
 an hour and that he could easily get on. The plaintiff 
 did so and in attempting to get on the other train was 
 
 99. Winters v. Minneapolis & 1. New Yorky N. H. & H. R. 
 
 St. L. R. Co., 126 Minn. 260, 148 (^o. v. Pontillo. 128 C C. A. 573, 
 N. W. 106. 211 Fed. 331.
 
 <^ 549] Nk(jm(;ex<k UxDKFt Fkdkhal Act. 971 
 
 tlirown UTidor the wkccls and iiijiii-cd. He attriliiitod liis 
 injuries to the excessive sjx'cd of llic 1i-ain of wliich he 
 liad no knowledge, but assumed, on Ihc assurance of tlie 
 fireman of tlie otlier train, that it was only runnint^ at 
 the rate of six miles i)er hour. He had had no ex- 
 perience in judftin^- the si)eed of trains. The court held 
 that there was no dii1\ towards tlie plaintiff to i-un the 
 train at six miles an hour and consequently no nci^li- 
 gence.- PlaintilT, a section foreman, was ridin,^' with a 
 force of men on a liandcai- while inspecting the tracks. 
 A flagman had i)receded tlie section hands along the 
 track so as to give tliein warnings of approaching trains. 
 Suddenly a freight train running at a high rate of speed 
 came in sight from around a curve and the flagman 
 promptly warned the men on the handcar. Because of 
 the close proximity of the train when it was discovered, 
 owing to the curve which obstructed the view, the men 
 on the handcar acted prom])tly, and to ]n-event a threat- 
 ened collision (piickly removed the car. The i)laintiff 
 in assisting strained himself and sustained injuries. The 
 court found that under the facts neither the flagman or 
 the train emi)loyes were negligent and that as it was 
 necessary for the plaintiff in an action under the federal 
 act to show by the evidence that his injuries wei'e 
 caused in whole or in part by the defendant's negligence 
 or its employes, there was no liability.^ Two section 
 men, each holding one end of a tie, started to toss the 
 tie on a flat car. The tie was in a wet, slippery condition 
 and this caused it to turn as it was being tossed on the 
 car. One of the two laborers, by reason of the tie slip- 
 ping and turning, had his finger caught between the tie 
 and the floor of the car, causing it to be pinched off. 
 In a subsequent action under the fedeial act, it was held 
 that the facts disclosed did not show negligence within 
 the meaning of the act, but that the plaintiff's injui'y 
 was due to an accident without any causal negligence 
 
 2. Cincinnati, N. 0. & T. P. R. 3. Louisville & X. R. Co. v. 
 
 Co. V. Wheeler, 160 Ky. 215. 169 Kemp. 140 Ga. 657. 79 S. E. 55S. 
 S. W. 690.
 
 5>72 Injueiks to Interstate Employes. [§ 549 
 
 (jonlributiiig/ Steam escaped from a steam pipe attach- 
 ed to a steam chest on a ferry boat used by a railroad 
 company as a part of its line. The escaping' steam 
 caused the death of an employe on the boat and it was 
 held in an action for his death by tlie administrator on 
 behalf of the beneficiaries named in the federal act that 
 as there was no evidence produced tendin^^ to show 
 that the escape of the steam and the breaking of the 
 pipe was due to some negligence on the part of the 
 owner, there could be no recovery.'* A brakeman while 
 switching cars at night and knowing that cars were be- 
 ing shoved back in response to his signal to the en- 
 gineer, placed himself between the track on which the 
 cars were approaching and a freight loading platform 
 where the space between the platform and a car was 
 only a few inches and too narrow for a man to stand 
 with safety. While the cars were still about twenty 
 feet away from him, the conductor warned him of the 
 dangerous place he was in and told him to get out. 
 Then the brakeman set his lantern on the platform, 
 placed his hands upon the platform and tried to vault 
 onto the platform but before he succeeded the end of the 
 car caught him and crushed him between the car and 
 the platform. It was held that no negligence of the 
 defendant contributed either in whole or in part to cause 
 the death. "^ A conductor was walking along the side of 
 his train taking the numbers of the cars while the crew 
 was making up the train. Starting at the rear of the 
 train there were first, three cars; second, a space of 18 or 
 20 feet; third, three more cars; fourth, a space of several 
 feet, and, fifth, a long string of freight cars with the 
 engine at their head. When the conductor reached the 
 rear of the forward three cars, he gave the lift pin lever 
 a jerk, and tlien reached in to put his hand on, or act- 
 ually took hold of the coupler when the forward end 
 
 4. Long V. Southern R. Co. in s. c. 122 C. C. A. 46G, 204 Fed. 
 Kentucky, 155 Ky. 286, 159 S. W. 266. 
 
 779. 6. Pankey v. Atchison, T. & S. 
 
 5. The Passaic, 190 Fed. 644; F. R Co., 180 Mo. App. 185, 6 N. 
 
 C. C. A. 74, 168 S. W. 274.
 
 Ǥk 550] Negligence Under Federal. Act. 973 
 
 of tlio train struck tlie forwai'*! ciid of the tlirec ears in 
 the act of coupling to tlieni, knocked him down and ran 
 over him. The car to whicli tlie coui)k^r was attaclied 
 had been inspected shortly before the accident and the 
 inspectors had fomid no defect. Several witnesses ex- 
 amined and c)])erated tlie ooupler and the lift pin lever 
 imni(Mliately after the accident and found them in good 
 condition and oi^erating perfectly. It was held that 
 under this state of facts the verdict of the jury that the 
 coui)ler was so defective at the time of the accident 
 that "it would not coui)le automatically by impact with- 
 out the necessity of men going in between the car" as 
 required by the Federal Safety Appliance Act, was based 
 on conjecture and could not be sustained.^ A section 
 hand was riding on a tricycle on a railroad track with 
 his foreman. Tools were also being carried. The fore- 
 man ordered the laborer to stop the car with the brake 
 and when he attemped to do this with his hand, his arm 
 came in contact with the tools on the car causing his 
 fingers, in some way not clearly shown, to be caught 
 in the cog wheels, injuring him. It was claimed in a 
 suit under the federal act that the foreman was negli- 
 gent in ordering the laborer to apply the brakes as in do- 
 ing so he might probably come in contact with the 
 tools and be injured. The court held that such an act 
 on the part of a foreman was not negligence and that 
 the injury was caused by an accident without any 
 negligence contributing thereto.* 
 
 § 550. Statute Covers Acts of Interstate Employes 
 and Defects in Instrumentalities Used Solely in Intra- 
 state Commerce. It is not essential, to permit a re- 
 covery under the national act, that the employe whose 
 negligence caused the injury be also employed in inter- 
 state commerce or that the instrumentality, the defect in 
 which caused the injury, l)e used at the time in interstate 
 
 7. Midland VaUey R. Co. v. 8. Cincinnati, N. O. & T. P. R. 
 
 Fulgham, 104 C. C. A. 151. 181 Co. v. Hill 161 Ky. 237, 170 S. 
 
 Fed. 91, L. R. A. 1917E 1 rev'g. \V. 599. 
 167 Fed. 660.
 
 974 
 
 InjI'Ries to Interstate Employes. 
 
 [§ 550 
 
 commerce.^ Instances where tlie causal negligence is that 
 of a co-employe engaged at the time solely in intrastate 
 commerce or where the instrnmentality causing tlie injury 
 was used at tlie time exclusively in intrastate commerce, 
 are embraced within the terms of the act, if the other con- 
 ditions are present, that is, if the carrier was engaged in 
 interstate commerce and if the injured employe at the time 
 was employed in interstate commerce/" The statute 
 gives a right of recovery under such conditions for "in- 
 jury or death resulting from the negligence of any of the 
 employes." In the Pedersen case, cited in the notes, the 
 court said "But it is not essential, where the causal 
 negligence is that of a co-employe, that he also be em- 
 ployed in such commerce, for, if the other conditions be 
 present, the statute gives a right of recovery for injury or 
 death resulting from the negligence 'of any of the 
 
 9. United States. Mondou v. 
 New York, N. H. & H. R. Co., 223 
 U. S. 1, 56 L. Ed. 327, 32 Sup. Ct. 
 169, 1 N. C. C. A. 875; 38 L. R. 
 A. (N. S.) 44; Lamphere v. Ore- 
 gon R. & Nav. Co., 116 C. C A. 
 156, 196 Fed. 336, 47 L. R. A. (N. 
 S.) 1; Central R. Co. of New 
 Jersey v. Colasurdo, 113 C. C. A. 
 379, 192 Fed. 901; Colasurdo v. 
 Central R. R. of New Jersey, 180 
 Fed. 832; Zikos v. Oregon R. & 
 Nav. Co., 179 Fed. 893. 
 
 California. Southern Pac. Co. 
 V. Industrial Ace. Commission of 
 California, 174 Calif. 8, 161 Pac. 
 1139. 
 
 Indiana. Pittsburgh, C, C. & 
 St. L. R. Co. V. Farmers' Trust 
 & Savings Co., 183 Ind. 287, 108 
 N. E. 108. 
 
 Kentucky. Louisville & N. R. 
 Co. V. Walker's Adm'r. 162 Ky. 
 209, 172 S. W. 517. 
 
 Minnesota. Crandall v. Chicago 
 Great Western R. Co., 127 Minn. 
 498, 150 N. W. 165. 
 
 New Jersey. Grybowski v. Erie 
 R. Co.. 88 N. J. L. 1, 95 Atl. 764. 
 
 North CaroUna. Sears v. Atlan- 
 tic Coast Line R. Co., 169 N. C. 
 446, 86 S. E. 176. 
 
 Contra: Illinois Cent. R. Co. 
 V. Rogers, 136 C. C. A. 530, 221 
 Fed. 52; Mayers v. Union R. Co., 
 256 Pa. 474 100 Atl. 967. 
 
 10. Southern Pac. Co. v. In- 
 dustrial Ace. Commission of Cali- 
 fornia, 174 Cal. 8, 161 Pac. 1139; 
 Pittsburgh, C, C. & St. L. R. Co. 
 v. Farmers' Trust & Savings Co., 
 183 Ind. 287, 108 N. E. 108. 
 
 11. Pedersen v. Delaware, L. & 
 W. R. Co., 229 U. S. 146, 57 L. 
 Ed. 1125, 33 Sup. Ct. 648, 3 N. 
 C. C. A. 779 Ann. Cas. 1914C 153; 
 Mondou V. New York, N. H. & H. 
 R. Co., Second Employers' Lia- 
 bility Cases, 223 U. S. 1, 56 L. Ed. 
 327, 32 Sup. Ct. 169, 1 N. C. C. A. 
 875, 38 L. R A. (N. S.) 44; Cola- 
 surdo V. Central R. R. of New 
 Jersey, 180 Fed. 832, aff'd in 113 
 C. C. A. 379, 192 Fed. 901.
 
 § 551 J Xegligenck Under Federal Act. 975 
 
 employes of such carrier,' and this includes an 
 employe en^aKt'd in intrastate commerce." An ap- 
 l)ellate court in New Jersey rendered an err<jneous de- 
 cision on the (piestion of ai)i)licability of the federal act 
 whicli was due in part to a failure to recognize this prin- 
 ciple.'-' In iliat case the plaintiff was injured while 
 })lacin^- a cover over the mechanism of a switch which he 
 had just oiled. The switch connected with tracks used 
 indiscriminately in moving both kinds of commerce. 
 While so engaged the ])lantiff was struck hy a car used 
 at the time solely in intrastate commerce. It was held 
 that there could be no recovery under the federal act 
 for two reasons, one of them given l)y tlui court was that 
 the car was not used in interstate commerce. This rul- 
 ing was erroneous for it is immaterial whether the in- 
 strumentality which caused the injury was at the time 
 being used in interstate commerce. In a case which has 
 been'^verv frecpiently cited, the rule on this feature is 
 clearly stated as follows : " I am therefore of the opinion 
 that the plaintiff was at the time engaged in interstate 
 commerce and entitled to rights secured by this act. 
 (Plaint ilf was repairing a switch on tracks used in- 
 discriminately for both kinds of commeice). That being 
 so, it is a matter of no consequence whether the train tliat 
 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 every 
 activitv when they are engaging in such commerce by 
 their own employes. In short, if the employe was en- 
 gaged in such commerce, so was the road, for the road 
 wa's 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 connnerce, nor can I see any 
 reason for such an implied construction."" 
 
 § 551. Intrastate Employes Injured by Negligence of 
 Interstate Employes or Instrumentalities of Interstate 
 
 12. Granger v. Pennsylvania R. 13. Colasurdo v. Central R. R. 
 
 Co 84 N J. L. 338, 86 Atl. 264. of New Jersey, 180 Fed. 832. aff'd 
 
 in 113 C. C. A. 379. 192 Fed. 901.
 
 976 Injuries to Interstate Employes. [^^ 551 
 
 Commerce have no Remedy under Federal Act. When 
 a servant is employed exclnsively in intrastate commerce 
 at the time of his injury, he has no remedy nnder the 
 federal act, although injured by another employe en- 
 gaged at the time in interstate commerce or by in- 
 strumentalities or appliances used at the time in inter- 
 state commerce, as for instance, an interstate train on an 
 interstate highway; because under such conditions the 
 employe himself is not, at the time of the injury, engag- 
 ed in interstate commerce.^^ Under the very terms of 
 the act a recovery is limited to employes who are in- 
 jured ' ' while ' ' employed in interstate commerce. Under 
 the conditions named, it is true that the carrier is engaged 
 in interstate commerce but tlie injured employe is not. 
 However, as pointed out in another paragraph, 
 if the employe is engaged in interstate commerce at the 
 time of his injury although the employe whose negli- 
 gence caused the injury is engaged exclusively in in- 
 trastate commerce or the instrumentality causing the in- 
 jury is being used solely in intrastate commerce, the 
 injured employe's remedy is nevertheless controlled by 
 the federal act.'' 
 
 § 552. Willful Wrongs not Within Terms of the 
 Act. By its terms the national act is limited to negli- 
 gent acts of a common carrier. Under well-known prin- 
 ciples of law, injuries caused by the willful or inten- 
 tional acts of another are not within the terms of the 
 statute, for, as quaintly said by one jurist, "when will- 
 
 14. "If he (an employe) were the Federal Employers' Liability 
 
 in the employe of an interstate Act." Hardy v. Atlanta & W. P. 
 
 carrier, but if his duties were not r. co , Ga. App. , 93 S. 
 
 interstate commerce in character ^ jg 
 
 at the time of his death, the fact ^^ Pedersen v Delaware, L. & 
 
 that he was liilled by an inter- ^ ^ ^^ ^29 U. S. 14G. 57 L. Ed. 
 
 state passenger train of the de- ^^^^^ ^^ ^^^^ ^^ ^^^^ ^ ^ ^ ^ 
 
 fendant company under the cir- .„,.^ -,-0 ^ , 
 
 . . ,,, „,„• A. 779, Ann. Cas. 1914C 153; Cola- 
 cumstances appearing in the evi- 
 dence on behalf of the plaintiff s"rdo v. Central R. R. of New Jer- 
 in error, woulc" not bring the de- sey 180 Fed. 832, aff'd in 113 C 
 ceased within the operation of C. A. 379, 192 Fed. 901.
 
 § 552] Negligence Under Fkdkral, Act. 077 
 
 fulness comos in at the door ne^lig'onee <j:oos out tlirou^li 
 tlie window." Most statutes, ^iviu^ riglits of aetion 
 I'oi- (Icatli, (]('(iii(' llic \vi'()iii;-t'iil act as the ''wronp;f'ul act, 
 ne,ii-le<'t oi' default of another" which would include in- 
 tentional wion^-s; but the federal act, for some reason, 
 has confined the wronp^ful acts for which a recovery can 
 be had, to those which are due to negligence solely. 
 A willful assault of one employe ui)on another would be 
 beyond the terms of the statute.^" 
 
 16. Roebuck v. Atchison, T. A. 1917E 741. 162 Pac. 1163. 
 & S. F. R. Co., 99 Kan. 544, L. R. 
 
 1 Contnil (^irrliTs (5:;
 
 ellArTEK XXVIII. 
 
 Assumption of Risk Under Liability Act. 
 
 Sec. 553. The Statutory Provision. 
 
 Sec. 554. Assumption of Risk a Defense under the Federal Act. 
 
 Sec. 555. Doctrine of Horton Case Reexamined and ReaflRrmed by 
 
 National Supreme Court. 
 Sec. 556. Effect of State Constitutions and Statutes Abolishing or 
 
 Modifying Assumption of Risk on Interstate Employes. 
 Sec. 557. Decisions of Federal Courts Control in Determining When 
 
 Employe Assumes Risk. 
 Sec. 558. Ordinary Risks and Known or Obvious Extraordinary Risks 
 
 Assumed by Interstate Employes. 
 Sec. 559. Exception to Rule that Servants Assume Obvious or Known 
 
 Risks — Promises of Repair. 
 Sec. 560. When Assumption of Risk is a Defense to Negligent Acts 
 
 of Fellow Servants. 
 Sec. 561. Analysis of Federal Decisions Applying Doctrine of Assump- 
 tion of Risk to Interstate Employes of Railroads. 
 Sec. 562. Distinction Between Assumption of Risk and Contributory 
 
 Negligence. 
 Sec. 563. When Assumption of Risk is not a Defense — Federal Safety 
 
 Appliance Laws. 
 Sec. 564. State Statutes for Safety of Employes not Included. 
 Sec. 565. Assumption of Risk Eliminated in Actions for Violation of 
 
 Hours of Service Act. 
 Sec. 566. Confusing Assumption of Risk with Contributory Negligence 
 
 in Jury Instructions under Federal Acts. 
 Sec. 567. When Assumption of Risk is no Defense When There is a 
 
 Plurality of Causes. 
 Sec. 568. Violation of Rules not Assumption of Risk. 
 Sec. 569. Concrete Instruction must be Given, if Requested. 
 Sec. 570. Failure to Instruct on Assumption, of Risk not Error When 
 
 Defendant has not been Prejudiced Thereby. 
 Sec. 571. Burden of Proving Assumption of Risk upon Defendant. 
 Sec. 572. Defense of Assumption of Risk Must be Pleaded to be Avail- 
 able. 
 Sec. 57o. Cases in Which Interstate Employes were Held to have 
 
 Assumed the Risk. 
 Sec. 574. Cases in Which Interstate Employes were Held was to have 
 
 Assumed the Risk. 
 
 § 553. The Statutory Provision. Section 4 of the 
 federal act provides thai in any action brought against 
 any common carrier under or by virtue of any of the 
 provisions of this act to recover damages for injuries to, 
 
 (978)
 
 § 554] Assumption of Risk. 079 
 
 or the dcatli of, any of its employes sueli employe sliall 
 not be lield to liave assumed the i-isk of his employment 
 in any case where the viohilioii hy sucli common carrier 
 ■ of any statute enacted for the safety of employes con- 
 tributed to the injury or death of such employe. 
 
 § 554. Assumption of Risk a Defense under the 
 Federal Act. After the passn,i;(' of the act of IIXIS, 
 several coui'ts held that assumption of i-isk was not a de- 
 fense to an a(!tion under the federal act.' These couHs 
 decided that, if the plaintiff's injuries were due to any 
 act of neg'lig-ence enumerated in the first section of the 
 act, that the result of such nef^li^ence could not be 
 assumed by the employe even thoui>-h he knew the risks 
 and dang-ers arising therefrom. The decisions of these 
 courts is illustrated by an opinion of Judge McCall in 
 Wright V. Yazoo & M. V. R. Co., cited in the notes, in 
 which he said: "Shall the courts destroy the effect of 
 the act in this particular by holding that common car- 
 riers are not liable to their servants for injury or death 
 inflicted as a result of the negligence of their officers, 
 agents or employes, upon the ground that the servant 
 assumed the risk incident to the negligence of the 
 officers, agents or employes of the carrier. . . . As T 
 construe the act, the risk that the employe now assumes 
 is the ordinary dangers incident to his employment, 
 which does not include, since the passage of this act, the 
 assumption of the risk incident to the negligence of the 
 carrier's officers, agents or employes, or any defect or in- 
 sufficiency due to its negligence, in its cars, a]ipliances, 
 machinery, track, roadbed, works, boats, wharves, or 
 other equipment." But these decisions, and others of 
 like import, have, no doubt, been in effect overruled by 
 subsequent decisions of the Suiu'eme Court of the 
 
 1, Wright V. Yazoo & M. V. R. Philadelphia, B. & W. R. Co. v. 
 
 Co., 197 Fed. 94; Sandidge v. Atch- Tucker, 35 App. Cas. (D. C.) 123; 
 
 ison T. & S. F R. Co., 113 C. C. A. Bower v. Chicago & N. W. R. Co.. 
 
 653, 193 Fed. 8G7; Malloy v. North- 96 Neb. 419, 148 N. W. 145. 
 ern Pac. Ry. Co., 151 Fed. 1019:
 
 980 
 
 Injuries to Inteestate EMPLoyES. [^ 554 
 
 United States.' In the Horton case, cited, the Supreme 
 Court lield that except as to violations of federal statutes 
 
 2. United States. Baltimore & 
 O. R. Co. V. Whitacre, 242 U. S. 169, 
 61 L. Ed. 228, 37 Sup. Ct. 33; 
 Chicago & N. W. R Co. v. Bower. 
 241 U. S. 470, 60 L. Ed. 1107, 36 
 Sup. Ct. 624; Chesapeake & O. R. 
 Co. V. Proffitt, 241 U. S. 462, 60 
 L. Ed. 1102, 36 Sup. Ct. 620; Chesa- 
 peak & O. R. Co. v. De Atley. 241 
 U. S. 310, 60 L. Ed. 1016, 36 Sup. 
 Ct. 564; Louisville & N. R. Co. v. 
 Stewart, 241 U. S. 261, 60 L. Ed. 
 989v 36 Sup. Ct. 586; Baugham v. 
 New York. P. & N R. Co., 241 U. 
 S. 237, 60 L. Ed. 977, 36 Sup. Ct. 
 592, 13 N. C. C. A. 138; Jacobs v. 
 Southern R. Co., 241 U. S. 229, 60 
 L. Ed. 970, 36 Sup. Ct. 588; Great 
 Northern R. Co. v Knappv 240 U. S. 
 464, 60 L. Ed. 745, 36 Sup. Ct. 399; 
 Seaboard Air Line Ry. v. Padgett, 
 236 U. S. 668, 59 L. Ed. 777. 35 Sup. 
 Ct. 481; Southern R. Co. v. Crock- 
 ett, 234 U. S. 725, 58 L. Ed. 1564, 
 34 Sup. Ct. 897; Seaboard Air Line 
 R. Co. V. Horton, 233 U. S. 492, 
 58 L. Ed. 1062, 34 Sup. Ct. 635, 
 8 N. C. C. A. 834. L. R. A. 1915C 
 1 Ann. Cas. 1915B 475; Southern 
 Ry. Co. V. Mays, 152 C. C. A. 91, 239 
 Fed. 41; Philadelphia & R. R. Co. 
 V. Marland, 152 C. C. A. 51, 239 
 Fed. 1, 15 N. C. C. A. 402; New 
 York Cent. & H. River R. Co. v. 
 Salkaukus, 151 C. C. A. 628, 238 
 Fed. 778; Cincinnati, N. 0. & T. 
 P. R. Co. v. Thompson, 149 C. C. A. 
 211, 236 Fed 1; Portland Teminal 
 Co. v. Jarvis, 141 C. C A. 562, 227 
 Fed. 8, 11 N. C. C. A. 1036; New 
 York, N. H. & H. R. Co. v. Vizvari, 
 126 C. C. A. 632, 210 Fed. 118, L. R. 
 A. 1915C 9. 
 
 Alabama. Southern Ry. Co. v. 
 Fisher, Ala. (, 74 So. 580. 
 
 Arkansas. Kansas City South- 
 ern R. Co. v. Livesay, 118 Ark. 304, 
 177 S. W. 875. 
 
 Georgia. Southern Ry. Co. v. 
 
 Blackwell, Ga. App. , 93 
 
 S. E. 321; Atlantic Coast Line R. 
 
 Co. V. Kennedy, Ga. App. — , 
 
 92 S. E. 973; Macon, D. & S. R. Co. 
 V. Musgrove, 145 Ga. 647,' 89 S. E. 
 767; Charleston & W. C. R. Co. v. 
 Slyvester, 17 Ga. App. 85. 86 S. E. 
 275; Kirbo v. Southern R. Co., 16 
 Ga. App. 49, 84 S. E. 491. 
 
 Indiana. Cincinnati, H. & D. 
 
 Ry. Co. v. Gross, Ind. App. 
 
 , 111 N. E. 653. 
 
 Kansas. Duran v. Atchison, T. 
 & S. F. R. Co., 100 Kan. 189, 165 
 Pac. 653; Spinden v. Atchison, T. 
 & S. F. R. Co., 95 Kan. 474, 148 
 Pac. 747; Barker v. Kansas City, 
 M. & O. R. Co., 88 Kan. 767, 43 
 L. R. A. (N. S.) 1121, 129 Pac. 
 1151. 
 
 Kentucky. Louisville & N. R. Co. 
 V. Williams', Adm'r, 175 Ky. 679, 
 194 S. W. 920; Jones v. Southern 
 Ry. in Kentucky, 175 Ky. 455v 194 
 S. W. 558; Lexington & E. R. Co. 
 V. Stacy, 172 Ky, 195, 189 S. W. 
 25; Judd's Adm'x v. Southern R. 
 Co., 171 Ky. 832, 188 S. W. 880; 
 Louisville, H. & St. L. R. Co. v. 
 Wright, 170 Ky. 230, 185 S. W. 
 861; Cincinnati, N. O. & T. P. R. 
 Co. v. Claybourne's Adm'r, 169 Ky. 
 315, 183 S. W. 903; Louisville & 
 N. R. Co. V. Henry, 167 Ky. 151, 
 180 S. W. 74; Louisville & N. R. Co- 
 V. Patrick, 167 Ky. 118, 180 S. W. 
 55; Davis v. Chesapeake & O. R. 
 Co., 166 Ky. 490, 179 S. W. 422; 
 Chesapeake & O. R. Co. v. Walker's 
 Adm'r, 159 Ky. 237, 167 S. W. 123/ 
 Glenn v. Cincinnati, N. O. & T. P. 
 R. Co, 157 Ky. 453, 163 S. W. 461;
 
 <^ 55J-] Assumption of Risk. 981 
 
 onaetod for the safety of om])loy('s, tlio defense of as- 
 
 Helm V. Cincinnati, N. 0. & T. P. 
 R. Co., 156 Ky. 240, IGO S. W. 
 945. 
 
 Maine. Norton v. Maine Cent. 
 R. Co., — — Me. , 100 Atl. 598. 
 
 Michigan. Chapman v. Ann 
 
 Arbor R. Co., Mich. , 16.3 
 
 N. W. 107; Sims v. Minneapolis, 
 
 St. P. & S. S. M. Ry. Co., Mich. 
 
 , 162 N. W. 988. 
 
 Missouri. Winslow v. Missouri 
 K. & T. Ry. Co. (Mo. App.), 192 
 S. W. 121; Young v. Lusk, 2G8 
 Mo. 625, 187 S. W. 849; Cross v. 
 Chicago, B. & Q. R. Co., 191 Mo. 
 App. 202, 177 S. W. 1127. 
 
 Montana. Sorenson v. Northern 
 Pac. R. Co., 53 Mont. 268, 163 Pac. 
 560. 
 
 Nebraska. Henderson v. Union 
 Pac. R. Co., 100 Neb. 734, 161 N. W. 
 267. 
 
 New Hamphhire. Topore v. Bos- 
 ton & M. R. R., N. H. , 
 
 100 Atl. 153. 
 
 New Jersey. Willever v. Dela- 
 ware, L. & W. R. Co., 89 N. J. L. 
 697, 99 Atl. 321. 
 
 New York. Swartwood v. Lehigh 
 Valley R. Co., 169 N. Y. App. Div. 
 759, 155 N. Y. Supp. 778. 
 
 North Dakota. Manson v. Great 
 Northern R. Co.. 31 N. D. 643, 155 
 N. W. 32. 
 
 Oklahoma. Chicago, R. I. & P 
 
 Ry. Co. V. Hughes, ■ — - Okla. 
 
 166 Pac. 411; Chicago, R. I. & P 
 
 Ry. Co. V. Jackson, Okla. 
 
 160 Pac. 736: Chicago, R. I. & P 
 
 Ry. Co. V. Rogers, Okla. 
 
 159 Pac. 1132; Chicago, R. I. & P 
 Ry. Co. V. Felder, - — Okla. ^— 
 155 Pac. 529. 
 
 Oregon. Oberlin v. Oregon 
 Wasliington R. & Nav. Co., 71 Ore 
 177, 142 Pac. 554. 
 
 Pennsylvania. Haas v. Erie R. 
 Co., 254 Pa. 235, 98 Atl. 867; Hart- 
 man V. Western Maryland R. Co., 
 246 Pa. 460, 92 Atl. 698. 
 
 Texas, Chicago, R. I. & G. Ry. 
 
 Co. V. De Bord, Tex. 192 
 
 S. W. 767; Atchison, T. & S. F. 
 
 Ry. Co. V. Ayers, Tex. Civ. 
 
 App. , 192 S. W. 310; Gulf, C. 
 
 & S. F. Ry. Co. V. Cooper, Tex. 
 
 Civ. App. 191 S. W. 579; Kansas 
 City, M. & O. Ry. Co. of Texas v. 
 
 Finke, Tex. Civ. App. , 
 
 190 S. W. 1143; Texas & P. Ry. 
 
 Co. V. White, Tex. Civ. App. 
 
 , 177 S. W. 1185; Ft. Worth 
 
 & D. C. Ry. Co. V. Copeland, 
 
 Tex. Civ. App. • , 164 S. W. 
 
 857, Missouri, K. & T. Ry. Co. of 
 
 Texas v. Scott, Tex. Civ. App. 
 
 , 160 S. W. 432. 
 
 Vermont. Robie v. Boston & M. 
 R. R.. Vt. , 100 Atl. 925. 
 
 Virginia. Norfolk & W. R. Co. 
 v. Tucker's Adm'x, 120 Va. 540, 91 
 S. E. 614; Chesapeake & O. R. Co. 
 V. Meadows, 119 Va. 33, 13 N. C. 
 C. A. 376, 89 S. E. 244. 
 
 Washington. Toler v. Northern 
 Pac. R. Co., 94 Wash. 360, 162 Pac- 
 538; Swanson v. Oregon-Wash- 
 ington R. & Nav. Co., 92 Wash. 
 423. 159 Pac. 379. 
 
 West Virginia. Hull v. Virginian 
 R. Co., 78 W. Va. 25, 88 S. E. 1060. 
 
 Wisconsin. Reul v. Wisconsin 
 
 N. W. Ry. Co., Wis. , 163 
 
 N. W. 189; Hovaneck v. Great Nor- 
 thern R. Co., 165 Wis. 511, 162 N. 
 W. 927; Smiegil v. Great Northern 
 R. Co., 165 Wis. 57, 160 N. W. 
 1057; Graber v. Duluth, S. S. & A. 
 R. Co.. 159 Wis. 414, 150 N. W. 
 489. 
 
 A charge to a jury that an em- 
 ploye only assumed the ordinary 
 risk of his employment and that
 
 982 Injuries to Interstate Employes. [<§> 554 
 
 sumption of risk shall have its former effect as a com- 
 plete bar to an action nnder the statutes. The court 
 in tliat case said: "It seems to us that section 4, in 
 eliminating the defense of assumption of risk in the cases 
 indicated, quite plainly evidences the legislative intent 
 that in all other cases such assnmption shall have its 
 former effect as a complete bar to the action." An in- 
 struction given by the trial court in that case pursuant 
 to a statute of the state so providing that a railroad 
 em])loye did not assume any defective appliance fur- 
 nished by the employer, was held erroneous and not a 
 proper application of the rule under the federal act. 
 The court held that under the common law doctrine of 
 assumption of risk, the employe assumed defects due to 
 the master's negligence when these defects and risks 
 arising therefrom were known to him or were open and 
 obvious or plainly observable. 
 
 § 555. Doctrine of Horton Case Re-examined and 
 reaffirmed by National Supreme Court. The con- 
 struction which the national Supreme Court, in the 
 Horton case,^ placed upon section 4 of the Federal Act, 
 viz., that Congress by eliminating the defense of as- 
 sumption of risk in cases where the violation of any 
 federal statute for the safety of employes contributed to 
 the injury, plainly indicated a legislative intent that, in 
 all other cases, assumption of risk should have its former 
 eifect as a complete bar to an action for damages, was 
 
 he never assumed the risk of the the conditions and the dangers, 
 
 negligence of his fellow employes or if these are obvious, and he 
 
 was erroneous; for "if the negli- continues in the employment, 
 
 gence of all these should be ex- without objection, he is held to 
 
 eluded in actions under the Em- have assumed the risk, although 
 
 ployers' Liability Act, it is diffcult he may be injured by reason of 
 
 to say what practical application some neglect of the employer, 
 
 could ever be given in them to the Gaddy v. North Carolina R. Co., 
 
 established doctrine concerning as- ■ N. C. , 95 S. E. 925. 
 
 sumption or risk." Boldt v. Pen- 3. 233 U. S. 492, 58 L. Ed. 1062, 
 
 nsylvania R. Co., 245 U. S. 441, 34 Sup. Ct. 635, 8 N. C. C. A. 834, 
 
 62 L. Ed. , 38 Sup. Ct. 139. L. R. A. 1915C 1, Ann. Cas. 1915B 
 
 If an employe has knowledge of 475.
 
 § 555J AssuMi'i ION OF Klsk. 983 
 
 re-examined by the same ('(nut two years later in tlio 
 case of Jacobs v. Soutliei-ii R. (0/ It was contended by 
 tlie ])laintirf in eiior llial employes en^a^ed in interstate 
 coininerce assnnied only the ordinary risks and hazards 
 of the business of a common carrier and did not assume 
 the risk of tlie carrier's nciiiincnce under any conditions; 
 that knowledi^e by an ctiiplovc of a defective or 
 dan^-erous condition, due to ne,u•li,^•ence, did not bar a 
 recovery, but mi^ht be considered in determinin<? con- 
 tributory negligence for the puqiose of reducing the 
 damages only, and that whatever the evidence might be 
 as to an employe's knowledge of a dangerous condition 
 he did not assume the risk if the carrier was negligent. 
 ''The argument to sustain the assertion," said the 
 court in reaffii-ming its former ruling, "and to present 
 what he deems to be the true construction of act is 
 elal)()rate and involved. It would extend this oiiinion 
 too much to answer it in detail. He does not ex])ress 
 hig contention in any pointed proposition. He makes it 
 through a comparison of the sections of the act and in- 
 sists that to retain the common-law doctrine of the 
 assumption of risk is to put the fourth section in conflict 
 with the other sections. The basis of the contention is 
 that the act was intended to be punitive of negligence 
 and does not cast on the employees of carriers the 
 assumi)tion of risk of any condition or situation causM 
 by such negligence. This is manifest, it is insisted, from 
 the ])rovisions of the third section of the act which pro- 
 
 4 241 U. S. 229, 60 L. Ed. 97ii same place in the way described 
 :;6 Sup. Ct. 588. The point involv- by the witnesses for many years 
 cd in this case was the action of prior to the accident, and that 
 the trial court in giving the follow- the plaintiff had failed to show 
 ing charge to the jtiry: "The that he had made complaint or ob- 
 Court instructs the jury that if jection on account of the cinder 
 they believe from the evidence that pile, then he assumed the risk of 
 the existence of the cinder pile danger from the cinder pile, if 
 was known to the plaintiff or that there was any danger in it. and 
 he had been working on the South- the Act of Congress Approved 
 ern Railway at Lawrenceville for April 22, 1908, permits this de- 
 more than a year, and that the fense: and the jury should find 
 cinders had been piled at the their verdict for the defendant."
 
 984 JxJUEiE.s TO Interstate Employes. ['§ 555 
 
 vides tliat tlie contributory negiig'ence of the employee 
 ' shall not bar a recovery, ' and of the fifth section which 
 precludes the carrier from exempting itself from lia- 
 bility. This purpose is executed and can only be ex- 
 ecuted, it is urged, by construing the words of Section 4 
 (which we shall jiresently quote) to apply to 'the 
 ordinary risks inherent in the business the unavoidable 
 risks which are intrinsic notwithstanding the per- 
 formance by the carrier of its personal duties. They do 
 not include the 'secondary and ulterior' risks arising 
 from abnormal dangers due to the employer's negli- 
 gence.' And, further: 'The object of this section was 
 Tiot to adopt by hnplicalion the common-law defense of 
 assumption of risk of such abnormal dangers. Its object 
 was in ej press terms to exclude the defense which, be- 
 fore the passage of the act, was available to the carrier 
 in determining what are the 'risks of his employment' 
 assumed by the employee. These, then, are the con- 
 siderations which plaintiff says were not submitted to 
 the court in the Horton Case and which he urges to 
 support his contention that assumption of risk has been 
 abolished absolutely. We are unable to concur. The 
 contention attributes to Congress the utmost confusion 
 of thought and language and makes it express one 
 meaning when it intended another. The language of 
 section 4 demonstrates its meaning. It provides that in 
 any action brought by an employe he ' shall not be held 
 to have assumed the risks of his employment in any 
 case where the violation by said common carrier of any 
 statute enacted for the safety of employes contributed to 
 the injury or death of such employe.' It is clear, there- 
 fore, that the assumption of risk as a defense is 
 abolished only where the negligence of the carrier is in 
 violation of some statute enacted for the safety of em- 
 ployes. In other cases, therefore, it is retained. And 
 such is the ruling in the Horton Case, made upon due 
 consideration and analysis of the statute and those to 
 which it referred." 
 
 § 556. Effect of State Constitutions and Statutes 
 Abolishing or Modifying Assumption of Risk on Inter-
 
 § 556] Assumption of Risk, 985 
 
 state Employes. A statute of a state abolishing or 
 iii(»(lir> iiii;- llic comiiion law defense of assumption of 
 lisk, (Iocs not govern in actions for injuries by employes 
 of eoninion carriers by railroad while engaged in inter- 
 state commerce.' Thus, a statute of the state of Te.xas 
 ])rovided that if an employer had knowledge of a neg- 
 ligent defect, the emi)loye did not assume the risk of 
 injuiy raising therefrom. The court held that this stat- 
 ute had no a})plication to employes of railroads working 
 in intei'state commerce.'* The constitution of the state of 
 Oklahoma re(iuires the submission of the defense of 
 assumption of risk as a question of fact for the jury. 
 In an action under the federal act it was insisted that 
 this provision controlled and that the court could, in no 
 case, declare as a matter of law that an employe assmned 
 the risk. But it was held that this defense as to inter- 
 state employ(^s was not effected by the constitutional 
 ])rovisi()ii. "In cases where the evidence is undisputed 
 and the circumstances permit of but one conclusion, the 
 question must be decided by the court as a matter of 
 law, and not by the jury as a matter of fact, since such 
 is the common law, and such must be the result in our 
 courts in these cases where the federal act creating the 
 liability likewise allows the common law defense."' 
 A statute of the state of Ohio abolishing the rule of the 
 common law as to assumption of risk in injuries 
 occasioned by defects in rails, tracks or other macliin- 
 
 5. Knapp v. Great Northern R. by the Texas statutes to be applied 
 Co., 130 Minn. 405, 153 N. W. 848; in cases of assumed risk. The 
 
 Texas & P. Ry. Co. v. White, rule that a state law must yield 
 
 Tex. Civ. App. , 177 S. W. ^vhen a federal law has occupied 
 
 1185; Southern Ry. Co , v. .Jacobs, ^j^^ ^^^^ ^^^ ^ question of interstate 
 
 116 Va. 189, 81 S. E. 99. commerce is universally recogniz- 
 
 6. Chicago. R. I. & G. Ry. Co ^^^ ^^ .^^ correctness there 
 
 V. De Bord, Tex. , 192 
 
 S. W. 767, wherein the court said: 
 "It is clear to us that by this act 
 
 Congress occupied the field of as- Congress to act." 
 
 sumed risk, and that such law 7. Chicago. R. I. & P. Ry. Co. 
 
 would govern in this case to the v. .Jackson, Okla. . 160 
 
 exclusion of the rule announced Pac. 736. 
 
 can be no question; the federal 
 Constitution having authorized
 
 986 
 
 IxjuRTEv^ TO Interstate Empi^oyes, 
 
 [§ 556 
 
 ery, was inapplicable to interstate employes suing un- 
 der the federal act.* 
 
 § 557. Decisions of Federal Courts Control in 
 Determining When Employe Assumes Risk. Whenever 
 Congress enacts statutes pursuant to its power under 
 the commerce clause, such laws, when enforced in both 
 state and federal courts, must be construed in the light 
 of federal decisions and applicable common law prin- 
 ciples as interpreted and applied in the federal courts to 
 the exclusion of common law rules different therefrom 
 enforced in state courts." It therefore follows that 
 even in actions under the federal act prosecuted in state 
 courts, the decisions of the state courts do not govern 
 in determining the application of the doctrine of 
 assumption of risk if the rules therein adopted differ 
 from those applied in the federal courts.'^ 
 
 8. Toledo, St. L. & W. R. Co. v. 
 Slavin, 236 U. S. 454, 59 L. Ed. 
 671, 35 Sup. Ct. 306. 
 
 9. Southern R. Co. v. Gray, 
 241 U. S. 333, 60 L. Ed. 1030, 36 
 Sup. Ct. 558; Southern R. Co. v. 
 Prescott, 240 U. S. 632. 60 L. Ed. 
 836, 36 Sup. Ct. 469; Great North- 
 ern R. Co. V. Wiles, 240 U. S. 444, 
 60 L. Ed. 732, 36 Sup. Ct. 406; 
 Cleveland, C. C. & St. L. R. Co. 
 V. Dettlebach, 239 U. S. 588, 60 
 L. Ed. 453, 36 Sup. Ct. 177; Cen- 
 tral Vermont R. Co. v. White, 238 
 U. S. 507, 59 L. Ed. 1433, 35 
 Sup. Ct. 865, 9 N. C. C. A. 265, 
 Ann. Cas. 1916B 252; Adams Exp. 
 Co. V. Croninger, 226 U. S. 491, 57 
 L. Ed. 314, 33 Sup. Ct. 148, 44 L. R. 
 A. (N. S.) 257. See Section 18, 
 supra. 
 
 10. Seaboard Air Line R. Co v. 
 Horton, 233 U. S. 492, 58 L. Ed. 
 1062, 34 Sup. Ct. 635, 8 N. C. C. A. 
 834, L. R. A. 1915C 1, Ann. Cas. 
 1915B 475; Glenn v. Cincinnati, 
 
 N. O. & T. P. R. Co., 157 Ky 453, 
 163 S. W. 461; Castonia v. Maine 
 
 Cent. R. R. N. H. , 100 Atl. 
 
 601; Freem.an v. Powell, Tex. 
 
 Civ. App. , 144 S. W. 1033. 
 
 Contra: Fish v. Chicago, R. I. & P. 
 R. Co., 263 Mo. 106, 8 N. C. C. A. 
 538, Ann. Cas. 1916B 147, 172 S. 
 W. 340. 
 
 The case of Williams v. Pryor, 
 272 Mo. 613, 200 S. W. 53, in which 
 the Missouri Supreme court re- 
 fused to apply the doctrine of as- 
 sumption of risk as interpreted in 
 the national courts but followed its 
 own rulings to the effect that an 
 employe does not under any cir- 
 cumstances assume the negligence 
 of the master, was taken to the 
 federal Supreme court on writ of 
 certiorari and was pending in 
 that court at the time of the pub- 
 lication of this treatise. See 
 Boldt V. Pennsylvania R. Co., 245 
 
 U. S. 441, 62 L. Ed. , 38 Sup. 
 
 Ct. 139. 
 
 1
 
 § 558] 
 
 Assumption of Kisk. 
 
 987 
 
 § 558. Ordinary Risks and Known or Obvious 
 Extraordinary Risks Assumed by Interstate Employes. 
 The iialurc and clcnu'iils of llic doclriiH* of assiiini)ti<)n 
 of risk as applied to interstate employes of interstate 
 carriers under tlie federal act have been well estaljlislied 
 in a series of controlling decisions by the United States 
 8ui)reme Court. ^' Tlie risks that may be assumed by 
 an interstate em])loye are of two kinds, ordinary and 
 extraoi-diiiaiy. Ordinary risks are those that are 
 iiormally incident to the occupation in which an em- 
 ])loye volunlarily engages. An em])loye is conclusively 
 
 11. Boldt V. Pennsylvania R. Co., 
 
 245 U. S. 441 fi2 L. Ed. , 38 
 
 Sup. Ct. 139; Chicago & N. W. R. 
 Co. V. Bower, 241 U. S. 470, 60 L. 
 Ed. 1107, 36 Sup. Ct. 624; Cliesa- 
 pealte & 0. R. Co. v. Proffitt, 241 U. 
 S. 462, f30 L. Ed. 1102, 36 Sup. Ct. 
 620; Soutiiern R. Co. v. Gray, 241 
 U. S. 333, 60 L. Ed. 1030, 36 Sup. Ct. 
 558; Chesapeake & O. R. Co. v. 
 De Atley, 241 U. S. 310, 60 L. Ed. 
 1016, 36 Sup. Ct. 564; Louisville 
 & N. R. Co. V. Stewart, 241 U. S. 
 261, 60 L. Ed. 989, 36 Sup. Ct. 586; 
 Baugham v. New York, P. & N. R. 
 Co., 241 U. S. 237. 60 L. Ed. 977, 36 
 Sup. Ct. 592, 13 N. C. C. A. 138; 
 Jacobs v. Southern R. Co., 241 
 U. S. 229, 60 L. Ed. 970, 36 Sup. 
 Ct. 588, Seaboard Air Line Ry. 
 V. Horton, 239 U. S. 595, 60 
 L. Ed. 458, 36 Sup. Ct. 180; 
 Kanawha & M. R. Co. v. Kerse 
 239 U S. 576, 60 L. Ed. 448, 36 
 Sup. Ct. 174; Central Vermont R. 
 Co. V. White, 238 U. S. 507. 59 L. 
 Ed. 1433. 35 Sup. Ct. 865; 9 N. C. 
 C. A. 265. Ann. Cas. 1916B 252; 
 Seaboard Airline Ry. v. Padgett, 
 236 U. S. 668, 59 L. Ed. 777, 35 Sup. 
 Ct. 481; McGover v. Philadelphia 
 & R. R. Co , 235 U. S. 389, 59 L. 
 Ed. 283, 35 Sup. Ct. 127, 8 N. C. 
 C. A. 67; Yazoo & M. V. R. Co. v. 
 
 Wright, 235 U, S. 376, 59 L. Ed. 
 277, 35 Sup. Ct. 130; Southern R. 
 Co. v. Gadd, 233 U. S. 572, 58 L. 
 Ed. 1099, 34 Sup. Ct. 696; Sea- 
 board Air Line R. Co v. Horton, 
 233 U. S. 492, 58 L. Ed. 1062, 
 34 Sup. Ct. 635, 8 N. C. C. 
 A. 834; L. R. A. 1915C 1, Ann. 
 Cas. 1915B 475; Gila VaUey G. 
 & N. R. Co. V. Hall, 232 U. S. 
 94, 58 L. Ed. 521, 34 Sup. Ct. 229, 
 aff'g 13 Ariz. 170, 1, N. C. C. A. 362, 
 112 Pac. 845; Texas & P. R. Co. v. 
 Harvey, 228 U. S. 319. 57 L. Ed. 
 852, 33 Sup. Ct. 518; Schlemmer 
 v. Buffalo, R. & P. R. Co., 220 U. S. 
 590, 55 L. Ed. 596, 31 Sup. Ct. 561; 
 Butler v. Frazee, 211 U. S. 459, 53 
 L. Ed. 281, 29 Sup. Ct. 136; Choc- 
 taw, O. & G. R. Co. v. McDade. 191 
 U. S. 64, 48 L. Ed. 96, 24 Sup. 
 Ct. 24; Texas & P. R. Co. v. 
 Archibald, 170 U. S. 665, 42 
 L. Ed. 1188 18 Sup. Ct. 777; 
 Philadelphia & R. R. Co. v. 
 Maryland, 152 C. C. A. 51, 239 Fed, 
 1. 15 N. C. C. A. 402; Cincinnati. N. 
 0. & T. P. R. Co. V. Thompson, 
 149 C C. A. 211, 236 F^ed. 1: Port- 
 land Terminal Co. v. Jarvis, 141 
 C C. A. 562, 227 Fed. 8, 11 N. C. C. 
 A. 1036; Michigan Cent. R. Co. v. 
 Schaffer, 136 C. C. A. 413, 220 Fed. 
 809.
 
 988 
 
 IxjuEiES TO Interstate Employes. [§ 558 
 
 presuiued to have knowledg-e of sucli risks and assumes 
 injuries arising therefrom.'- Such ordinary risks are 
 assumed by an employe whether he is actually aware of 
 them or not; for the dangers and risks that are 
 normally or necessarily incident to his occupation are 
 presumably taken into account in fixing the rate of 
 wages. But risks of another sort, not naturally incident 
 to the occupation, may arise out of the failure of the 
 carrier to exercise due care with respect to providing 
 a safe place of work and suitable and safe appliances 
 for the work. These are known as extraordinary risks. 
 An employe has the right to assume that his employer 
 has exercised due care for his safety. He is not to be 
 treated as assuming these extraordinary risks arising 
 from defects due to the negligence of the employer 
 unless he has knowledge of them and the danger arising 
 therefrom, or unless the risk and danger are so obvious 
 that an ordinarily prudent person under similar cir- 
 cumstances would have known the risk and appreciated 
 the danger arising therefrom." The following excerpts 
 
 12. United States. Chicago & N. 
 W. R. Co. V. Bower, 241 U. S. 470, 
 60 L. Ed. 1107, 36 Sup Ct. 624; 
 Chesapeake & O. R. Co. v. De Atley,, 
 241 U. S. 310. 60 L. -d. 1016, 36 Sup. 
 Ct. 564; Jacobs V. Southern R. 
 Co., 241 U. S. 229, 60 L. Ed. 970. 
 36 Sup. Ct. 588; Seaboard Air 
 Line Ry. v. Horton, 239 U. S. 595. 
 60 L. Ed. 158, 36 Sup. Ct. 180. 
 
 Arizona. Guana v. Southern 
 Pac. Co., 15 Ariz. 413. L. R. A. 
 1917D 1206, 139 Pac. 782. 
 
 Georgia. Hightower v. Southern 
 R. Co., 146 Ga. 279, L. R. A. 1917C 
 481, 91 S. E. 52. 
 
 Kentucky. Louisville, H. & St. 
 L. R. Co. V. Wright, 170 Ky, 230, 
 185 S. W. 861; Truesdell v. Chesa- 
 peake & O. R. Co., 159 Ky. 718, 169 
 S. W. 471. 
 
 Michigan. Gaines v. Grand 
 Trunk R. Co. ot Canada, 193 Mich. 
 
 398, 159 N. W. 542. 
 
 Minnesota. Thompson v. Min- 
 neapolis & St. L. R. Co., 133 Minn. 
 203. 158 N. W. 42. 
 
 Missouri. Cross v. Chicago, B. 
 & Q. R. Co., 191 Mo. App. 202, 177 
 S. W. 1127. 
 
 Virginia. Chesapeake & O. R. 
 Co V. Meadows, 119 Va. 33, 13 N. 
 C. C. A. 376, 89 S. E. 244. 
 
 West Virginia. Hull v. Virginian 
 R. Co., 78 W. Va 25, 88 S. B. 1060. 
 
 Wisconsin, Smiegil v. Great 
 N. R. Co., 165 Wis. 57, 160 N. W. 
 1057; Graber v. Duluth, S. S. & 
 A. R. Co., 159 Wis 414, 150 N. 
 W. 489. 
 
 13. Alabama. Western Ry. of 
 
 Alabama v. Mays, Ala. . 
 
 72 So. 641; Southern Ry. Co. v. 
 Fisher, Ala. , 74 So. 580. 
 
 Arkansas. St. Louis, I. M. & S. 
 Ry. Co. V. Howard, 124 Ark. 588,
 
 ^ 558J 
 
 AssuMFTlo^• (JF Klsk. 
 
 989 
 
 from decisions of the United States Supreme (Joui-t 
 construing the Federal Enii)l()y('rs' Ijial)ility Act illus- 
 
 188 S. W. 14; Kansas City S. Ry. 
 Co. V. Livesay, 118 Ark. 304, 177 
 S. W. 875; St. Louis, I. M. & S. 
 Ry. Co. V. Birch, 89 Ark 424, 28 
 L. R. A. (N. S.) 1250, 117 S. W. 
 24:3. 
 
 Georgia. Atlantic Coast Line 
 
 R. Co. V. Kennedy, Ga. , 
 
 92 S. E. 973; Higlitower v. South- 
 ern R. Co., 146 Ga. 279, L. R. A. 
 1917C 481, £1 S. E. 52; Macon, D. 
 & S. R. Co. V. Musgrove, 145 Ga. 
 647, 89 S. E. 767; Charleston & W. 
 C. R. Co. V. Sylvester, 17 Ga. App. 
 85, 86 S. E. 275; Kirbo v. South- 
 ern R. Co., 16 Ga. App. 49, 84 S. 
 E. 491; Emanuel v. Georgia & F. 
 R. Co., 142 Ga. 543, 8 N. C C. 
 A. 25, 83 S. E. 230. 
 
 Kansas. Duran v. Atchison, T. 
 & S. F. R. Co., 100 Kan. 189, 165 
 Pac.653; Smith v. St. Louis & S. F. 
 R. Co. 95 Kan. 451, 148 Pac. 759; 
 Spindem v. Atchison, T. & S. F. 
 R. Co., 95 Kan. 474, 148 Pac. 747. 
 
 Kentucky. Cincinnati, N. O. & 
 T. P. R. Co. V York, 176 Ky. 9, 
 194 S. W. 1C34; Jones v. Southern 
 Ry. in Kentucky, 175 Ky. 455, 194 
 S. W. 558; Young v. Norfolk & W. 
 R. Co., 171 Ky. 510, 188 S. W. 621; 
 Louisville, H. & St. L. R. Co. v. 
 Wright, 170 Ky. 230, 185 S. W. 861; 
 Cincinnati, N. O & T. P. R. Co. v. 
 Claybourne's Adm'r, 169 Ky. 315, 
 183 S. W. 903; Louisville & N. R. 
 Co. V. Patrick, 167 Ky. 118, 180 
 S. W. 55; Davis v. Chesapeake & 
 O. R. Co., 166 Ky. 490, 179 S. W. 
 422; Cincinnrtl, N. O. & T. P. R. 
 Co. V. Goldston, 156 Ky. 410, 161 
 S. W. 246. 
 
 Louisiana. Lanis v. Illinois 
 Cent. R. Co., 140 La. 1, 72 So. 
 788. 
 
 Norton v. Maine Cent 
 — Me. , 100 Atl. 
 
 Maine. 
 R. Co., 
 598. 
 
 Maryland. Baltimore & O. R. 
 Co. V. Branson. 128 Md. 678, 98 
 Atl. 225. 
 
 Michigan. Chapman v. Ann Ar- 
 bor R. Co., Mich. , 163 
 
 N. W. 107; Sims v. Minneap- 
 olis. St. P. & S. S. M. Ry. Co., 
 
 Mich. . 162 N. W. 988; 
 
 Gaines v. Grand Trunk R. Co. of 
 Canada, 193 Mich. 398, 159 N. W. 
 542; Chapman v. United States 
 Exp. Co , 192 Mich. 654, 159 N. 
 W. 308. 
 
 Minnesota. Marshall v. Chicago, 
 R. I. & P. R. Co., 131 Minn. 392, 
 155 N. W. 208. 
 
 Missouri. Winslow v. Missouri, 
 K. & T. Ry. Co. (Mo. App.), 192 
 S. W, 121. 
 
 Montana. Sorenson v. North- 
 ern Pac. R. Co., 53 Mont. 268, 
 163 Pac. 560. 
 
 Nebraska. Phillips v. Union Pac. 
 R. Co., 100 Neb. 157, 158 N. W. 
 966. 
 
 New Hampshire. Castonia v. 
 
 Maine Cent. R. R.. N. H. 
 
 — , 100 Atl. 601; Tapore v. Bos- 
 ton & M. R. R., N. H. , 
 
 100 Atl. 153. 
 
 New Jersey. Armbrecht v. Dela- 
 ware, L. & W. R. Co., N. J. 
 
 L. . 101 Atl. 203; Willever 
 
 V. Delaware, L. & W. R. Co., 89 
 N. J. L. 697, 99 Atl. 321; Cetola 
 v. Lehigh Valley R Co., 89 N. J. L. 
 691. 99 Atl. 310; Grybowski v. 
 Erie R. Co., 88 N. J. L. 1. 95 Atl 
 764. 
 
 North Carolina. Hinson v. At- 
 lanta & C. Air Line R. Co.. 172 
 N. C. 646, 90 S. E. 772; Lloyd v.
 
 990 
 
 Injurte.*? to Interstate Employes. 
 
 [§ 558 
 
 trate the federal rule as to assumption of risks by 
 interstate employes: "While an em])loyee assumes the 
 risks and dangers ordinarily incident to the employment 
 in which he vohintarily engages, so far as these are not 
 attributable to the negligence of the employer or of 
 those for whose conduct the employer is responsible, 
 the em])loyee has a right to assume that the employer 
 has exercised proper care with respect to providing a 
 reasonably safe place of work (and this includes care 
 in establishing a reasonably safe system or method of 
 work) and is not to be treated as assuming a risk that 
 is attributable to the employer's negligence until he 
 becomes aware of it, or it is so plainly observable that 
 he must be presumed to have known of it."" "Some 
 employments are necessarily fraught with danger to the 
 
 Southern R. Co., 166 N. C. 24, 7 
 N. C. C. A. 520, 81 S. E. 1003. 
 
 Oklahoma. Chicago, R. I. & P- 
 
 Ry. Co. V. Jackson, Okla. 
 
 , 160 Pac. 736. 
 
 Pennsylvania. Falyk v. Penn- 
 sylvania R. Co., 256 Pa. 397, 100 
 Atl. 961. 
 
 South Carolina. Ballenger v. 
 Southern R. Co., 106 S. C. 200. 90 
 S. E. 1019. 
 
 Texas. Gulf, C. & S. F. Ry. Co. 
 
 V. Hall, Tex. Civ. App. , 
 
 196 S. W. 613; Chicago, R. I. 
 
 & G. Ry. Co. V. De Bord, Tex. 
 
 , 192 S. W. 767; GulC, C. 
 
 & S. F. Ry. Co. V. Cooper, 
 
 Tex. Civ. App. , 191 S. W. 
 
 579; Kansas City, M. & O. Ry. 
 
 Co. of Texas v. Finke, Tex. 
 
 Civ. App. — , 190 S. W. 1143; 
 Panhandle & S. F. Ry. Co v. Fitts, 
 
 Tex. Civ. App. 188 S. 
 
 W. 528. 
 
 Vermont. Robie v. Boston & M. 
 R. R., Vt. , 100 Atl. 925. 
 
 Virginia. Norfolk & W. Ry. Co. 
 V. Tucker's Adm'x, 120 Va. 540, 
 91 S. E. 614. 
 
 Washington. Swanson v. Ore- 
 gon-Washington R. & Nav. Co., 92 
 Wash. 423, 159 Pac. 379. 
 
 West Virginia Hull v. Virgin- 
 ian R. Co., 78 W. Va. 25, 88 S. E. 
 1060. 
 
 Wisconsin. Ruel v. Wisconsin & 
 
 N. W. Ry. Co., Wis. — — , 
 
 163 N. W. 189; Smiegil v. Great 
 Northern R. Co., 165 Wis. 57, 160 
 N. W. 1057. 
 
 "The true rule deducible from 
 the authorities is that the ser- 
 vant assumes all the ordinary, 
 usual, and normal risks of the 
 business after the master has used 
 reasonable care for his protec- 
 tion, and also all such other risks 
 as he knows of, or which were 
 so unquestionably plain and clear 
 that he must have known of 
 their existence and their danger 
 to him." Chesapeake & O. R. Co. 
 V. Meadows, 119 Va. 33, 13 N. 
 C. C. A. 376, 89 S. E. 244. 
 
 14. Chesapeake & 0. R. Co v. 
 Proffitt, 241 U. S. 462, 60 L. Ed. 
 1102, 36 Sup. Ct. 620.
 
 <§ 558] Assumption of Kisk. 991 
 
 workman — dan<;or tliat must be and is confrontod in 
 tlie line* of liis duty. Sucli dauii^ers as are nornuillx' and 
 necessaril\' incident to ilic (x-ciipation arc ])i'<'suinal)l\' 
 taken into the account in lixin,<;' tlierateol" wa.ii^cs. And 
 a woi'kman of nuituie years is taken to assume risks of 
 this sort, whether he is actually aware of tlieni oi- not. 
 But risks of another sort, not natui'ally incident to the 
 occupation, nuiy arise out of tlie failure of the employer 
 to exercise due care with lespect to providing a safe 
 place of work and suitable and safe appliances for the 
 work. These the employe is not treated as assumins; 
 until he becomes aware of the defect or disrei)air and 
 of the I'isk arisinu- from it, unless defect and risk alike 
 are so obvious that an ordinarily j)rudent person under 
 the circumstances would have observed and appreciated 
 them. These distinctions have been recognized and 
 api)lied in numerous decisions of this court. Choctaw, 
 Oklahoma c^' Gulf R. Co. v. McDade, 191 U. S. 64, 68; 
 Schlemmer v. Buffalo, Rochester & Pittsburgh Rv. Co., 
 220 U. S. 590, 596; Tex. & Pac. Rv. Co. v. Harvev, 228 
 U. S. 319, 321; Gila Valley Ry. Co. v. Hall, 232 U. S. 94, 
 102, and cases cited. When the employe does know of 
 the defect, and appreciates the risk that is attributable 
 to it, then if lie continues in the em])loyment, without 
 objection, or without obtaining from the em])loyer or his 
 representative an assurance that the defect will be reme- 
 died, the emi)loye assumes the risk, even though it 
 arise out of the master's breach of duty;"^'' "An 
 employe assumes the risk of dangers normally incident 
 to the occupation in which he voluntarily engages, so far 
 as these are not attributable to the employer's negli- 
 gence. But the employe has a right to assume that 
 his employer has exercised proper care with respect to 
 ])roviding a safe place of work, -and suitable and safe 
 appliances for the work, and is not to be treated as 
 assuming the risk arising from a defect that is at- 
 
 15. Seaboard Air Line R. Co. C. A. 834. L. R. A. 191 5r 1. Ann. 
 V. Horton, 233 U. S. 492, 58 L. Cas. 1915B 475. 
 Ed. 1062. 34 Sup. Ct. 635, 8 N. C.
 
 992 IxjuBiES TO Interstate Employes. [<§ 558 
 
 tributable to the employer's negligence, until the em- 
 l)l()ye becomes aware of siieli defect, or unless it is so 
 plainly observable that he may be presvnned to have 
 known of it. Moreover, in order to charge an employe 
 with the assumption of a risk attributable to a defect 
 due to the employer's negligence, it must appear not 
 only that he knew (or is presumed to have known) of 
 the defect, but that he knew it endangered his safety; 
 or else such danger must heve been so obvious that an 
 ordinarily prudent person under the circumstances 
 would have appreciated it.'"" 
 
 § 559. Exception to Rule that Servant Assumes 
 Obvious or Known Risks — Promises of Repair. To the 
 rule explained in the foregoing paragraph that an em- 
 ploye assumes the obvious and known risks of his em- 
 ployment even if due to the employer's negligence, an 
 exception is made where the master has promised to 
 remedy the defect or to make the place safe and the serv- 
 ant continues to work in reliance upon such promise.^^ 
 If an employe knows of a defect and appreciates the 
 risk that is attributable to it, then he assumes the risk 
 even though it arises from the master's breach of duty 
 if he continues in the employment without objection, 
 or without obtaining from the employer an assurance 
 that the defect will be remedied; but if there is a prom- 
 ise of reparation, then, during such time as may be 
 reasonably required for its performance, or until the par- 
 ticular time specified for its performance, the employe, 
 relying upon such promise, does not assume the risk un- 
 less at least the danger be so imminent that no ordina- 
 ls. Gila VaUey, G. & N. R. Co. L. Ed. 852, 33 Sup. Ct. 518; 
 V. HaU, 232 U. S. 94, 58 L. Ed. Southwestern Brewery & Ice Co. 
 521, 34 Sup. Ct. 229, aff'g. 13 v. Schmidt, 226 U. S. 162, 57 L. 
 Ariz, 170, 1 N. C. C. A. 362, 112 Ed. 170, 33 Sup. Ct. 68; Schlem- 
 Pac. 845. mer v. Buffalo, R. & P. R. Co., 
 
 17. Seaboard Air Line Ry. v. 220 U. S. 590, 55 L. Ed. 596, 31 
 Lorick, 243 U. S. 572; 61 L. Ed. Sup. Ct. 561; Hough v. Texas 
 — , 37 Sup. Ct. 440; Texas & P. R. & P. R. Co., 100 U. S. 213, 25 L. 
 Co. V. Harvey, 228 U. S. 319, 57 Ed. 612.
 
 § 560] Assumption of Eisk. 993 
 
 rily prudent person, under similar circumstances, would 
 rely upon such a promise. For, when a servant shows 
 that he relied upon a promise made to him to remedy 
 the defect, he negatives the infci-ence of willingness to 
 incur the risk. Thus, on a second writ of error to the 
 United States Supreme Court in the case of Seaboard 
 AirTjineRy. v. Korton,^* a verdict and judgment for tlie 
 plaintiff was atlirmed, as it appeared in evidence on 
 the second trial that the employer had assured the 
 plaintiff that the defect would be remedied. 
 
 § 560. When Assumption of Risk is a Defense to 
 Negligent Acts of Fellow Servants. While the federal 
 statute abrogates the common-law fellow-serA'ant doc- 
 trine by i)lacing the negligence of a co-employe upon the 
 same basis as the negligence of the employer,^'-' yet, in 
 saving the defense of assumption of risk in cases other 
 than those where the violation by the carrier of federal 
 statute enacted for the safety of employes may con- 
 tribute to the injury or death, the act places a co-em- 
 ploye's negligence, when it is the ground of the action, 
 in the same relation as the employer's own negligence 
 upon the question whether an employe is deemed to 
 have assumed the risk.^° The decision of the national 
 court in the DeAtley case, in effect, overrules many 
 decisions of the state and intermediary federal courts 
 holding that an employe under the federal act never, 
 under any circumstances, assumes the risk of injun* 
 from the negligence of a co-employe.-^ Under the fed- 
 
 18. 239 U. S. 595, 60 L. Ed. 458, Kansas. Hackney v. Missouri, 
 36 Sup. Ct. 180. K. & T. R. Co., 96 Kan. 30, 149 
 
 19. Section 428, supra. Pac. 421. 
 
 20. Chesapeake & O. R. Co. v. Mississippi. Elliott v. Illinois 
 De Atley, 241 U. S. 310, 60 L. Cent. R. Co., Ill Miss. 426, 71 
 Ed. 1016, 36 Sup. Ct. 504. So. 741. 
 
 "21. United States. Northern New Hampshire. Caverhill v. 
 
 Pac. R. Co. V. Maerkl, 117 C. C. Boston & M. R. R.. 77 N. H. 330, 
 
 A. 237, 198 Fed. 1. 91 Atl. 917. 
 
 Alabama. Louisville & N. R. New Jersey. Grybowski v. Erie 
 
 Co. V. Fleming, 194 Ala. 51, 69 R. Co., 88 N. J. L. 1, 95 Atl. 
 
 So. 125. 764. 
 
 1 Control Can-iors 03
 
 994- 
 
 Injuries to Inteestate Employes. 
 
 [§ 560 
 
 eral act, an employe has the right to presume that the 
 employer has exercised reasonable care for his safety, 
 and this presmnption applies to the acts of a fellow serv- 
 ant. He does not ordinarily assume the negligent act 
 of a fellow servant; but if he becomes aware of the 
 risk and danger arising therefrom and continues in the 
 employment, or if the risk and danger arising therefrom 
 are so obvious that an ordinarily prudent person under 
 the same circumstances would have observed the one 
 and appreciated the other, then an employe assumes the 
 risk aiising from the negligent act of a co-employe un- 
 der the national statute.-" "The act of Congress, by 
 gated the common-law rule known as the fellow-servant 
 doctrine by placing the negligence of a co-employee up- 
 on the same basis as the negligence of the employer. 
 At the same time, in saving the defense of assumption 
 of risk in cases other than those where the violation by 
 the carrier of a statute enacted for the safety of em- 
 
 South Carolina. Thornton v. 
 Seaboard Air Line, Ry. 98 S. C. 
 348, 82 S. E. 433. 
 
 Texas. Missouri, K. & T. Ry. 
 
 Co. of Texas v. Freeman, 
 
 Tex. Civ. App. , 168 S. W. 
 
 69. 
 
 West Virginia. Easter v. Vir- 
 ginian R. Co , 76 W. Va. 383, 11 
 N. C. C. A. 101, 86 S. E. 37. 
 
 Wisconsin. Sweet v. Chicago & 
 N. W. R. Co., 157 Wis. 400, 147 
 N. W. 1054. 
 
 22. Chicago & N. W. R. Co. v. 
 Bower, 241 U. S. 470, 60 L. Ed. 
 1107, 36 Sup. Ct. 624; Southern R. 
 Co. V. Gray, 241 U. S. 333, 60 L. 
 Ed. 1030, 36 Sup. Ct. 558; Louis- 
 ville & N. R. Co. V. Stewart, 241 
 U. S. 261, 60 L. Ed. 989, 36 Sup. 
 Ct. 586; Seaboard Air Line Ry. 
 V. Horton, 239 U. S. 595, 60 L. 
 Ed. 458, 36 Sup. Ct. 180; Yazoo & 
 M. V. R. Co. V. Wright, 235 U. 
 S. 376, 59 L. Ed. 277, 35 Sup. Ct. 
 130; Seaboard Air Line R. Co v. 
 
 Horton, 233 U. S. 492, 58 L. Ed. 
 1062, 34 Sup. Ct. 635, 8 N. C. C. 
 
 A. 834, L. R. A. 1915C 1, Ann. 
 Cas. 1915B 475; Gila Valley G. 
 & N. R. Co. V. Hall, 232 U. S. 
 94, 58 L. Ed. 521, 34 Sup. Ct. 229, 
 aff'd 13 Ariz. 170, 1 N. C. C. A. 
 362, 112 Pac. 845; Cross v. Chicago 
 
 B. & Q. R. Co. (Mo. App.), 186 
 S. W. 1130; Castonia v. Maine 
 
 Cent. R. Co., N. H. , 100 
 
 Atl. 601. 
 
 An employe does not assume 
 the negligence of a fellow servant 
 under the federal act unless it be 
 made to appear first, thatj the 
 negligence was either in fact 
 known to the plaintiff, or was so 
 customary that he must be 
 charged with knowledge, and, 
 second, that he must appreciate, 
 or be bound to appreciate, the 
 danger. Michigan Cent. R. Co. v. 
 Schaffer, 136 C. C. A. 413, 220 
 Fed. 809.
 
 <§ 500] Assumption of Risk, 005 
 
 ployees may contribute to the injuiy or deatli of an em- 
 ployeo (Soa])oar(l Aii- T/ine v. IToi-ton, 233 U. S. 492, 502) 
 making tlio canici- lia])le for an oniployee's injury 're- 
 sulting in whole or in ])art from the negligence of any of 
 the officers, agents or em])loyes' of the carrier, abro- 
 the Act placed a co-employee's negligence, where it is 
 the ground of the action, in the same relation as the 
 employer's own negligence would stand to the question 
 whether a plaintiff is to be deemed to have assumed the 
 risk. On the facts of the case before us, therefore, plain- 
 tiff having voluntarily entered into an employment that 
 required him on proper occasion to board a moving 
 train, he assumed the risk of injury normally incident 
 to that operation, other than such as might arise from 
 the failure of the locomotive eng-ineer to o])erate the 
 train with due care to maintain a moderate rate of speed 
 in order to enable plaintiff to board it without undue peril 
 to himself. But plaintiff had the right to presume that 
 the engineer would exercise reasonable care for his 
 safety, and cannot be held to have assumed the risk 
 attributable to the operation of the train at an un- 
 unusally high and dangerous rate of speed, until made 
 aware of the danger, unless the speed and the conse- 
 quent danger were so obvious that an ordinarily care- 
 ful person in his situation would have observed the one 
 and appreciated the other. * * * It is insisted 
 that the true test is, not whether the employee did, in 
 fact, know the speed of the train and appreciate the 
 danger, but whether he ought to have known and com- 
 prehended; wliether, in effect, he ought to have antic- 
 ipated and taken precautions to discover the danger. 
 This is inconsistent with the rule repeatedly laid down 
 and uniformly adhered to by this court. According to 
 our decisions, the settled rule is, not that it is the duty 
 of an employee to exercise care to discover extraor- 
 dinaiy dangers that may arise from the negligence of 
 the employer or of those for whose conduct the employer 
 is responsible, but that the employee may assume that 
 the employer or his agents have exercised proper care 
 with respect to his safety until notified to the contrary,
 
 996 Injuries to Interstate Employes. [§ 560 
 
 unless the want of care and the danger arising from it 
 are so obvious that an ordinarily careful person, under 
 the circumstances, would observe and appreciate 
 them."'' 
 
 § 561. Analysis of Federal Decisions Applying 
 Doctrine of Assumption of Risk to Interstate Employes 
 of Railroads. In Cincinnati, N. 0. & T. P. R. Co. v. 
 Thom]ison,-* wherein the court under the facts held that 
 a brakeman alighting from a moving train, did not, as 
 a matter of law, assume the risk of stepping upon a piece 
 of slag near the track. Judge Cochran, in an exhaustive 
 opinion, clearly and accurately discussed the doctrine of 
 assumption of risk as applied in the decisions of the 
 United States Supreme Court to interstate employes of 
 railroads. He said: "There are several propositions in 
 this connection as to which there ought to be no con- 
 troversy. Some of them favor plaintiff, and some 
 defendant. It will help if we first dispose of them so 
 that the single question on which the case hangs may 
 be seen in all its nakedness. Those that favor de- 
 fendant are these: It is trite that two things are 
 essential to make out the defense, to wit, knowledge of 
 the defective condition out of which the risk arose, and 
 appreciation of the risk arising therefrom. These two, 
 indeed, may be reduced to one, i. e., knowledge of such 
 condition and of such risk. In the case of Chicago & 
 E. R. Co. v. Ponn, 191 Fed. 682, 112 C. C. A. 228, 
 Judge Hollister said that the word appreciated 'does 
 not mean more than actual knowledge. It does not 
 mean less.' Here, there can be no question that plain- 
 tiff appreciated, i.e., knew, the risk. The quotation 
 heretofore made from his testimony contains an express 
 admission that he did. The only possible question is 
 whether he knew the conditions out of which the risk 
 arose. Again, it is not essential that plaintiff knew that 
 
 23. Mr. Justice Pitney in Chesa- 24. Cincinnati, N. O. & T. P. 
 
 peake & 0. R. Co. v. De Atley, R. Co. v. Thompson, 149 C. C. A. 
 
 241 U. S. 310, 60 L. Ed. 1016, 36 211, 236 Fed. 1. 
 Sup. Ct. 564.
 
 § 5G1] Assumption of Risk. 997 
 
 the particular piece of slaic, stepjjin^ on which caused 
 his injury, was there. It is sufficient if he knew that 
 sucli s]a,ii", i. e., slag of that character or slag sub- 
 stantially as large and as dangerous as that piece, were 
 lying loose in and about the place where he alighted. 
 And again, his denial of such knowledge is not merely 
 not conclusive of the question. It may be of no value 
 whatever in determining it. Notwithstanding such 
 denial, it may be that it should be taken that he did in 
 fact have such knowledge. In the case of Chesapeake 
 & Ohio Ry. Co. v. Proffitt, 241 U. S. 462, 36 Sup. Ct. 620, 
 60 L. Ed. 1102, Mr. Justice Pitney said that the employe 
 was 'not to be treated as assuming a risk that is at- 
 tributal)le to the employer's negligence until he becomes 
 aware of it, or it is so plainly observable that he must 
 be presumed to have known of it.' Language to the 
 same effect may be found in numerous decisions of the 
 Supreme Court. Washington & G. R. R. Co. v. McDade, 
 135 U. S. 554, 573, 10 Sup. Ct. 1044, 34 L. Ed. 235; 
 Choctaw, 0. & G. R. R. Co. v. McDade, 191 U. S. 64, 68, 
 24 Sup. Ct. 24, 48 L. Ed. 96; Butler v. Frazee, 211 U. S. 
 459, 467, 29 Sup. Ct. 136, 53 L. Ed. 281; Schlemmer v. 
 Buffalo R. & P. Co., 220 U. S. 590, 596, 31 Sup. Ct. 561, 
 55 L. Ed. 596; Texas & Pacific R. R. Co. v. Harvey, 228 
 U. S. 319, 321, 322, 33 Sup. Ct. 518, 57 L. Ed. 852 ; Gila 
 Valley, G. & N. R. Co. v. Hall, 232 U. S. 94, 102, 34 Sup. 
 Ct. 229, 58 L. Ed. 521; Seaboard Air Line R. R. Co. v 
 Horton, 233 U. S. 492, 504, 34 Sup. Ct. 635, 58 L. Ed. 1062 
 L. R. A. 1915C, 1 Ann. Cas. 1915 B, 475. The presumption 
 here referred to, I take it, is conclusive. It cannot be 
 overthrown or affected to any extent by a mere denial 
 on the part of the employe. In Butler v. Frazee, supra, 
 a peremptory instruction was upheld in face of a denial 
 by the plaintiff, whose hand had been injured, whilst 
 feeding a mangle in a steam laundry. The denial there, 
 however, was of appreciation and not of knowledge of 
 the condition out of which the risk arose; but, if such a 
 denial was of no avail, a denial of such knowledge 
 could not have been of any more value. j\Ir. Justice 
 Moody said: 'The contention, however, is that, as the
 
 998 Injueiks to Interstate Employes. [^ 561. 
 
 ]^laintiff testified in substance that she did not know 
 and appreciate the dang-er which she was encountering, 
 tliat testimony, with the other facts in the case, raised 
 an issue for the jury, and tliat it could not be said, as 
 a matter of law, that the risk had been assumed. This 
 contention is sustained by a well-considered case. 
 Stager v. Troy Laundry Co., 38 Or. 480 (63 Pac. 645. 
 53 L. R. A. 459).' To this contention he responded: 
 'But where the conditions are constant and of long 
 standing, and the danger is one that is suggested by the 
 common knowledge which all possess, and both the con- 
 ditions and the dangers are obvious to the common 
 understanding, and the employe is of full age, in- 
 intelligence, and adequate experience, in all these 
 elements of the problem appear without contradiction 
 from the plaintitf 's own evidence, the question becomes 
 one of law for the decision of the court.' The recent 
 case of Jacobs v. Southern R. Co., 241 U. S. 229, 36 Sup. 
 Ct. 588, 60 L. Ed. 970, which in some of its features is 
 more like the one in hand than any other in the Su- 
 preme Court, also involved a denial of appreciation, i.e., 
 knowledge of the risk. There the question of the 
 assumption of risk was left to the jury, which found 
 in defendant's favor. Seemingly, it was urged that 
 because of this denial that question should not have 
 been left to the jury. Scant consideration, however, 
 was given to the denial, Mr. Justice McKenna said: 
 'He {'i.e., the fireman who was injured whilst attempting 
 to mount his engine when in motion from a cinder pile) 
 admitted a knowledge of the 'material conditions,' and 
 it would be going very far to say that a fireman of an 
 engine who knew of the custom of depositing cinders 
 between the tracks, knew of their existence, and who 
 attemped to mount an engine with a vessel of water in 
 his hands hokling 'not over a gallon,' could be con- 
 sidered as not having appreciated the danger and 
 assumed the risk of the situation because he had for- 
 gotten their existence at the time and did not notice 
 them.' That this presumption is so strong indicates 
 how 'rigorous and vigorous' must be the circumstances
 
 § 561] Assumption of Risk. 999 
 
 wliic'li give rit^e to it. 'V\\('\ may Ijo thus i)nt: The 
 defective condition and the risk must liave been so 
 obvious and tlie employe's relation thereto must have 
 })een so close and intimate that he could not help but 
 have known of them. This makes a denial by him of 
 knowlediJ::e thereof in effect a denial of a physical fact. 
 The case of Butler V. Frazee, supra, is an apt illustration 
 of the circumstances under which the presumption 
 arises. The defect in the mangle complained of con- 
 sisted in the excessive height of the finger guard rail 
 above the feed board. This was obvious to any one 
 looking at it. The plaintiff's relation to tlie defective 
 condition and the risk was as close and intimate as it 
 could be. As she fed the mangle, it was right in front 
 of her, and she had worked at it for some months before 
 she was injured. This, of course, was a strong case for 
 the presumption to arise. It was so strong that plaintiff 
 did not deny that she knew of tlie defective condition. 
 Conceivably cases may exist not so strong as this and 
 yet strong enough to give rise to the presumption. But 
 in one and all, in order thereto, the defective condition 
 and the risk must hi\\e been so obvious and the em- 
 ploye's relation thereto must liave been so close and 
 intimate that lie could not help but have known of them. 
 It must be taken, therefore, that plaintiff's denial of 
 knowledge of the j^resence of slag such as that upon 
 which he stepped was not only not conclusive as to his 
 state of knowledge, but it may not have been sufficient 
 to make the question in regard thereto one for the jury 
 to determine. The circumstances may be so coercive 
 that it must be conclusively presumed that he had 
 knowledge thereof. The propositions referred to favor- 
 ing ])laintiff are two. Knowledge on his part of the 
 conditions out of which the risk which he incurred arose 
 cannot be presumed from the fact that an ordinarily 
 prudent ])erson in like business, under like circum- 
 stances, would have ascertained that condition either 
 just before he jumped or theretofore. This fact made 
 out a case of contributory negligence, not one of as- 
 sumption of risk. That the two defenses are distinct is
 
 1000 IxjuRTF-s TO Interstate Employes. [§ 561 
 
 nowhere better settled than by the decisions of the 
 Supreme Court of the United States. The matter is 
 dealt with the following cases: Choctaw, 0. & G. 
 R. Co. V. McDade, supra, 191 U. S. 68, 24 Sup. Ct. 24, 
 48 L. Ed. 96; Schlemmer v. Buffalo R. P. Co., supra, 
 220 U. S. 596, 31 Sup. Ct. 561, 55 L. Ed. 596; Seaboard 
 A. L. R. R. Co. V. Horton, supra, 223 U. S. 503, 504, 
 34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, 
 Ann. Cas. 1915B, 475; Yazoo & M. V. R. R. Co. v. 
 Wrig-ht, 235 U. S. 379, 35 Sup. Ct. 130, 59 L. Ed. 277. 
 In the Schlemmer Case, Mr. Justice Day said that the 
 distinction between the two defenses was 'practical and 
 clear,' and, in the Horton Case, Mr. Justice Pitney said 
 that it was 'simple.' This court, speaking through 
 Judge Hollister, in the Ponn Case, 191 Fed. 687, 112 
 C. C. A. 228, said that they were 'entirely distinct.' 
 The distinction was again noted by it in Sterling Paper 
 Co. V. Hamel, 207 Fed. 300, 304, 125 C. C. A. 44, and 
 Yazoo R. Co. v. Wright, 207 Fed. 281, 285, 125, C. C. A. 
 25. In the case of McMyler Mfg. Co. v. Mehnke, 209 
 Fed. 5, 126 C. C. A. 147, through Judge Denison, it said : 
 'When each, alike, constituted a complete defense, the 
 distinction was largely academic, and it was natural 
 that the terms should be used with some confusion; 
 but, now that statutes have made differences in the 
 defensive value of the two things, the distinction has 
 become vital and has been the subject of much judicial 
 inquiry.' He dealt therein with what he tenned the 
 'seeming conflict' between the statement of Mr. Justice 
 Holmes in the first Schlemmer Case, 205 U. S. 1, 27 
 Sup. Ct. 407, 51 L. Ed. 681, that assumption of risk 
 'obviously shades into negligence as commonly under- 
 stood,' and that 'the difference between the two is one 
 of degree rather than of kind,' and that of Mr. Justice 
 Day in the second one that 'there is, nevertheless, a 
 practical and clear distinction between the two.' Knowl- 
 edge of the risk is the watchword of the defense of 
 assumption of risk; want of due care in view thereof is 
 that of contributory negligence; and these are distinct 
 conceptions. Conceivably, at least, it is fjossible for an
 
 ^ 5C1] Assumption of Kisk. lOUl 
 
 employe to lia\e knowledge of a certain risk, when lie 
 enters the emi)h)yment, and at the same time to exhibit 
 a want of due care in entering it in view thereof. But 
 it would seem that the decisions in the Schlemmer and 
 Mehnke Cases are against treating such conduct as 
 making out the defense of assumption of risk and not 
 that of contributory negligence. It is only in case the 
 employe, thereafter, in view of his knowledge of the 
 risk, exhibits a want of due care in his behavior in re- 
 lation thereto, that ho has been guilty of such con- 
 tributory negligence as to defeat the right of action. In 
 such a case, assumption of risk and contributory negli- 
 gence, but for a statute abolishing the one or limiting 
 the effect of the other, coexist, each as a complete de- 
 fense to the action. They need not, however, coexist. 
 In the absence of statute, conceivably at least, there may 
 be assumption of risk without contributory negligence. 
 This is so, in case, at the time the employe enters the 
 employment, he knows of the risk, and with such knowl- 
 edge a prudent person would encounter the risk of 
 entering the employment. So there may be contributory 
 negligence without assumption of risk. This is the case 
 wliere the employe in the course of his employment, 
 with no previous knowledge of the risk, is suddenly 
 confronted therewith and has no freedom of choice 
 between quitting and continuing in the service, but fails 
 to exercise due care in view of the risk with which he 
 is thus confronted. So if a prudent person, under the 
 circumstances of the particular case, would have dis- 
 covered the existence of the risk and acted accordingly, 
 a case of contributory negligence would be made out, 
 but not assumption of risk. This is so because knowl- 
 edge of the risk is essential to the defense and this 
 does not exist. All that exists is that the employe 
 ought to have known. In the case of Texas & Pacific 
 R. K. Co. v. Arcliibald, 170 U. S. 665, 18 Sup. Ct. 777, 42 
 L. Ed. 1188, a switchman was injured whilst attempting 
 to uncouple Iavo cars delivered to defendant by another 
 railroad company to be locally handled and then return- 
 ed, by reason of the coupling apparatus being defective.
 
 1002 Injuries to Interstate Employes. [-^ 5()1 
 
 The court held that defendant owed plaintiff the duty 
 of exercising due care to furnish him reasonably safe 
 appliances in the way of coupling apparatus as to for- 
 eign cars delivered to it to be locally handled the same 
 as in case they were delivered to be handled over its 
 road. The defendant requested an instruction to the 
 effect that, if plaintiff knew or by the exercise of ordi- 
 nary care could have known tlmt it was the custom of 
 the defendant company not to inspect such cars, he as- 
 sumed the risk of being injured by reason of the defects 
 in such cars. The court struck out the words 'or by the 
 exercise of ordinary care could have knowm' and gave 
 the instruction thus altered. The action in so striking 
 was approved. In the case of Choctaw, 0. & G. R. Co. v. 
 McDade, supra, the jury were instructed that if the de- 
 ceased employe either knew of the danger of collision 
 with the water spout, or, by the observance of ordinary 
 care upon his part, ought to have known of it, no re- 
 covery could be had. Mr. Justice Day, as to this portion 
 of the charge, said: 'The charge of the court upon the 
 assumption of risk was more favorable to the plaintiff in 
 error than the law required, as it exonerated the rail- 
 road company from fault if, in the exercise of ordinary 
 care, McDade might have discovered the danger. Upon 
 this question the true test is not in the exercise of care 
 to discover dangers, but whether the defect is known 
 or plainly observable by the employe.' The other propo- 
 sition favoring plaintiff is that it does not follow from 
 the fact that the plaintiff knew that pieces of slag of the 
 size of a hen's egg and smaller were between the tracks 
 in the yard at Oneida north of the road crossing and 
 that it was dangerous for him to step on one of them in 
 alighting from the train as he did, so that if he had been 
 injured by stepping on such a piece he could not have 
 recovered because he had assumed such risk, that he had 
 assumed the risk of stepping on a loose piece of the 
 character of that on which he did stei). It seems to have 
 been the thought of that portion of the charge to the 
 jury as to what was essential to make out the defense of 
 assumption of risk heretofore quoted that it did so fol-
 
 § 561] Assumption of Risk. 1003 
 
 low. Tossibly there is no room to elaiiii tliat a piece tlie 
 size of a man's two fists or of a cocoanut is not sub- 
 stantially larger and moi-e dan.i^'erous to step on under 
 such circumstances than one only as larg-e as a hen's 
 egg. At least, it cannot, as a matter of law, be said that 
 such is not the case. This being so, we must take it 
 that it is substantially larger and more dangerous. And 
 such being the case, it is not to be said that an employe 
 who assumes a particular risk assumes a substantially 
 greater one ])ecause it is exactly of the same kind, and 
 that, even though such particular risk is an 'extra- 
 ordinary' one, in that it arises from the employer's neg- 
 ligence, as is the case with the substantially greater one. 
 Conceivably he might be willing to incur the one and 
 not the other. Such fact cannot be made the basis of 
 charging plaintiff with having assumed such risk on the 
 ground that it was inferable from the presence of the 
 smaller pieces that there might be larger ones or even 
 that it was prol)able or likely there would be. The 
 knowlege of conditions from which a risk arises which 
 the doctrine calls for, as we understand it, is immediate 
 knowledge obtained from pure observation. It does not 
 cover conclusions or inferences from such knowledge. 
 Probably it would be safer to say that it does not cover 
 inferences or conclusions therefrom as to possible, or 
 probable or likely conditions. In the Ponn Case, 191 Fed. 
 688, 112 C. C. A. 228, Judge HoUister said: 'The only 
 kind of knowledge which, on the ground of assumption 
 of risk, will bar a recovery is actual knowledge.' And 
 in the Wright and Hamel Cases, 207 Fed. 285, 125 C. C. 
 A. 25, and 207 Fed. 304, 125 C. C. A. 44, Judge Warring-ton 
 characterized the assumption called for by the defense 
 of assumption of risk as a 'conscious assumption;' and 
 in order to l)e conscious assumption there must be actual 
 knowledge. In the case of Chesapeake & Ohio Ry. Co. 
 v. Deatley, 241 U. S. 310, 36 Sup. Ct. 564, 60 L. Ed. 1016, 
 the plaintilT, a head brakeman, had been injured whilst 
 attempting to mount, at the engine, a freight train in 
 motion. By direction of the engineer he had dismounted 
 at a coal dock, at which the train had stopped, and gone
 
 1004 IxjuRiEs TO Interstate Employes. [^ 561 
 
 forward to a. signal tower a short distance ahead, for 
 information. The attempt to mount was from the plat- 
 form of the tower as the engine passed him. His em- 
 ployment required him to mount a moving train on proper 
 occasions, and he had frequently mounted his train, 
 whilst in motion, on such an occasion as this one. The 
 mounting could be made with reasonable safety if the 
 train was running at a moderate rate of speed. There 
 was some risk in so mounting, but it was one of the or- 
 dinary risks of the emplojanent, in that it did not arise 
 from negligence of the defendant or its engineer. And 
 this risk the plaintiif had assumed. The train in ques- 
 tion was running at the rate of 12 miles an hour, and the 
 claim was that this was an unusually dangerous rate of 
 speed at which to mount the train, and that therefore 
 the engineer was negligent in running it at that rate, 
 which made the risk of mounting the train whilst it was 
 so running an extraordinary risk. The principal ques- 
 tion in the case was, accepting this to be true: Did the 
 plaintiff assume the risk of such negligence on the part 
 of the engineer? Possibly the case did not involve the 
 doctrine of assumption of risk at all, in that plaintiff, 
 when suddenly confronted with the increased risk, had 
 no such freedom of choice, as to whether he would con- 
 tinue in or leave defendant's service, as is essential to 
 call for the application of the doctrine, and therefore in- 
 volved only the question of contributory negligence. But 
 the case was disposed of on the basis that it did, and it 
 was held that plaintiff did not, as a matter of law, 
 assume such risk. It was so held because, the plaintiff' 
 not having admitted that he knew and appreciated the 
 increased risk, it could not, as a matter of law, be said 
 that he did; and this though there was no denial on 
 his part that he did. The extraordinary risk which 
 plaintiff thus encountered was exactly the same kind as 
 the ordinary one which he had assumed. It was mere- 
 ly greater in degree. It was a risk which the engineer 
 might easily create, and it was to be inferred that it 
 was possible or even probable or likely that plaintiff 
 would have to encounter it. This, however, was without
 
 § 561] Assumption of Risk. 1005 
 
 effect. Mr. Justice Pitney stated defendant's position 
 tlms: 'It is insisted tliat tlie true test is, not whether 
 the employe did, in fact, know the speed of the train 
 and appreciated the dang-er, hut whetlier he ought to 
 have known and comprehended; whether, in effect, he 
 ought to have anticipated and taken precautions to dis- 
 cover tlie danger.' To tliis he responded: 'This is in- 
 consistent with the rule repeatedly laid down and uni- 
 formly adhered to by this court. According to our 
 decisions, the settled rule is, not that it is the duty of 
 an employe to exercise care to discover extraordinary 
 dangers that may arise from the negligence of the 
 employer or of those for whose conduct the employer is 
 responsible, but that the employe may assume that the 
 employer or his agents have exercised proper care with 
 respect to his safety until notified to the contrar}^ un- 
 less the want of care and the danger arising from it 
 are so obvious that an ordinarily careful person, 
 under the circumstances, would observe and appreciate 
 them.' But it may be urged that the smaller risk, to 
 wit, that of running at such a' moderate rate of speed 
 that the train could be mounted with reasonable safe- 
 tv and, which was assumed, was an ordinary nsk, m 
 that it involved no negligence and the plaintiff had the 
 right to presume that he would be subjected to no 
 greater risk by running the train at a greater rate, 
 whereas here the smaller risk, to wit, the presence, at 
 the alighting place of pieces of slag the size of a hen's 
 egg and smaller, was in itself an extraordinary risk, 
 in that it involved negligence. They were dangerous 
 to step on. Brakemen were known to alight at that 
 place in the line of their duties. The pieces could have 
 been removed and reasonably should. Thus knowing 
 that defendant was negligent to this extent, plaintiff not 
 only had no right to presume that it had not been also 
 negligent in permitting larger and more dangerous pieces 
 to "be there, but reasonably should have inferred that it 
 might have or probably or likely had been and if he was 
 not willing to incur the risk should have quit the employ- 
 ment. In the case of Texas & Pacific R. R. Co. v.
 
 1006 IxjuEiES TO Interstate Employes. [<§ 561 
 
 Archibald, supra, though the only question directly 
 involved was whether the words as to ordinary care 
 were properly stricken ont of the instruction requested 
 by the defendant, it was held that the jury sliould not 
 have been instructed that, if plaintiff knew of the cus- 
 tom not to inspect and repair foreign cars handled 
 locally, he had assumed the risk of injury by the de- 
 fective coupling apparatus which ho encountered, as 
 it was in the instruction in its altered form. It was neg- 
 ligence on defendant's part not so to do, and it was 
 inferable therefrom that the coupling apparatus of 
 cars so received by it possibly might, even probably or 
 likely would be, defective, and yet plaintiff was not held 
 to have assumed the risk of the presence of such de- 
 fective apparatus because he knew of such negligence. 
 A conclusive reason why the employe should not be 
 chargeable with knowledge of defective conditions the 
 possibility, probability, or likelihood of the existence 
 of which is inferable from known conditions, is that the 
 only basis for charging him with such knowledge is 
 that an ordinarily prudent employe under like cir- 
 cumstances would draw such inference and act ac- 
 cordingly; and, as we have seen, the question of care on 
 the employe's part has nothing whatever to do with the 
 defense of assumption of risk. It has solely to do with 
 that of contributory negligence." 
 
 § 562. Distinction Between Assumption of Risk 
 and Contributory Negligence. The distinction between 
 assumption of risk and contributory negligence under 
 the federal act is important for the reason that, except 
 as to violations of federal statutes for the protection of 
 employes, assumption of risk is an absolute defense and 
 contributory negligence only reduces the damages.-' As 
 construed by the United States Supreme Court an em- 
 
 25. Alabama. Southern R. Co. Georgia. Macon, D. & S. R. Co. 
 
 V. Peters, 194 Ala. 94, 69 So. 611. v. Musgrove, 145 Ga. C47, 89 S. 
 
 Arkansas. St. Louis, L M. & S. E. 767. 
 
 R. Co. V. Rodgers, 118 Ark. 263, Indiana. Pittsburgh, C. C. & St. 
 
 176 S. W. 696. L. R. Co. v. Farmers' Trust &
 
 § 562] 
 
 Assumption of Risk, 
 
 1007 
 
 ploye assiunes the ordinary risks and liazards of liis 
 occupation and also those defects and nsks which are 
 known to him, or are plainly observable, although duo 
 to the master's negligence. Contributory negligence, on 
 the other hand, is the omission of the em])loye to use 
 those precautions for his own safety which ordinary 
 ju'udence re(juires.-" In an ad ion under tlic Federal 
 
 Savings Co., 18.^ Ind. 287, 108 N. 
 E. 108. 
 
 Kansas. Spinden v. Atchison, T. 
 & S. F. R. Co., 95 Kan. 474, 148 
 Pac. 747. 
 
 Virginia. Chesapeake & 0. R. 
 Co. V. Meadows, 119 Va. 33, 13 
 N. C. C. A. 376, 89 S. E. 244. 
 
 Washington. Bolch v. Chicago, 
 M. & St. P. R. Co., 90 Wash. 47, 
 155 Pac. 422. 
 
 "In considering the facts in 
 this case we should keep in mind 
 the distinction between the con- 
 sequences of contributory negli- 
 gence and assumption of risk. Un- 
 der the federal Employers' Lia- 
 bility Act one is only barred from 
 recovery where It appears that 
 he assumed the risk incident to 
 his employment. On the other 
 hand, contributory negligence is 
 not a bar to recovery, and can 
 only be considered in ascertain- 
 ing the extent to which damages 
 are to be mitigated." Southern 
 R. Co. V. Mays, 152 C. C. A. 91. 
 239 Fed. 41. 
 
 The doctrine of assumption of 
 risk alw^ays arises on contract, 
 express or implied, while the doc- 
 trine of contributory negligence 
 always arises in tort. St. Louis 
 Merchants' Bridge Terminal R. 
 Co. V. Schuerman, 150 C. C. A. 203, 
 237 Fed. 1. 
 
 " 'Assumed risk' and 'contribu- 
 tory negligence' are sometimes 
 loosely treated as synonymous. 
 This, perhaps, for the reason that 
 
 the same act may constitute both 
 assumed risk and contributory 
 negligence. Railway Co. v. Allen, 
 48 Tex. Civ. App. 66, 106 S. W. 
 441. But there is a well-recog- 
 nized distinction between assum- 
 ed risk and contributory negli- 
 gence. Contributory negligence 
 implies fault or a breach of duty 
 on the part of the injured party, 
 either by doing or by failing to do 
 something that a reasonably pru- 
 dent man would not have done, 
 or would not have failed to do, 
 to avoid being injured under the 
 same or similar circumstanjces. 
 On the other hand, there is a cer- 
 tain amount of danger incident 
 to many employment, which or- 
 dinary prudence cannot always 
 avoid. Where these are known 
 to the employe, they are assumed 
 by him as an implied part of his 
 contract of employment. An em- 
 ploye assumes the risk of those 
 dangers known to him to be ordi- 
 narily incident to the labor which 
 he has agreed to perform, or 
 which are so obvious that a man 
 of ordinary intelligence and pru- 
 dence must necessarily be pre- 
 sumed to have learned of them in 
 the ordinary course of his employ- 
 ment." Gulf, C. & S. F. R. Co. v. 
 
 Cooper, Tex. Civ. App. , 
 
 191 S. W. 579. 
 
 26. Schlemmer v. Buffalo. R. 
 & P. R. Co., 220 U. S. 590, 55 L. 
 Ed. 596. 31 Sup. Ct. 561.
 
 1008 Injuries to Interstate Employes. [^ 562 
 
 Employers' Liability Act, the federal Supreme Court 
 described the distinction in the following language: 
 "And, taking sections 3 and 4 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 
 earner in cases where the violation of a statute has 
 contributed to the injury or death of the employe, there 
 is, with respect to cases not in this category, a limita- 
 tion upon the effect that is to be given to contributory 
 negligence, while no corresponding limitation is imposed 
 upon the defense of assumption of risk — perhaps none 
 was deemed feasible. The distinction, although simple, 
 is sometimes overlooked. Contributory negligence in- 
 volves the notion of some fault or breach of duty on the 
 part of the employes, and since it is ordinarily his duty 
 to take some precaution for his own safety when en- 
 gaged in a hazardous occupation, contributory negli- 
 gence is sometimes defined as a failure to use such care 
 for his safety as ordinarily prudent employes in similar 
 circumstances would use. On the other hand, the as- 
 sumption of risk, even though the risk be obvious, may 
 be free from any suggestion of fault or negligence on the 
 part of the employes."-^ Applying these principles in 
 an action for a negligent injury to a section man struck by 
 an engine, an instruction that if the plaintiff could with 
 safety and reasonable convenience, have stepped off the 
 track but by his own choice, was properly refused be- 
 cause it pertained to the conduct of the plaintiff and 
 what he should have done to protect his safety consider- 
 ing his danger at the time, and did not cover the 
 element of assumed risk but was more properly ap- 
 ])licab]f' to the defense of contributory negligence.^^ 
 
 § 563. When Assumption of Risk is not a Defense 
 — Federal Safety Appliance Laws. In an action for in- 
 
 27. Seaboard Air Line R. Co. Ann. Cas. 1915B 475. 
 
 V. Horton, 233 U. S. 492, 58 L. 28. Erie R. Co. v. Purucker, 
 
 Ed. 1062, 34 Sup. Ct. 635, 8 N. 244 U. S. 320, 61 L. Ed. 1166, 37 
 
 C. C. A. 834, L. R. A. 1915C 1, Sup. Ct. 629.
 
 § 503] 
 
 Assumption of Risk. 
 
 1009 
 
 juries based upon a violation ])y a railroad company of 
 any federal statute enacted for the safety of employes, 
 such as the Federal Safety Appliance Act and Boiler 
 Inspection Act, if it is shown that the injury is due to 
 a violation of such federal statutory laws, the doctrine 
 of assumption of risk is absolutely wiped out and is no 
 defense whatever to an action under tlie federal act." 
 
 29. Erie R. Co. v. Purucker, 
 244 U. S. 320, 61 L. Ed. 1166, 37 
 Sup. Ct. 629; Baugham v. New 
 York, P. & N. R. .Co., 241 U. S. 
 237, 60 L. Ed. 977, 36 Sup. Ct. 
 592, 13 N. C. C. A. 138; Texas 
 & P. R. Co. V. Rigsby, 241 U. S. 
 33, 60 L. Ed. 874. 36 Sup. Ct. 
 482; Grand Trunk Western R. Co. 
 V. Lindsay, 233 U. S. 42, 58 L. 
 Ed. 838, 34 Sup. Ct. 581, Ann. Cas. 
 19],4C 168; Cincinnati, N. O. & 
 T. P. R. Co. V. Hall, 155 C. C. A. 
 606, 243 Fed. 76; St. Louis Mer- 
 chants' Bridge Terminal R. Co. v. 
 Schuerman, 150 C. C. A. 203, 237 
 Fed. 1; Clark v. Erie R. Co., 230 
 Fed. 478; Columbia & P. S. R. 
 Co. V. Sauter, 139 C. C. A. 150, 
 223 Fed. 604; Schweig v. Chicago, 
 M. & St. P. R. Co.. 132 C. C. A. 
 660, 216 Fed. 750, 7 N. C. C. A. 
 135. 
 
 Alabama. Southern R. Co. v. 
 Peters, 194 Ala. 94, 69 So. 611. 
 
 Georgia. Southern Ry. Co. v. 
 
 Blackwell, Ga. App. , 93 
 
 S. E. 321; Atlantic Coast Line R. 
 
 Co. V. Kennedy, Ga. App. 
 
 , 92 S. E. 973; Charleston & 
 
 W. C. R. Co. V. Sylvester, 17 Ga. 
 App. 85, 86 S. E. 275; Kirbo v. 
 Southern R. Co., 16 Ga. App. 49, 
 84 S. E. 491. 
 
 Indiana. Cincinnati, H. & D. Ry. 
 
 Co. V. Gross, Ind. App. , 
 
 111 N. E. 653. 
 
 Kentucky. Cincinnati, N. 0. & 
 T. P. R. Co. V. York, 176 Ky. 9, 
 194 S. W. 1034; Louisville & N. 
 R. Co. V. Williams' Adm'r, 175 Ky. 
 
 679, 194 S. W. 920; Jones v. South- 
 ern Ry. in Kentucky, 175 Ky. 
 455, 194 S. W. 558; Young v. Nor- 
 folk & W. R. Co., 171 Ky. 510, 
 188 S. W. 621; Louisville, H. & 
 St. L. R. Co., V. Wright, 170 Ky. 
 230, 185 S. W. 801; Louisville & 
 N. R. Co. V. Patrick, 167 Ky. 118, 
 180 S. W. 55; Davis v. Chesapeake 
 & 0. R. Co., 166 Ky. 490, 179 S. 
 W. 422; Truesdell v. Chesapeake 
 & 0. R. Co , 159 Ky. 718, 169 S. 
 W. 471; Chesapeake & O. R. Co. 
 V. De Atley, 159 Ky. 687, 167 S. 
 W. 933; Glenn v. Cincinnati, N. 
 O. & T. P. R. Co.. 157 Ky. 453, 
 163 S. W. 461. 
 
 Maryland. Baltimore & O. R. 
 Co. V. Whitacre, 124 Md. 411, 92 
 Atl. 1060. 
 
 Michigan. Gaines v. Grand 
 Trunk R. Co of Canada. 193 Mich. 
 398, 159 N. W. 542. 
 
 Minnesota. Clapper v. Dickin- 
 son, 137 Minn. 415, 163 N. W. 
 752: Thompson v. Minneapolis & 
 St. L. R. Co., 133 Minn. 203, 158 
 N. W. 42; Marshall v. Chicago, 
 R. L & P. R. Co.. 131 Minn. 392. 
 155 N. W. 208; La Mere v. Rail- 
 way Transfer Co., 125 Minn. 526, 
 147 N. W. 1134: Ahrens v. Chicago 
 M. & St. P. R Co., 121 Minn, 335. 
 141 N. W. 297. 
 
 Missouri. Christy v. Wabash R. 
 Co., 195 Mo. App. 232. 191 S. W. 
 241; Young v. Lusk. 268 Mo. 625. 
 187 S. W. 849; Noel v. Quincy, 
 
 0. & K. C. R. Co., Mo. App. 
 
 , 182 S. W. 787.
 
 1010 
 
 Injuries to Interstate Employes. [§ 563 
 
 The lang-iiag-e of section 4 of the act makes this pro- 
 position clear and it has been so construed by the 
 courts Tvithout dissent.'" Passing upon a requested 
 instruction in an action for violation of the Safety 
 Appliance Act which charged that if the plaintiff knew 
 the defect and the risk arising therefrom, he could not 
 recover, the Supreme Court of the United States in the 
 Crockett case, said: "Upon the merits, we of course 
 sustained the contention that by the Employers' Lia- 
 bility Act the defense of assumption of risk remains as 
 at common law, saving in the cases mentioned in section 
 4, that is to say: 'Any case where the violation by 
 
 Montana. Sorenson v. North- 
 ern Pac. R. Co., 53 Mont. 268. 163 
 Pac. 560. 
 
 Nebraska. Huxoll v. Union Pac. 
 R. Co., 99 Neb. 170, 155 N. W. 
 900. 
 
 New Hampshire. Castonia v. 
 
 Maine Cent. R. Co., N. H. 
 
 , 100 Atl. 60. 
 
 New Jersey. Parker v. Atlan- 
 tic City R. Co., 87 N. J. L. 148, 
 93 Atl. 574. 
 
 Nortb Carolina. Sears v. Atlan- 
 tic Coast Line R. Co., 169 N. C. 446, 
 86 S. E. 176. 
 
 Oklahoma. Chicago. R. L & P. 
 
 R. Co., V. Jackson, Okla. , 
 
 160 Pac. 736; St. Louis & S. F. 
 R. Co., V. Snowden, 48 Okla. 115, 
 149 Pac. 1083. 
 
 Oregon. Oberlin v. Oregon-Wash- 
 ington R. & Nav. Co., 71 Ore. 177, 
 142 Pac. 554. 
 
 South Carolina. Steele v. Atlan- 
 tic Coast Line R. Co., 103 S. C. 
 102, 87 S. E. 639. 
 
 South Dakota. Lee v. Great 
 
 Northern Ry. Co., S. D. 
 
 , 163 N. W. 560. 
 
 Texas. Chicago, R. I. & G. 
 
 Ry. Co. V. De Bord, Tex. 
 
 , 192 S. W. 767; Gulf, C. & 
 
 S. F. Ry. Co. V. Cooper, Tex. 
 
 Civ. App. — -, 191 S. W. 579. 
 
 Virginia. Norfolk & W. Ry. Co. 
 V. Tucker's Adm'x, 120 Va. 540, 
 91 S. E. 61.4. 
 
 Washington. Swanson v. Ore- 
 gon-Washington R. & Nav. Co., 92 
 Wash. 423, 159 Pac. 379; Bolch 
 V. Chicago, M. & St. P. R. Co., 
 90 Wash. 47, 155 Pac. 422; Lauer 
 "v. Northern Pac. R. Co. 83, Wash. 
 465. 145 Pac. 606. 
 
 West Virginia. Hull v. Virgin- 
 ian R. Co., 78 W. Va. 25, 88 S. E. 
 1060. 
 
 Wisconsin. Hovaneck v. Great 
 Northern R. Co., 165 Wis. 511, 162 
 N. W. 927; Smiegil v. Great North- 
 ern R. Co., 165 W. 57, 160 N. W. 
 1057. 
 
 If an employe of an interstate 
 carrier is injured by reason of a 
 violation of the Federal Boiler 
 Inspection Act, assumption of 
 risk is not a defense and his con- 
 tributory negligence does not re- 
 duce his damages. Great North- 
 ern Ry. Co. V. Donaldson, 246 U. 
 
 S. 121, 62 L. Ed. , 38 Sup. 
 
 Ct. 230. 
 
 30. Southern R. Co. v. Crock- 
 ett, 234 U. S. 725, 58 L. Ed. 1564, 
 34 Sup. Ct. 897; Clark v. Erie 
 R. Co., 230 Fed. 478.
 
 '§ 564-] Assumption of Risk, 1011 
 
 suoli eoiimioii carrier of any statute enacted for the 
 safety of employes contributed to the injury or death of 
 such enii)]oye. ' " If a failure to comply with federal 
 safety ai)pliance laws contributes ''in whole or in part" 
 to an injury, assumption of risk is not a defense. ^^ 
 
 § 564. State Statutes for Safety of Employes not 
 Included. Tlic jirovision of the statute whicli (i(M'lares 
 that no employe shall be held to have assumed the risk 
 of his employment where the violation by the common 
 (uirrier of any statute enacted for the safety of employes 
 contributed to the injury or death, refers only to federal 
 statutes and does not include state statutes enacted for 
 the safety of employes. In the early enforcement of the 
 federal act a few courts held that the clause ' ' any statute 
 enacted for the safety of employes" included state 
 statutes as well as federal. If these rulings had been 
 followed, then assumption of risk under the national law 
 would have been an absolute defense to the same acts 
 in some states, and not in others, thus destroying the 
 uniformity of the applicability of the federal law 
 throughout the nation. Such a contention was con- 
 demned by the Supreme Court of the United States in 
 the following language:^^ "By the phrase 'any statute 
 enacted for the safety of emploj'es,' Congress evidently 
 intended federal statutes, such as the Safety Appliance 
 Acts (March 2, 1893, c. 196, 27 Stat. 531, March 2, 1903, 
 c. 976, 32 Stat. 943, April 14, 1910, cp. 160, 36 Stat. 298, 
 February 17, 1911, c. 103, 36 Stat. 913,) and the Hours of 
 Service Act (March 4, 1907, c. 2939, 34 Stat. 1415.) 
 For it is not to be conceived that, in enacting a general 
 law for establishing and enforcing the responsibility of 
 common carriers by railroad to their employes in inter- 
 state commerce. Congress intended to permit the legis- 
 latures of the several states to determine the effect of 
 
 31. Union Pac. R. Co. v. Hux- v. Ilorton. 233 U. S. 492. 5S L. 
 oU, 245 U. S. 535, 62 L. Ed. 38 Ed. 1062, 34 Sup. Ct. 635, 8 N. 
 Sup Ct. 187. C. C. A. 834, L. R. A. 1915C 1. 
 
 32. Seaboard Air Line R. Co. Ann Cas. 1915B 475.
 
 1012 Injueies to Interstate Employes. [§ 564 
 
 coutribiitory negligence and assumption of risk, by 
 enacting statutes for the safety of employes, since this 
 would in effect relegate to state control two of the 
 essential factors that determine the responsibility of the 
 employer. ' "^ 
 
 § 565. Assumption of Risk Eliminated in Actions 
 for Violation of Hours of Service Act. In an action 
 under the federal act for an injury to an employe within 
 its terms, if the injury or death is caused by a violation 
 of the Federal Hours of Service Act,'* assumption of 
 risk is not a defense to the action.'' But the un- 
 justified retention of an employe at his work in 
 violation of the Hours of Service Act does not deprive 
 the carrier of the defense of assumption of risk unless 
 the breach of the statute contributes to the injuiy.'' 
 "In this case there was evidence that whether technical- 
 ly on duty or not, the plaintiff had been greatly over- 
 taxed before the final strain of more than sixteen hours, 
 and that, as a physical fact, it was far from impossible 
 that the fatigue should have been a cause proximately 
 contributing to all that happened. If so, then by the 
 Employers' Liability Act, sees. 3 and 4, questions of 
 negligence and assumption of risk disappear.'""' 
 
 > >37 
 
 § 566. Confusing Assumption of Risk with Con- 
 tributory Negligence in Jury Instructions Under Federal 
 Act. The supreme court of appeals of Virginia'' 
 
 33. Accord: Columbia & P. S. Ct. 121, 10 N. C. C. A. 778; 
 R, Co. V. Sauter, 139 C. C. A. Schweig v. Chicago, M. & St. P. 
 150, 223 Fed. 604; Chicago, R. I. R. Co., 132 C. C. A. 660, 216 Fed. 
 & G. Ry. Co. V. De Bord, • 750, 7 N. C. C. A. 135. 
 
 Tex. ; 192 S. W. 767. 36. Atchison, T. & S. F. R. Co. 
 
 34. Hours of Service Act, v. Swearingen, 239 U. S. 339, 60 
 March 4, 1907, c. 2939, 34 Stat. L. Ed. 317, 36 Sup. Ct. 121, 10 N. 
 1415. C. C. A. 778. 
 
 35. Baltimore & 0. R. Co. v. 37. Baltimore & O. R. Co. v. 
 Wilson, 242 U. S. 295, 61 L. Ed. Wilson, 242 U. S. 295, 61 L. Ed. 
 312, 37 Sup. Ct. 123; Atchison, T. 312, 37 Sup. Ct. 123. 
 
 & S. F. R. Co. V. Swearingen, 239 38. Southern R. Co. v. Jacobs, 
 
 U. S. 339, 60 L. Ed. 317, 36 Sup. 116 Va. 189, 81 S. E. 99.
 
 § 566] Assumption of Risk. 1013 
 
 analyzod and roviowed many decisions of tlio national 
 and stato coni-fs discussing and applying the doctrine of 
 assiiniption of risk under the federal act.^^ In the Jacobs 
 case, tlic (picstion before the court was whether a rail- 
 road brakonian assumed the risk of injury from a pile of 
 cinders negligently pennitted to accumulate alongside 
 of the track in a railroad yard which the jury found, 
 under the instructions of the court, constituted a defect 
 or insufficiency due to the negligence of the company. 
 Over the objections of the railroad company, on the 
 question of assumption of risk, the court instructed the 
 jury as follows: ''The court further instructs the jury 
 tliat knowledge by the plaintiff of the unsafe character 
 or condition of the said roadway is of itself no defense 
 to an action for an injury caused to him thereby. Such 
 knowledge, however, if the jury believe from the 
 evidence that he had such knowledge, may be considered 
 by the jury along with all the evidence in the case in de- 
 termining whether the plaintiff was himself gTiilty of 
 negligence which contributed to produce the injury 
 mentioned in the declaration, but the fact that the plain- 
 tiff may himself have been guilty of contributory negli- 
 gence shall not bar a recovery, but the damages shall be 
 diminished in proportion to the amount of contributoiy 
 negligence, if such there were, which they may believe 
 from the evidence was attributable to said plaintiff under 
 the circumstances." The defendant, on the other hand, 
 request was denied by the trial court: "A. The court 
 
 39. The cases cited, analyzed 51 L. Ed. 681, 27 Sup. Ct. 407; 
 
 and discussed, were the foUowing: Choctaw, O. & G. R. Co. v. Mc- 
 
 Seaboard Air Line Ry. v. Moore, Dade, 191, U. S. 64, 48 L. Ed. 96, 
 
 228 U. S. 433, 57 L. Ed. 907, 33 24 Sup. Ct. 24; Texas, & P. R. 
 
 Sup. Ct. 580; Gulf, C. & S. F. Co. v. Archibald, 170 U. S. 665, 
 
 R. Co. V. McGinnis, 228 U. S. 173, 42 L. Ed. 1188, 18 Sup. Ct. 777; 
 
 57 L. Ed. 785, 33 Sup. Ct. 426, 3 Central Vermont R. Co. v. Bethune. 
 
 N. C. C. A. 806; Mondou v. New 124 C. C. A. 528, 206 Fed. 868; 
 
 York, N. H. & H. R. Co., 223 U. Barker v. Kansas City, M. & O. 
 
 S. 1, 56 L. Ed. 327, 32 Sup. Ct. R. Co., 88 Kan. 767, 43 L. R. A. 
 
 169, 1 N. C. C. A. 875, 38 L. R. (N. S.) 1121; 129 Pac. 1151; 
 
 A. (N. S.) 44; Schlemmer v. Buf- Freeman v. Powell. (Tex. Civ. 
 
 falo, R. & P. R. Co., 205 U. S. 1, App.), 144 S. W. 1033.
 
 1014 IxjuEiES TO Interstate Employes. [^ 566 
 
 instructs tlie jury that if they believe from the evidence 
 that the existence of the cinder pile was known to the 
 ]>laintiff, or that he had been working- on the Southern 
 Railway at Lawrenceville for more than a year, and that 
 the cinders had been piled at the same place in the way 
 described by' the witness for many years prior to the 
 accident, and that the plaintiff had failed to show that 
 he had made complaint or objection on account of the 
 cinder pile, then he assumed the risk of danger from 
 the cinder pile, if there was any danger in it, and the 
 Act of Congress approved April 22, 1908, permits this 
 defense, and the jur^^ should find their verdict for the 
 defendant." The court held that, under the facts, the 
 defendant's refused instruction should have been given 
 and that it was error to give plaintiff's second in- 
 struction for the reason that under the federal statute 
 assumption of risk is an absolute defense as at common 
 law, the court holding that an employe assumes the risk 
 of injury from defective appliances furnished by his 
 employer only when the defect is known to, or plainly 
 observable by, the employe. Reviewing the cases cited 
 in the preceding note, the court said: "Cases might be 
 multiplied to any extent to show that the doctrine of 
 assumed risks covers more than those risks which are 
 ordinarily incident to the business, and embraces the use 
 of defective appliances and work of almost every 
 description where the emploj'C with knowledge of the 
 defect, continues to use it without notice to the em- 
 1)1 oyer. " 
 
 § 567. When Assumption of Risk is no Defense 
 When there is a Plurality of Causes. Where the injury 
 to an employe is due to two acts contributing as 
 proximate causes, notwithstanding the fact that the em- 
 ploye assumes the risk from one of these causes, 
 assumption of risk is no defense to the action if the 
 other proximate cause is one for which the master is 
 liable and is not an ordinary risk of the emplojTnent
 
 § 569] Assumption of I^isk. 1015 
 
 or Olio of wliioli tliG oiiiployo lias no coiistructi\'e or 
 af'tnal knowledge." 
 
 § 568. Violations of Rules not Assumption of Risk. 
 In ail action under the federal act, the defendant 
 pleaded in its answer that the plaintiff had contributed 
 to his own injurj^ by violating one of its rules govern- 
 ing employes and that he therefore assumed the risk. 
 The court held that such a fact, even if proven, did not 
 show assumption of risk for the reason that such a 
 defense is referable to contributory negligence and not 
 to assumption of risk." 
 
 § 569. Concrete Instruction must be Given, if 
 Requested. In instructing the .jury on the question of 
 assiini])tion of risk a concrete instruction applicable to 
 the phase of the evidence should be given; and the 
 court should not couch the instruction in such general 
 and sweeping language that it is not calculated to give 
 the jury an accurate understanding of the law upon 
 the subject.^- In an action under the federal act, the 
 plaintiff, an engineer, was injured by the explosion of 
 a water glass on which the gauge was missing. The 
 United States Supreme Court held that the state trial 
 court committed reversible error in refusing to give 
 the following instruction: "If you find by a pre- 
 ponderance of evidence that the water glass on the 
 engine on which plaintiff was employed was not provided 
 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 that he knew the risk incident thereto, 
 then the court charges you that the plaintiff voluntarily 
 
 40. Northern Pac. R. Co. v. 142 Pac. 554; Carter v. Kansas 
 
 Maerkl, 117 C. C. A. 237, 198 Fed. City Southern Ry. Co., Tex. 
 
 1. Civ. App. . 155 S. W. 638. c 
 
 41. Macon. D. & S. R. Co. v. 42. Norfolk & W. R. Co. v. 
 Musgrove, 145 Ga. 647. 89 S. E. Earnest 229 U. S. 114, 57 L. Ed. 
 767; Oberlin v. Oregon Washing- 1096, 33 Sup. Ct. 654, Ann. Cas. 
 ton R. & Nav. Co., 71 Ore. 177. 1914C 172.
 
 1016 Injuries to Inteestate Employes. [^ 569 
 
 assumed the risk incident to such iise."*^ But in an 
 action for a negligent injury to a section man who was 
 struck by an engine, an instruction that if the jury 
 found that the plaintiff voluntarily, for his own conven- 
 ience, went along using the track, was properly re- 
 fused for the reason that it omitted elements essential 
 to make assumption of risk applicable to the case in that 
 it failed to call attention to the circumstances under 
 which the testimony tended to show that plaintiff was 
 using the tracks at the time and the knowledge of con- 
 ditions which should have been taken into consider- 
 ation in order to attribute assumption of risk to him, 
 and failed to take into account the testimony that the 
 engine ran without signals or warning to him." 
 
 § 570. Failure to Instruct on Assumption of Risk 
 not Error when Defendant has not Been Prejudiced 
 Thereby. A judgment against a common carrier by 
 railroad under the Federal Act should not be reversed 
 for the failure of a trial court to instruct on assumption 
 of risk even when there is evidence justifying a charge 
 upon that subject if the defendant has not been preju- 
 diced thereby.*^ Thus, in the case cited, the defendant 
 requested the trial court to instruct the jury that if the 
 decedent knew of the presence of a piece of timber over 
 the track and knew that it would not clear a man 
 standing on top of a box car, and with such knowledge 
 continued in the service of the company, then he must 
 be held to have assumed the risk of being injured by 
 being struck by the piece of timber. The refusal of 
 
 43. Seaboard Air Line R. Co. gent operation of the train, if the 
 V. Horton, 233 U. S. 492, 58 L. jury found it to be such, unless 
 Ed. 1062, 34 Sup. Ct. 635, 8 N. the consequent danger was so 
 C. C. A. 834, L. R. A. 1915C 1, obvious that an ordinarily pru- 
 Ann Cas. 1915B 475. dent person in his situation would 
 
 44. Erie R. Co. v. Purucker, have observed and appreciated 
 244 U. S. 320, 61 L. Ed. 1166, 37 it." 
 
 Sup. Ct. 629 Said the court: 45. Kanawah & M. R. Co. v. 
 
 "Under such circumstances the in- Kerse, 239 U. S. 576, 60 L. Ed. 
 
 jured man would not assume the 448, 36 Sup. Ct. 174. 
 risk attributable to the negli-
 
 ^ 572] Assumption of Risk. 1017 
 
 lliis iXM|uost was lield to be error, but as the jury, by 
 specific finding's of fact, negatived the hypothesis upon 
 which the instruction was l)ased, tliat is, in response 
 to particular interrogatories submitted by the court, 
 found that the decedent did not know that the piece of 
 timber was stretched over the track, the error did not 
 result in a reversal of the judgment as the carrier was 
 not ])rejudi('od thereby. 
 
 § 571. Burden of Proving Assumption of Risk 
 upon Defendant. The defense of assumption of risk is 
 affirmative in character. The plaintiff is not required 
 to negative it in his petition in order to make a prima 
 facie case, and the burden of proving that an employe 
 assumed the risk is upon the defendant.*® 
 
 § 572. Defense of Assumption of Risk Must Be 
 Pleaded to be Available. Unless from all the evidence 
 introduced by the plaintiff in an action under the 
 federal act, the court can conclude as a matter of law 
 that the plaintiff assumed the risk, the defense of 
 assumption of risk is not available to a defendant in an 
 action under the statute unless pleaded in the answer.*' 
 In the Vickery case, cited in the notes, defendant in- 
 sisted that the plaintiff had assumed the risk of a 
 switch stand being erected too close to a railroad 
 track witbout a warning light. To this contention the 
 court said: "The lisk here complained of arose, as 
 
 46. Kenyon v. Illinois Cent. R. "The burden of proof on this 
 
 Co., 173 Iowa 484, 155 N. W. 810; question of assumption of risk is 
 
 Falyk V. Pennsylvania R. Co., 256 ^^ ^^^ defendant, and not on the 
 
 Pa. 397, 100 Atl. 961. plaintiff, and unless the evidence 
 
 47. Alabama Great Southern R. 
 Co. V. Skotzy, 196 Ala. 25, 71 So. 
 335; Vickery v. New London 
 Northern R. Co., 87 Conn. 634, 89 
 
 tending to show it is clear and 
 from unimpeached witnesses, and 
 free from contradiction, the trial 
 
 Atl. 277; Phillips v. Union Pac. court cannot be charged with er- 
 
 R. Co., 100 Neb. 157, 158 N. W. i"or in refusing to take the ques- 
 
 966; Lloyd v. Southern Ry. Co, tion from the jury." Robie v. 
 
 166 N. C. 24, 7 N. C. C. A. 520, Boston & M. R. R. Vt. , 
 
 81 S. E. 1003. 100 Atl. 925.
 
 1018 Injuries to Interstate Employes. [<§. 572 
 
 alleged, from the negligent erection of a switch stand 
 in dangerous proximity to one of the tracks in the 
 railroad yard and the negligent failure to have a 
 warning light upon it. This was not a risk ordinarily 
 incident to the railroad service in which the plaintiff 
 as a brakeman was employed but one arising from the 
 defendant's negligence. The plaintiff may have known 
 of it and have volmitarily assumed it but he did not 
 do so by entering into his employment. If such was the 
 fact, it was incumbent upon the defendant to plead and 
 prove." Following a local rule of pleading which re- 
 quired a servant in actions against the master for per- 
 sonal injuries to negative assumption of risk in his 
 comj3laint, ^^ an appellate court of Indiana held that the 
 plaintiff in an action under the federal act must, in 
 his petition, allege that he did not have full knowledge 
 of the conditions which he charges constituted negli- 
 gence on the part of his employer.*' The correctness 
 of the ruling of the court in this case is doubtful. 
 While matters of pleading and practice under the 
 federal act must be determined by the laws of the 
 forum, yet a substantive right under the federal act 
 cannot be defeated by a rule of practice.'" 
 
 § 573. Cases in which Interstate Employes were 
 Held to Have Assumed the Risk. Employes engaged 
 in interstate commerce were held by the courts to have 
 no remedy under the federal act because of assumption 
 of risk, under the following circumstances: an engineer 
 while his train was moving, climbed on top of the coal in 
 the tender to ascertain the amount of water in the tank 
 by looking through a man hole at the rear end of the 
 tender, and while returning, came in contact with an 
 
 48. Indianapolis & G. Rapid 49. Cincinnati, H. & D. Ry. Co. 
 
 Transit Co. v. Foreman, 162 Ind. v. Gross, Ind. App. , 111 
 
 85, 102 Am. St. Rep. 18.5, 69 N. E. N. E. 653. 
 
 669; Ames v. Lake Shore & M. 50. Central Vermont R. Co. v. 
 
 S. Ry. Co., 135 Ind. 363, 35 N. E. White, 238 U. S. 507, 59 L. Ed. 
 
 117. 1433, 35 Sup. Ct. 865, 9 N. C. C. 
 
 A 265, Ann. Cas. 1916B 252.
 
 (^ 573 J ArtsuMP'JioN OF Risk. 1019 
 
 electric, wii'e aitacliod to an ovoi'liead l>rid«re. He was 
 instantly killed by the electric cnncnt. This wire was 
 suspended over tlie center line of the tracks upon whicli 
 the train was travelin.i:: and was used for the ojieration 
 of trains by electricity. Passenger trains had been 
 operated on this road for several years by electricity. 
 The method for electrical operation was that known as 
 the overhead system. The equipment required for this 
 method consisted in part of steel structures by the side 
 of and across the tracks for the support of wires run- 
 ning* aloiiii: the center lines of the I'ails. These wires 
 were suspended at standaixl hei,i^-ht, which was 22Vo feet 
 above the level of the top of the rails, but where there 
 were overhead bridges it was necessary^ to depress them at 
 those places. The court held, in an action under the 
 federal act, for the death of the engineer, that the 
 decedent assumed the risk and that there could be no 
 recovery.^^ Tn so holding that the decedent had 
 assumed the risk, the court said: "As bearing upon 
 the question of the intestate's assumption of the risk 
 which caused his death, the pertinent facts lie outside 
 of the realm of dispute or uncertainty. They show 
 that Bottomley had full knowledge of all the physical 
 factors in the situation. As an engineer, he was 
 familiar with engines and tenders and their proportions. 
 The engine he was driving was one of moderate size, 
 and of a type long in use. Its tender, whether of the 
 large or smaller size, was one in use with this type of 
 engine. It was neither special nor unusual. In his years 
 of experience, for the most part confined to this section 
 of the road, and his recent months of frequent service 
 u])on it, as engineer, he must have become acquainted 
 with the existence of the many overhead bridges which 
 here span the tracks, with the narrow space between 
 bridges and tops of engine and tender, and with the 
 manner in which the electric service wires were strung 
 in cari-ying them under the bridges. These conditions 
 
 51. Farley v. New York, N. H. & H. R. Co., 87 Conn. 328. 87 
 
 Atl. 990.
 
 1020 Injuries to Interstate Employes. [^ 573 
 
 were apparent to casual observation; they had remained 
 unchanged for years; and they were closely related to 
 the performance of his duties. He must also have 
 known that these wires were electrically charged for 
 the operation of trains. As a locomotive engineer of 
 experience living in this age of the world, he, untold 
 and unwarned, must have been sufficiently intelligent 
 and informed to know of the latent danger which 
 lurked in the wires so charged to one who should come 
 into contact with them or into their immediate vicinity, 
 and of the extremity of that danger. But that matter 
 aside, the knowledge of the danger had been so directly 
 and forcibly brought home to him through the notices 
 and warnings given to him by the defendant that he 
 could not have failed both to know the danger to his 
 life that there would be in permitting himself to come 
 into contact with or near to one of the wires, and to 
 comprehend the character and extent of that danger. 
 This being so, he certainly knew and comprehended the 
 risk incident to his employment. No one could well be 
 expected to have better knowledge or a more adequate 
 appreciation. Possessed of this knowledge and appre- 
 ciation, he had for years chosen to continue in his em- 
 ployment. By so doing he assumed its risk, which, 
 during these years, had remained unchanged, and been 
 unenhanced by any new act of the defendant which 
 could by possibility be imputed to it as negligence." 
 A railroad special agent stepped in between two cars of 
 a train in a terminal yard without the knowledge of 
 the trainmen in charge of the train. The court held 
 that he assumed the risk of an injury from the move- 
 ment of the train.^^ An engineer who knew that the 
 gauge of the water glass on his engine was missing 
 and with such knowledge continued to work without 
 complaint, was held to have assumed the risk.^^ A sec- 
 
 52. Helm v. Cincinnati, N. 0. v. Horton, 233 U. S. 492, 58 L. Ed. 
 & T. P. R. Co., 156 Ky. 240, 160 1062, 34 Sup. Ct. 635, 8 N. C. C. 
 S. W. 945. A. 834, L. R. A. 1915C 1, Ann. 
 
 53. Seaboard Air Line R. Co. Cas. 1915B 475.
 
 <^ 573] Assumption of Risk. 1021 
 
 tion laborer was enj^a^od in removing 60-poiind rails 
 and substituting 100-pounds rails on a switch track. 
 The heavy rails had been deposited near the tracks a 
 few days before the injury. One of these rails was 
 carried to the track and laid down. The second rail 
 was then carried to the tracks. A foreman was in 
 charge of the work and IIh' ])!aiiiliri" was a member of 
 the crew. When the crew reached the track some one 
 of the crew gave the signal to throw the rail. When the 
 rail was tlirown, it rebounded and struck and injured 
 plaintiff. There was some evidence to the effect that the 
 rail brace which was used for the purpose of keeping 
 the GO-pound rail in position was not moved when the 
 60-pound rail was taken up and that the heavier rail, 
 when thrown, struck the rail brace and this caused the 
 rail to rebound. There was also evidence that the safer 
 Avay to handle the rails was by use of rail tongs but it 
 did not appear that sucii tongs were being used during 
 the time of plaintiff's employment. The usual and custom- 
 ary way of moving the rails from one place to another was 
 that adopted in handling the rail in question. The sec- 
 tion crew picked it up with their hands, carried it to 
 the place where it was needed and then, at the word 
 of some member of the crew, dropped it on the ground. 
 The plaintiff knew of the presence of the ties and of the 
 presence of the rail brace. Under these facts the court 
 said: "As the plaintiff's claim does not grow out of a 
 violation of such a statute (national safety statutes) 
 the doctrine of assumed risk applies. Under that 
 doctrine, the employe assumes those risks which are 
 known to or are clearly observable by him. There was 
 nothing complicated about the character of the work. 
 The operation was simple. The brace and ties were 
 clearly observable by the plaintiff. It is not insisted 
 that the rail was dropped or thrown in a negligent 
 manner. Being dropped without negligence, the danger 
 of being struck by it was one of the risks ordinarily 
 and usually incident to the employment, and therefore
 
 1022 IxjrRiKS TO Interstate Employes. [§ 573 
 
 one wliich plaintiff assnmed. " ^* Decedent was a boiler 
 maker helper and came to bis death in the machine 
 shops of a railroad company. In these shops were a 
 number of tracks and between these tracks were what 
 are known as ''drop pits," nine feet deep and about 
 16 feet long' which were used when large driving wheels 
 were taken off of locomotives. The pit was used so as 
 to avoid the necessity of jacking up the locomotive and 
 so that the driving wheels could be dropped into the 
 pit. There was a cover over about one-third of this 
 pit at either end but no cover over about one-third of it 
 in the center. An engine was not placed over this pit 
 unless the wheels were to be taken off. Decedent had 
 been working in the shops for some time and understood 
 the premises perfectly. The decedent was found at the 
 bottom of the pit under circumstances showing that he 
 fell into it, his head having struck against the concrete 
 bottom and this caused his death. The accident oc- 
 curred after dark. There were lights in the shop but 
 the proof tended to show that these lights did not shine 
 upon the drop pit and did not sufficiently illuminate it. 
 There were no barriers around the pit and no cover 
 over one-third of it. The drop pit was only a few feet 
 from where the decedent had been working all day and 
 he knew where it was. On these facts the trial court 
 sustained a demurrer to the evidence on the ground of 
 assumption of risk in a suit under the Federal Em- 
 l)]oyors' Liability Act and the court's action was sus- 
 tained by the court of appeals.'' A railroad employe 
 who worked 54 out of 57 hours for an interstate rail- 
 road company in assisting to water and feed cattle in 
 transit unloaded for feed, rest and water, assumed 
 the risk of injury due to a fall from a switch engine 
 claimed to have been caused by his exhausted con- 
 
 54. Truesdell v. Chesapeake & lity on other grounds. Neth v. 
 
 O. R. Co., 159 Ky. 718, 169 S. W. Delano, 184 Mo. App. 652, 171 S. 
 
 471. Under quite similar facts, W. 1. 
 
 Judge Trimble of the Kansas 55. Glenn v. Cincinnati, N. O. 
 
 City Court of Appeals reached & T. P. R. Co., 157 Ky. 453, 163 
 
 the same conclusion of non-liabi- S. W. 461.
 
 <§ 574] AssuMimoN of Risk. 1023 
 
 dition, as he knew hcttci- tlian anyone else his con- 
 dition as to wlicther lie was takin*^" any I'isks in con- 
 linninn" to work iiiidcr siicli eiivnnistances.'* 
 
 § 574. Cases in which Interstate Employes were 
 Held not to have Assumed the Risk, Jiailicuid (em- 
 ployes cii^ai^cd in intcrstalu coniniercc! were held in 
 actions nnder the federal act not to have assumed the 
 risk under the following- facts. Decedent, while en- 
 gaged in cleaning snow from the tracks of a railway 
 company when there was mist, smoke and some snow, 
 was killed hy a train hound from New York to 
 Philadel])hia. At the ])Iace of the accident there wei-o 
 four main lines of trackage. Shortly after 9:00 o'clock 
 in the morning the men working with plaintiff were 
 warned to ste]^ off track No. 4 by the call of the fore- 
 man in order to let a local train by. The decedent and 
 two others were working on track 2. There was no call 
 to them, the practice of the foreman being to designate 
 the track in his warning, the men on the other track 
 continuing to work. The New York train struck the 
 decedent while he was working on track No. 2 and it 
 approached without any signal or warning. The local 
 train was slow and the New York train came fast and 
 while the men were attracted by the first, the other 
 rushed upon them. The defendant produced testimony 
 in conflict with these facts shown by the plaintiff. 
 Speaking of the legal effect of this evidence on the 
 question of assumption of risk, Mr. Justice ^fcKenna, 
 for the court, said: "It is hence contended by the rail- 
 way company that McGovern assumed the risk of the 
 situation and that, therefore, it was error for tlie 
 district court to refuse to give an instruction which 
 presented that contention. We have given the testi- 
 mony in general outline, but enough to show that what 
 conflict there was in it was for the jury to judge and 
 what deductions there were to be made from it were for 
 
 56. Schweig v. Chicago. M. & 216 Fed. 750, 7 N. C. C. A. 135. 
 St. P. R. Co., 132 C. C. A. 6(50, aff'g 205 Fed. 96.
 
 1024 Injuries to Inteestate Employes. [§ 574 
 
 the jury to make. And the district court, being of 
 this view, refused to cliarge the jury, as we have seen, 
 that McGovern had assumed the risk of the situation. 
 We cannot say that as a matter of law the court was 
 mistaken. "^^ In another case the Supreme Court again 
 held that a deceased employe did not assume the risk 
 under the circumstances hereinafter detailed.^^ The 
 decedent was an engineer on a freight train proceeding 
 southward on a lead track in a railroad yard. Ahead 
 of him were some cars on a yard track. While visible 
 to the engineer from the right side they became more 
 and more invisible as the train advanced. The en- 
 gineer asked the fireman, who was on the left side of 
 the engine and in full view of the cars, whether they 
 were clear of the lead track and was answered that 
 they were. There was a dispute as to whether a head 
 brakeman was riding in the cab and whether he called 
 the engineer's attention to the fact that the coal cars 
 were not in the clear. But there was no dispute that 
 the engineer again asked the fireman, who answered 
 that the cars were not clear and jumped from the lo- 
 comotive. The engineer shut off his power and stepped 
 to the left side, where, from the collision which im- 
 mediately resulted, he was injured and died. Concern- 
 ing these facts, the court in denying that as a matter of 
 
 57. McGovern v. Philadelphia would not declare as a matter of 
 & R. R. Co., 235 U. S. 389, 59 L. law that the engineer knew of 
 Ed. 283, 35 Sup. Ct. 127, 8 N. C. the danger or must be presumed 
 C. A. 67. to have known of it. The cases 
 
 58. Yazoo & M. V. R. Co. v. holding that an employe assumes 
 Wright, 235 U. S. 376, 59 L. Ed. the risk due to the master's neg- 
 277, 35 Sup. Ct. 130, aff'g 125 C. ligence when the defect and dan- 
 C. A. 25, 207 Fed. 281, 197 Fed. 94. ger arising from it, is known or 
 In this case the Supreme Court is plainly observable, and then 
 ignored the rule as to assumption continues in the employment 
 of risk announced by Judge Mc- without complaint, were cited by 
 Call, the trial judge, to the ef- the court with approval. See 
 feet that the employe does not in section 555, supra; Gila Valley 
 any case assume the risk due to G. & N. R. Co. v. Hall, 232 U. 
 the master's negligence (See S. 94, 58 L. Ed. 521, 34 Sup. Ct. 
 section 554, supra) ; but the 229, aff'g 13 Ariz. 170, 1 N. C. C. 
 court held that, on the facts, it A. 362, 112 Pac. 845.
 
 § 574] Assumption of Risk. 1025 
 
 law tlio dc'cedoiil liad assiiiiicd llio risk, said: ''Wliat- 
 ever may be tlic diniciilty of distinguishing in many 
 oases between tlie ai)])lication of the doctrine of as- 
 sumption of risk and the j)rineiples of contributory 
 negli^'ence, tliat tliei'c is no such difficulty here is ap- 
 parent since tlie facts as stated above absolutely pre- 
 (rludc all inference that tlie cii.n-ineer knew or from the 
 facts shown must be ])resunied to liave known tliat 
 the coal cars were protruding; over tlie track on which 
 he was moving- and deliberately elected to assume the 
 risk of collision and great danger which would be the 
 inevitable result of his continuing the forward move- 
 ment of his train." The court in this case cited with 
 approval several of its fonner opinions in which the 
 assumjition of risk was discussed and these cases are 
 given in the notes.^^ A switchman was jarred from the 
 narrow rim of the pilot of a "road" engine while it was 
 being used at night in the yards as a switch engine. 
 The court held that whether he assumed the risk was a 
 question for the jury.''" A brakeman in the nighttime 
 was ordered by the yard master to couple up an air 
 hose between two cars and it was necessary- to do this 
 by hand. The brakeman was required to step within 
 the tracks and attach the two ends of the air hose to- 
 gether. While so at work he was struck by the car to 
 which he had been ordered to couple and this was 
 caused by other cars being negligently ' ' kicked ' ' against 
 it by other employes. The court held tliat the plain- 
 tiff did not assume the risk.*" A freight conductor did 
 
 59. Seaboard Air Line R. Co. Ed. 905, 23 Sup. Ct. 622. 13 Am. 
 
 V. Horton, 233 U. S. 492, 58 L. Neg. Rep. 695: Texas & P. R. Co. 
 
 Ed. 1062. 34 Sup. Ct. 635, 8 N. v. Archibald, 170 U. S. 665, 42 L. 
 
 C. C. A. 834, L. R. A. 1915C 1, Ed. 1188, 18 Sup. Ct. 777, 4 Am. 
 
 Ann. Cas. 1915B 475; Sehlemmer Neg. Rep. 746; Union Pac. Ry. 
 
 V. Buffalo, R. & P. R. Co.. 205 Co. v. O'Brien, 161 U. S. 451, 40 
 
 U. S. 1, 51 L. Ed. 681, 27 Sup. L. Ed. 766. 16 Sup. Ct. 618. 
 Ct. 407; Choctaw, 0. & G. R. Co. 60. Louisville & N. R. Co. v. 
 
 V. McDade, 191 U. S. 64. 48 L. Lankford. 126 C. C. A. 247. 209 
 
 Ed. 96. 24 Sup. Ct. 24. 15 Am. Fed. 321. 
 
 Neg. Rep. 230; Texas & P. R. Co. 61. Chesapeake & O. R. Co. v. 
 
 V. Behvmer. 189 U. S. 468, 47 L. ProfTit 134 C. C. A. 37. 218 Fed.
 
 ]02ti Injuries to Inteestate Employes. [§ 574 
 
 not assume the risk of the negligence of a flagman 
 working under him who failed to protect the rear of the 
 train.''- A railway employe who had been working only 
 three or four days on a three-wheeled gasoline car did 
 not assume the risk from a defective flange on the 
 wheel of the car of which he was ignorant and it did 
 not appear to be a part of his duty to inspect the wheel 
 or to look after its condition. ^'^^ An employe of a rail- 
 road company who was injured in a collision did not 
 assume the risk of an injury from the negligence of a 
 railroad campany in permitting the engine to be used 
 in pulling a train which leaked steam so that the en- 
 gineer could not see a train ahead of him." A track 
 laborer repairing a switch at night in the terminal 
 yards of a railroad company did not assume the risk 
 of injury due to the negligence of the company in caus- 
 ing cars to be upon the track on which he worked un- 
 der their own momentum and without any warning or 
 signal.''^ An employe injured by striking an unlighted 
 switch stand too close to the track did not assume 
 the risk of injury therefrom.^" A section man who was 
 hurt while assisting an employe in taking a motor car 
 off of a railroad track in order to allow a train to pass 
 did not assume the risk of injury on account of an in- 
 sufficient number of men to assist him as he had no time 
 to deliberate and determine whether the car could be 
 taken off the track by two men with safety." A 
 brakeman injured because of a defective fastening in 
 a car door, did not assume the risk of injury therefrom, 
 
 62. Pennsylvania R. Co. v. 65. Colasurdo v. Central R. R. 
 Goughnour, 126 C. C. A. 39, 208 of New Jersey, 180 Fed. 832; s. 
 Fed. 961. c. 113 C. C. A. 379, 192 Fed. 901. 
 
 63. Gila Valley, G. & N. R. Co. 66. Vickery v. New London 
 V. Hall, 232 U. S. 94, 58 L. Ed. Northern R. Co., 87 Conn. 634, 89 
 521, 34 Sup. Ct. 229, aff'g 13 Ariz. Atl. 277. 
 
 270, 1 N. C. C. A. 362, 112 Pac. 67. Missouri, K & T. Ry. Co. 
 
 345 of Texas v. Freeman, Tex. 
 
 64. Niles v. Central Vermont , 168 S. W. 69. 
 
 R. Co., 87 Vt. 356, 89 Atl. 629.
 
 § 574] Assumption of Risk. 1027 
 
 it was held, for the reason tliat tliere was no evidence 
 that he knew of the defect or could liave known of it by 
 exercising ordinary care."® 
 
 68. Carter v. Kansas City Southern Ky. Co., Tex. Civ. 
 
 App. , 155 S. W. G:58.
 
 CHAPTER XXIX. 
 
 Contributory Xegligence Under Liability Act. 
 
 Sec. 575. The Statutory Provision. 
 Sec. 576. Contributory Negligence Defined. 
 
 Sec. 577. Right of Recovery under Federal Act not Barred by Con- 
 tributory Negligence. 
 Sec. 578. Two Theories of Comparative Negligence Extant in United 
 
 States. 
 Sec. 579. Purpose of Congress in Modifying Common Law Rule of 
 
 Contributory Negligence. 
 Sec. 580. Apportionment of Damages under Federal Act Different 
 
 from Georgia Statute. 
 Sec. 581. Employe's Contributory Negligence to Reduce Damages must 
 
 Proximately Contribute to Injury. 
 Sec. 582. Gross Negligence of Plaintiff and Sight Negligence of Defend- 
 ant Cannot Defeat Recovery. 
 Sec. 583. When Defendant's Act is no Part of Causation, Plaintiff 
 
 Cannot Recover. 
 Sec. 584. How Damages Apportioned When Employe is Guilty of 
 
 Contributory Negligence. 
 Sec. 585. When Duty of Trial Court to Instruct on Contributory Neg- 
 ligence Arises under Federal Act. 
 Sec. 586. Method of Instructing the, Jury When there is Evidence of 
 
 Contributory Negligence. 
 Sec. 587. Instruction on Contributory Negligence in Language of Sta- 
 tute not Erroneous. 
 Sec. 588. Erroneous Instructions on Contributory Negligence Under 
 
 the Federal Act. 
 Sec. 589. When Contributory Negligence of Employe Does not Dimin- 
 ish Damagesr— Federal Safety Appliance Laws. 
 Sec. 590. Burden is Upon Defendant to Prove Contributory Negligence 
 Sec. 591. Whether Contributory Negligence Must be Pleaded, Deter- 
 mined by State Law. 
 Sec. 592. Evidence of Contributory Negligence Admissible Under Gen- 
 eral Denial, When. 
 
 § 575. The Statutory Provision. Section 3 of the 
 Federal Employers' Liability Act provides that in all 
 actions hereafter brought against any such common 
 carrier by railroad imder 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 auiltv of contributory negUgence shall not 
 
 (1028)
 
 § 577] CONTBIBUTOET NEGLIGENCE. 1029 
 
 bar a recovery, but the damages shall be diminished by 
 the jury in ])roportion to the amount of negligence 
 attributable to such employe: provided, that no such 
 employe who may be injured or killed shall be held to 
 have been guilty of contributor}^ 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. 
 
 § 576. Contributory Negligence Defined. Ton- 
 tributory negligence under the Federal Em|)loyers' 
 Liability Act has been defined by the United States 
 Supreme Court in the following language: ''Contrib- 
 utor}' negligence involves the motion of some fault or 
 breach of duty on the part of the employe, and since it 
 is ordinarily his duty to take some precaution for his 
 own safety when engaged in a hazardous occupation, 
 contributory negligence is sometimes defined as a fail- 
 ure to use such care for his safety as ordinarily pru- 
 dent employes in similar circumstances would use".^ 
 In another case before the Supreme Court of the United 
 States, the following definition of contributory negli- 
 gence was approved: "Contributory negligence is the 
 negligent act of a plaintiff which, concurring and co- 
 operating with the negligent act of a defendant, is the 
 proximate cause of the injury".' 
 
 § 577. Right of Recovery under Federal Act not 
 Ban-ed by Contributory Negligence. When an em- 
 ploye of a common carrier by railroad is injured or kill- 
 ed under the conditions prescribed in the federal act, 
 that is, while the carrier is engaged and while the ser- 
 vant is employed by it in interstate commerce, in any 
 action for damages for such injuries due to negligence, 
 the right to recover cannot be defeated by showing or 
 
 1. Seaboard Air Line R. Co. 2. Norfolk & W. R. Co. v. 
 
 y. Horton, 233 U. S. 492, 58 L. Earnest, 229 U. S. 114. 57 L. Ed. 
 
 Ed. 1062. 34 Sup. Ct. 635, 8 N. 1096. 33 Sup. Ct. 654, Ann Cas. 
 
 C. C. A. 834, L. R. A. 1915C 1, 1914C 172. 
 Ann. Cas. 1915B 475.
 
 1030 
 
 Injuries to Interstate Employes. 
 
 [§ 577 
 
 proving that the employe's negligence contributed in 
 any degree to his injuries.^ In this respect the statute 
 
 3. United States. Kansas City 
 Southern R. Co. v. Jones, 241 U. 
 S. 181, 60 L. Ed. 943. 36 Sup. Ct. 
 513; Norfolk Southern R. Co. v. 
 Ferebee, 238 U. S. 269, 59 L. Ed. 
 1303. 35 Sup. Ct. 781; Seaboard 
 Air Line R. Co. v. Tilghman, 237 
 U. S. 499, 59 L. Ed. 1069, 35 Sup. 
 Ct. 653; Norfolk & W. R. Co. v. 
 Earnest. 229 U. S. 114, 57 L. Ed. 
 1096. 33 Sup. Ct. 654, Ann. Cas. 
 1914C 172: Southern R. Co. v. 
 Mays, 152 C. C. A. 91, 239 Fed. 
 41: Pennsylvania Co. v. Sheeley, 
 137 C. C. A. 471, 221 Fed. 901. 
 
 Alabama. Louisville & N. R. 
 
 Co. y. Blankenship, Ala. -, 
 
 74 So. 960; Southern Ry. Co. v. 
 
 Fisher, Ala. , 74 So. 580; 
 
 Southern R. Co. v. Peters, 194 Ala. 
 69 So. 611. 
 
 Arizona. Arizona Eastern R. Co. 
 V. Bryan, 18 Ariz. 106, 157 Pac. 
 376. 
 
 Arkansas. St. Louis, I. M. & 
 S. R. Co. V. Rodgers, 118 Ark. 
 263, 176 S. W. 696. 
 
 California. Smithson v. Atchi- 
 son. T. & S. F. R. Co., 174 Cal. 
 148, 162 Pac. 111. 
 
 Connecticut. Hubert v. New 
 York. N. H. & H. R. Co., 90 Conn. 
 261, 96 Atl. 967. 
 
 Georgia. Southern Ry. Co. v. 
 
 Blackwell, Ga. App. , 93 
 
 S. E. 321; Charleston & W. C. R. 
 Co. V. Sylvester, 17 Ga. App. 85, 
 86 S. E. 275: Charleston & W. C. 
 R. Co. V. Brown. 13 Ga. App. 744, 
 79 S. E. 932; Southern R. Co. v. 
 Hill. 139 Ga. 549, 77 S. E. 803. 
 
 Idaho. Neil v. Idaho & W. N. 
 R. R.. 22 Idaho 74, 125 Pac. 331. 
 
 Illinois. Roberts v. Cleveland, 
 
 C, C. & St. L. R. Co., 279 111. 493, 
 117 S. E. 97. 
 
 Indiana. Grand Trunk Western 
 
 Ry. Co. V. Thrift Trust Co., 
 
 Ind. App. , 115 N. E. 685; 
 
 Cincinnati, H. & D. R. Co. v. 
 
 Gross, Ind. , 114 N. E. 
 
 962; Pittsburg, C, C. & St. L. R. 
 Co. V. Farmers' Trust & Savings 
 Co., 183 Ind. 287, 108 N. E. 108. 
 
 Iowa. Kenyon v. Illinois Cent. 
 R. Co., 173 Iowa 484, 155 N. W. 
 810; Byram v. Illinois Cent. R. 
 Co.. 172 Iowa 631, 154 N. W. 1006. 
 
 Kansas. Saar v. Atchison, T. & 
 S. F. R. Co., 97 Kan. 441, 155 Pac. 
 954; Duggan v. Missouri Pac. R. 
 Co., 96 Kan. 249, 150 Pac. 557; 
 Smith V. St. Louis & S. F. R. Co., 
 95 Kan. 451, 148 Pac. 759. 
 
 Kentucky. Norfolk & W. R. Co. 
 V. Short's Adm'r, 171 Ky. 647. 188 
 S. W. 786; Chesapeake & O. R. 
 Co. V. Cooper, 168 Ky. 137, 181 S. 
 W. 933; Cincinnati, N O. & T. P. 
 R. Co. V. Goode, 163 Ky. 60, 173 
 S. W. 329. 
 
 Louisiana. Jones v. Kansas 
 City Southern R. Co., 137 L. 178, 
 68 So. 401. 
 
 Maryland. Baltimore & 0. R. Co. 
 V. Whitacre, 124 Md. 411, 92 Atl. 
 1060. 
 
 Minnesota. Wiles v. Great North- 
 ern R. Co., 125 Minn. 348, 5 N. C. 
 C. C. A. 60, 147 N. W. 427; La 
 Mere v. Railway Transfer Co. of 
 City of Minneapolis, 125 Minn. 159, 
 145 N. W. 1068; McDonald v. Rail- 
 way Transfer Co. of City of 
 Minneapolis, 121 Minn 273, 141 N. 
 W. 177. 
 
 Missouri. Kippenbrock v. Wa- 
 bash R. Co., 270 Mo. 479, 194 S. 
 W. 50; Yoakuf v. Lusk, Mo.
 
 ^ 577] 
 
 Contributory Negligence, 
 
 1031 
 
 is a radical departure from tlie common law doctrine.* 
 In all actions under the federal act the employe's con- 
 tributory negligence merely diminishes the amount of 
 his damages except in cases where the injury is due to 
 a violation of federal safety statutes.^ "This statute 
 
 App. , 193 S. W. 635; Wins- 
 low V. Missouri, K. & T. Ry. Co. 
 (Mo. App.), 192 S. W. 121; Bright- 
 well V. Lusk, 194 Mo. App. 643, 
 189 S. W. 413; Koukouris v. Union 
 Pac. R. Co., 193 Mo. App. 495, 186 
 S. W. 545; Cross v. Chicago, B. 
 & Q. R. Co.. 191 Mo. App. 202, 
 177 S. W. 1127; Fish v. Chicago. 
 R. I. & P. R. Co., 263 Mo. 106, 8 
 N. C C. A. 538, Ann. Cas. 1916B 
 147, 172 S. W. 340; Pankey v. 
 Atchison, T. & S. F. R. Co., 180 
 Mo. App. 185, 6 N. C. C. A. 74. 
 168 S. W. 274. 
 
 Nebraska. HuxoU v. Union Pac. 
 R. Co , 99 Neb. 170, 155 N. W. 
 900. 
 
 New York. McAuliffe v. New 
 York Cent. & H. River R. Co., 172 
 N. Y. App. Div. 597, 158 N. Y. 
 Supp. 922; Gee v. Lehigh Valley 
 R. Co., 163 N. Y. App. Div. 274, 
 148 N. Y. Supp. 882. 
 
 North Carolina. Horton v. Sea- 
 board Air Line R. Co., 169 N. C. 
 108, 85 S. E. 218. 
 
 North Dakota. Manaon v. Great 
 Northern R. Co., 31 N. D. 643, 155 
 N. W. 32. 
 
 Pennsylvania. Falyk v. Penn- 
 sylvania R. Co.. 256 Pa. 397, 100 
 Atl. 961. 
 
 Texas. Gulf, C & S. F. Ry. Co. 
 
 V. Cooper, Tex. Civ. App. 
 
 , 191 S. W. 579; Kansas City. 
 
 M. & O. Ry. Co. V. Finke, - — 
 
 Tex. Civ. App. , 190 S. W. 
 
 1143; Missouri, K. & T. Ry. Co. 
 
 v. Pace, Tex. Civ. App. , 
 
 184 S. W. 1051; Chicago, R I. 
 & G. Ry. Co. V. Cosio, Tex. 
 
 Civ. App. — , 182 S. W. 83; 
 
 Texas & P. Ry. Co. v. White, 
 
 Tex. Civ. App. , 177 S. W. 
 
 1185. 
 
 Vermont. Robie v. Boston & M. 
 R. R , — Vt. , 100 Atl. 925. 
 
 Virginia. Chesapeake & O. R. 
 Co. V. Meadows, 119 Va. 423, 89 
 S. E. 244. 
 
 4. Seaboard Air Line Ry. Co. 
 V. Tilghman. 237 U. S. 499, 59 L. 
 Ed. 1009, 35 Sup. Ct. 653. 
 
 If the defendant's negligence 
 proximately caused the injury 
 but the plaintiff was also at 
 fault, his damages are to be di- 
 minished in proportion that the 
 gravity of his own fault bears to 
 the entire causal negligence at- 
 tributable to both. O'Neill v. 
 
 Erie R. Co., App. Div. , 
 
 169 N. Y. Supp. 1008. 
 
 5. United States. Grand Trunk 
 Western R. Co. v. Lindsay, 233 
 U. S. 42, 58 L. Ed. 838, 34 Sup. 
 Ct. 5.81, Ann. Cas. 1914C 168; Nor- 
 folk & W. R. Co. V. Earnest. 229 
 U. S. 114, 57 L. Ed. 1096. 33 Sup. 
 Ct. 654, Ann. Cas. 1914C 172; St. 
 Louis Merchants' Bridge Termi- 
 nal R. Co. V. Schuerman, 150 C C. 
 A. 203, 237 Fed. 1; Southern R. 
 Co. V. Smith, 131 C. C. A. 238. 
 214 Fed. 942: Louisville & N. R. 
 Co. V. Wene. 121 C. C. A. 245. 202 
 Fed. 887; Cain v. Southern Ry. 
 Co., 199 Fed. 211; Colasurdo v. 
 Central R. R. Co. of New .Jersey, 
 180 Fed. 832; Kelly v. Great 
 Northern Ry. Co., 152 Fed. 211. 
 
 Alabama. Southern Ry. Co. v. 
 Fisher, Ala. , 74 So. 580;
 
 1032 
 
 Injueies to Interstate Employes. [§ 577 
 
 rejects tlie common law rule and adopts another, deemed 
 more reasonable, by declaring- (sec. 3), 'the fact that 
 the employe may have been guilty of contributory neg- 
 lig-ence shall not bar a recovery, but the damages shall 
 be diminished by the jury in proportion to the amount 
 of negligence attributable to such employe.' This is 
 followed by a proviso to the effect that contributory 
 
 Western Ry. of Alabama v. Mays, 
 197 Ala. 367, 72 So. 641. 
 
 California. Smithson v. Atchi- 
 son, T. & S. F. R. Co., 174 Calif. 
 148, 162 Pac. 111. 
 
 Georgia. Ivey v. Louisville & 
 N. R. Co., 18 Ga. App. 434, 89 S. 
 E. 629; Southern R. Co. v. Hill, 
 139 Ga. 549, 77 S. E. 803. 
 
 Idaho. Neil v. Idaho & W. N. 
 R. R., 22 Idaho 74, 125 Pac. 331. 
 
 Indiana. Cincinnati, H. & D. 
 
 R. Co. V. Gross. Ind. . 
 
 114 N. E. 962. 
 
 Kansas. Duggan v. Missouri 
 Pac. R. Co., 96 Kan. 249, isn Pac. 
 557. 
 
 Kentucky. Louisville & N. R. 
 Co. V. Holloway's Adm'r, 168 Ky. 
 262, 181 S". W. 1126; Louisville 
 & N. R. Co. V. Henig's Adm'x, 
 162 Ky. 14, 171 S. W. 853; Nash- 
 ville, C. & St. L. Ry., 158 Ky. 88, 
 164 S. W. 310; Nashville. C. & 
 St. L. R. Co. V. Banks, 156 Ky. G09, 
 161 S. W. 554; Ellis's Adm'r. v. 
 Louisville, H. & St. L. R. Co , 155 
 Ky. 745, 160 S. W. 512. 
 
 Maryland. Baltimore & O. R. 
 R. Co. V. Branson, 128 Md. 678, 
 98 Atl. 225. 
 
 Michigan. Gaines v. Grand 
 Trunk Ry. Co. of Canada, 193 
 Mich. 398, 159 N. W. 542; Col- 
 lins V. Michigan Cent. R. Co., 193 
 Mich. 303, 159 N. W. 535. 
 
 Minnesota. McDonald v. Rail- 
 way Transfer Co. of Minneapolis, 
 121 Minn. 273, 141 N. W. 177 
 
 MissourL Dowell v. Wabash Ry. 
 
 Co., Mo. App. , 190 S. 
 
 W. 939; Newkirk v. Pryor (Mo. 
 App.), 183 S. W. 682. 
 
 North Carolina. Tilghman v. Sea- 
 board Air Line R. Co , 167 N. C. 
 163, 8.-] S. E. 315, 1090. 
 
 Oregon. Chadwick v. Oregon- 
 Washington R. & Nav. Co., 74 Or. 
 19, 144 Pac. 1165; Pfeiffer v. Ore- 
 gon-Washington R. & Nav. Co., 74 
 Or. 307, 144 Pac. 7G2, 7 N. C. C. 
 A. 685. 
 
 South Dakota. Fletcher v. South 
 Dakota Cent. R. Co., 36 S. D. 401, 
 155 N. W. 3. 
 
 Texas. Chicago, R. I. & G. Ry. 
 
 Co. V. De Bord, Tex. , 
 
 192 S. W. 767; Missouri, K. & T. 
 
 Ry. Co. of Texas v. Bunkley, 
 
 Tex. Civ. App.—, 153 S. W. 
 937: Atchison, T. & S. F. Ry. Co. 
 
 V. Tack, Tex. Civ. App. , 
 
 130 S. W. 596. 
 
 Washington. Fogarty v. North- 
 ern Pac. R. Co., 74 Wash. 397, 
 133 Pac. 609. 
 
 West Virginia. Culp v. Virgin- 
 ian Ry. Co., W. Va. , 92 
 
 S. E. 236; Easter v. Virginian Ry. 
 Co., 16 W. Va. 383, 11 N. C. C 
 A. 101, 86 S. E. 37. 
 
 "Contributory negligence is not 
 a bar to a recovery and can only 
 be considered in ascertaining the 
 extent to which damages are to 
 be mitigated." Southern R. Co. v. 
 Mayes, 152 C. C. A. 91, 239 Fed. 
 41.
 
 § 57S] CoNTRiHUTOHv Xkgligknce. 1033 
 
 iic^-li^cncc on tlic pai't of IIk- ciiiploxc shall not Ix' con- 
 sidered for aii> 1)1111 )<)s«' wlici'e the carriei-'s fault con- 
 sisted ill liic xiolation of a statute — a Federal statute 
 —enacted for tlie safety of einijloyes (see Seahord Air 
 Line v. Horton, 233 U. S. 492, 503); hul this is not such 
 a case, and so the principal i)rovision is tlie one to be 
 a])i)lied. Tt means, and can only mean, as this court 
 has held, that, wliere the causal ue^-li^-ence is attrib- 
 utable partly to the carrier and i)artly to the injured em- 
 ])loye, he shall not recover full damages, but only a 
 diminished sum bearing the same relation to the full 
 damages that the negligence attributable to the carrier 
 bears to the iK^gligence attributable to l)otli."^ 
 
 § 578. Two Theories of Comparative Negligence 
 Extant in United States. At the time of the enactment 
 of the I'ederal Employers' Liability Act there were two 
 theories concerning comparative negligence extant in 
 tlie United States. Under one the ])laintiff conld re- 
 cover if his negligence was slight and that of the de- 
 fendant was gross in comparison, but if the ]ilaintiff 
 was gnilty of negligence contributing to his own injury 
 he could not recover unless the defendant's negligence 
 was gross in comparison with that of the plaintiff. 
 Under the other theory of comparative negligence, tlie 
 negligence of both tlie i)laintiff and the defendant were 
 to be compared, not for the pui^DOse of relieving one of 
 liability or denying the other a right to recover, but 
 for the purpose of reducing the amount of plaintiff's 
 damages according to the extent which his own negli- 
 gence contrilnited to the injury.' I'nder the construc- 
 tion wliich the national Supreme Court has placed upon 
 the federal act, the second theory was adopted as to all 
 interstate emi)loyes.'' The difference between the two 
 theories of contributory negligence was thus pointed out 
 
 6. Seaboard Air Line Ry. Co. 8. United States. Seaboard Air 
 V. Tilghman, 237 U. S. 499, 59 L. Line Ry. v. Tilghman. 237 U. S. 
 Ed. 1069, 35 Sup. Ct. 653. 499, 59 L. Ed. 1069, 35 Sup. Ct. 
 
 7. Waina v. Pennsylvania Co., 653; Norfolk & W. R. Co. v. Ear- 
 251 Pa. 213, 96 Atl. 4(n. nost. 229 U. S. 114. 57 L. Ed. 1096.
 
 103-i IxjuEiEs TO Interstate Employes. [§ 578 
 
 by the national Supreme Court: "While there are 
 several ditferences bet^Yeen the state act and the act of 
 Congress, the only difference having a present bearing is 
 one relating to contributory negligence. The state act 
 declares that in cases where the employe's negligence is 
 slight and that of the employer is gross in comparison, 
 the former's negligence shall not bar a recovery, but 
 shall operate to diminish the damages proportionally. 
 In other cases contributoiy negligence remains a bar as 
 at common law. Comp. Stat., 1907, sec. 2803b; Cobbey's 
 Ann. Stat. 1911, sec. 10592. The act of Congress, on the 
 other hand, declares that the emj^loye's negligence shall 
 not bar a recovery in any case, but shall oi^erate to di- 
 minish the damages proportionally in all cases, save 
 those of a designated class, of which this is not one. 
 Thus, it will be seen that the state act is more favorable 
 to the employer than is the act of Congress. The in- 
 structions to the jury followed the state act and con- 
 sequently were more favorable to the company than they 
 would have been had they followed the act of Congress. 
 To illustrate, under the instructions given a finding that 
 the interstate 's injuries were caused by concurring negli- 
 gence of the company and himself and that his negli- 
 gence was more than slight and the company's less than 
 gross must have resulted in a verdict for the company, 
 while under instructions following the act of Congress 
 such a finding must have resulted in a verdict for the 
 p)laintiffs with the damages proportionally diminished."^ 
 
 § 579. Purpose of Congress in Modifying Common 
 Law Rule of Contributory Negligence. The purpose of 
 
 33 Sup. Ct. 654, Ann. Cas. 1914C Michigan. Walsh v. Lake Shore 
 
 172; Shanley v. Philadelphia & & M. S. R. Co., 185 Mich. 177, 
 
 R. R. Co., 221 Fed. 1012. 151 N. W. 754. 
 
 Alabama. Southern Ry. Co. v. New Jersey. West Jersey Trust 
 
 Fisher, Ala. , 74 So. Co. v. Philadelphia R. Co., 88 N. 
 
 580. J. L. 102, 95 Atl. 753. 
 
 Kentucky. Louisville & N. R. 9. Chicago, R. T. & P. R. Co. 
 
 Co. V. JioUoway's Adm'r, 163 Ky. v. Wright, 239 U. S. 548, 60 L. 
 
 125, 173 S. W. 343. Ed. 431, 36 Sup. Ct. 185.
 
 § 579] Contributory Nhgligence. 1035 
 
 CoTif^rcss in modifying tlio common law rule of con- 
 tributory no^TiKonce by tbo enaclnioni of Section 3 of the 
 act was thus stated in the report of the judiciary com- 
 mit too of the House of R('])resentativcs: ''Section 3 is a 
 modilication of the common-law rule of contril)utory neg- 
 ligence. It does not abolish the law. Under its provisions 
 contributo7-y negligence still bars a recovery for ])ersonal 
 injury so far as the injury is due to the contributory 
 negligence of the employe, but entitles the employe to 
 recover 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 
 pi-()vided that contributory negligence did not bar a 
 recovery if the negligence of the employe was slight and 
 that of the employer was gross in comparison. That law 
 modified the common-law rule of contributory negligence 
 and also contained a modification of the common-law 
 doctrine. of comparative negligence. We are unable to 
 see any justification whatever in the common-law doc- 
 trine of comparative negligence anywhere. It is the only 
 rule of negligence that permits an employe 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 employe 
 to recover 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 di- 
 minish the verdict in proportion to the negligence of the 
 em]-)loye. This may be said in behalf of the doctrine of 
 contrii)utory 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 
 employe exercise a higher degree of care for his safety. 
 If that is a good reason for the existence of that iiile, 
 then we believe that Section 3 of this bill is a very great 
 improvement on that doctrine, for the reason that it 
 imposes the burden of the employer's negligence on the 
 employer, and he will thus be induced to exercise higher
 
 1036 Injuries to Interstate Employes, [§ 579 
 
 care in the selection of bis employes, and in other ways, 
 for the safety of persons in his employment. If the law 
 imposes on the employe the burden of his own neglig-ence, 
 that is certainly snffcient, and that is what this section 
 seeks to do, and it also seeks to impose upon the em 
 ployer the burden of his neglii>'ence. It provides that 
 contributory negligence shall uot bar a recovery for 
 injury due to the negligence of the emi)loyer. It pro- 
 vides that the jury shall diminish tlie damages suffered 
 by the injured employe in proportion to the amount of 
 negligence attril)utable to such employe. It is urged by 
 some that such a provision is impracticable of adminis- 
 tration and that juries will not divide the damages in 
 accordance with the negligence committed by each. 
 The 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 ap- 
 l)ortioning the damages according to the negligence 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 allowed the employe 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 im- 
 practicable of administration. We submit that the 
 principle in this section is ideal justice, against which 
 no fair argument can be made. It is better that legis- 
 latures 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 contributory negligence, which ])uts upon the employe 
 the whole burden of negligence, even though his negli- 
 gence was slight and that of the emi)loyer was gross. 
 That law might to some extent induce higher care on
 
 (§ 579] CONTIUBUTORY NKdLKiKXCK. 1037 
 
 the i)ail of the omi)l()yf', hiil in the same dej<ree, and 
 for tlie same reason, it indnces the em]jhjyer to liave 
 less re,u-ard and less caic I'oi' llie safety of his employes. 
 It is ur^•ed tliat juries nnder this law will wholly ij<nore 
 the ne<;li<;('nc(' conimilted hy the employe and ehar^ce all 
 the injury to the ne^li,<;-enee of the employer. We do not 
 believe that this will he the result of Ihe administration 
 of this section. We believe it will ai)peal to juries as 
 eminently just and they will undertake to enforee it 
 literally to the best of their skill. If juries under the 
 common-law rule of contributory negligence have been 
 dis])osed to assess damages in spite of the fact that the 
 defendant contributed to the injury by his own negli- 
 gence, it may be said that the juiy recognizes the in- 
 justice of the law and undertakes to correct it by what 
 they consider a just and righteous verdict. There is 
 nothing in tliis law that will induce such a sentiment in 
 the minds of the jury, but it will a])])eal to them as the 
 true i)rincii)le, and, in our judgment, they will seek to 
 apply it fairly in the courts. Beach, in his work on con- 
 tributory negligence, page 136, comments on the law as 
 provided in this section as follows: "Much may be said 
 in favor of the rule which counts the plaintiff's negli- 
 gence 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 culpable 
 negligence of the defendant, and yet, where, on tlie other 
 hand, the i)laintiff"'s conduct was such as to some extent 
 contribute to the injury, })ut 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, 
 wdiich 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 negligence rests is a rule against 
 wdiich, in resi)ect of justice and humanity, nothing can be 
 said. Where the severity of the general rule might re- 
 fuse the plaintiff any remedy whatever, as the sheer in- 
 justice of the rule, as laid down in Davis v. Maim, 
 would impose the whole liability ui>oii the defendant, it
 
 1038 Injuries to Interstate Employes. [§ 579 
 
 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.' Shearman and Eedfield on the Law of Negli- 
 gence fifth edition, page 158, in speaking of this rule, 
 say: 'This is substantially an adoption of the admiralty 
 rule, which is certainly 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 con- 
 tributory negligence than the leading countries of 
 Europe. The laws of England, Germany, and Italy go 
 much further to discharge the employe from the re- 
 sponsibility of his own act than does the common-law 
 doctrine of comparative negligence. The laws of France, 
 Switzerland, and Eussia are in practical 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 consequences of his 
 own carelessness ? It certainly appeals more strongly to 
 the fair mind than the proposition that the employe 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." 
 
 § 580. Apportionment of Damages under Federal 
 Act Different from Georgia Statute. Even prior to the 
 passage of the Federal Employers' Liability Act, a few 
 states had, by statutory enactment, adopted the doctrine 
 of comparative negligence as distinguished from con- 
 tributory negligence. The Georgia statute respecting the 
 apportionment of damages has been construed to mean
 
 <§, 582] CONTKIBUTORY NEGLIGENCE. 1039 
 
 that where the injury is tlie result of mutual negligence 
 there can be no recovery unless the person inflicting the 
 injury is more in fault than the one who is injured. 
 But such rule is not to be ai)})lied in the apportionment 
 of damages under the federal act for if the carrier's 
 negligence caused the injury in part, the contributory 
 negligence of the employe does not defeat the action no 
 matter if the carrier is less in fault than the emi)loye." 
 
 § 581. Employe's Contributory Negligence to Re- 
 duce Damages must Proximately Contribute to Injury. 
 The damages recoverable by an employe for injuries due 
 to the negligence of a common carrier cannot be reduced 
 by reason of any slight negligence on the part of the 
 employe. Before the damages can be reduced the con- 
 tributoiy negligence of the employe must directly and 
 proximately contribute to the injury. In other words, the 
 negligence of the employe, in order to reduce the 
 damages, must be causaP^ and not the occasion, that is, 
 that which incidentally brings to pass an event without 
 being the efficient cause of an injury." 
 
 § 582. Gross Negligence of Plaintiff and Slight 
 Negligence of Defendant Cannot Defeat Recovery. 
 LTnder the federal act if the carrier is negligent in any 
 degree and such negligence contributes as a proximate 
 cause to the injury, plaintiff's right to recover cannot be 
 defeated although his negligence might have been gross 
 and the negligence of the defendant comparable there- 
 with slight.^^ And a demurrer to the evidence or a non- 
 
 10. Southern R. Co. v. Hill, 139 & S. F. R. Co., 97 Kan. 455, 155 
 Ga. 549, 77 S. E. 803. Pac. 788. 
 
 11. United States. Illinois Cent. Kentucky. Davis' Adm'r v. Cin- 
 R. Co. V. Skaggs, 240 U. S. 66, 60 ciunati, N. O. & T. P R Co 172 
 L. Ed. 528, 36 Sup. Ct. 249; Illi- ^y. 55, 188 S. W. 1061. Norfolk 
 nois Cent. R. Co. v. Porter, 207 
 
 & W. R. Co. V. Short's Adm'r, 171 
 Ky. 647, 188 S W 786. 
 
 Fed. 311. 
 
 Alabama. Southern R. Co. v. 
 
 Peters, 194 Ala. 94, 69 So. 611. ^2. Fletcher v. South Dakota 
 
 Georgia. Macon, D. & S. R. Co. Cent. R. Co., 36 S. D. 401, 155 
 
 V. Robinson, 19 Ga. App. 370, 91 N. W. 3. 
 
 S. E. 492. 13. United States. Southern R. 
 
 Kansas. Pyles v. Atchison, T. Co. v. Mays, 152 C. C. A. 91, 239
 
 10-tO 
 
 Injuries to Interstate Employes. [§ 582 
 
 suit cannot in any ease under the federal act l)e o-iven or 
 sustained on the ground of phiintiff's contributory 
 negligence.'* Judge Knappen, speaking for the Federal 
 Circuit Court of Appeals in Pennsylvania Co. v. Cole, 
 cited supra, said: "But the Employers' Liability Act 
 expressly abrogates the common law rule under which 
 action was barred by the negligence of the plaintiff 
 proximately contributing to the accident and substitutes 
 therefor the rule of comparative negligence. Under this 
 act, no degree of negligence on the part of the plaintiif , 
 however gross or proximate, can, as a matter of law, bar 
 recoverv. ' ' 
 
 Fed. 41; Pennsylvania Co. v. 
 Sheeley, 137 C. C. A. 471, 221 
 Fed. 901; New York, C. & St. L. 
 R. Co. V. Niebel, 131 C. C. A. 248, 
 214 Fed. 952; Pennsylvania Co. 
 V. Cole, 131 C. C. A. 244, 214 Fed. 
 948; Louisville & N. R. Co. v. 
 Lankford, 126 C. C. A. 247, 209 
 Fed. 321; Louisville & N. R. Co. 
 V. Wene, 121 C. C. A. 245, 20a 
 Fed. 887; Chicago Great Western 
 R. Co. V. McCormick, 118 C. C. A. 
 527, 200 Fed. 375, 47 L. R. A. (N. 
 S.) 18. 
 
 Alabama. Western Ry. of Ala. 
 V. Mays, 197 Ala. 367, 72 So. 641; 
 Louisville & N. R. Co. v. Flem- 
 ing, 194 Ala. 51, 69 So. 125. 
 
 Georgia. Louisville & N. R. Co. 
 v. Paschal, 145 Ga. 521, 89 S. E. 
 
 620. 
 
 Kentucky. Lexington & E. R. 
 Co. V. Smith's Adm'r, 172 Ky. 117, 
 188 S. W. 1091. 
 
 Maryland. Baltimore & 0. R. 
 Co. v. Whitacre, 124 Md. 411, 92 
 Atl. 1060. 
 
 Minnesota. Knapp v. Great 
 Northern R. Co., 130 Minn. 405, 
 153 N. W. 848. 
 
 Missouri. Brightwell v. Lusk, 
 194 Mo. App. 643, 189 S. W. 413; 
 
 Koukouris v. Union Pac. R. Co., 
 193 Mo. App. 495, 186 S. W. 545; 
 Newkirk v. Pryor (Mo. App ), 183 
 S. W. 682; Noel v. Quincy, 0. & 
 
 K. C. R. Co., ■ Mo. App. , 
 
 182 S. W. 787. 
 
 North Dakota. Manson v. Great 
 Northern R. Co., 31 N. D. 643, 155 
 N. W. 32. 
 
 South Dakota. Fletcher v. South 
 Dakota Cent. R. Co., 36 S. D. 401, 
 155 N. W. 3. 
 
 Vermont. Lynch's Adm'r v. Cen- 
 tral Vermont R. Co., 89 Vt. 363, 
 95 Atl. 683. 
 
 Virginia. Chesapeake & 0. R. 
 Co. V. Meadows, 119 Va. 33, 89 S. 
 
 E. 244. 
 
 Washington. Anest v. Columbia 
 & P. S. R. Co., 89 Wash. 609, 154 
 Pac. 1100. 
 
 West. Virginia. Gulp v. Virgin- 
 ian Ry. Co., W. Va. , 92 
 
 S. E. 236. 
 
 14. Louisville & N. R. Co. v. 
 Wene, 121 C. C. A. 245, 202 Fed. 
 887; Sandidge v. Atchison, T. & S. 
 
 F. R. Co, 113 C. C. A. 653, 193 
 Fed. 867; Horton v. Seaboard Air 
 Line R. Co., 157 N. C. 146, 72 S. 
 E. 958.
 
 '^i 584] Contributory Negligence. 1041 
 
 § 583. When Defendant's Act is no Part of Causa- 
 tion, Plaintiff Cannot Recover. On tlic otiicr hand if the 
 plaintiff's act is tlie sole cause of his injury without any 
 act on tlio part of the defendant contributing as a part 
 of tlie causation, tliorc can Ix' no recovery under tlie 
 federal act/'' AVliethei- niidcf the facts of a pailicuhii" 
 case the ])laintiff's ue^liiiciicc was tlic sole cause of his 
 injury or whether tlie ii<'<^li^ence of the defendant con- 
 tributed as a part of the causation, has already been 
 raised in cases under tlie federal act and it is fre(piently 
 a difficult question to solve. Such questions will no 
 doubt arise in the future in other cases for the icason 
 that if Ihe ])laintiff's neg'ligence was the sole cause of 
 his injury there can be no recover^y, but if the de- 
 fendant's ne,ij;ligence contributes as a proxinuite cause, 
 the plaintiff can recover no matter how gross his negli- 
 gence may be. In two cases, Pankey v. Kaili'oad and 
 p]llis V. Kailroad, cited supra, the courts denied a re- 
 covery under the federal act for the reason that under 
 the facts the ])laintiff's act was the sole cause of his in- 
 jury. On the other hand courts have denied the ap- 
 plication of the same principle under the facts and held 
 the defendant's act was a part of the causation." 
 
 § 584. How Damages Apportioned When Employe 
 is Guilty of Contributory Negligene. AVhere the negli- 
 gence which caused the injui'v or death of an oin])loye 
 
 15. United States. Great North- Missouri. Pankey v. Atchison, 
 
 ern R. Co. v. Wiles, 240 U. S. 444, T. & S. F. R. Co., 180 Mo. App. 
 
 60 L. Ed. 732, 36 Sup. Ct. 406; 185, 6 N. C. C. A. 74. 168 S. W. 
 
 Grand Trunk Western R. Co. v. 274. 
 
 Lindsay, 233 U. S. 42, 58 L. Ed. Oregon. Pfeiffcr v. Oregon-Wash. 
 
 838, 34 Sup. Ct 581, Ann. Cas. ington R & Nav. Co., 74 Ore. 307. 
 
 1914C 168. 7 N. C. C. A. 685, 144 Pac. 762. 
 
 Georgia. LouisviUe & N. R. Co. Virginia. Chesapeake W. Ry. 
 
 V. Kemp, 140 Ga. 657, 79 S. E. Co. v. Shiflett's Adm'.x, 118 Va. 63. 
 
 558. 86 S. E. 860. 
 
 Kentucky. Norfolk & W. R. Co. 16. Spokane & I. E R. Co. 
 
 V. Short's Adm'r, 171 Ky. 647, 188 v. Campbell, 133 C. C. A. 370. 217 
 
 S. W. 786; Ellis' Adm'r v. Louis- Fed. 518; New York, C. & St. L. R. 
 
 ville, H. & St. L. R. Co., 155 Ky. Co. v. Niebel, 131 C. C. A. 248. 
 
 745, 160 S. W. 512. 214 Fed. 952; Pennsylvania Co.
 
 1042 
 
 Injuries to Interstate Employes. [§ 584 
 
 is partly attributable to the employe himself and partly 
 attributable to the carrier, the plaintiff cannot recover 
 full damages but only such 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." Justice Van Daventer, 
 
 V. Cole. 131 C. C. A. 244, 214 Fed. 
 948; Ross v. St. Louis & S. F. 
 R. Co., 93 Kan. 517, 7 N. C. C. A. 
 737, 144 Pac. 844; Louisville & 
 N. R. Co. V. Heinig's Adm'x, 162 
 Ky. 14. 171 S. W. 853. 
 
 17. United States. Illinois Cent 
 R. Co. V. Skaggs, 240 U. S. 66, 
 60 L. Ed. 528, 36 Sup. Ct. 249; 
 Chicago, R. I. & P. R. Co. v. 
 Wright, 239 U. S. 548, 60 L. Ed. 
 431. 36 Sup. Ct. 185; Seaboard 
 Air Line Ry. Co. v. Tilghman, 237 
 U. S. 499, 59 L. Ed. 1069. 35 Sup. 
 Ct. 653; Norfolk & W. R. Co. v. 
 Earnest, 229 U. S. 114, 57 L. Ed. 
 1096, 33 Sup. Ct. 654, 3 N. C. C. 
 A. 806, Ann. Cas. 1914C 172; 
 Shanley v. Philadelphia & R. R. 
 Co., 221 Fed. 1012. 
 
 Alabama. Southern Ry. Co. v. 
 
 Fisher, — Ala. 74 So. 580 
 
 Southern R. Co. v. Peters, 194 Ala. 
 94, 69 So. 611. 
 
 Arkansas. St. Louis, I. M. & S. 
 Ry. Co. V. Rodgers, 118 Ark. 263, 
 176 S. W. 696; St. Louis South- 
 western R. Co. V. Anderson, 117 
 Ark. 41, 173 S. W. 834. 
 
 Arizona. Arizona Eastern R. 
 Co. V. Bryan, 18 Ariz. 106, 157 
 Pac. 376. 
 
 Georgia. Ivey v. I.iOuisville & 
 N. R. Co., 18 Ga. App. 434, 89 S. E. 
 629. 
 
 Indiana. Cincinnati, H. & D. R. 
 
 Co. V. Gross, Ind. , 114 
 
 N. E. 962. 
 
 Kentucky. Louisville & N. R. 
 Co. V. Thomas' Adm'r, 170 Ky. 
 145, 185 S. W. 840; Louisville & 
 
 N. R. Co. V. Holloway's Adm'r 
 168 Ky. 262, 181 S. W. 1126; Louis- 
 ville & N. R. Co. V. Holloway's 
 Adm'r, 163 Ky. 125, 173 S. W. 343; 
 Cincinnati, N. O. & T. P. Ry. Co. 
 V. Goode, 163 Ky. 60, 173 S. W. 
 329; Louisville & N. R. Co. v. 
 Heinig's Adm'x, 162 Ky. 14, 171 
 S. W. 853; Nashville, C. & St. L. 
 R. Co. V. Henry, 158 Ky. 88, 164 
 
 S. W. 310; Nashville, C. & St. L. 
 R. Co. V. Banks. 156 Ky. 609, 161 
 S. W. 554. 
 
 Maryland. Baltimore & O. R. 
 Co. V. Branson, 128 Md. 678, 98 
 Atl. 225, 
 
 Michigan. Collins v. Michigan 
 Cent. R. Co., 193 Mich. 303, 159 
 N. W. 535; Walsh v. Lake Shore 
 & M. S. R. Co., 185 Mich. 177, 
 151 N. W. 754. 
 
 Missouri. Dowell v. Wabash Ry. 
 
 Co., ■ Mo. App. , 190 S. 
 
 W. 939; Blankenbaker v. St. 
 
 Louis & S. F. R. Co., Mo. 
 
 , 187 S. W. 840; Newkirk v. 
 
 Pryor (Mo. App ), 183 S. W. 682; 
 Cross V. Chicago, B. & Q. R. Co., 
 191 Mo. App. 202, 177 S. W. 1127; 
 Fish V. Chicago, R. I. & P. R. Co., 
 263 Mo. 106. 8 N. C. C. A. 538, 
 Ann. Cas. 1916B 147, 172 S. W. 
 340. 
 
 New Jersey. West Jersey Trust 
 Co. V. Philadelphia & R. R. Co., 
 88 N. J. L. 102, 95 Atl. 753. 
 
 New York. McAuliffe v. New 
 York Cent. & H. River R. Co., 172 
 N. Y. App. Div. 597, 158 N. Y. 
 Supp. 922.
 
 <§ 585] CONTKIBUTORY NEGLIGENCE. 1043 
 
 speaking Tor the Supreme Court in tlie Earnest case cited, 
 said: "Tlie statutory direction tliat the diminution sliall 
 be 'in proportion to tlie amount of negligence attributable 
 to such employe' means, and can only mean, that, where 
 the causal negligence is partly attributable to him and 
 partly to the carrier, he shall not recover full damages, 
 l)nt only a pro])oi'tional amount bearing the same relation 
 to the full amount as the negligence attributable to the 
 carrier bears to the entire negligence attributable to 
 both; the pur])ose being to abrogate the common-law rule 
 completely exonerating the carrier from liability in such 
 a case, and to substitute a new rule, confining the ex- 
 oneration to a proportional part of the damages, corre- 
 sponding to the amount of negligence attributable to 
 the employe." 
 
 § 585. When Duty of Trial Court to Instruct on 
 Contributory Negligence Arises under Federal Act. If 
 there is evidence sufficient for the issue of contributory 
 negligence to be submitted to the jury it is error for a 
 trial court to refuse an instruction on its eflfect in re- 
 ducing the damages unless liability is based upon a 
 federal statute enacted for the safety of employes." 
 Thus, in the case cited, it was held that the trial court 
 erred in refusing to .give the following instniction to the 
 jury: "If you shall find that the plaintiff was guilty of 
 negligence which contributed to cause his injury, and 
 that the defendant was also guilty of negligence which 
 contributed, with the negligence of the plaintiff, to cause 
 injury to him, then it is your duty to diminish the 
 amount which, in your opinion, under the evidence, you 
 believe that the plaintiff herein mil be entitled to recover 
 by reason of the negligence of the defendant, by an 
 amount in proportion to the amount of negligence at- 
 tributable to the plaintiff." But if there is no evidence 
 of contributory negligence sufficient to be submitted to 
 
 Texas. Gulf. C. & S. F. Ry. Co. IS. Snyder v. Great Northern 
 
 V. Cooper, Tex. Civ. App. R. Co., 88 Wash. 949, 152 Pac. 
 
 , 191 S. W. 579. 703.
 
 1044 Injukies to Interstate Employes. [§ 585 
 
 the jury, no iiistnietion slioiild be given upon the 
 subject/" 
 
 § 586. Method of Instructing the Jury When there 
 is Evidence of Contributory Negligence. In actions 
 under the federal act predicating a recovery upon some 
 act of negligence other than the violation of federal 
 statutes for the safety of em])loyes where there is 
 evidence tending to show contributory negligence on 
 the part of the plaintiif, the method of instructing 
 the jury was thus well and clearly stated: "In cases of 
 this character, where the evidence justifies a finding 
 tliat both defendant and plaintiff were guilty of negli- 
 gence contributing to the accident, the jury should be 
 carefully instructed conceraing the rule of comparative 
 negligence established by the federal statute. It is the 
 duty of the jury first to determine whether or not the 
 defendant was guilty of causal negligence; for, if that 
 issue is determined against the plaintiff, there can be 
 no recovery. If the issue of the defendant's negligence 
 is determined in favor of the plaintiff then the jury 
 should consider whether or not he, too, was guilty of 
 negligence directly contributing to the happening of the 
 accident, and, if they decide that issue against the 
 plaintiff, then, looking at the combined negligence of 
 the plaintiff and defendant as a whole, and using their 
 best judgment based on the evidence before them, the 
 next material subject for the jury to consider is in what 
 ratio should this combined negligence be distributed 
 between the parties to the accident; in other words, how 
 much, or what i)roportion, of the whole blame, or fault, 
 should be attributed to each. After this problem is 
 solved, the jury must determine the amount of the 
 damages suffered through the combined negligence, and 
 deduct therefrom a proportion corresponding with the 
 
 19. Chesapeake & O. R. Co. v. v. Stalcup, Tex. Civ. App. 
 
 Cooper, 168 Ky. 137, 181 S. W. , 167 S. W. 279. 
 
 933; Fort Worth & D. C. R. Co.
 
 § 588] Contributory Negligence. 1045 
 
 measure of iie<^]i<;enee eliar^'ed against tlie defendant, 
 to be awarded as damages 1o tin- plniiiliff. "-" 
 
 § 587. Instruction of Contributory Negligence in 
 Language of Statute not Erroneous. An in.-t ruction on 
 coiitrihiilory negligence in llie language of the statute is 
 not error in the absence of a request for a charge more 
 fully defining the meaning of the statute. Thus, a trial 
 court charged the jury in an action under the federal act 
 tliat in the event they found the plaintiff guilty of con- 
 tributory negligence they should reduce his damages in 
 proportion to the amount of negligence which is at- 
 tributable to liim. No other instruction defining the 
 word "proportion" was given. "The instruction given," 
 said the court,-^ "is almost in the identical language 
 of the statute and while definition might have further 
 conduced to an appreciation by the jury of the standard 
 established by the statute, we think there was no error 
 in the charge given, especially as the railroad company 
 made no request for a charge clarifying any obscurity 
 on the subject which it deemed existed." But an in- 
 struction in the language of the statute, that is, that the 
 damages sliould l)e diminished by the jury in pro- 
 ])ortion to the amount of negligence attributable to the 
 plaintiff with the additional qualifying clau.se, "as 
 compared with the negligence, if any, attributable to the 
 defendant," was erroneous for the reason that the clause 
 "as compared with the negligence, if any, attributable 
 to the defendant" does not state the correct rule.-^ 
 
 § 588. Erroneous Instructions on Contributory 
 Negligence Under the Federal Act. In an action under 
 
 20. Waina v. Pennsylvania Co., jury in proportion to tlie amount 
 251 Pa. 213, 96 Atl. 461. of negligence attributable to such 
 
 21. St. Louis & S. F. R. Co. employe follows the language of 
 V. Brown, 241 U. S 233 60 L. Ed. the statute and is not, therefore. 
 966, 36 Sup. Ct. 602;Contra, Nash- erroneous. Kippenbrock v. Wa- 
 ville, C. & St. L. R. Co. v. Banks, bash R. Co., 270 Mo. 479. 194 S. 
 156 Ky. C09, 161 S. W. 554. W. 50. 
 
 An instruction that the dam- 22. Cross v. Chicago, B & Q. 
 
 ages should be diminished by the R. Co., 191 Mo. App. 2i)2. 177 S. 
 
 W. 1127.
 
 1046 Injuries to Interstate Employes. [<§ 588 
 
 the federal act, a trial court instructed the jury as to the 
 effect of contributory negligence, as follows: ''Con- 
 tributory negligence is the negligent act of a plaintiff 
 which, concurring and co-operating with the negligent 
 act of a defendant, is the proximate cause of the injury. 
 If you should find that the plaintiff was guilty of con- 
 tributory negligence the act of Congress under which 
 this suit was brought proAddes that such contributory 
 negligence is not to defeat a recovery altogether, but the 
 damages shall be diminished by the jury in proportion 
 to the amount of negligence attributable to such em- 
 ploye. So, if you reach that point in your deliberations 
 where you find it necessary to consider the defense of 
 contributory negligence, the negligence of the plaintiff 
 is not a bar to a recovery, but it goes by way of dim- 
 inution of damages in proportion to his negligence, 
 as compared with the negligence of the defendant. 
 If the defendant relies upon the defense of contributory 
 negligence, the burden is upon it to establish that de- 
 fense by a preponderance of the evidence." The phrase 
 in the quoted instruction, "as compared with the neg- 
 ligence of the defendant" was condemned by the 
 Supreme Court of the United States as being improper 
 under the federal act.^^ Concerning this instruction, 
 Mr. Justice Van Devanter, speaking for the court, 
 said: "The other criticism deserves more discussion. 
 The thought which the instruction expressed and made 
 plain was that, if the plaintiff had contributed to his 
 injury by his own negligence, the diminution in the 
 damages should be in proportion to the amount of his 
 negligence. This was twice said, each time in terms 
 readily understood. But for the use in the second in- 
 stance of the additional words 'as compared with the 
 negligence of the defendant' there would be no room 
 for criticism. Those words were not happily chosen, 
 for to have reflected what the statute contemplates 
 they should have read 'as comi^ared with the combined 
 
 23. Norfolk & W. R. Co. v. 1914C 172. See also West Jersey 
 Earnest, 229 U. S. 114, 57 L. Ed. Trust Co. v. Philadelphia & R. R. 
 1096, 33 Sup. Ct. 654, Ann. Cas. Co., 88 N. J. L. 102, 95 Atl. 753.
 
 § 588] CONTEIBUTORY NEGLIGENCE. 1047 
 
 iie^-ligence of himself and the defendant.' We say this 
 because tlie statutory direction tliat tlie diminution 
 shall be 'in proportion to the amount of negligence 
 attributable to such employe' means, and can only mean, 
 that, where the causal 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 negligence 
 attributable to the carrier bears to the entire negligence 
 attributable to both; the purpose being to abrogate 
 the common law rule completely exonerating the carrier 
 from liability in such a case, and to substitute a new 
 rule confining the exoneration to a proportional part 
 of the damages corresponding to the amount of neg- 
 ligence attributable to the employe. "^^ An instruction 
 that if the employe was guilty of negligence which 
 contributed to his injuries, the jury must diminish the 
 damages in proportion to the amount of negligence 
 attributable to him, was held erroneous for the same 
 reason.'' In another action under the federal act the 
 court instructed the jury that, if the deceased was 
 guilty of contributoiy negligence, and ''that said neg- 
 ligence directly contributed to his injury, you should 
 take said negligence into consideration in arriving at 
 the amount of your verdict as hereinafter explained, 
 if you find from the evidence that the plaintiff is enti- 
 tled to recover, but if you find from the evidence that 
 the contributory negligence of the deceased. Otto N. 
 Ross, was the sole and proximate cause of his death, 
 then you should find a verdict for defendant." A 
 verdict was returned for the defendant and the trial 
 court set it aside because the instniction was erroneous 
 in the latter jDart as to contributory negligence. The 
 appellate court held that the plaintiff had a right to a 
 plain and unambiguous instruction to the effect that 
 contributory negligence was not a complete defense un- 
 
 24. To the same effect: Illi- Co. v. Banks, 159 Ky. 609, 161 
 nois Cent. R. Co. v. Skaggs, 240 S. W. 554. Contra: Kippenbroch 
 U. S. 66, 60 L. Ed. 528. 36 Sup. v. Wabash R. Co.. 270 Mo. 479, 
 Ct. 249. 194 s. W. 50. 
 
 25. Nashville, C. & St. L. R.
 
 1048 Injuries to Interstate Employes. [§ 588 
 
 del" the federal statute referred to, but sliould be con- 
 sidered in mitigation of danuig(^s; and that, as the 
 lano-iiag-e nsed was doubtful iu meaning and confusing, 
 and the trial judge believed that the instruction did 
 not sufficiently inform the jury, the order granting a 
 new trial was not reversed.'" A trial court in an action 
 under the federal act instructed the jury that they 
 should determine the full amount of damages sustained 
 by the plaintiff and "deduct from that whatever amount 
 you think would be proper for the contributory negli- 
 gence." This charge was erroneous for the reason 
 that the court thereby committed to the jury the method 
 of diminishing the damages without naming any stand- 
 ard to which their action should conform other than 
 their own conception of what was reasonable." 
 
 § 589. When Contributory Negligence of Employe 
 Does not Diminish Damages — Federal Safety Ap- 
 pliance Laws. Even though an employe injured or 
 killed while engaged in interstate commerce was guilty 
 of contributory negligence, his damages cannot be re- 
 duced when the violation of a federal statute enacted 
 for the safety of employes, such, for instance, as the 
 Federal Safety Appliance Act, Boiler Inspection Act 
 and Hours of Service Act, contributed as a cause to the 
 injury or death.'*' "According to the evidence adduced 
 
 26. Ross V. St. Louis & S. F. 123; Spokane & I. E. R. Co. v. 
 R. Co., 93 Kan. 517, 144 Pac. 844. Campljell, 241 U. S. 497, 60 L. 
 
 27. Seaboard Air Line Ry. Co. Ed. 1125, 36 Sup. Ct. 683; 12 N. 
 V. Tilghman, 237 U. S. 499, 59 C. C. A. 1083; Atchison, T. & 
 L. Ed. 1069, 35 Sup. Ct. 653. s. F. R. Co. v. Swearingen, 239 
 
 An instruction on the question u. S. 339, 60 L. Ed. 317, 36 Sup. 
 
 of contributory negligence and its ct. 121; Seaboard Air Line Ry. 
 
 effect on the measure of damages, ^o. v. Tilghman, 237 U. S. 499, 59 
 
 which failed to prescribe the rule ^ ^^ ^^g^^ .,^ ^^^ g ^53. g^^^j^. 
 
 for determining the amount of the ^^^ ^ ^^ ^ Crockett, 234 U. S. 
 
 deduction required to be made, ^^^ ^^ ^ ^^ ^^^^ ^^ ^^p ^^ 
 was erroneous. Davis v. Southern 
 
 Ry. Co., N. C. , 96 S. E. 
 
 ^^28 United States. Baltimore §38, 34 Sup. Ct. 581, Ann. Cas. 
 & O. R. Co. V. Wilson, 242 U. S. 1914C 168; Norfolk & W. R. Co. 
 295, 61 L. Ed. 312, 37 Sup. Ct. v. Earnest, 229 U. S. 114, 57 L. 
 
 897, Grand Trunk Western R. Co. 
 V. Linsay,, 233 U. S. 42, 58 L. Ed.
 
 § 590] 
 
 CoNTHiurioitv Xegliuence. 
 
 104!) 
 
 l)y tlio plaintiff, lie was iiijuivd on acfonnt of a (h'U'cA 
 in the automatic coupler in violation oi' the Safety Ap- 
 ])lianee Act. The Supreme Couil of llic I'^nited States 
 lias iu'ld lliat llic (lucslion of conipai'ative nc^lif^ence 
 does not arise where llie ne.nlii^ence of the cai'rier con- 
 sists in the violation of a federal statute, for in such, 
 cases the defense of contributory negligence is entirely 
 abrogated by the provision of the act above (pioted".^'' 
 The clause "statute enacted for the safety of emi)loyes" 
 in section 3 of the B^'ederal Kiii]tloyers' Liability Act 
 refers only to federal statutes and not to state laws/'' 
 
 § 590. Burden is Upon Defendant to Prove Con- 
 tributory Negligence. In all actions under the Federal 
 Kni})l()yers' Liability Act, the l)urden of proving that 
 the plaintiff, or the decedent in cases where the ad- 
 
 Ed. 1096, 33 Sup. Ct. 654, Ann. 
 Cas. 1,914C 172; St. Louis Mer- 
 chants' Bridge Terminal Ry. Co. v. 
 Schuerman, 150 C. C. A. 203, 237 
 Fed. 1; Clark v. Erie R. Co., 230 
 Fed. 478; Johnson v. Great North- 
 ern R. Co., 102 C. C. A. 89, 178 
 Fed. 643. 
 
 Alabama. Louisville & N. R. 
 
 Co. V. Hlankenship, Ala. — , 
 
 74 So. 960; Western Ry. of Ala- 
 bama V. Mays, 197 Ala. 367, 72 So. 
 641. 
 
 Arkansas. St. Louis Southwest- 
 ern R. Co. V. Anderson, 117 Ark. 
 41. 173 S. W. 834. 
 
 Missouri. Christy v. Wabash R. 
 Co., 195 Mo. App. 232. 191 S. W. 
 241; Carpenter v. Kansas City 
 Southern R. Co., 189 Mo. App. 164, 
 175 S. W. 234; Young v. Lusk, 
 268 Mo. 625, 187 S. W. 849; Moore 
 V. St. Joseph & G. I. R. Co , 268 
 Mo. 31, 18G S. W. 1035. 
 
 New Jersey. Parker v. Atlantic 
 City R. Co.. 87 N. J. L. 148. 93 
 Atl. 574. 
 
 South Carolina. Steele v. At- 
 lantic Coast Line R. Co., 103 S. 
 
 C. 102, 87 S. E. 639. 
 
 South Dakota.- Fletcher v. 
 South Dakota Cent. R. Co.. 36 S. D. 
 401, 155 N. W. 3. 
 
 "It is undisputable that plain- 
 tiff was entitled to recover if the 
 tender was not equipped with grab- 
 irons and an operative automatic 
 coupler in the manner required by 
 the Safety Appliance Act, and if 
 the absence of these or either of 
 them contributed to his injury, 
 and this without regard to any 
 question of contributory negli- 
 gence." Blair. J., in Moore v. St. 
 Joseph & G. I. R. Co.. 268 Mo. 31. 
 186 S. W. 1035. affirmed In 243 U. 
 S. 311. 61 L. Ed. 741. 37 Sup. Ct. 
 278. 
 
 29. St. Louis Southwestern R. 
 Co. V. Anderson. 117 Ark. 41. 173 
 S. W. 834. 
 
 30. Seaboard Air Line R. Co. 
 V. Horton. 233 U. S. 492. 58 L. Ed. 
 1062, 34 Sup. Ct. 635. 8 N. C. C. 
 A. 834, L. R. A. 1915C 1; Ann. 
 Cas. 1915B. 475; Smithson v. 
 Atchison, T. & S. F. R. Co., 174 
 Cal. 148, 162 Pac. 111.
 
 1050 Injuries to Interstate Employes. [§ 590 
 
 ministrator is suing*, was guilty of contributory negli- 
 gence, is upon the defendant. ^^ 
 
 § 591. Whether Contributory Negligence Must 
 be Pleaded, Determined by State Law. The question 
 whether contributory negligence of the injured em- 
 ploye, in order to be available to the defendant must be 
 pleaded, is to be determined by the laws of the state 
 where the action is pending, for such a matter relates 
 to procedure and the laws of the state govern as to 
 procedure even in actions under the Federal Employers' 
 Liability Act.^- The general rule is that unless the 
 plaintitf 's contributory negligence appears as a matter of 
 law by his proof the plea of contributory negligence 
 must be specially pleaded, though a few courts hold to 
 the contrary; but as contributory negligence under the 
 federal act only mitigates the damages, some doubt 
 exists as to whether it must be specially pleaded; for 
 the general rule is, unless otherwise provided by statute, 
 matters in diminution of damages need not be specially 
 pleaded. Such was the rule at common law.^^ The fed- 
 eral courts have constantly held that in ordinaiy actions 
 by an employe against an employer, the burden of 
 proving that the plaintiff's negligence contributed to 
 the injury, is upon the defendant.^* This rule is also 
 applicable to actions under the Employers' Liability 
 
 31. Central Vermont R. Co. v. "Contributory negligence, even 
 White, 238 U. S. 507, 59 L. Ed. under the Federal Employers' Li- 
 1433, 35 Sup. Ct. 865, 9 N. C. C. A. ability Act, is a matter of de- 
 265; Ann. Cas. 1916B 252; Lusk fense." Carpenter v. Kansas City 
 V. Osborne, 127 Ark. 170, 191 S. Southern R. Co., sujrra. 
 
 W. 944. 33. Greenleaf on Evidence (14th 
 
 32. Central Vermont R. Co. v. ed.) 393; Blizzard v. Applegate, 
 White, 238 U. S. 507, 59 L. Ed. 61 Ind. 368; Smith v. Lisher, 23 
 1433, 35 Sup Ct. 865, 9 N. C. C. A. Ind. 500; Osborn; v. Lovell, 36 
 265, Ann. Cas. 1916B 252; Delano Mich. 250; Delevan v. Bates, 1 
 V. Roberts (Mo. App.), 182 S. W. Mich. 97; Beck v. Dowell, 40 Mo. 
 771; Chesapeake & 0. R. Co., v. App. 71; Atteberry v. Powell, 29 
 Cooper, 168 Ky. 137, 181 S. W. Mo. 429. 
 
 933; Carpenter v. Kansas City 34. Washington & G. R. Co. v. 
 
 Southern R. Co., 189 Mo. App 164, Harmon's Adm'r, 147 U. S. 571, 37 
 175 S. W. 234. L. Ed. 284, 13 Sup. Ct. 557; Hough
 
 <^ 592] Contributory Nkcligence. 1051 
 
 Act." Since, therefore, the federal Supreme Court has 
 lield that the burden of provin.i,^ contributory negligence 
 of the i)laintiff in actions under the national statute is 
 upon the defendant, it would seem to follow tliat it is 
 obligatory u|)on the defendant to plead such a defense.^" 
 A statute of North Carolina provided that in all actions 
 to recover damages by reason of defendant's negligence, 
 where contributory negligence is relied on as a defense, 
 it shall be set up in the answer and proved at the trial. 
 Another section of the statutoiy law of the same state 
 provided generally that matters in diminution of 
 damages need not be specially pleaded. In an action 
 by an employe against a common carrier for injuries 
 under the Federal Employers' Liability Act, it was 
 held by the supreme court of that state that the de- 
 fendant could not avail itself of the partial defense of 
 contributory negligence unless the same was pleaded in 
 its answer. The court properly held that the specific 
 statute mentioned controlled in preference to the general 
 statute as to matters in mitigation." If the contributory 
 negligence of the plaintiff is not pleaded in the de- 
 fendant's answer, an instruction presenting this de- 
 fense should not be submitted.^* 
 
 § 592. Evidence of Contributory NegUgence Ad- 
 missible Under General Denial, When. A carrier is 
 entitled to a fair opportunity to show in diminution of 
 damages any negligence attributable to the employe. 
 If, therefore, the laws of the forum provide that con- 
 tributory negligence may be shown under a general 
 
 V. Texas & P. R. Co., 100 U. S. 213, 36. Delano v. Roberts, Mo. 
 
 25 L. Ed. 612; Hemingway v. lUi- App , 182 S. W. 771; Carpen- 
 
 nois Cent. R. Co., 52 C. C. A. 477, ter v. Kansas City Southern R. 
 
 114 Fed. 843. Co., 189 Mo. App. 164, 175 S. W. 
 
 35. Central Vermont R. Co. v. 234. 
 
 White, 238 U. S. 507, 59 L. Ed. 37. Fleming v. Norfolk South- 
 
 1433, 35 Sup. Ct. 865, 9 N. C. C. ern R. Co., 160 N. C. 196, 76 S. 
 
 A. 205, Ann. Cas. 1916B 252; Sea- E. 212. 
 
 board Air Line R. Co. v. Moore, 38. Chesapeake & 0. Ry. Co. v. 
 
 228 U. S. 433, 57 L .Ed. 907, 33 Sup- Cooper, 168 Ky. 137, 181 S. W. 
 
 Ct. 580. 933.
 
 1052 Injuries to Interstate Employes. [<§ 592 
 
 denial,^^ a trial court, in exehidiiig- evidonee to that end, 
 deprives tlie carrier of a federal rii>-lit and the fact 
 that counsel, in attempting- to introdnce the evidence, 
 did not state that it was offered in mitigation only, does 
 not alter the rnle.*° ''The state Supreme Court upheld 
 the railroad company's claim of right," said Mr. Justice 
 MeReynolds in the last case cited, "to show contri- 
 butory negligence under its general denial; but the 
 trial court emi)hatieally denied this and positively ex- 
 cluded all evidence to that end. As, under the Federal 
 statute, contributory negligence is no bar to recovery, 
 tlie plain purpose in offering the excluded evidence 
 was to mitigate damages. In such circumstances it 
 was unnecessary to go through the idle form of arti- 
 culating the obvious. If timely objection upon the 
 ground ultimately suggested by the Supreme Court had 
 iDeen sustained, it could have been easily obviated; but 
 counsel had no reason to anticipate such a ruling and 
 certainly, we think, were not required to do so at their 
 peril. Plaintiff in eiTor has been improperly deprived 
 of a Federal right." 
 
 39. Jones v. Kansas City South- 40. Kansas City Southern R. 
 
 ern R. Co., 137 La. 178, 11 N. C. Co. v. Jones, 241 U. S. 181, 60 L. 
 C. A. 43, 68 So. 401. Ed.. 943, 36 Sup. Ct. 513.
 
 CIIAPTKIJ XXX. 
 Bknkficiakiks Undek thk LiAKii.iTv Act. 
 
 Sec. 593. Benoficiarios under the Federal Statute. 
 
 Sec. 594. Parents not Entitled to Damages when there is a Widow 
 or Children. 
 
 Sec. 595. Alien Dependents Residing Abroad may Recover under 
 Federal Act. 
 
 Sec. 596. Existence of Beneficiaries Named in Statute .Jurisdictional. 
 
 Sec. 597. Who are "Next of Kin" under Federal Act must be Deter- 
 mined by State Law. 
 
 Sec. 598. Illegitimate Children may be Next of Kin within Meaning 
 of Federal Statute. 
 
 § 593. Beneficiaries under the Federal Statute. 
 In case of the death of an employe under the eonditioiis 
 desc.ril)ed in the act, the i)ersonal representative may 
 bring an action, first, for the benefit of the widow, or 
 husband or children of the employe.' If there be no 
 linsband, widow or children, then the employe's parents 
 become the beneficiaries under the federal act.- If there 
 be no husband, widow or children and no parents of the 
 employe surviving him, then the action may be brought 
 for the benefit of the next of kin dependent upon such 
 employe.' "The Federal Employers' Liability Act 
 
 1. Davis' Adm'r v. Cincinnati, Co., 235 U. S. 389, 59 L. Ed. 283. 
 N. 0. & T. P. R. Co., 172 Ky. 55, 35 Sup. Ct. 127, 8 N. C. C. A. 67, 
 188 S. W. 1061. Moffett v. Baltimore & 0. R. Co., 
 
 2. Illinois Cent. R. Co. v. 135 C. C. A. 607, 220 Fed. 39. 
 Stewart, 138 C. C. A. 444, 223 Fed. Arkansas. Long v. Biddle, 124. 
 30; Moffett v. Baltimore & O. R. Ark. 127. 186 S. W. 601. 
 
 Co., 135 C. C. A. 607, 220 Fed. Kentucky. Cincinnati, N. O. 
 
 39; Berg v. Atlantic Coast Line & T. P. R. Co. v. Tucker, 168 Ky. 
 
 R.'co., S. C. , 93 S. E. 144. 181 S. W\ 940. 
 
 390; Tobin v. Bruce, S. D. Mississippi New Orleans. M. & 
 
 , 162 N. W. 933; Geer v. St. C. H. Co. v. .lones. Ill Miss. 852. 
 
 Louis, S. F. & T. Ry. Co., • 72 So. G81. 
 
 Tex. , 194 S. W. 939. Missouri. Smith v. Pryor, 195 
 
 3. United States. Seaboard Mo. App. 259. 100 S. W. t>9. 
 
 Air Line Ry. v. Kenney, 240 U. S. North CaroUna. In re Stone, 
 
 489, 60 L. Ed. 762, 36 Sup. Ct. 458; 173 N. C. 208, 15 N. C C. A. 665. 
 
 McGovern v. Philadelphia & R. R 91 S. E. 852. 
 
 (1053)
 
 1054 Injuries to Interstate Employes. [<§. 593 
 
 provides that an actiou shall be brought by the personal 
 representative of the deceased employe 'for the benefit 
 (1) of the sursdving widow, or husband and children of 
 such employe; and, if none, then (2) of such employe's 
 parents; and if none, then (3) of the next of kin de- 
 pendent upon such emploj^e.' The federal statute there- 
 fore creates three classes, which are separate and dis- 
 tinct from the other. If there is any member of the 
 first class, the other two are excluded. If there is none 
 of the first class, but one or more of the second, then 
 the third class will be excluded. If any member of the 
 last class does not come under the provision 'dependent 
 upon such employe' (Allen, J., Dooley v. Railroad, 163 
 N. C. 454, 79 S. E. 970), then such person is excluded 
 from that class, and if such exclusion shall apply to the 
 whole of that class, then there can be no recovery."* 
 
 § 594. Parents not Entitled to Damages when 
 there is a Widow or Children. Under the federal act 
 the intestate's mother is not entitled to share in the 
 damages when there is a widow. ^ This conclusion 
 necessarily follows from a reading of the statute, be- 
 cause none of the beneficiaries in the second class, the 
 parents, are entitled to any damages, no matter how de- 
 pendent they were, if the decedent left surviving him 
 dependent beneficiaries, named in the first class, that 
 is, a widow or children. On the other hand, if there 
 are no beneficiaries specified in the first class, the 
 beneficiares mentioned in the second class may then 
 recover, if they prove a pecuniary loss by reason of 
 the death of the deceased. 
 
 Ohio. Ransom v. New York, C. 5. Goen v. Baltimore & O. S. 
 
 & St. L. R. Co., 93 Ohio, St. 223, 13 W. R. Co., 179 111. App. 566; 
 
 N. C. C. A. 447, L. R. A. 1916E 704, Davis' Adm'r v. Cincinnati, N. O. 
 
 112 N. E. 586. & T. P. R. Co., 172 Ky. 55, 188 S. 
 
 Texas. St. Louis, S. F. & T. Ry. W. 1061; Geer v. St. Louis, S. F. 
 
 Co. V. Geer, Tex. Civ. App. & T. Ry. Co., Tex. Civ. App. 
 
 , 149 S. W. 1178. , 194 S W. 939; St. Louis, S. 
 
 4. In re Stone, 173 N. C. 208, F. & T. Ry. Co. v. Geer, 
 
 15 N. C. C. A. 665, 91 S. E. 852. Tex. Civ. App. , 149 S. W. 
 
 1179.
 
 ^ 595] Beneficiaries Under Act. 1055 
 
 § 595. Alien Dependents Residing Abroad may 
 Recover under Federal Act. Whetlier alien de- 
 
 poiidcnts of a person killed by the ne^li^ence of another 
 can recover has been the subject of conflicting: decisions 
 by the courts of this country, some holdini^ that tliey 
 are included as beneficiaries under suits giving actions 
 for death, and others holding that they are excluded." 
 A federal district court held tliat the Federal Em])loyers 
 Liability Act did not authorize a recovery for the sole 
 benefit of alien parents of an employe, who resided 
 abroad.^ But when this case reached the Supreme Court 
 of the TTnited States on writ of error, that court held 
 such parents could recover for the death of an employe 
 in an action under the federal act.^ In so holding, 
 Mr. Justice Holmes, after referring to cases from other 
 jurisdictions,® said: "We may refer to these cases for 
 their reasoning without reproducing it, and need not do 
 much more than add that the policy of the Employers- 
 Liability Act accords with and finds expression in the 
 universality of its language. Its purpose is something 
 more than to give compensation for the negligence of 
 
 6. Some of the decisions af- 332. 60 L. R. A. 589. 95 Am. St. 
 firming that alien beneficiaries can Rep. 947. 91 N. W. 979. 
 recover, are the following: Szy- 7- McGovern v. Philadelphia & 
 
 manski v. Blumenthal, 3 Pennew. R- Ry- Co., 209 Fed. 975. 
 (Del.) 558. 52 Atl. 347; Kelly- «. McGovern v. Philadelphia & 
 
 ville Coal Co. v. Petraytls, 195 ^- ^- Co.. 235 U. S. 389, 59 L. Ed. 
 111. 215, 88 Am. St. Rep. 193. 63 ^83, 35 Sup. Ct. 127, 8 N. C. C. A. 
 
 67. Accord: Bombolis v. Minnea- 
 polis & St. L. R. Co.. 128 Minn. 
 112, 150 N. W. 385; Kipros v. 
 Uintah R. Co., 45 Utah 389. 146 
 Pac. 292. 
 
 9. The cases referred to were 
 Am. St. Rep. 534. 93 N. W. 1057 ^^^ following: Kellyville Coal Co. 
 Others denying the right of r^ ^ Petraytis, 195 111. 215, 88 Am. 
 covery are: Maiorano v. Balti- gt. Rep. 193; 63 N. E. 94. aff'g 
 more & 0. R. Co. 216 Pa. 402, 21 95 m /^pp (335. Atchison. T. & 
 L. R. A. (N. S.) 271, 65 Atl. 1077; s. F. R. Co. v. Fajardo. 74 Kan. 
 Deni v. Pennsylvania R. Co., 181 314. 6 N. R. A. (N. S.) 681. 86 
 Pa. 525. 59 Am. St. Rep. 676, 37 Pac. 301; Melzner v. Northern Pac. 
 Atl. 558; McMillan v. Spider Lake R- Co.. 46 Mont. 277, 127 Pac. 1002; 
 ■.r,,, or 1. r^ ,-,r ^r, Mulhall V. Fallou, 176 Mass. 266, 54 
 
 Saw MUl & Lumber Co.. 115 Wis. ^ ^ ^ 934 79 ^^ g^ j^^p g^g^ 
 
 57 N. E. 38G. 
 
 N. E. 94. aff'g 95 111. App. 635; 
 Mulhall V. Fallon, 17G Mass. 266 
 54 L. R. A. 934. 79 Am. St. Rep. 
 309. 57 N. E.386; Renlund v. Com- 
 modore Min. Co., 89 Minn. 41, 99
 
 1056 Injuries to Interstate Employes. [§ 595 
 
 railroad companies. Even if that were its only object, 
 we might accept the distinction expressed in Mulhall v. 
 Fallon, supra, between the duties imposed by a statute 
 upon persons in another state and benefits conferred 
 upon them. Extra-territorial application would natural- 
 ly not be given to the first, 'but rights can be offered 
 to such persons, and if, as is usually the case, the power 
 that governs them makes no objection, there is nothing 
 to hinder their accepting what is offered.' Mulhall v. 
 Fallon, supra (p. 268). The rights and remedies of the 
 statute are the means of executing its policy. If this 
 'puts burdens on our own citizens for the benefit of 
 non-resident aliens,' as said by the district court, 
 quoting the Deni case, supra, it is a burden imposed for 
 wrongdoing that has caused the destruction of life. 
 It IS to the prevention of this that the statute is direct- 
 ed. It is for the protection of that life that compen- 
 sation for its destruction is given and to those who have 
 relation to it. These may be wife, children or parents. 
 The statute, indeed, distinguishes between them, but 
 what difference can it make where they may reside? 
 It is the fact of their relation to the life destroyed that 
 il" the circumstance to be considered, whether we con- 
 sider the injury received by them or the influence of 
 that relation upon the life destroyed." 
 
 § 596. Existence of Beneficiaries Named in Statute 
 Jurisdictional. If an employe of a railroad suffers 
 death while the carrier is engaged in interstate com- 
 merce, and while he is employed in such commerce, nb 
 right of action under any law exists against the carrier 
 for negligence in causing such death, where none of the 
 classes mentioned in the federal statute exists or survive 
 the decedent. The right of action given under the 
 federal law is conferred upon them and no one else. 
 Hence the existence of such beneficiaries is jurisdictional 
 to a right of action.'" That no action exists for the 
 
 10. United States. Seaboard S. 489, 60 L. Ed. 762, 36 Sup. 
 Air Line Ry. v. Kenney, 240 U. Ct. 458; MofEett v. Baltimore &
 
 § 596] 
 
 Beneficiaries Under Act. 
 
 lor/ 
 
 death of an employe unless the hciieficaries named in 
 the act survive was affirmed l)y tlic Supreme Court ot 
 the United States/' In the Garrett case, the court said: 
 "The nature of the ri<;-hts and responsibilities arising 
 out of this act has l)een discussed and determined in 
 four opinions announced by this court since the instant 
 cause was decided by the Circuit Court of Ai)i)eals. 
 Michii-'an C. "R. Co. v. \'reeland, 227 U. S. 59, 57 L. 
 Ed. 417, XI Sup. Ct. Hep. 192, Ann. Cas. 19UC. ]l(m; 
 American R. Co. v. Didricksen, 227 U. S. 145, 57 L. Ed. 
 456, 33 Sup. Ct. Rep. 224; Gulf, C. & S. F. R. Co. v. 
 McGinnis, 228 U. S. 173, 57 L. Ed. 785, 33 Sup. Ct. Rep. 
 426, 3 N. C. C. A. 806; North Carolina R. Co. v. Zachary, 
 232' U. S. 248, 58 L. Ed. 591, 34 Sup. C^t. Rep. 305, Ann. 
 Cas. 1914C 159. It is now definitely settled that the 
 act declared two distinct and independent liabilities 
 resting- upon the common foundation of a wrongful 
 injury : (1) liability to the injured employe for which 
 he alone can recover; and (2), in case of death, liability 
 to his personal representative 'for the benefit of the 
 
 0. R. Co., 135 C. C. A. 607, 220 
 Fed. 39; Thomas v. Chicago & 
 N. W. R. Ry. Co., 202 Fed. 760. 
 
 Arkansas. Long v. Biddle, 124 
 Ark. 127, 186 S. W. 601. 
 
 Kansas. Griffith v. Midland 
 Valley R. Co., 100 Kan. 500, 1G6 
 Pac. 467. 
 
 Kentucky. Cincinnati, N. O. 
 •"- T. P. R. Co. V. Hansford, 173 
 •^"V. 126, 190 S. W. 690; Illinois 
 Cent. R. Co. v. Doherty's Adm'r, 
 153 Ky. 363, 47 L. R. A. (N. S.) 
 31, 155 S. W. 1119. 
 
 Mississippi. New Orleanst. M. 
 & C. R. Co. V. Jones, 111 Miss. 
 852, 72 So. 681. 
 
 Montana. Melzner v. Northern 
 Pac. R. Co., 46 Mont. 277. 127 
 Pac. 1002. 
 
 Washington. Crevilli v. Chicago, 
 M. & St. P. R. Co., 98 Wash. 42, 
 107 Pac. 66. 
 
 "It is conceded that if the fed- 
 eral statute was applicable, the 
 state statute must yield to it, and 
 the plaintiff is not entitled to re- 
 cover because decedent did not 
 leave surviving him a widow or 
 children, parents or other next 
 of kin dependent upon him." 
 Long V. Lusk, supra. 
 
 Suit by half brothers and sis- 
 ters of a porter on an interstate 
 passenger train, who were not 
 dependent on him and who re- 
 ceived no support from him in 
 his lifetime, cannot be sustained. 
 New Orleans, M. & C. R Co. v. 
 .lones, supra. 
 
 11. Garrett v. Louisville & N. 
 R. Co., 235 U. S. 308, 59 L. Ed. 
 242, 35 Sup. Ct. 32, 117 C. C A. 
 109. 197 Fed. 715. 3 N. C. C. A 
 769.
 
 1058 Injuries to Inteestate Employes. [§ 596 
 
 surviving- widow or liusband and children,' and if none, 
 then of the parents, which extends only to the pecuniary 
 loss and damage resulting to them by reason of the 
 death." 
 
 § 597. Who are "Next of Kin" under Federal 
 Act must be Determined by State Law. Section 1 of the 
 act provides that suit for the death of an interstate em- 
 ploye may be brought by the personal representative 
 for the benefit of the sui'\'iving widow or husband and 
 children of such employe ; and, if none, then of such em- 
 ploye 's parents, and, if none, then of the next of kin 
 dependent upon such employe. In the enforcement of 
 the statute it has been contended that the expression 
 "next of kin" as used in the first section of the act 
 should be construed by the common law disregarding 
 the state law defining those words; but the federal 
 Supreme 'Court has held that the next of kin for the 
 purpose of the recovery under the federal act are the 
 next of kin as established by the law of the state where 
 the right to recover obtains.^^ "Plainly the statute," 
 said the court in the Kenney case, cited, "contains no 
 definition of who are to constitute the next of kin to 
 whom a right of recovery is gTanted. But as, speaking 
 generally, under our dual system of government who 
 are next of kin is deteimined by the legislation of the 
 various States to whose authority that subject is normal- 
 ly committed, it would seem to be clear that the ab- 
 sence of a definition in the act of Congress plainly 
 indicates the purpose of Congress to leave the de- 
 termination of that question to the state law. But as it is 
 urged as next of kin was a term well known at common 
 law, it is to be presumed that the words were used as 
 having their common law significance and therefore as 
 excluding all persons not included in the term under the 
 common law, meaning of course the law of England as 
 it existed at the time of the separation from the mother 
 country. Leaving aside the misapplication of the rule 
 of construction relied upon, it is obvious that the con- 
 
 12. Seaboard Air Line Ry. v. Kenney, 240 U. S. 489, 60 L. Ed. 
 
 762, 36 Sup. Ct. 458.
 
 § 598] Beneficiaries Undeu Act. 1059 
 
 tention amounts to sayiiif? that Cono-icss hy the mere 
 statement of a class, that is, next of kin, without de- 
 fining whom the class embraces, must be assumed to 
 have overthrown the local law of the States and sub- 
 stituted another law for it, when conceding that there 
 was power in Congress to do so, it is clear that no 
 such extreme result could possibly be attributed to the 
 act of Congress without express and unambiguous 
 provisions rendering such conclusion necessary. The 
 truth of this view will be made at once additionally 
 apparent by considering the far-reaching consequence 
 of the proposition since if it be well founded, it would 
 apply equally to the other requirements of the statute — 
 to the provisions as to the surviving widow, the husband 
 and children, and to parents, thus for the pui-poses of 
 the enforcement of the act overthrowing the legislation 
 of the States on subjects of the most intimate domestic 
 character and substituting for it the common law as 
 sterotyped at the time of the separation. The argu- 
 ment that such result must have been intended since it 
 is to be assumed that Congress contemplated uniform- 
 ity, that is, that the next of kin entitled to take under 
 the statute should be uniformly applied in all the 
 States, after all comes to saying that it must be assumed 
 that Congress intended to create a unifonnity on one 
 subject by producig discord and want of uniformity as 
 to many others." 
 
 § 598. Illegitimate Children may be Next of Kin 
 within Meaning of Federal Statute. A statute of the 
 state of North Carolina declares that the illegitimate 
 children of a mother shall be considered legitimate as 
 between themselves and that their estate shall descend 
 and be distributed as if they had been born in lawful 
 wedlock and that in the event of the death of any such 
 child, without children, his estate shall be distributed 
 among his mother and such other persons as would be 
 next of kin as if all the children had been born in lawful 
 wedlock. In an action under the Federal Employers' 
 Liability Act the supreme court of North Carolina held
 
 1060 Injuries to Ixtkrstate Employes. [§ 598 
 
 that by virtue of the foregoing statute, a snit could be 
 maintained by an administrator for the death of an 
 illegitmate son wliose mother was dead, for the benefit 
 of the mother's legitimate children who were dependent 
 upon the deceased employe/' The decision of the state 
 court was affirmed by the federal Supreme Court.'* 
 On the other hand, a Kentucky court of a]:)peals, in a 
 suit under the federal act, reached a. different conclu- 
 sion because the law of that state was different from the 
 statute of North Carolina. It was held by that court 
 that a deceased railroad employe who was an unmarried 
 man bom out of wedlock, had no next of kin and that 
 his father's widow and children, although dependent 
 upon him, were not beneficiaries under the statute.'^ 
 
 13. Kenuey v. Seaboard Air 762, 36 Sup. Ct. 458. 
 
 Line R. Co., 167 N. C. 14, Ann. 15. Cincinnati, N. O. & T. P. 
 
 Cas 1916E 450, 82 S. E. 968. R. Co., v. Wilson's Adm'r, 157 Ky. 
 
 14. Seaboard Air Line Ry. v. 460, 51 L. R. A. (N. S.) 308, 163 
 Kenhey, 240 U. S. 489, 60 L. Ed. S. W. 493.
 
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